Judge Michael P. Linfield, Case Number: 20STCV00294, Date: 2023-08-23 Tentative Ruling

Judge: Michael P. Linfield, Case: 20STCV00294, Date: 2023-08-23 Tentative Ruling

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Case Number: 20STCV00294 Hearing Date: October 25, 2023 Dept: 34

SUBJECT: Motion for Reconsideration of and/or Relief from Order Striking Defendant’s Memorandum of Costs

Moving Party: Defendant Kia America, Inc.

Resp. Party: Plaintiff Daryl White

The Motion for Reconsideration is GRANTED. The Court TAXES Defendant’s claimed costs in the amount of $7,383.52. The Court AWARDS costs in favor of Defendant and against Plaintiff in the amount of $3,710.03.

BACKGROUND:

On January 6, 2020, Plaintiff Daryl White filed his Complaint against Defendant Kia America, Inc. (f.k.a. Kia Motors America, Inc.) on causes of action regarding the defects with his car.

On January 9, 2023, after five days of Trial, the Jury found: (1) for Defendant and against Plaintiff on the cause of action for breach of express warranty; and (2) for Plaintiff and against Defendant on the cause of action for breach of the Song-Beverly Consumer Warranty Act. Pursuant to the second finding, the Jury found damages of $42,264.34, found that damages after accounting for the value of the use of the car before it was brought in for repair was $28,376.62, and imposed a civil penalty of $49,659.09 (which was 1.75 times the value of damages less the value of the car before it was brought in for repair).

On March 29, 2023, the Court granted Defendant’s Motion for Judgment Notwithstanding the Verdict. The Court gave Plaintiff the option of consenting to a reduction of damages to $10,000.00 or to have a new trial limited to the issue of damages. The total judgment for Plaintiff, including both damages and a civil penalty, would be $27,500.00.

On June 1, 2023, the Court entered Amended Judgment in favor of Plaintiff and against Defendant in the amount of $27,500.00, with interest thereon at the rate of ten percent per annum from the date of entry of the Amended Judgment until paid.

On June 16, 2023, the Court awarded $74,602.57 in attorneys’ fees, costs, and expenses in favor of Plaintiff and against Defendant.

On June 29, 2023, Defendant filed its MC-010, Memorandum of Costs.

On July 14, 2023, Plaintiff filed his Motion to Strike or in the Alternative Tax Costs (“Motion to Strike or Tax Costs”). In support of his Motion to Strike or Tax Costs, Plaintiff concurrently filed: (1) Memorandum of Points and Authorities (“Memorandum”); and (2) Declaration of Jacob Cutler.

On August 10, 2023, Defendant filed its Opposition to the Motion to Strike or Tax Costs.

On August 16, 2023, Plaintiff filed his Reply regarding the Motion to Strike or Tax Costs.

On August 23, 2023, the Court granted the Motion to Strike or Tax Costs and struck the Memorandum of Costs solely on the basis of timeliness.

On August 31, 2023, Defendant filed its Motion for Reconsideration of and/or Relief from Order Striking Defendant’s Memorandum of Costs (“Motion for Reconsideration”). In support of its Motion for Reconsideration, Defendant concurrently filed its Proposed Order.

On September 20, 2023, Plaintiff filed his Opposition to the Motion for Reconsideration.

On October 18, 2023, Defendant filed its Reply regarding the Motion for Reconsideration.

ANALYSIS:

I. Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

Code of Civil Procedure sections 437 and 1008 “limit the parties’ ability to file repetitive motions but do not limit the court’s ability on its own motion to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Even if a motion to reconsider prompts the Court, the Court may still reconsider its decision based on “the court’s inherent authority to do so, once it realized that a mistake had been made.” (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308–09.)

II. Discussion

A. The Parties’ Arguments

Defendant moves the Court to: (1) reconsider its Minute Order dated August 23, 2023, which struck Defendant’s Memorandum of Costs solely on the basis of timeliness; (2) set a new date for hearing on Plaintiff’s Motion to Strike or Tax Costs; and (3) permit the Parties to file additional briefing on Defendant’s entitlement to costs. (Motion for Reconsideration, p. 6:3–9.)

Defendant argues that this would be appropriate because: (1) the Memorandum of Costs was timely filed pursuant to California Rules of Court, rule 3.1700, Code of Civil Procedure section 664.5, and Code of Civil Procedure section 1013; (2) that the Court has authority under Code of Civil Procedure section 1008, subdivision (a) to reconsider its ruling on Plaintiff’s Motion to Strike or Tax Costs; (3) that Defense Counsel erroneously concluded that the Memorandum of Costs was not timely filed based on an excusable mistake of law; and (4) that the Minute Order dated August 23, 2023 should be vacated and set aside because it was taken against Defendant through mistake. (Motion for Reconsideration, pp. 2:15, 3:10–12, 4:21–22, 5:5–6.)

Plaintiff opposes the Motion for Reconsideration, arguing: (1) that the Motion for Reconsideration must be denied as it is devoid of any new facts, circumstances, or law; and (2) that relief is not warranted under the discretionary provision of Code of Civil Procedure section 473. (Opposition to Motion for Reconsideration, pp. 1:11–12, 2:10–11, 3:9.)

In its Reply regarding the Motion for Reconsideration, Defendant reiterates its prior arguments.

B. Whether There is a Basis for Reconsideration of the Minute Order dated August 23, 2023

A motion for reconsideration made pursuant to Code of Civil Procedure section 1008, subdivision (a) must be “based upon new or different facts, circumstances, or law[.]” (Code Civ. Proc., § 1008, subd. (a).)

The Parties disagree on whether there is a proper basis for reconsideration of the Minute Order dated August 23, 2023.

When Plaintiff filed its Motion to Strike or Tax Costs, Plaintiff did not accurately state the law as it currently stands. Specifically, Plaintiff cited dicta from the case of Nevis Homes LLC v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, 357–358, in which the Court of Appeal discussed the language of Code of Civil Procedure section 664.5, subdivision (b), which at that time used the term “mail” instead of “serve.” (Motion to Strike or Tax Costs, p. 2:10–18.) While that dicta might have been legally correct in 2013, it is certainly not legally correct in 2023. This is because the Legislature amended Code of Civil Procedure section 664.5 in 2017 to, among other things, change the language of subdivision (b) from “the clerk of the court shall mail notice of entry of judgment” to “the clerk of the court shall serve notice of entry of judgment”. (See Stats. 2017, c. 319 [A.B. 976], § 1, eff. Jan. 1, 2018, emphases added.)

Defendant only once referenced Code of Civil Procedure section 664.5 in its Opposition to Motion to Strike or Tax Costs. (Opposition to Motion to Strike or Tax Costs, p. 3:3–7.) Neither Defendant nor the Court initially caught Plaintiff’s blatant misstatement of Code of Civil Procedure section 664.5. Within 10 days of the Court’s Minute Order dated August 23, 2023, Defendant filed its Motion for Reconsideration, which uses the current version of Code of Civil Procedure section 664.5 and discusses how it interacts with Code of Civil Procedure section 1013, subdivision (a). (Motion for Reconsideration, p. 3:3–26.)

The Court agrees with Defendant’s argument that there is new or different law to consider here. Alternatively, Further, the Court uses its inherent authority to reconsider.

The Court will reconsider the Motion to Strike or Tax Costs based on the original papers submitted. Contrary to Defendant’s requests, the Court does not believe that there is a need for a new or continued hearing on that motion, or that there is a need for additional briefing. (Motion for Reconsideration, p. 6:3–9.)

The Court does not consider additional arguments regarding the Motion for Reconsideration, such as those involving Code of Civil Procedure section 473.

C. The Parties’ Arguments Regarding the Motion to Strike or Tax Costs

The Court repeats immediately below the arguments the Parties originally made regarding the Motion to Strike or Tax Costs.

Plaintiff moves the Court to tax Defendant’s costs, arguing: (1) that Defendant’s Memorandum of Costs is untimely and must be stricken; (2) that Defendant bears the burden of establishing that its costs were necessary and reasonable; and (3) that Defendant seeks reimbursement of costs that are legally impermissible. (Memorandum, pp. 2:2, 2:23–24, 3:27.)

Defendant opposes the Motion, arguing: (1) that the Memorandum of Costs should be considered as timely, based on the mistake, inadvertence, or excusable neglect of Defendant’s calendaring system; (2) that Defendant has satisfied its evidentiary burden; (3) that Defendant is entitled to recover the costs that Plaintiff does not dispute; (4) that Defendant is entitled to recover the cost of filing fees; (5) that Defendant is entitled to recover the cost of transcript fees; and (6) that Defendant is entitled to recover miscellaneous other costs. (Opposition to Motion to Strike or Tax Costs, pp. 3:2, 3:17, 4:3–4, 4:11, 4:24, 5:21.)

Plaintiff reiterates his arguments in his Reply regarding the Motion to Strike or Tax Costs.

D. Timeliness of the Memorandum of Costs

1. Legal Standard

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 3.1700(a)(1).)

“Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall serve notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of service and place it in the court’s file in the cause.” (Code Civ. Proc., § 664.5, subd. (b).)

“In case of service by mail, . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, . . . but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc., § 1013, subd. (a).)

“No statute or rule of court ‘specifically’ exempts cost memoranda from the five-day mailing extension in section 1013, subdivision (a). Moreover, section 1013, subdivision (a), specifies the items to which the extension does not apply. A memorandum of costs is not among those exceptions. Nor does rule 3.1700 specifically exempt a cost memorandum from the time extension provided by section 1013, subdivision (a). Regardless of what the Judicial Council may have had in mind when it adopted former rule 870, its intent cannot trump the plain meaning of the statute. We are not authorized to rewrite the plain language of a statute to conform to an assumed intent that does not appear from the language.” (Nevis, supra, 216 Cal.App.4th at p. 357, citation omitted.)

2. Discussion

Code of Civil Procedure section 664.5 uses the term “serve” as it relates to the clerk’s duty to provide notice of judgment. Thus, when a clerk serves notice of entry of judgment or dismissal, California Rules of Court, rule 3.1700(a)(1) applies. Further, when a clerk serves such notice by mail, Code of Civil Procedure section 1013, subdivision (a) also applies.

On June 1, 2023, the Court entered the Amended Judgment. On June 9, 2023, the Court served its Notice of Entry of Judgment, which included a Certificate of Mailing (also dated June 9, 2023). Because the clerk served the Notice of Entry of Judgment by mail, Defendant had 20 days in which to file its Memorandum of Costs.

On June 29, 2023, Defendant filed its Memorandum of Costs. As June 29, 2023 is exactly 20 days after service via mail of the Notice of Entry of Judgment, the Memorandum of Costs was timely filed.

E. Taxing the Memorandum of Costs

1. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

“The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section.” (Code Civ. Proc., § 998, subd. (a).)

“Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. . . .” (Code Civ. Proc., § 998, subd. (b).)

“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. . . .” (Code Civ. Proc., § 998, subd. (c)(1).)

“The state Supreme Court has held that, even though the cost-shifting feature of the Song-Beverly Act is the more specific statute because it concerns the recovery of costs in a more specific type of litigation, it does not trump or supersede the provisions of section 998 when, as here, the two may be reconciled. . . . We see no reason not to extend the Supreme Court's reasoning in Murillo to include the circumstances posed here. Nothing in the relevant statutes or applicable case law suggests the Legislature intended to exempt lemon law plaintiffs from the ‘carrot and stick’ of section 998’s provisions encouraging settlement of pending cases.” (Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 726, citing Murillo v. Fleetwood Enters., Inc. (1998) 17 Cal.4th 985, 992, other citation omitted; see also Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 836 [“In that situation, the prevailing buyer would be entitled to attorneys' fees and costs under Civil Code section 1794, but the seller would be entitled to its costs, including expert witness fees, under Code of Civil Procedure sections 998 and 1032, as long as it made a valid good faith offer that exceeded the buyer's recovery.”].)

Prevailing parties seeking to claim costs must comply with California Rules of Court, rule 3.1700(a), and parties seeking to contest costs must comply with California Rules of Court, rule 3.1700(b).

2. Discussion

Here, although Plaintiff is the prevailing party, Defendant is entitled to its postoffer costs pursuant to Code of Civil Procedure sections 998 and 1032. (Duale, supra, 148 Cal.App.4th at p. 726; Covert, supra, 73 Cal.App.5th at p. 836.)

Defendant claims $11,093.55 in total postoffer, costs, which would consist of:

(1) $1,416.74 in filing and motion fees;

(2) $5,706.46 in court-ordered transcripts;

(3) $1,824.29 in models, enlargements, and photocopies of exhibits; and

(4) $2,146.06 in “other” costs.

(MC-010, p. 1.)

The Court considers each of these costs.

a. Filing and Motion Fees

Plaintiff argues that $456.16 of the $1,416.74 in filing and motion fees is unreasonable and should be taxed. (Motion to Strike or Tax Costs, pp. 4:21–28, 5:1–9.) Specifically, Plaintiff points to: (1) a $140.00 fee to file a document; (2) a duplicative charge of $16.15 for a trial brief; (3) a $105.00 fee to file a brief regarding Code of Civil Procedure section 998; and (4) a $195.00 fee for loading boxes. (Ibid.)

Defendant disagrees, arguing: (1) that the $140.00 fee was for hand service of Defendant’s Offer to Compromise; (2) that the $16.15 fees were for different briefs; (3) that the $105.00 cost was necessary to show that Defendant did not willfully fail to repurchase the vehicle; and (4) that the $195.00 cost of delivery of documents to the Court was necessary as part of the Court’s requirements. (Opposition to Motion to Strike or Tax Costs, p. 4:12–22.)

The Court agrees with Plaintiff regarding the $140.00 fee and the $195.00 fee. This case has been before this same judicial officer in Department 34 since February 20, 2020 — well before the Section 998 Offer dated April 28, 2022. Department 34 does not require courtesy copies of filings or hand-delivered service. Thus, these two “filing fees” are unreasonable and they will be taxed. The other costs are reasonable and will not be taxed.

b. Court-Ordered Transcripts

Plaintiff argues that the entirety of the costs for “court-ordered transcripts” should be taxed because they were not ordered by the Court pursuant to Code of Civil Procedure section 1033.5, subdivision (b)(5). (Motion to Strike or Tax Costs, p. 5:10–22.)

Defendant disagrees, arguing: (1) that these costs are recoverable; (2) that Plaintiff previously stipulated to the transcriptions and benefitted from them; and (3) that they are allowed under Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42–43. (Opposition to Motion to Strike or Tax Costs, pp. 4:24–28, 5:1–19.)

The Court agrees with Plaintiff’s argument.

Costs for transcripts of court proceedings would be recoverable if ordered by the Court, but they are otherwise not recoverable. (Code Civ. Proc., § 1033.5, subd. (b)(5).) Transcripts of necessary depositions are recoverable, but the Memorandum of Costs only claims transcripts of trial, not depositions. (Code Civ. Proc., § 1033.5, subd. (a)(3)(A); MC-010, Attachment 9.)

Further, it is irrelevant under any part of Code of Civil Procedure section 1033.5 whether Plaintiff stipulated to the transcripts of court proceedings.

Finally, Warren is inapposite here. In Warren, the Court of Appeal considered, among other things, whether transcripts as costs are recoverable under the Song-Beverly Consumer Warranty Act, not under Code of Civil Procedure sections 998, 1032, and 1033.5. Indeed, the Court of Appeal explicitly noted that “in 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. [Citation.]” (Warren, supra, 30 Cal.App.5th at p. 42, internal quotation marks omitted.) But the analysis at present involves a manufacturer that is entitled to its postoffer costs under the general cost recovery statute, not under the lemon law.

The Court taxes all the claimed costs for transcripts.

c. Models, Enlargements, and Photocopies

Plaintiff does not specifically argue that the costs for models, enlargements, and photocopies should be taxed.

The Court finds that all of the costs for models, enlargements, and photocopies are reasonable. The Court does not tax these costs.

d. “Other” Costs

Plaintiff argues that the entirety of the $2,146.06 in “other” costs should be taxed, because they are not deposition travel costs and are otherwise unrecoverable here. (Motion to Strike or Tax Costs, pp. 5:23–29, 6:1–9.)

Defendant disagrees, arguing: (1) that these costs are neither specifically allowed nor prohibited; (2) that these costs are recoverable within the Court’s discretion if reasonably necessary to the conduct of the litigation; and (3) that these costs are recoverable here. (Opposition to Motion to Strike or Tax Costs, pp. 5:21–28, 6:1–7.)

Defendant is correct that since these costs are neither specifically allowed nor specifically prohibited, they are recoverable in the Court’s discretion if reasonably necessary to the conduct of the litigation. (Foothill-De Anza Cmty. Coll. Dist. V. Emerich (2007) 158 Cal.App.4th 11, 30.) A review of the claimed “other” costs shows that $804.00 were for “subpoena-related costs.” These costs will be allowed. The Court will tax the remainder of the costs – almost all of which involve reimbursements for parking, meals, or related costs – find that these costs were not reasonably incurred or necessary to the conduct of the litigation.

The Court taxes $1,342.06 in “other” costs.

III. Conclusion