Judge: Gregory Keosian, Case: BC545525, Date: 2022-07-26 Tentative Ruling

Case Number: BC545525    Hearing Date: July 26, 2022    Dept: 61

Defendant Ford Motor Company’s Motion to Tax Costs of Plaintiff’s Counsel Knight Law Group is GRANTED in part: $6,832.44 in costs are taxed, leading to a total cost award of $42,803.70.

Defendant Ford Motor Company’s Motion to Tax Costs of Plaintiff’s Counsel O’Connor Law Group is DENIED.

I.                   MOTION TO TAX COSTS

“Any 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 as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“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.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiff here has submitted two memoranda of costs, to which Defendant objects. The first, filed by Knight Law Group, seeks $49,365.43 in costs, while the second, filed by O’Connor Law Group, seeks $1,562.31.

Defendant argues that Knight Law Group cannot obtain any costs associated with the appeal in this matter, which ultimately resulted in the California Supreme Court rejecting Plaintiff’s arguments concerning the admissibility of prior deposition testimony. (Motion at pp. 5–6.) But as this court ruled in granting Plaintiff’s motion for attorney fees on July 14, 2022, Plaintiff may claim fees and costs associated with the appeal, as Plaintiff obtained a substantially favorable settlement prior to the Supreme Court’s ruling.

Defendant argues that Plaintiff cannot obtain expert fees (here amounting to $17,616.89), as such fees are not permitted under Code of Civil Procedure § 1033.5, and in any event were not reasonably incurred. (Motion at p. 6.) But Defendant ignores that expert fees are recoverable “expenses” in Song Beverly cases. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138 [holding that allowable “expenses” under Song Beverly Act include expert witness fees].) The costs memorandum also includes the names and hours charged for the two experts employed in this case. The costs appear reasonable and related to this action.

Defendant also objects, appropriately, to the $4,927.53 in costs for models, blowups, and photocopies. (Motion at p. 7.) As such exhibits were never presented to a trier of fact, they cannot be claimed as costs under Code of Civil Procedure § 1033.5, subd. (a)(13). (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 665.) Such costs may still be allowed in the discretion of the court, but for such discretionary costs, “the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Here, there is little evidence or argument to support the reasonableness of the costs apportioned to exhibits, save for the language in the memorandum and a receipt for a bindering and boxing service supplied in opposition. (Devabose Decl. Exh. A.) These costs are therefore properly taxed.

Defendant next targets the “other” costs not expressly permitted by statute claimed in the KLG memorandum, including $1,227.76 in messenger services, $1,989.89 in travel expenses, $202.77 in mediation costs, and $1,264.25 in copying expenses. (Motion at pp. 7–8.)

The materials submitted in opposition show that the messenger service charges were for filing court materials, and therefore appear reasonable. The travel expenses are likewise incurred in connection with trial and pre-trial proceedings, and also mostly compensable, save for $107.65 in meal expenses, which would have been incurred in any event entirely apart from the case. (See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774–775 [disallowing meal costs].) The copy charges claimed in the memorandum of costs are set forth with little detail, and the accompanying materials in Plaintiff’s opposition furnish little basis to assess reasonableness, save for one $694.75 charge to copy exhibits to send to the court of appeal, which is reasonable. The mediation costs too, charged in three separate rounds in May 2016, November 2018, and September 2020, likely helped to facilitate the ultimate settlement of this case prior to its resolution on appeal, and were therefore reasonable. Accordingly, of the $4,685.67 in miscellaneous costs challenged above, $1,904.91 is appropriately taxed.

Thus Defendant’s motion with respect to the costs claimed by KLG is GRANTED in part: $6,832.44 in costs are taxed, leading to a total cost award of $42,803.70.

As for the costs claimed by the O’Connor Law Group, Defendant challenges two cost items: one $330.00 charge for service of process, and a $368.80 charge for other costs. (Motion at pp. 4–5.) The memorandum of costs is indeed somewhat vague as to the charges, as it lists only messenger fees for court filings under the “other” costs tab, and specifies only one document for which service of process was necessary, which was a notice of deposition for a defendant person-most-knowledgeable. However, Plaintiff has fixed this vagueness in opposition, offering receipts indicating what was served or filed and when. (O’Connor Decl. Exh. A.) The motion is therefore DENIED as to the costs incurred by O’Connor.