Judge Holly J. Fujie, Case Number: 22STCV10932, Date: 2025-02-25 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.

The Court has considered the moving and opposition papers. No reply has been filed.

This is a lemon-law action. Plaintiffs sue Defendant pursuant to a March 30, 2022 complaint (the “Complaint”) alleging causes of action for: (1) violation of Song-Beverly Act [breach of express warranty]; (2) violation of Song-Beverly Act [breach of implied warranty]; (3) violation of Song-Beverly Act section 1793.2; (4) fraudulent inducement [concealment]; and (5) fraudulent inducement [intentional misrepresentation].

On November 21, 2024, Plaintiffs filed the instant motion to strike or in the alternative tax costs (the “Motion”). On February 10, 2025, Defendant filed an opposition (the “Opposition”).

Allowable costs under Code of Civil Procedure (“CCP”) section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under section 1033.5 subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). 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, 773-774.)

Moreover, 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, superseded by statute on other grounds].) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)¿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.)

Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ladas, supra, 19 Cal.App.4th at p. 774.) Because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.)¿

Plaintiffs move to tax certain costs on the grounds that Defendant seeks excessive and/or unreasonable filing fees, expert witness fees, court reporter fees, service of process fees and other charges.

Plaintiffs challenge $231.45 in filing fees. (Mot., p. 4:2-16.) Plaintiffs argue that $49.95 for a peremptory challenge and $119.85 for the opposition to the motion to compel further should be taxed because these motions were not necessary. (Mot., p. 4:9-12.) Plaintiffs also argue that $61.56 for the motion to compel vehicle inspection should be taxed because the motion was never filed. (Mot., p. 4:13-14.)

In the Opposition, Defendant argues that these motions were necessary to the conduct of this litigation. (Opp., pp. 4:1-5:12.) Filing and motion fees are statutorily recoverable as costs. (CCP § 1033.5 subd. (a)(1).) The Court finds these costs reasonable and declines to strike them.

Plaintiffs challenge $7,470.83 in expert witness fees because the expert was neither ordered by the Court nor did Defendant serve a 998 offer in this case. (Mot., p. 4:17-25.) Expert witness fees are generally not recoverable unless specifically authorized by statute. (CCP §§ 1033.5 subd. (a)(7)-(8), 1033.5 subd. (b)(1).) In the Opposition, Defendant asserts that the expert witness fees are recoverable pursuant to CCP section 1033.5 subd. (a)(8), which states that fees of expert witnesses ordered by the court are allowable as costs. As the expert witness was not ordered by the Court, Defendant has not shown a statutory basis to recover the expert witness fees claimed here. Thus, the Court strikes $7,470.83 in expert witness fees.

Plaintiffs challenge $110.14 in court reporter fees because the fees are not established by statute nor was the court reporter ordered by the Court. (Mot. pp. 4:26-5:8.) In the Opposition, Defendant asserts that the court reporter fees for transcripts were reasonably necessary to the conduct of the litigation. (Opp., p. 6:10-15.) Whether the cost is reasonable, however, is irrelevant if there is no statutory basis for its recovery in the first place. Trial transcripts not ordered by the Court are expressly excluded under CCP section 1033.5 subdivision (b)(5). Thus, the Court strikes $110.14 in court reporter fees.

CCP section 1033.5 subdivision (a)(4) allows for the recovery of costs for service of process. Defendant has provided the invoice for the service of the motion for summary judgment in the amount of $90.00. (Memo. of Costs, Attach. 14.) The Court finds this cost reasonable and declines to strike it.

Plaintiffs challenge $147.62 in ‘other charges’ including charges for a records subpoena, receipts for minute orders, a FedEx invoice and a receipt for the request for dismissal. (Mot., p. 5:16-23.) Defendant argues that these costs are for serving or retrieving documents associated with trying the case. (Opp., p. 6: 15-18.) The Court finds no statutory basis for allowing these costs and strikes $147.62 from the Other costs.

Based on the foregoing, Plaintiffs’ Motion to Tax Costs is GRANTED, in part. Defendant’s Memorandum of Costs is TAXED in the amount of $7,728.59.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court