Judge: Gail Killefer, Case: 20STCV00136, Date: 2024-08-28 Tentative Ruling
Case Number: 20STCV00136 Hearing Date: August 28, 2024 Dept: 37
HEARING DATE: Wednesday, August 28, 2024
CASE NUMBER: 20STCV00136
CASE NAME: Juan Ocampo v. Kia Motors America, Inc.
MOVING PARTY: Defendant Kia Motors America,
Inc.
OPPOSING PARTY: Plaintiffs Juan Ocampo and Mari
Alonzo
TRIAL DATE: N/A
PROOF OF SERVICE: OK
PROCEEDING: Motion to Strike/Tax Costs
OPPOSITION: 07 August 2024
REPLY: 21
August 2024
TENTATIVE: Defendant’s motion to strike the memorandum
of costs is denied. Defendant’s motion to tax costs is denied.
Background
On January 7,
2020, Juan Ocampo and Maria Alonzo
(“Plaintiffs”) brought this lemon law action against Kia Motors America, Inc. (“Defendant”), the
manufacturer and/or distributor of their purchased vehicle, a 2013 Kia Sorento
(the “Vehicle”). The Third Amended Complaint (“TAC”) alleges violations of the
Song-Beverly Act and asserts five causes of action for: (1) Violation of Civ. Code § 1793.2; (2)
Violation of Civ. Code § 1793.2(b); (3) Violation of Civ. Code, § 1793.2(a)(3);
(4) Violation of §§ 1791.2(a), 1794; and (5) Breach of Implied Warranty.
On January 23,
2024, during the final status conference, the Parties settled this matter. On
March 31, 2024, Plaintiffs dismissed the entire action with prejudice. On July
2, 2024, Plaintiffs filed a memorandum
of costs seeking $21,366.07 in costs. Defendant has filed a motion to strike or
tax costs. Plaintiffs oppose the Motion. The matter is now before the court.
I. Legal Standard
Under the Song-Beverly Act, the
prevailing party can recover “costs and expenses . . . based on actual time
expended, 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).)
Assuming the “prevailing party”
requirements are met, the trial court has no discretion to order each party to
bear his or her own costs of suit.¿ (Michell v. Olick (1996) 49
Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111,
129.)
After judgment is entered, the
prevailing party “who claims costs must serve and file a memorandum of costs
within 15 days after the date of service of the notice of entry of judgment or
dismissal, or within 180 days after entry of judgment, whichever is first.”
(Cal. Rules of Court, rule 3.1700(a).) “The memorandum of costs must be
verified by a statement of the party, attorney, or agent that to the best of
his or her knowledge the items of cost are correct and were necessarily
incurred in this case.” (Id.)¿¿
¿¿
In turn, the losing party may file
a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).)
Procedurally, “[a]ny notice of motion to strike or to tax costs must be served
and filed 15 days after service of the cost memorandum.” (Id.) “Unless
the objection is made to the entire cost memorandum, the motion to strike or
tax costs must refer to each item objected to by the same number and appear in
the same order as the corresponding cost item claimed on the memorandum of
costs and must state why the item is objectionable.” (Cal. Rules of Court, rule
3.1700(b)(2).) “Allowable costs shall be¿reasonably necessary to the conduct of
the litigation rather than merely convenient or beneficial to its preparation.”
(CCP, § 1033.5(c)(2).)¿¿
II. Discussion
Defendants seek to
strike the memorandum of costs or tax $16,265.36 from the memorandum as
follows:
A. Item 1: Filing and
Motion Fees
Defendant seeks to
tax $749.21 in filing and motion fees because the costs consist of unnecessary
motions to amend the Complaint or sought unnecessary discovery.
Plaintiffs point
out that as the prevailing party, filing and motion fees are expressly
allowable under Code Civ. Proc. section 1033.5(a)(1). Plaintiffs assert that
motion practice was necessary and the fact that Plaintiffs did not prevail on
some of their motions does not justify denying recovery of costs for filing
those motions. “The final ground of resolution may become clear only after a
series of unsuccessful attacks. Compensation is ordinarily warranted even for
those unsuccessful attacks, to the extent that those attacks led to a
successful claim.” (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000)
79 Cal.App.4th 1127, 1133.)
The court disagrees
with Defendant’s assertion that filing fees associated with filing amended
pleadings and motions to amend were unnecessarily incurred because they were
filed in response to Defendant’s demurrers. The fact that Defendant’s demurrers
were successful does not warrant taxing costs associated with filing amended
pleadings.
Therefore, Item 1
will not be taxed.
B. Item 2: Plaintiffs’
Posting of Jury Fees
Defendant seeks to
tax $150.00 in jury fees because a jury trial was not held, and Defendant Kia
did not want a jury trial.
Plaintiffs point
out that jury fees are required to be posted on or before the date of the
initial case management conference and are an expressly allowable cost. (CCP,
§§ 631, 1033.59(a)(1).) Furthermore, even if no jury trial was held, the
posting of jury fees is “a reasonable litigation expense and was recoverable
under section 1033.5, subdivision (a)(1).” (Naser v. Lakeridge Athletic Club
(2014) 227 Cal.App.4th 571, 576.)
The court agrees
that there is no legal basis justifying taxing the posting of jury fees.
Therefore, Item 2 will not be taxed.
C. Item 4 and Item 5: Costs Associated with
Depositions of Witnesses & Service of Process Costs
Defendant seeks to
tax $8,104.05 in deposition costs because most of the depositions were
redundant and unnecessary. Defendant also seeks to tax $239.50 for service of
process costs because serving subpoenas to third-party dealerships and
witnesses was unnecessary.
Plaintiffs first
point out that deposition costs and costs for service of process are allowable
costs. (CCP, §§ 1031 and 1033.5.) Plaintiffs also point out that deposing
dealership staff was necessary to prove breach of warranty, and that dealership
staff were percipient witnesses who repaired the Vehicle and prepared the
repair orders, and their testimony was necessary to both authenticate the
evidence and explain the significance of repair orders. (Cohen Decl., ¶¶ 5-7.)
Plaintiffs further assert that the subpoenas to the dealerships were served in
a single service attempt. (Cohen Decl., ¶ 6, Ex. B.)
Defendant fails to
show it offered to stipulate the authenticity and significance of repair orders
such that the subpoenas would have been unnecessary and unreasonable. Defendant
cannot rely on statements made in its motion to argue that the costs incurred
by Plaintiff are unreasonable and unnecessary. (See Jones v.¿Dumrichob (1998)
63 Cal.App.4th 1258, 1266 [“[A] party’s mere statements in the points and
authorities accompanying its notice of motion to strike cost bill and the
declaration of counsel are insufficient to rebut the prima facie showing that
the costs were necessarily incurred[.]”].)
Consequently,
Defendant fails to show that service of process costs incurred in serving
subpoenas to dealership technicians and service advisors were unreasonably
incurred.
Therefore Item 4
and Item 5 will not be taxed.
D. Item 16: Other Charges
Defendant seeks to
tax $7,022.60 in “other” charges because they consist of improper charges, are
not allowable costs, including courtesy copies, remote appearance fees,
transcripts for hearings, experts’ fees not ordered by the court, reservation
fees on unnecessary motions, expert invoices, and mileage and parking.
Defendant fails to point to costs showing that Plaintiffs seek to recover fess
related to Federal Express or messenger fees.
Furthermore,
Defendant asserts that the “other” costs Plaintiffs seek to recover are not
expressly allowable under statute. However, Code Civ. Proc. 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.”
Moreover, in Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, the Appeal Court
that under Civ. Code section 1794(d) of the Song-Beverly Act, prevailing
plaintiffs can recover not only costs specified in Code of Civil Procedure
section 1033.5, but also other "expenses" like expert witness fees
that would not otherwise be recoverable. (Id., at 138.)The inclusion of
the words “cost and expenses” included in Civ. Code section 1794(d) is to be beyond those enumerated under Code
of Civil Procedure section 1035.5 and is to be interpreted broadly to include
such things as filing fees, expert witness fees, marshal’s fees, etc., in order
to “ ‘open the litigation process to everyone.’ ” (Id., at pp. 137-138;
see also Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24,
42-43 [finding buyer could recover reasonable costs incurred in connection with
her action under Song-Beverly, including trial transcripts that were not court
ordered.].) Therefore, the court agrees that court reporter fees are
recoverable under section 1794(d).
Defendant fails to
show why costs for expert fees, travel/mileage costs, parking, courtesy copies,
and reservation fees for motions to compel are fees that were not reasonably
incurred and not necessary for the conduct of litigation. Moreover, the Plaintiffs
assert that remote appearance fees were reasonably incurred because LASC does
charge a fee for remote appearance. (Cohen Dec., ¶ 9, Ex. D.) “If the items on
a verified cost bill appear proper charges, they are prima facie evidence that
the costs, expenses and services therein listed were necessarily incurred.” (Seever
v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)
Based on the above,
Item 16 will not be taxed.
Conclusion
Defendant’s motion to strike the
memorandum of costs is denied. Defendant’s motion to tax costs is denied.