Judge: Gail Killefer, Case: 21STCV14151, Date: 2023-08-09 Tentative Ruling
Case Number: 21STCV14151 Hearing Date: August 9, 2023 Dept: 37
HEARING DATE: Wednesday, August 09, 2023
CASE NUMBER: 21STCV14151
CASE NAME: Cesar Blanco,
et al. v. FCA US, LLC
MOVING PARTY: Defendant, FCA US, LLC
OPPOSING PARTY: Plaintiff, Cesar Blanco, on behalf of Three Stars Builders, Inc.
TRIAL DATE: N/A
PROOF OF SERVICE: OK
PROCEEDING: Motion to Tax Costs
OPPOSITION: 27 July 2023
REPLY: 2
August 2023
RECOMMENDATION: Defendant’s
Motion to Tax Costs is granted in part in the amount of $2,133.12. Plaintiffs’ request
for attorney’s fees is granted in the amount of $1,732.50.
Background
This is a lemon law action arising out of the purchase by Cesar
Blanco, on behalf of Three Stars Builders, Inc. (“Plaintiffs”) of a new 2014
Dodge Ram (the “Vehicle”) manufactured by Defendant, FCA US, LLC (“FCA”).
Plaintiffs allege that the Vehicle was delivered with defects and
nonconformities to warranty, including engine and electrical defects. Further,
FCA allegedly failed to repair the Vehicle despite Plaintiffs allegedly
presenting the Vehicle to FCA and its authorized representatives for repairs on
several occasions.
Plaintiffs’ Complaint alleges four 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 section 1793.2, and (4) negligent repair against Defendant
Champion Chrysler Jeep Dodge Ram Fiat.
On
October 19, 2022, Plaintiffs accepted Defendant FCA’s Offer to Compromise in
the amount of $102,000.00.
On
April 20, 2023, Plaintiffs’ Motion to Tax Costs was granted in part, and
Plaintiff was awarded $33,669,90 in attorney’s fees.
On
April 12, 2023, FCA filed a Motion to Tax Costs. On July 7, 2023, Plaintiffs filed opposing
papers. On August 2, 2023, FCA filed a reply.
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).)¿
Pursuant
to Plaintiffs’ Memorandum of Costs, Plaintiffs seek to recover $17,969.37 in
costs. FCA now moves to tax the
Memorandum of Costs. The court will tax Plaintiffs’ memorandum of costs in the
amount of $2,133.12 as outlined below. The court also awards Plaintiffs’
request for attorney’s fees in the amount of $1,732.50.
A. Sec. 4 - Deposition Costs
FCA states $4,729.20 should be taxed
from Plaintiffs’ deposition costs because the costs pertain to the depositions
of dealership personnel. FCA asserts that the deposition costs of dealership
personnel were unnecessary and unreasonable because they did not generate
useful information and information about repair orders could be gathered more
efficiently by stipulation as to the accuracy and authenticity of the repair
orders or by deposition subpoena for production of documents on the custodian
of records.
Plaintiffs assert that the deposition
costs of dealership personnel were reasonably incurred and necessary to ensure
their testimony and to lay the foundation for sales contract and repair orders,
as well as obtain testimony based on their personal knowledge of communications
with Plaintiffs and the repairs performed on the Vehicle. (Cutler Decl. ¶ 6.)
Furthermore, the costs are recoverable under CCP § 1033.5 and Civ. Code §
1794(d).
The court finds that although
information about the accuracy and authenticity of the repair orders could have
been obtained through less burdensome means, FCA fails to show it opposed this
method of discovery or offered to stipulate to the accuracy and authenticity of
repair orders before the depositions took place. As the party opposing
Plaintiffs’ proposed discovery method, the burden was on FCA to offer a less
burdensome discovery method. Therefore, FCA has failed to show that Plaintiffs
did not reasonably incur the costs of the depositions and that the costs were
unnecessary. Had FCA offered to stipulate to the accuracy and authenticity of
the repair orders or offered to produce the documents in lieu of the
depositions, the court would be inclined to find that the deposition costs of
the dealership personnel were not reasonably incurred.
Accordingly, deposition costs will not
be taxed.
B. Sec.
5 - Service of Process Costs
Of the $607.54 Plaintiffs
seeks in reimbursement for service of process costs, FCA seeks to tax $517.54
for the service of process of the nine dealership personnel deposition
subpoenas.
As the court declined to
tax the deposition costs, the court also declines to tax the service of process
costs on the basis that the costs were unnecessarily incurred. FCA also contends
that service of process fees in the amount of $82.80 for Champion Doge Tec
#3071 and $67.50 for three of the dealership personnel depositions is
excessive. FCA contends that the service of process costs for each of the nine
dealership personnel should have been around $15.53 each, totaling $139.77 such
that the process costs should be taxed in the amount of $377.77.
Plaintiffs asserts because the
witnesses were nonparties, each witness must be served with his own subpoena.
Plaintiffs also sent trial subpoenas to the individual witnesses so that
Plaintiffs could call them as witnesses at trial if necessary. Even if not all witnesses
were deposed, it was not unreasonable for Plaintiffs to try to obtain the
relevant discovery regarding the repair history of the subject vehicle.
Plaintiffs also submitted invoices for all dealership personnel served. (Cutler
Decl. Ex. A.) Therefore, the court finds that Plaintiffs have shown that the
service process fees were reasonably incurred, and no items will be taxed from
Section 5.
C. Sec. 8a - Costs for Ordinary Witness Fees
FCA seeks to tax costs in
the amount of $35.00 for witness fees in relation to K. Lauricheese, who is employed
by the dealership and whose testimony FCA contends is unreasonable and
unnecessary. Plaintiffs’ opposing papers fail to explain why the testimony of
K. Lauricheese was necessary. The fact that witness fees are recoverable does
not explain why the costs were reasonably incurred.
Therefore, $35.00 will be
taxed from the memorandum of costs.
D. Sec. 8b - Costs for
Expert Witness Fees
FCA opposes the 12.3 billed
in expert fees by Christopher Morales.
FCA argues the memorandum of costs does not identify what the costs are
for and that Mr. Morales’ deposition lasted less than 90 minutes. FCA argues only 3 hours should have been
spent preparing for his deposition. FCA asks that this item be reduced by 75%
and $2,617.50 be taxed.
Plaintiffs submit Mr.
Morales’ itemized invoices showing the hours billed and expenses incurred.
(Cutler Decl. ¶ 5, Ex. A.) Plaintiffs assert that Mr. Moralez spent time
reviewing FCA’s document production, depositions, repair history, warranty
date, service bulletins, and technical data, and spent time researching and
drafting work products such as analysis of repairs and trial opinion. Plaintiffs
have provided sufficient evidence that the $3,875.00 billed by Mr. Morales was
reasonably incurred. The fact that Mr. Morales’ deposition lasted only 90
minutes is not indicative of the fact that Mr. Morales should have spent less
time preparing. Nor is it indicative of the fact the costs were not reasonably
incurred.
In reply, FCA submits the
deposition testimony of its expert witness, Jeff Richards, who attests that he
only spent 3.5 hours preparing for the deposition and only billed $797.50,
while Mr. Morales spent 10.8 hours reviewing the case file and preparing for
the deposition. (Richards Depo. ¶ 3, Ex. A.) Mr. Morales’ invoice includes a
$100.00 charge for “case intake” which FCA asserts is an impermissive
administrative and .5 hours of duplicative work were billed to review notes and
opinions drafted the day before.
The court agrees that
Plaintiffs fail to show that 10.8 hours billed by Mr. Morales in preparation
for his deposition were reasonably incurred. The court taxes 5.0 hours billed
at a rate of $300.00 per hour from Mr. Morales’ witness fees. Accordingly,
$1,500.00 will be taxed from Section 8b.
E. Section 11 - Costs for Models, Blowups,
and Photocopies of Exhibits
FCA asserts that Plaintiffs
only identified 186 exhibits to be used at trial and the $1,314.25 requested is
unreasonable and should be taxed in the amount of $814.25.
Plaintiffs assert that per
Department 37’s local rules, in addition to photocopies, Plaintiffs incurred
costs in submitting trial binders and courtesy copies of the trial documents.
Plaintiffs also provides an itemized bill reflecting the $1,314.25 requested in
fees. (Cuttler Decl. Ex. A.) Therefore, the court finds that the costs for
models, blowups, and photocopies were reasonably incurred and necessary. No
items from Section 11 of the Memorandum of Costs will be taxed.
F. Section 12- Costs
for Court Reporter Fees
FCA asserts that court
reporter fees in the amount of $1,890.00 are unreasonable and $630.00 is
missing from the costs listed in Section 12 of the memorandum of costs.
Plaintiffs provide an
itemized invoice for $630.00 in court reporter fees for three hearings on
11/19/21, 9/02/2022, and 10/11/22. (Cuttler Decl. Ex. A.) Further, FCA stipulated
to the use of the reporters at the hearings.
The court finds that the
court reporter fees were reasonably incurred and no items in Section 12 will be
taxed.
G. Section 13 - Other
Costs in the Amount of $1,232.98
FCA alleges that “other
costs” for Attorney Service and Messengers for Court Filings, and Service”
($646.03); Mediation ($433.33); Appearance Attorney ($130.00); and Travel
($23.62) in the total amount of $1,232.98 is unreasonable as there are no
supporting documents or an explanation as to why the costs and expenses were
incurred.
Plaintiffs assert that the
attorney service and messenger fees were related to trial preparation,
including filing documents and exhibits with the court. (See Ladas v. California State
Automobile Association
(1993) 19 Cal.App.4th 761, 776.) Plaintiffs also assert that travel costs,
including parking and mileage, are recoverable costs under the Civ. Code §
1794(d) because the costs were reasonably incurred. Plaintiffs also submit an
itemized invoices for each of the “other” costs incurred. (Cutler Decl. Ex. A.)
On reply, FCA opposes the
$435.00 charged on an invoice dated 4/14/2021 for “Court Fees Advanced to
Complete Assignment” as $435.00 was also charged to FCA as court fees for
filing the Complaint. (Cuttler Decl. Ex. A.) As the invoices share the same
date and amount, the court agrees that the $435.00 is a duplicative cost and
will be taxed. (See Cuttler Decl. Ex. A at p. 11, 56.) FCA also asserts that
the $150.00 in Jury Fees is also duplicative as Plaintiffs attach the same
invoice dated 9/17/21 to recover the $150.00 both under Jury Fees and as
“Other” costs. (See Cuttler Decl Ex. A.
at p. 17, 59,) Thus, $150.00 will be taxed. Defendant also opposes the travel
costs of $23.62 because Plaintiffs’ invoice only shows a travel expense of
$10.50, meaning $13.12 should be taxed. The court agrees.
Therefore, $598.12 will be
taxed from other costs ($435.00 + $150.00 + $13.12 = $598.12).
In total, the
court will tax Plaintiffs’ memorandum of costs in the amount of $2,133.12 ($35.00 + $1,500.00 + $598.12 = $2,133.12).
III. Plaintiffs’ Request for Attorney’s Fees
for Opposing Motion
“[T]he
time expended by attorneys in obtaining a reasonable fee is justifiably
included in the attorneys' fee application, and in the court's fee award.” (Serrano
v. Unruh¿(1982) 32 Cal.3d 621, 631.) “Prevailing parties are compensated
for hours reasonably spent on fee-related issues. A fee request that appears
unreasonably inflated is a special circumstance permitting the trial court to
reduce the award or deny one altogether.” (Id. at 635.)
Plaintiffs seeks to recover
$2,871.00 in attorney’s fees for the 5.8 hours spent reviewing FCA’s
opposition, drafting a reply, reviewing the opposition, and preparing for the
hearing at an hourly rate of $495.00 per hour. (Cuttler Decl. ¶¶ 10-12.) The court finds the amount requested by
Plaintiffs is excessive, and awards Plaintiffs $1,732.50
in attorney’s fees for 3.50 hours of work billed at a rate of $495.00 per
hour.
Conclusion
FCA’s Motion to Tax Costs is
granted in part in the amount of $2,133.12.
Plaintiffs’ request for
attorney’s fees is granted in the amount of $1,732.50.