Judge: Malcolm Mackey, Case: 20STCV09635, Date: 2022-12-12 Tentative Ruling
Case Number: 20STCV09635 Hearing Date: December 12, 2022 Dept: 55
PAREDES v. TRICOLOR CAL. AUTO GROUP, LLC 20STCV09635
Hearing Date: 12/12/22, Dept. 55
#2: MOTION TO TAX COSTS.
Notice: Okay
Opposition
MP:
Defendant TRICOLOR CALIFORNIA AUTO
GROUP, LLC
RP:
Plaintiff
Summary
On 3/10/20, Plaintiff PEDRO DOMINGUEZ PAREDES filed a
Complaint.
On 10/29/21, Plaintiff filed a First Amended
Complaint, alleging that Defendant, doing business as “Ganas,” sold Plaintiff a
2009 GMC Sierra, in poor mechanical condition, and not really adequately
inspected as part of its certification process, as advertised on its website.
The causes of action are:
1. VIOLATION OF THE CONSUMERS
LEGAL REMEDIES ACT, CIVIL CODE § 1750,
ET SEQ;
2. FRAUDULENT MISREPRESENTATION;
3. NEGLIGENT MISREPRESENTATION;
4, VIOLATION OF THE SONG-BEVERLY
CONSUMER WARRANTY ACT, CIVIL CODE § 1790,
ET SEQ;
5. VIOLATION OF BUSINESS
AND PROFESSIONS CODE § 17200, ET SEQ.
6. VIOLATION OF VEHICLE
CODE § 11711.
MP
Positions
The specific items that moving party seeks to be
stricken or taxed include the following:
¿ Item 4- Deposition
costs that are (1) duplicative including 5 depositions of Ganas
Master Service Technicians Shamon ($435.35),
Vyas ($424.17), Cross ($425.26),
Ponce ($420.52), Leinen ($695.60) (for a total
of $2400.09) when Alejandro Vargas
($449.05) provided the same information and
(2) a late cancellation fee ($707) as
not reasonably necessary to the conduct of the
litigation.
¿ Item 6--Meals, mileage
and parking identified in relation to attendance at the Mandatory Settlement
Conference ($192.58).
¿ Item 16—The following
“other” expenses in the amount of $7448.98 since they are
expressly excluded or
were not reasonably necessary to the conduct of the litigation.
Specifically,
i. Research including
Thompson Reuters People Search ($1,122), and Lexis Nexis charges ($1341) to
find witnesses, and Maroney label ($7.99) These are excluded under C.C.P.
§1033.5(b)(2)
ii. Expert fees for
research ($675), deposition preparation ($473.70) and an unidentified fee to
Plaintiff’s expert Kenneth Klein ($262.50). These costs are not recoverable
where the expert is not ordered by the Court. C.C.P. §1033.5. Further,
plaintiff’s recovery of $15,000 in settlement of the case was less than his
March 28, 2021 C.C.P Section 998 statutory offer of $22,208.61 and his June 21,
2021 C.C.P Section 998 statutory offer of $20,047.78, and thus, the expert
fees/costs are not recoverable on this basis as well. iii. Copying costs for
records to various third parties (Carfax Report ($13.99) DMV ($200), Insurance
Services Office ($40), Farmers IC ($175.97), Farmers IC ($39.60), La Brea
Motors ($68.51). Copying costs are excluded under C.C.P. §1033.5(b)(2). iv.
Court reporter fees for transcripts of hearings on 6/1/2022, 6/8/2022 and
3/15/2022 ($1796). These costs are excluded under C.C.P.§1033.5(b)(5); v.
Courtesy copies to the Court on 12/26/2021, 3/9/2022, 3/10/2022, 4/5/2007 (sic
2007), 4/11/2022, 4/18/2022 totaling $748.59 as not reasonably necessary to the
conduct of the litigation; vi. Copies of a transcript from the FSC $632. There
is no provision for this and copying costs are excluded under C.C.P.
§1033.5(b)(2).
(Motion, pp. 1 – 3.)
Moving party requests an order taxing Plaintiff’s
costs on grounds including the following:
·
The Song-Beverly Act allows a prevailing
Plaintiff to recover only those “costs and expenses … determined by the court
to have been reasonably incurred.” Civ. Code § 1794(d).
·
Unauthorized expenses Plaintiff seeks to
recover are anything but reasonable. To the contrary, incurring nearly $250,000
in attorneys’ fees and over $24,000 in costs to push a $15,000 case to the eve
of trial is patently unreasonable.
·
The opposition admits that the claimed
costs are not available under California Code of Civil Procedure section
1033.5.
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Song-Beverly, in
Civil Code § 1794(d), permits Plaintiff to recover not only costs, but
“expenses” also. Civ. Code § 1794(d).
·
“Expenses”
includes all expenses not part of overhead which would ordinarily be billed to
paying clients regardless of whether they are recoverable under Code of Civil
Procedure section 1033.5. Bussey v. Affleck, 225 Cal.App.3d 1162, 1166-67
(1990).
·
Defendants did
not provide any evidence in the way of exhibits or declarations challenging
these costs. Rather, Defendant merely presented arguments in its Memorandum in
support of its Motion to Tax Costs.
·
The depositions
were necessary to prove Ganas Auto was not exempt from the Buy-Here-Pay-Here
laws. The $707 late fee It was incurred
because subpoenaed nonparty Coast National Insurance failed to appear for the
deposition.
·
Westlaw and
Lexis Nexis People search fees were incurred because Ganas Auto refused to
provide the addresses and telephone numbers for individuals identified as
witnesses.
·
Department 55
Rules require courtesy copies of documents filed.
·
The other costs
are recoverable as reasonable and Song-Beverly Act expenses, and are not governed
or precluded by Civil Procedure section 1033.5.
Tentative
Ruling
The motion to tax costs is denied entirely.
The Court allows the full sum of costs of Plaintiff’s
memorandum of costs.
The Song-Beverly Act requires allowing costs
“determined by the court to have been reasonably incurred by the buyer in
connection with the commencement and prosecution” of the case, which is reviewed
under the abuse of discretion standard. Levy
v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 813. Cf.
Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24,
43 (“it is indisputable that Warren
‘reasonably incurred’ the $5,882 cost of the trial transcripts ‘in connection
with the ... prosecution of [the] action.’ ”).
See also generally Duff
v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal. App. 5th 491, 501 (summarizing Civ. C. § 1794(d)).
“[I]n enacting Civil Code section 1794, subdivision
(d) the Legislature intended the phrase ‘costs and expenses’ to cover items not
included in “ ‘the detailed statutory definition of ‘costs’ ” set forth in Code
of Civil Procedure section 1033.5.” Warren, supra, at 42.
“[I]t is inappropriate and an abuse of a trial court's
discretion to tie an attorney fee award to the amount of the prevailing
buyer/plaintiff's damages or recovery in a Song-Beverly Act action, or pursuant
to another consumer protection statute with a mandatory fee-shifting
provision.” Warren, supra,
at 37. Accord Morris v. Hyundai Motor Am. (2019) 41
Cal. App. 5th 24, 35. Under the
Song-Beverly Act, awards of attorney fees are limited to actual hours expended
and reasonably incurred, and not based on the amount of the prevailing
plaintiff's damages or recovery, or the fact of a contingency fee
agreement. Reynolds v. Ford Motor Co.
(2020) 47 Cal.App.5th 1105, 1112-1117.
In determining a reasonable attorney's fee award,
judges have discretion to disallow attorney fees incurred after a
reasonable settlement offer, where the ultimate recovery was no better, even
where Code of Civil Procedure Section 998 is inapplicable. Meister v. Regents of Univ. of Cal.
(1998) 67 Cal. App. 4th 437, 452.
Item 4:
Duplicative depositions are reasonable and allowable. Discovery is allowed even if it is duplicative
of other information already obtained. Tbg
Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal. App. 4th 443, 448; Carter v. Sup. Ct. (1990) 218
Cal.App.3d 994, 997.
Item 6:
Expenses associated with mandatory mediation are reasonable and allowable. Courts can order mediation. E.g., Ellerbee
v. County of L.A. (2010) 187 Cal. App. 4th 1206, 1216-17.
Item 16: The
miscellaneous expenses are reasonable and allowable. CCP Section 1033.5 is inapplicable to Lemon
Law expenses. Plaintiff’s amount of
recovery is irrelevant to Lemon Law expenses, and it is discretionary whether
to lower fees awards where the ultimate recovery was no better that the
settlement offer amount. This Department
appreciates and benefits by getting courtesy copies.