Judge: Jon R. Takasugi, Case: 20STCV08464, Date: 2023-03-27 Tentative Ruling

Case Number: 20STCV08464    Hearing Date: March 27, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to tax costs is GRANTED IN PART, DECLINED IN PART, consistent with this ruling.

The Court taxes $1,738.28 in costs.

On 3/2/2020, Plaintiff Domingo Loza filed suit against Kia Motors America, Inc. alleging: (1) breach of express warranty; (2) breach of implied warranty; and (3) violation of the Song Beverly Act section 1793.2.

            Now, Defendant moves to tax at least $86,800.10 in costs.

Discussion

            Defendant argues that the following costs should be taxed:

(1) $304.95 in filing and motion fees, claimed under item 1;

(2) $12,197.11 in Deposition costs, claimed under Item 4;

(3) $771.00 in Service of process fees, claimed under item 5;

(4) $12,059.64 in witness fees, claimed under item 8;

(5) $24,091.15 in Court Reporter Fees, claimed under Item 12; and 

(6) $37,376.25 in “Other,” claimed under Item 13.

The Court addresses each item in turn.

            As for Item 1, Defendant argues that Plaintiff’s claims were not reasonably incurred:

Plaintiff claims $809.95 in filing and Motion fees with respect to Motions to compel further document production by KA, to compel the deposition of KA’s PMK, and Motions to submit tardy expert witness information. These claimed fees were not reasonably incurred; they were not reasonably necessary to the conduct of the litigation; and they are not reasonable in amount. With respect to tardy expert witness information, Plaintiff is seeking $181.65 for a motion to submit tardy expert witness information at $61.65, and two additional ex parte applications regarding same at $60.00 each. These filings are clearly not reasonable as they were filed due Plaintiff’s counsel’s unilateral mistake and would not have been necessary absent said mistake. The Court should, therefore, strike all claimed filing fees other than the $435.00 fee for filing the initial Complaint.

            While the Court declines to find the costs for discovery motions unnecessary, the Court does find that it would be unreasonable to allow Plaintiff to recover the $303.30 in costs incurred as a result of Plaintiff’s counsel’s unilateral mistake. Notably, Plaintiff does not attempt to defend these costs in opposition.

            As for Item 4, Defendant argues that Plaintiff’s claimed deposition costs are unreasonable because they are excessive, “[a]s attorneys who specialize in this area of the law, Plaintiff’s attorneys know there is no reason to take the depositions of service advisors and technicians because the service advisors and technicians keep a contemporaneous record of their work on the repair orders they prepare each time they work on hundreds of vehicles each year and cannot remember each one. There was no reason to incur the cost of serving deposition subpoenas on and taking the depositions of the service advisors and technicians in this case.” (Motion, 4:25-5:3.)

            The Court disagrees. Plaintiff is entitled to engage in discovery reasonably likely to produce admissible evidence. Defendant does not identify any basis by which the Court may set limitations on who may be deposed in Song-Beverly claims in light of a firm’s specialization, or the likelihood that the technicians will be able to recall the specific details. Moreover, the Court finds the deposition costs claimed to be reasonable, and the deposition of Plaintiff’s expert Thomas Lepper is recoverable under Jensen v. BMW of North America, Inc. (1995) 25 Cal.App.4^th 112, 137.)  

            As for Item 5, Defendant argues that the service of process costs and witness fees are unreasonable because they are related to the unreasonable depositions of various individuals at Kia of Carson. However, as set forth above, the Court finds those costs reasonable.

            As for Item 8, Defendant argues that Plaintiff’s claim for expert witness fees is unreasonable because Plaintiff has not provided supporting documentation or explanation of the expert fees and because:

The plaintiff in a Lemon Law case does not need to present expert testimony. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1102 fn. 8.) Plaintiff has not presented any evidence to show why experts were necessary in this case or to show that the tie and hourly rates charged by the experts were reasonable. Plaintiff’s claim for $11,954.64 in expert fees, split between two (2) experts, supposedly based on 48.45 hours at unspecified, varying rates, is unreasonable, unsubstantiated and excessive. Plaintiff has not provided any documentation to support this claim. Where, as here, weaker and less satisfactory evidence is offered when it is within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. (See Evid. Code, § 412.) 

            (Motion, 5: 10-18.)

            In opposition, Plaintiff cites Jensen, supra, 35 Cal.App.4^th at 137, wherein the Court expressly held that expert witness fees are recoverable under the Song-Beverly Act even though CCP section 1033.5 states they are not recoverable unless ordered by court. As such, the Court finds these costs are recoverable.

Furthermore, as noted by Plaintiff, verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Plaintiff need only submit supporting documentation or explanation for the expert fees once Defendant has met its burden to argue that the costs are not reasonably necessary (i.e., file a motion to tax costs).  (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Plaintiff’s opposition includes supporting documentation which corroborate the witness fees claimed. It also includes substantial argument setting forth justification for those fees. (See Opp., 9:7-9:26.)   Accordingly, the Court finds these costs reasonably incurred.

As for Item 12, Defendant argues that $24,091.15 in court reporter fees are excessive on their face:

Under the Los Angeles Superior Court fee schedule, court reporters receive $764.00 for proceedings over 4 hours; $382.00 for proceedings between 1 and 4 hours; and a per diem of $30.00 for proceedings under 1 hour. All of the fees in KLG’s Memorandum of Costs exceed these amounts, with a high of $2,095.00, nearly three times the permitted charge.

(Motion, 6: 1-4.)

However, as noted by Plaintiff in opposition, “Defendants stipulated to the use of these reporters but now seeks to tax them so that Plaintiff will exclusively bear these costs. Defendant benefited from Plaintiff’s decision to use a court reporter inasmuch as Defendants will thereby given the option to read the record at the hearing and order a copy if so desired.” (Opp., 11: 8-11.) Moreover, while Defendant may contend the amount in fees is high, Defendant does not identify any duplicate or incorrect charges to suggest the amount sought is incorrect or inflated. As such, given that the evidence shows the court reporter fees were actually incurred, and given that the parties stipulated to the use of court reporters and benefitted from them, the Court declines to reduce that amount.

Finally, as for Item 13, Defendant argues that the $37,376.25 in costs for “Other” is unreasonable. The Court agrees in part. Plaintiff’s opposition corroborates costs for delivery of binders, blowbacks, and MIL binders. Moreover, the Court finds the costs of interpreters to be reasonable. Defendant argues that: “These fees are excessive on their face. Under the Los Angeles Superior Court fee schedule, interpreters receive $76.00 per hour. At that rate, $17,482.50 in fees would represent 230 hours. The trial of this case did not take that long and Plaintiff obviously did not testify for 230 hours.” (Motion, 7: 20-23.) However, as noted by Plaintiff, “[i]t was reasonable and necessary for [Plaintiff] to have the benefit of a translator for the entire trial (not just their trial testimony) so that they could understand what transpired.” (Opp., 14: 2-6.) Plaintiff’s opposition included invoices which represent that this was the amount actually paid to the interpreter, and thus the Court finds this amount to be reasonable.

However, travel costs are not specifically enumerated as allowable costs in CCP section 1033.5(a), “[r]outine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”.) See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-76.) As a result, the Court declines to award the $1,434.98 in travel claimed by counsel.

Based on the foregoing, Defendant’s motion to tax costs is granted in part, declined in part. Defendant’s motion to tax is granted as to the travel costs ($1,434.98) and a portion of the filing fees ($303.30.) Defendant’s motion is denied in all other respects.

It is so ordered.

Dated:  March    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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