Judge: Gail Killefer, Case: 19STCV21730, Date: 2023-03-13 Tentative Ruling

Case Number: 19STCV21730    Hearing Date: March 13, 2023    Dept: 37

HEARING DATE:                 March 13, 2023

CASE NUMBER:                  19STCV21730

CASE NAME:                        Jorge Figueroa Vazquez, et al. v. Kia Motors America

MOVING PARTY:                Defendant, Kia Motors America, Inc.

OPPOSING PARTIES:          Plaintiffs, Jorge Figueroa Vazquez aka Jorge Figueroa and Miguel Angel Figueroa

TRIAL DATE:                        None – Notice of Settlement August 16, 2022

PROOF OF SERVICE:          OK

MOTION:                               Defendant’s Motion to Strike, or Tax, Costs

OPPOSITION:                       February 28, 2023

REPLY:                                  March 6, 2023

TENTATIVE:                         Defendant’s motion is granted in part. Plaintiffs’ memorandum of costs is taxed in the amount of $3,897.98. Defendant is to give notice.  

Background

This is a lemon law action arising out of the lease by Jorge Figueroa Vazquez aka Jorge Figueroa and Miguel Angel Figueroa (“Plaintiffs”) of a new 2017 Kia Optima Hybrid (the “Vehicle”) manufactured by Defendant, Kia Motors America (“KMA”).  Plaintiff alleges that the Vehicle was delivered with defects and nonconformities to warranty, including engine and electrical defects. Further, KMA allegedly failed to repair the Vehicle despite Plaintiffs allegedly presenting the Vehicle to KMA and its authorized representatives for repairs on several occasions.

Plaintiffs’ Complaint alleges the following causes of action: (1) violation of the Song-Beverly Act – Breach of Express Warranty, (2) violation of the Song-Beverly Act – Breach of Implied Warranty, (3) violation of the Song-Beverly Act § 1793.2.

On August 16, 2022, Plaintiffs filed a Notice of Conditional Settlement indicating that a request for dismissal would be filed by September 27, 2022. On October 3, 2022, the court set an Order to Show Cause regarding Dismissal after Settlement. On January 18, 2023, the court granted Plaintiffs’ motion for attorney fees in part, and now addresses KMA’s motion to tax Plaintiffs’ memorandum of costs.

Timeliness of Motion¿ 

Pursuant to California Rules of Court (“CRC”), rule 3.1700(b), “[a]ny¿notice of motion to strike or to tax costs must be served and filed 15 days after¿service of the cost memorandum,” with extensions for the manner of service.¿ (CRC, rule 3.1700(b)(1); CCP § 1013(a).)¿ 

Plaintiffs filed their memorandum of costs on December 16, 2022 and served it by email. Defendant’s motion was filed on January 4, 2023 and is untimely pursuant to CRC Rule 3.1700(b). However, CRC Rule 3.1700(b)(3) allows this court discretion to hear this motion now.

Discussion¿ 

                                           I.  Legal Standard 

CCP § 1032 allows for the recovery of costs by a prevailing party as a matter of right.¿ “‘Prevailing party’¿includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”¿ (CCP¿§ 1032(a)(4).)¿¿Pursuant to section 1033.5(c), “(1) Costs are allowable if incurred, whether or not paid.¿ (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.¿ (3) Allowable costs shall be reasonable in amount.”¿ (CCP § 1033.5(c)(1)-(3).)¿ Items not¿mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion.¿ (Id.¿§ 1033.5(c)(4).)¿¿¿ 

“[I]tems¿on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.”¿ (Hadley v.¿Krepel¿(1985) 167 Cal.App.3d 677, 682.)¿ “A trial judge ‘is entitled to take all of the circumstances [of the case] into account and is not bound by the itemization claimed in the attorney’s affidavit.’ ”¿ (Id.¿at p. 683.)¿¿¿ 

                                        II.  Analysis 

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) On the other hand, the filing of a motion to tax costs may be a “proper objection,” to a cost item, “the necessity of which appears doubtful, or which does not appear to be proper on its face.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Thus, the court’s first determination on a motion to tax costs is “whether the statute expressly allows the particular item, and whether it appears proper on its face.” (Id.) “If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” (Id.)¿ 

Defendant first contends several costs in item 1 are unreasonable as Plaintiffs’ failed to meet and confer further, and failed to act timely and properly in producing experts for deposition. (Motion, 3-5.) Defendant requests item 1 be reduced by $323.30 for Plaintiffs’ unreasonable conduct. (Id.) Defendant further requests item 8b for expert fees be reduced by $2,000.00 given the circumstances of the instant action. (Motion, 5-7.) Additionally, Defendants contend item 11 should not be granted as any exhibits or models were not used, and the requested costs are for delivery and pickup of the models themselves. (Motion, 7.) Further, Defendants contend item 12 for court reporter fees should also be stricken as court reporters were retained for the relevant hearing “solely at plaintiffs’ convenience and not reasonably necessary to this litigation.” (Id.) Lastly, Defendant contends item 13 should be stricken as it lacks evidence to show “that these costs were reasonable incurred in prosecuting the case.” (Motion, 7-8.)

Item 1: Filing Fees

In opposition, Plaintiffs contend these fees were reasonably incurred as the discovery motion was necessary to receive “appropriate supplemental response/further production.” (Opp., 7-8.)

The court agrees with Plaintiffs and finds these amounts were reasonably incurred. Thus, Defendant’s motion is denied with respect to item 1.

Item 8b: Expert Fees 

In opposition, Plaintiffs contend Defendant “chose to move forward with a Vehicle Inspection and now attempts to challenge the time spent in response. Moreover, the expert fees were for services rendered as the result of Defendant’s litigation of this case.” (Opp., 8-9.)

Expert witness fees by a prevailing party in a Song-Beverly Act may be recovered if they were “reasonably incurred” in connection with commencing and prosecuting the action. (Jensen v. BMW of North America, Inc.(1995) 35 Cal.App.4th 112.  

The court finds that Plaintiffs’ requested expert witness fees are not substantiated sufficiently by the memorandum of costs, and finds the requested amount to not be reasonably incurred. Therefore, the court grants Defendant’s motion to strike $3,000 with respect to item 8b.

Items 11 & 12

Plaintiffs contend items 11 and 12 are for costs reasonably incurred as the amounts were spent to prepare trial binders in preparation for trial, and Defendant stipulated to the use of the court reporters, which are recoverable as authorized by statute. (Opp., 9-10.)

The court finds Plaintiffs’ requested fees are reasonable and denies Defendant’s motion with respect to items 11 and 12.

Item 13: Other Costs of $1,779.19

Plaintiffs contend that although attorney services and messengers are not specifically recoverable as costs, the court should permit Plaintiffs to recover these costs because they are not specifically prohibited and were incurred for such matters as “filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom.” (Opposition, 11-12.) Plaintiffs cite Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 776 (Ladas) for this argument. 

In Ladas, the Court of Appeal held that “routine expenses for local travel by attorneys or other firm employees” are not reasonably necessary to the conduct of litigation. (Id. at 775-776.) However, the Court of Appeal found that $2,518.91 for “courier and messenger charges” were reasonably incurred, because the supporting declaration demonstrates that these charges were “related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants' document demands, and transporting exhibits to and from the courtroom.” (Id. at 776.) 

The court finds that $897.98 of the costs requested in item 16 are not reasonably incurred. Although Plaintiffs are correct that the court may allow costs for courier charges in its discretion, the court declines to award such costs in this instance. The Memorandum of costs, and Plaintiffs’ submitted materials, are insufficient to demonstrate that these costs were reasonably incurred.

Conclusion 

Defendant’s motion is granted in part. Plaintiffs’ memorandum of costs is taxed in the amount of $3,897.98. Defendant is to give notice.