Judge: Elaine Lu, Case: 21STCV21191, Date: 2024-03-13 Tentative Ruling

Case Number: 21STCV21191    Hearing Date: March 13, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On June 4, 2021, Plaintiffs Vanessa Johnson Ibarra and Edwin Ibarra (jointly “Plaintiffs”) filed the instant action arising out of the lease, then purchase of a 2013 Kia Sorrento (“Subject Vehicle”) against Defendants Kia America, Inc. (“Kia”), Ryan Cars, LLC, Pomona Kia.  The complaint asserts three causes of action for (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Negligent Repair. 

            On May 17, 2023, the parties advised in open court that they had reached a settlement, and Plaintiffs dismissed the action with the Court retaining jurisdiction under Code of Civil Procedure section 664.6.  (Minute Order 5/17/23.)

            On July 24, 2023, Defendant Kia filed the instant motion to tax costs.  On February 29, 2024, Plaintiffs filed an opposition.  On March 6, 2024, Defendant Kia filed a reply.

Legal Standard

“A prevailing party is entitled ‘as a matter of right’ to recover costs in any action or proceeding unless a statute expressly provides otherwise.”  (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)  “Section 1033.5 sets forth the types of expenses that are and are not allowable as costs under section 1032. Specifically, subdivision (a) of section 1033.5 describes items that are ‘allowable as costs,’ subdivision (b) describes items ‘not allowable as costs, except when expressly authorized by law,’ and section 1033.5(c)(4) provides that ‘[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.’”  (Ibid.)

To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)  On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.) 

California Rule of Court, Rule 3.1700 requires that “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).) 

Discussion

            Defendant Kia seeks to tax a total of $24,765.85 in costs as follows (1) $735.00 in filing and motion fees, claimed under Item 1; (2) $2,766.15 in deposition costs, claimed under Item 4; (3) $688.78 in service of process costs, claimed under Item 5; (5) $9,464.87 for expert witness fees, claimed under Item 8b; (7) $4,600.00 for Court reporter fees, claimed under Item 12; and (8) $6,511.05 for attorney services and messengers, appearance attorneys and travel, claimed under Item 13.

“If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [Citation.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.”  (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693.)  “[T]he objecting party has the burden to show that a cost item is unrecoverable because it was not necessary to the litigation.”  (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 338.)  “It is not necessary that the [moving party], …, accompany the motion to tax cost with any affidavit.”  (State of California v. Meyer (1985) 174 Cal.App.3d 1061, 1075.)  “However, more than a bare objection is needed to rebut the presumption that fees were reasonable and necessarily incurred.”  (State of California, supra, 174 Cal.App.3d at p.1075.)

Here, Plaintiffs are prevailing buyers under the Song-Beverly Act.  “Section 1794, subdivision (d), permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’”  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) 

The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, § 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

(Id. at p.138.)

“[T]he Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act[.]”  (Ibid.)  “[T]he Legislature intended the phrase ‘costs and expenses’ to cover items not included in ‘the detailed statutory definition of “costs” ’ set forth in Code of Civil Procedure section 1033.5.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42.)  Therefore, a prevailing buyer is entitled to “costs and expenses” that have been “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”  (Civ. Code, § 1794(d).)

Filing Fees

Filing fees are expressly allowable as costs. (CCP §1033.5(a)(1).)  Thus, the burden is on Defendant Kia to show that the $735.00 in filing costs was not reasonably necessary for the litigation.  Defendant Kia fails to meet this burden.  Defendant Kia merely claims that each of the filing fees it seeks to tax was for an unnecessary motions that did not advance the litigation.  However, Defendant fails to submit any evidence to support this claim.  A memorandum is not evidence and “the court must disregard ‘facts’ contained in an unverified statement.”  (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 578.)  Though some of the motions might not have been reasonably necessary, Defendant fails to show as such. 

However, as Plaintiffs concede in opposition, $100.00 of filing fees were not incurred.  Accordingly, $100.00 in claimed filing fees are stricken.

Deposition Costs

            Defendant Kia seeks to tax $2,766.15 in deposition costs and $688.78 in service of process costs.  The costs for taking, video recording, and transcribing necessary depositions are expressly permitted as costs.  (CCP § 1033.5(a)(3)(A).)  Similarly, service of process and witness fees are expressly permitted.  (CCP § 1033.5(a)(4),(7).)  Therefore, the burden is on Defendant Kia to show that these costs are unnecessary or unreasonable.  Defendant Kia fails to do so. 

            Defendant argues that the deposition fees of service technicians were unnecessary because “Plaintiffs’ attorneys profess to be experts in this area of the law. Given their expertise and their knowledge of the relevant facts at the outset of the litigation, Plaintiffs' attorneys know there is no reason to take the depositions of service advisors and technicians because the service advisors and technicians keep a contemporaneous record of their work on the repair orders they prepare each time they work on a vehicle. Plaintiffs' attorneys also know the service advisors and technicians work on hundreds of vehicles each year and cannot remember each one. There was no reason to incur the cost of serving deposition subpoenas on and taking the depositions of the service advisors and technicians in this case.”  (Motion at p.6:7-15.)  However, Defendant again fails to submit any evidence to support this claim.  A memorandum is not evidence and “the court must disregard ‘facts’ contained in an unverified statement.”  (Smith, Smith & Kring, supra, 60 Cal.App.4th at p.578.)  At most, Defendant Kia merely provides general objections to these costs.  This is insufficient to tax a permitted cost.  (State of California, supra, 174 Cal.App.3d at p.1075.) 

Expert Witness Fees

            Expert witness fees are generally not permitted unless ordered by the court under Code of Civil section 1033.5(a)(8) or “except when expressly authorized by law.”  (CCP § 1038(b).)  However, Plaintiffs are prevailing buyers under the Song-Beverly Act.  “Section 1794, subdivision (d), permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’”  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) 

The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, § 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

(Id. at p.138.)

“[T]he Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act[.]”  (Ibid.)  “[T]he Legislature intended the phrase ‘costs and expenses’ to cover items not included in ‘the detailed statutory definition of “costs” ’ set forth in Code of Civil Procedure section 1033.5.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42.)  Therefore, a prevailing buyer is entitled to “costs and expenses” that have been “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”  (Civ. Code, § 1794(d).)

Expert fees clearly fall within the intended expenses and legislative history of Civil Code section 1794.  (Jensen, supra, 35 Cal.App.4th at p.138.)  Moreover, expert witness fees are expenses that are clearly reasonably incurred by the buyer with the commencement and prosecution of such action. 

However, not all of the claimed expert fees here are reasonable or incurred in connection with the Song-Beverly Claims.

As to expert Anthony Micale, the expert fee is excessive.  As Plaintiff stated under oath during expert witness disclosure, Micale’s hourly rates were $350.00 per hour for providing deposition testimony and or consulting with the retaining attorney, $350.00 per hour for vehicle inspections and investigations and $150.00 per hour for travel and an additional $0.55 per mile.  (Rotman Decl. ¶ 10, Exh. 7.)  Per the invoice provided, Micale claimed expert fees of 27.25 hours at $400 per hour, mileage fees of 0.585 per hour, meal costs of $168.70, parking fees of $5, and hotel fees of $315.14.  (Rotman Decl. ¶ 8, Exhs. 5-6.)  As Plaintiffs’ Counsel was required by statute to provide accurate expert fees under penalty of perjury, (CCP § 2034.260(c)), the Court concludes that Micale’s invoice is erroneous and that the reasonably incurred fees are reflected in Plaintiff’s Counsel’s disclosure of the hourly rate.  Further, the travel time and deposition preparation time are slightly excessive, especially given that only 30 minutes were spent reviewing the vehicle.  Thus, the Court concludes a reduction of $1,375.00 is warranted.

Court Reporter Fees

            Defendant contends that the Court reporter fees are excessive on their face because they exceed the Los Angeles Superior Court fee schedule and were not reasonably incurred.  In general, Court reporter fees are only permitted in the amount established by statute.  (CCP § 1033.5(a)(11).)  Moreover, such costs must have been reasonably incurred.  (CCP § 1033.5(c)(2).)  Even under the more expansive expenses for Song-Beverly Claims, the fees must be reasonably incurred in the prosecution of the Song-Beverly Claims. 

            Here, there was no motion or hearing that would require a court reporter as little to no motion practice occurred in the instant action.  The billing for the court reporter hearings provides for only seven one-hour hearings of which only one was for a motion.  (Rotman Decl. ¶ 11, Exh. 8.)  Multiple of these hearings involved simple ex parte applications to continue trial where undoubtedly a court reporter was unnecessary.  Thus, a reduction of $3,450.00 in claimed court reporter fees is warranted.

Other Fees

Here, the memorandum claims $6,511.05 in other fees including attorney travel costs, fees, legal research fees, mediation, private investigator lookup, courtesy copies, postage, and other fees.

Here, Plaintiffs’ firm is from San Diego.  Thus, lodging and transportation costs for the trial are expenses “reasonably incurred by the buyer in connection with the … prosecution of such action.”  (Civ. Code, § 1794(d).)  Though Defendant Kia disputes the price of the hotel, Defendant Kia fails to provide any prices of nearby hotels for the relevant time period so as to enable the Court to determine whether the hotel costs were unreasonable.  As to the meal expenses, these were not reasonably incurred in connection with the prosecution of the action “since attorneys have to eat, whether they are conducting litigation or not.”  (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)  Similarly, Plaintiffs’ counsel brought non-Song-Beverly Claims in the instant action, and Plaintiffs’ counsel cannot unilaterally claim that all legal research fees were incurred for these claims.  Further, Plaintiffs’ counsel agrees that $318 in costs were improperly claimed.  Accordingly, the Court finds that $955.66 of other costs were not reasonably incurred and are therefore taxed.

Conclusion and ORDER

Based on the foregoing, Defendant Kia Motors America, Inc.’s motion to tax costs is GRANTED IN PART. 

Plaintiffs’ costs are granted in the total amount of $24,278.73.

Moving Party to give notice and file proof of service of such.

DATED:  March ___, 2024                                                      _________________________

Elaine Lu

                                                                                          Judge of the Superior Court