Judge: Holly J. Fujie, Case: 21STCV12885, Date: 2024-10-04 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV12885    Hearing Date: October 4, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff VICENTE RODRIGUEZ (“Plaintiff”)

RESPONDING PARTY: Defendant AMERICAN HONDA MOTOR CO., INC. (“Defendant”)

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

             This is a “lemon law” case arising from Plaintiff’s purchase of a 2019 Honda Civic on November 27, 2019.  Plaintiff filed his complaint on April 5, 2021, alleging causes of action for breach of the express and implied warranties under the Song-Beverly Act.

            The case came on for trial on February 5, 2024.  After trial, the jury returned a verdict in Defendant’s favor.  Judgment was entered on February 22, 2024. 

            On July 12, 2024, Defendant filed a Memorandum of Costs (Summary) seeking a total of $24,280.74 in costs.

            On July 26, 2024, Plaintiff filed the instant Motion to Strike or in the Alternative Tax Costs (the “Motion”), seeking to tax Defendant’s costs.  On September 20, 20224, Defendant filed an opposition, and Plaintiff filed a late reply on September 30, 2024.

DISCUSSION

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding.  (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. of Calif. V. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.)  “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).)

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party.  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.) 

            A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.)  A party seeking to tax costs must provide evidence to rebut this prima facie showing.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.)  Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred.  (Id.) 

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an 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.)  “However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’”  (Id. [quoting Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 699] [alterations in original].)

Here, Plaintiff objects to certain costs as itemized in Defendant’s Memorandum of Costs, specifically: 1) Filing Fees; 2) Deposition Costs; 3) Expert Witness Fees; 4) Court Reporter/Transcript Fees; 5) Models and Enlargement Costs; 6) Interpreter Costs; and 7) “Other” Costs.

1.     Filing Fees

Code of Civil Procedure section 1033.5(a)(1) expressly provides recovery for filing, motion and jury fees.  The Court thus denies Plaintiff’s motion as to filing fees.

2.     Deposition and Interpreter Costs

Defendant’s counsel declares that on April 26, 2022, Plaintiff’s counsel canceled the deposition scheduled for April 27, 2022, and that on May 3, 2022, Plaintiff served his objections to Defendant’s Deposition Notice scheduled for May 24, 2022, but represented that he would appear.  (Declaration of Corinne Orquiloa, ¶¶ 2-3.)  Thus, notwithstanding that the depositions did not go forward, Defendant incurred these costs for Plaintiff’s failure to appear.  The Court therefore denies Plaintiff’s motion to strike or tax as to deposition and interpreter costs.

3.     Expert Witness Fees

Pursuant to CCP section 1033.5, expert witness fees are allowable as costs if the expert witnesses were ordered by the court.  (Code Civ. Proc., § 1033.5(a)(8).)  Expert witness fees are not allowable as costs when not ordered by the court.  (Id., § 1033.5(b)(1).)  Pursuant to CCP section 998, however, if an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the court may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.  (Id., § 998(c)(1).)  Such is the case here.  Thus the Court denies Plaintiff’s request to strike or tax expert witness fees.

4. Court Reporter/Transcript Fees

Plaintiff seeks to strike or tax Defendant’s costs for court reporter fees related to the trial. The Court can approve these costs pursuant to Code of Civil Procedure section 1033.5(a)(16), which permits other costs incident to the prevailing in the action at trial.  Thus, Plaintiff’s motion as to court reporter fees is denied.

5.     Models and Enlargement Costs

“Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (CCP § 1033.5(a)(13).)

Defendant asserts that all of the materials which were produced were used by counsel at trial to aid the trier of fact in their verdict.  Finding that the materials were reasonably necessary, the Court denies Plaintiff’s motion as to models and enlargement costs.

6.     “Other” Costs