Judge Holly J. Fujie, Case Number: 22STCV12986, Date: 2024-02-21 Tentative Ruling

This is a lemon law action arising from Plaintiff Hall’s purchase of a 2020 Chevrolet Silverado from Defendant M.K. Smith Chevrolet. Plaintiff Hall filed a Complaint against Defendant GM, M.K. Smith Chevrolet, and DOES 1 through 40, 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; and (4) Negligent Repair.

Defendant GM filed this instant motion to tax costs. Plaintiff Hall filed an opposition. Defendant GM filed a reply.

Under the Code of Civil Procedure, Section 1032, subdivision (4), “[i]f any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (4).)

Defendant GM moves to strike or tax costs requested in the memorandum of costs of Plaintiff Hall’s Counsel Writz Law APC (“Counsel”). Specifically, Counsel seeks $6,731.29 in costs for this case matter, as to which Defendant GM contends Counsel presents no evidence in support other than the memorandum of costs itself. Defendant GM further argues that Counsel has actually sought $6,296.29 in costs that are unreasonable and unnecessary.

As to Item 1, Defendant GM contends Counsel improperly seeks $246.60 for filing and motion fees for three motion to compel deposition attendance and one motion for attorney fees. Defendant GM asserts the discovery motions were taken off the Court’s calendar. As such, Defendant GM argues it should not be billed for unnecessary motions that never came on for hearing. Defendant GM further argues Plaintiff Hall has not yet filed a motion for attorney fees and should not be awarded costs for a motion that has not even been filed. Moreover, Defendant GM contends Plaintiff Hall’s motion costs were optional costs that Plaintiff Hall elected, where the notice was entirely one-sided.

As to Item 2, Defendant GM also argues Counsel improperly seeks $150.00 for jury fees because this case never went to trial.

As to Items 4 and 5, Defendant GM further argues Counsel improperly seeks $455.02 for service of process costs and $3,429.20 in deposition costs for the depositions of M.K. smith technicians, service advisor and person most qualified. Specifically, Defendant GM contends these depositions were never taken. Also, Defendant GM contends the dealerships are non-parties with their own counsel and are not controlled by Defendant GM. Lastly, Defendant GM argues none of this work by Counsel advanced Plaintiff’s case and benefitted only Counsel.

As to Item 11, Defendant GM contends it should not be required to pay $625.00 in costs for court reporter fees for Plaintiff Hall’s motion for attorney fees and motion for costs. Defendant GM argues that Counsel still had not filed a motion for attorney fees when the memorandum of costs was filed.

As to Item 14, Defendant GM argues Counsel improperly seeks $807.18 in fees for electronic filing because Counsel did not attach a worksheet or any verification of the alleged costs.

As to Item 16, Defendant GM asserts Counsel improperly seeks $175.20 for courtesy copies and $408.09 for printer charges, business meals, mileage, legal research, postage, and mediation. Defendant GM argues courtesy copies are not required expenses and are unreasonable and excessive. By contrast, Defendant GM contends Counsel did not attach a worksheet or nay verification for printer charges, business meals, mileage, legal research, postage, and mediation costs.

In opposition, Plaintiff Hall argues on their face each claimed amount either falls within the categories of Code of Civil Procedure, Section 1033.5 or was incurred in this case during its commencement and prosecution. Furthermore, Plaintiff Hall contends no supporting documentation or further explanation is required.

As for Item 1, Plaintiff Hall argues he would not have filed these motions to compel if Defendant GM would have participated in the discovery process and provided him with deposition dates after being requested repeatedly, causing the motions to be necessary. Plaintiff Hall also argues that only after filing these motions to compel did Defendant GM comply and provide its personnel for deposition. As such, Plaintiff Hall asserts once Defendant GM complied, the motions were moot and he withdrew them accordingly. Plaintiff Hall further alleges the request for reimbursement of the rescheduling fee was inadvertently left out of his memorandum of costs but he will provide the receipt. (Wirtz Decl., ¶ 4, Ex. 1.)

As for Item 2, Plaintiff Hall argues jury fees are mandatory and required to be paid by the Case Management Conference if a party demands a trial by jury. Plaintiff further asserts he paid the non-refundable jury fees to reserve his right and will provide the receipt. (Wirtz Decl., ¶ 5, Ex. 2.) Similarly, for Item 4, Plaintiff Hall contends all of the depositions listed on the memorandum of costs were taken and necessary to him building his case. Moreover, Plaintiff Hall argues Defendant M.K. Smith Chevrolet is a party to this case and was represented by Defendant GM’s counsel. Nonetheless, Plaintiff Hall asserts he will provide the receipts for these costs. (Wirtz Decl., ¶ 6, Ex. 3.) As for Item 5, Plaintiff Hall asserts Defendant GM does not provide any specific reason why it objects to these costs. In addition, Plaintiff Hall argues he incurred these costs to serve his Complaint on Defendants GM and M.K. Smith Chevrolet, which led to multiple attempts of service on M.K. Smith Chevrolet because their agent of service of process name and address on the Secretary of State website was incorrect. Plaintiff Hall contends he provides the receipts for these costs. (Wirtz Decl., ¶ 7, Ex. 4.)

As for Item 11, Plaintiff Hall contends he seeks these costs under California Civil Code, Section 1794, subdivision (d), which provides, “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees 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, subd. (d).) Plaintiff Hall argues he hired a court reporter to transcribe the motion for attorney fees and if the Court still provided reporters, he would not have incurred these costs. Plaintiff further argues he will provide receipt to the Court if available at the time of hearing of this instant motion. Plaintiff Hall asserts the statement showing that the charges are pending have been provided. (Wirtz Decl., ¶ 8, Ex. 5.)

As for Item 14, Plaintiff Hall argues Defendant GM does not provide any specific reason why it objects to the electronic filing fees. Plaintiff Hall also argues electronic filing is mandatory by this Court and recoverable under Code of Civil Procedure, Section 1033.5 and California Civil Code, Section 1794, subdivision (d).

As for Item 16 concerning courtesy copies, printer charges, business meals, mileage, legal research, postage, and mediation, Plaintiff Hall contends he seeks recovery under California Civil Code, Section 1794, subdivision (d). Plaintiff Hall further argues the costs and fees were reasonable and necessary to the prosecution of the action. Specifically, Plaintiff Hall asserts he incurred costs to send courtesy copies of the Informal Discovery Conference (“IDC”) Statement, a hard copy of the Request and Responses before the IDC as requested by Department 56, and his motion for attorney fees as required by the Los Angeles Superior Court’s (“LASC”) General Order. Additionally, Plaintiff Hall contends at the time of filing his memorandum of costs, he anticipated the courtesy copies of the motion for attorney fees to $80.00 but it was actually $100.00. Thus, Plaintiff Hall requests the remaining costs of $20.00 be included in the total award of costs. Plaintiff Hall alleges he has provided receipts for these costs. (Wirtz Decl., ¶ 9, Ex. 6.)

For the printer charges in the amount of $18.50, Plaintiff Hall contends these costs were incurred to print documents to serve by mail or bring to events in the case, such as depositions at $0.25 per page for 74 pages printed in the entirety of this case. (Opp’n at p. 6, lns. 27-28; Wirtz Decl., ¶ 10, Ex. 7.)

For the business meal charges in the amount of $19.24, Plaintiff Hall contends his counsel incurred costs by purchasing meals while driving to and from, and attending the vehicle surrender. Plaintiff Hall contends he has provided the receipts for these costs. (Wirtz Decl., ¶ 11, Ex. 8.) Likewise, for the mileage charges in the amount of $142.79, Plaintiff Hall contends his counsel incurred these costs while driving to and from San Diego to Riverside Chevrolet to attend the vehicle surrender. (Wirtz Decl., ¶ 12, Ex. 9.) Furthermore, as for the legal research costs, Plaintiff Hall argues his counsel is billed monthly for Westlaw and incurred $26.93 performing research for the prosecution of this case. (Id. at ¶ 13, Ex. 10.) In addition, as for the postage fee in the amount of $0.63, Plaintiff Hall asserts his counsel served the Notice of Settlement by mail on August 31, 2023, which was necessary and reasonable to the prosecution of this case. (Id. at ¶ 14, Ex. 11.) Finally, as for the mediation fee in the amount of $200.00, Plaintiff Hall argues the mediation laid the groundwork for which the parties used to eventually come to a settlement agreement. (Id. at ¶ 15, Ex. 12.)

The Court finds that the filing and motion fees, jury fees, deposition costs, court reporter fees as established by statute, and fees for electronic filing are allowable costs under Code of Civil Procedure, Section 1033.5, subdivision (a). (Code Civ. Proc., §§ 1033.5, subd. (a)(1), (a)(3), (a)(4), (a)(11), (a)(14).) Furthermore, other items are also allowable costs under Code of Civil Procedure, Section 1033.5, subdivision (a)(16) where it is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. The Court also notes that the motion for attorney fees was filed and granted on January 29, 2024. Next, California Civil Code, Section 1794, subdivision (d) allows recovery of the court reporter fees, courtesy copies, printer charges, business meals, mileage, legal research, postage, and mediation. In Smalley v. Subaru of America, Inc. (2022), 87 Cal.App.5th 450, the court held “[i]n a claim under the Song-Beverly Act, a prevailing plaintiff is entitled to recover costs and expenses (Civ. Code, § 1794, subd. (d)); for purposes of that statute, expenses encompasses out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5.” (Smalley v. Subaru of America, Inc. (2022), 87 Cal.App.5th 450, 457 [citation omitted].) Therefore, the costs and fees sought by Plaintiff Hall were reasonable and necessary for the prosecution of this matter. Moreover, as the prevailing party in this case, Plaintiff Hall is entitled to recover the requested costs and fees under Code of Civil Procedure, Section 1033.5, subdivision (a) and California Civil Code, Section 1794, subdivision (d). Lastly, Plaintiff Hall has submitted documentation in the form of receipts to substantiate the amount in costs claimed in the memorandum of costs.

The Court DENIES Defendant General Motors LLC’s Motion to Strike or Tax Costs.

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