Judge: Kevin C. Brazile, Case: 21STCV26506, Date: 2023-10-19 Tentative Ruling

Case Number: 21STCV26506    Hearing Date: March 7, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Thursday, March 7, 2024

Case Name: Agustin Juarez et al. v. General Motors LLC

Case No.: 21STCV26506

Motion: Motion to Tax Costs  

Moving Party: Defendant General Motors LLC 

Responding Party: Plaintiffs Agustin Juarez and Fidel Juarez  

Notice: OK

Ruling: The Motion to Tax Costs is DENIED.

Defendant to give notice.

BACKGROUND

On July 19, 2021, Plaintiffs Agustin Juarez and Fidel Juarez (“Plaintiffs”) filed a complaint against Defendants General Motors, LLC (“Defendant”) and Does 1 to 50 arising from an alleged defective 2018 Chevrolet Silverado 1500, alleging causes of action for: (1) violation of subdivision (d) of California Civil Code, Section 1793.2; (2) violation of subdivision (d) of California Civil Code, Section 1793.2; (3) violation of subdivision (a)(3) of California Civil Code, Section 1793.2; (4) breach of express warranty; and (5) breach of the implied warranty of merchantability. 

On October 18, 2023, the parties reached a settlement and filed a Notice of Settlement of Entire Case. 

On November 13, 2023, Plaintiffs filed a Memorandum of Costs. Defendant objected to the amount requested.

On November 27, 2023, Defendant filed the instant motion to tax Plaintiffs’ counsel’s memorandum of costs. 

Plaintiffs filed an opposition on February 22, 2024. 

Defendant filed a reply on February 28, 2024. 

DISCUSSION

Applicable Law 

A prevailing party is entitled as a matter of right to recover costs of suit in any action or proceeding. (Code Civ. Proc. § 1032, subd. (b).) Costs recoverable under Section 1032 are restricted to those that are both reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc. § 1033.5, subd. (c)(2)–(3).) 

A cost award may consist only of allowable costs which are “reasonable in amount” and “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5, subd. (c)(2)–(3).) In a Song-Beverly action, the prevailing “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).) 

  If the charges listed on a submitted memorandum of costs appear to be proper charges on their face, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774–776.)

Application to Facts

Plaintiffs are the prevailing party under the settlement, therefore, they are entitled to reasonable costs. Furthermore, Plaintiffs filed a memorandum of costs on November 13, 2023. Therefore, Defendant has the burden of demonstrating costs were not reasonable or necessary. 

Defendant contends that Plaintiffs’ costs should be reduced by $4,803.00 because they are not reasonable or necessarily incurred. Specifically, Defendant makes the following arguments: 

• Defendant should not be forced to reimburse Counsel $150.00 for Jury Fees (jury deposit). (See Memorandum of Costs, Worksheet, p. 1.) This case never went to trial and Defendant should therefore not be billed for the $150 jury deposit. The Court should strike this cost.
• Defendant should not be required to pay the $2,009.10 in transcribing costs associated with the depositions of Jock Lien, Fernando Ruiz, and George Gonzalez who are employees of Chevrolet of Montebello. (Id.; Worksheet, p. 2, & Attachment 5.d.). Defendant should not be required to reimburse Plaintiffs for the $1,789.04 in court reporter fees related to the depositions of these non-party employees. And, Defendant should not be required to pay the $366.34 in service of process costs related to serving those deposition notices. (Id.; Worksheet, p. 2, 5.a-c. and Attachment 5.d.). The dealership is a non-party with its own counsel and is not controlled by Defendant. Moreover, none of this work by Plaintiffs’ counsel advanced Plaintiffs’ case and benefitted only counsel. As such, counsel should not recover any of these costs.
• Defendant should not be forced to pay an “appearance fee” of $295.00 for a PMQ deposition scheduled on September 28, 2023, that Plaintiffs were fully aware would not move forward. Defendant notified Plaintiffs’ counsel that the date asserted in the amended deposition notice was not feasible, and that Defendant was working to secure available dates in compliance with the Court’s Order, but counsel moved forward with the deposition anyway. (Id. Worksheet, p.3., 12., and Attachment 12.c.)
• Plaintiffs improperly seek $129.00 in “courtesy copy delivery” fees. “Courtesy” copies, as the name implies, are not required and such expenses are unreasonable and excessive. Further, such costs are completely unnecessary and certainly not reasonable to litigation. Accordingly, these costs should be disallowed entirely.
• Defendant should not be required to reimburse Plaintiffs’ counsel for $293.15 for costs associated with Plaintiffs’ motions to compel or the additional $66.37 filing fee for Plaintiffs’ ex parte application. (See Memorandum of Costs; Worksheet, p. 4). These were optional costs that counsel elected, where the motions practice was entirely one-sided. These unnecessary costs should be stricken in their entirety.

Jury Fees

The Court finds that the jury fees were reasonable and necessary. Plaintiffs were required by the Court to post jury fees “on or before the date scheduled for the initial case management conference in the action” pursuant to California Code of Civil Procedure section 631(c) in order to reserve the right to jury trial. The fact the case never proceeded to trial does not excuse the necessity of posting jury fees in a timely fashion. 

Costs Associated with the Deposition of Non-Party Witnesses

The parties dispute whether Defendant should be required to reimburse Plaintiffs $4,164.48 for the service of process as well as the depositions of non-party repairing dealership/witnesses, Chevrolet of Montebello. Chevrolet of Montebello effectuated repairs on the subject vehicle. Therefore, it was necessary for Plaintiffs to depose its technicians as percipient third-party witnesses to authenticate the repair orders and discuss the steps that were taken to eradicate the defects in the subject vehicle. Moreover, Defendant does not contend that the costs were not actually incurred. Accordingly, the Court finds that these costs were reasonably incurred.

Appearance Fee for Defendant’s PMQ Witness

  The parties dispute whether a $295.00 appearance fee is owed. According to Plaintiffs’ counsel, the $250.00 represents a cancellation fee that Plaintiffs incurred as a result of Defendant’s decision to cancel the mutually agreed upon PMQ deposition the day before. (Liu Decl., ¶ 4.) Defendant, on the other hand, contends that the parties did not mutually agree upon the date for the PMQ deposition and that Defendant had notified Plaintiffs’ counsel that the date asserted in the amended deposition notice was not feasible. Despite this contention, Defendant does not put forth any evidence to prove that the parties had not mutually agreed upon the date for the deposition. Therefore, Defendant fails to meet its burden to show the appearance fee was not reasonable. 

Costs Associated with Plaintiffs’ Ex Parte Application

The parties dispute the costs incurred by Plaintiffs in pursuing Defendant’s PMQ depositions are recoverable. 

Plaintiffs contend the costs incurred in pursuing the ex party application and motion to enforce the Court’s July 7, 2023 order compelling the deposition of Defendant’s PMQ were reasonable and necessary because Defendant failed to comply with the Court’s previous Order which gave Defendant until August 21, 2023, to produce its PMQ witnesses for deposition. (Liu Decl., ¶ 5.) Plaintiffs also contend the courtesy copy delivery fee at issue was for the Ex Parte Application for OST and was necessary as the Court’s Standing Order required that parties ensure that any ex parte application is received by Department 20 the day before the hearing. (Liu Decl., ¶ 6.) On the other hand, Defendant contends that the motion practice at issue was one-sided and the courtesy copies were optional. Defendant’s arguments are insufficient for Defendant to meet its burden of demonstrating the costs were unnecessary or unreasonable. 

CONCLUSION

Defendant’s motion to tax costs is DENIED.

Defendant to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.