Judge: Michael P. Linfield, Case: 21STCV21608, Date: 2023-02-06 Tentative Ruling

Case Number: 21STCV21608    Hearing Date: February 6, 2023    Dept: 34

SUBJECT:         Motion to Strike Plaintiff’s Memorandum of Costs, or, in the Alternative to Tax Costs

Moving Party:  Defendant Toyota Motor Sales, U.S.A., Inc.

Resp. Party:    Plaintiff Isaac Corona-Quiles

Defendant’s Motion to Strike Plaintiff’s Memorandum of Costs, or, in the Alternative to Tax Costs is GRANTED in part. Plaintiff’s Memorandum of Costs is TAXED in the amount of $1,425.00. Costs are awarded for Plaintiff and against Defendant in the amount of $21,580.28. 

BACKGROUND:

On June 9, 2021, Plaintiff Isaac Corona-Quiles filed his Complaint against Defendant Toyota Motor Sales, U.S.A., Inc. on causes of action involving Civil Code sections 1790, et seq., otherwise known as the Song-Beverly Consumer Warranty Act.

On July 21, 2021, Defendant filed its Answer.

On October 28, 2022, after hearing the evidence and arguments at Trial, the Jury returned the following Special Verdicts in favor of Plaintiff: (1) as to breach of express warranty, finding damages of $28,388 and imposing no penalties; and (2) as to breach of implied warranty, finding entitled restitution in the amount of $28,065. The Jury returned a mixed Special Verdict as to breach of express warranty. The Court ordered Plaintiff to prepare Judgment.

On December 8, 2022, the Court awarded for Plaintiff and against Defendant prejudgment interest in the amount of $3,889.41 for the implied-warranty claim.

On December 23, 2022, Plaintiff filed his Memorandum of Costs (in conjunction with his Motion for Attorneys’ Fees, Costs, and Expenses).

On January 9, 2023, Defendant filed its Motion to Strike Plaintiff’s Memorandum of Costs, or, in the Alternative to Tax Costs. Defendant concurrently filed: (1) Memorandum of Points & Authorities; (2) Declaration of Thomas M. Murphy; and (3) Proposed Order.

On January 24, 2023, Plaintiff filed his Opposition. Plaintiff concurrently filed: (1) Declaration of Daniel Law; and (2) Proof of Service.

On January 25, 2023, the Court granted in part Plaintiff’s Motion for Attorneys’ Fees, Costs and Expenses. The Court noted in its order that “[t]he Court will consider Defendant’s Motion to Tax Costs separately”. (Minute Order dated January 25, 2023, p. 7.)

On January 25, 2023, the Court entered Judgment in the amount of $28,065.00 for the implied-warranty claim, with $3,889.41 in $3,889.41 in prejudgment interest, for a total award for Plaintiff and against Defendant in the amount of $31,954.41.

On January 30, 2023, Defendant filed its Reply.

ANALYSIS:

I.           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).)

        In turn, the losing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700, subd. (b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Id.) 

        Costs are further authorized under the Song-Beverly Consumer Warranty Act, where “[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).)

II.        Discussion

Plaintiff requests the following costs:

(1)       $1,247.00 in filing and motion fees;

(2)       $646.86 in jury fees;

(3)       $6,958.70 in deposition costs;

(4)       $51.25 in service costs;

(5)       $3,979.15 in court reporter fees; and

(6)       $10,122.32 in other costs.

(Memorandum of Costs, Items 1, 2, 4, 5, 11, and 16.)

        Defendant moves the Court to strike the Memorandum of Costs entirely, or, in the alternative to tax the following costs:

(1)       Filing and motion fees;

(2)       Deposition costs;

(3)       Court reporter fees; and

(4)       Other costs.

(Motion, pp. 1:23–28, 2:1–6.)

        However, Defendant does not present any argument as to why the entire Memorandum of Costs should be stricken. Thus, the Court only considers whether it should tax the costs listed above.  (See, e.g., C.R.C. Rule 3.1113(b) & (a); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”])

A.      Filing and Motion Fees

Defendant argues that the Court should tax $422.10 in claimed filing and motion fees because courtesy copies of filings and are not permitted as costs by Code of Civil Procedure section 1033.5, subdivision (b)(3). (Memorandum of Points and Authorities, p. 5:6–12.) Defendant notes that this cost is included under the section for other costs. (Id.)

Plaintiff argues that entire request for filing and motion fees should be awarded because none of the filing and motion fees claimed are for courtesy copies. (Opposition, p. 11:19–21.)

Defendant does not make a further argument in its Reply.

The Court agrees with Plaintiff. If the courtesy copies are not included in the cost for filing and motion fees, then it is not appropriate to tax that item for courtesy copies.

The Court denies the Motion taxing the claimed filing and motion fees.

B.      Deposition Costs

Defendant argues that the Court should tax all of the $6,958.70 in claimed deposition costs because they were not reasonable or necessary after Defendant’s 998 Offer dated April 20, 2022. (Memorandum of Points and Authorities, p. 5:16–18.)

Plaintiff disagrees, arguing: (1) that the 998 Offer dated April 20, 2022 was invalid because it was fatally vague, ambiguous, and uncertain, citing Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, 499–500; (2) that even if the 998 Offer was valid, Plaintiff still beat the offer; (3) that Defendant does not show that the deposition costs were not reasonably necessary to the conduct of the litigation; and (4) that the deposition of Plaintiff Isaac Corona-Quiles was taken on December 10, 2021, prior to the April 20, 2022 998 Offer. (Opposition, p. 12:1–15.)

Defendant does not make a further argument in its Reply.

The Court agrees that Defendants’ §998 offer dated April 20, 2022 is not valid.

The §998 Offer dated April 20, 2022 states in relevant part:

“Pursuant to Civil Code section 1793.2(d)(2)(B), in exchange for the return of the Subject Vehicle (described as a 2021 Toyota Corolla Hatchback; VIN: JTNA4MBE8M3125627), [Defendant] offers to pay Plaintiff ISAAC CORONA-QUILES $30,565.00, which it is informed and believes represents payment in an amount equal to the actual price paid or payable by Plaintiff, including any charges for transportation and manufacturer-installed options, and any collateral charges such as sales or use tax, license fees, registration fees, and other official fees, plus any incidental and consequential damages to which the buyer is entitled under Civil Code section 1794, including, but not limited to, reasonable repair, towing, and rental costs actually incurred by Plaintiff, which payment can be determined by court motion if the parties cannot agree.”

(Decl. Murphy, Ex. B, ¶ 1.)

In Duff, the Court of Appeal considered a section 998 offer that included language that made the offer uncertain, including language that made the offer amount either a fixed number or an undetermined higher number. The 998 Offer in that case included language that could make the offer higher based on the plaintiff’s providing documentation that such a higher amount was warranted. (Duff, supra, at 500.)

The situation here is similar. The ultimate phrase in the §998 offer – “which payment can be determined by court motion if the parties cannot agree” – makes the offer one that includes an undetermined higher number, subject to submission of evidence that a higher amount is warranted. This makes the §998 Offer dated April 20, 2022 uncertain. Did Defendant only offer $30,565.00, or does the language “plus any incidental and consequential damages to which the buyer is entitled” mean that there may be an additional amount offered above $30,565.00? The language could reasonably mean either interpretation.  “In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, § 1654.)

        When questioned about this issue during oral argument, defense counsel indicated that the “determined by court motion” language made the §998 offer uncertain.

The Court finds that the 998 Offer dated April 20, 2022 is invalid. Thus, the Court does not reach the question of whether Plaintiff beat the offer.

Upon consideration of the documentation submitted, the Court finds that the deposition costs are reasonable. (Decl. Law, Ex. 2.)

The Court denies the Motion taxing the claimed deposition costs.

C.      Court Reporter Fees

        Defendant argues that the Court should tax all of the court reporter fees as they were incurred after the expiration of the 998 Offer. (Memorandum of Points and Authorities, p. 6:8–9.) Defendant further argues that all court reporter fees aside from those for the Trial transcript should be taxed as they were not ordered by the Court. (Id. at p. 5:25–28.)

        Plaintiff disagrees, arguing that the court reporter fees were reasonably necessary to the conduct of the litigation and that the Trial transcript was ordered by the Court. (Opposition, pp. 12:16–28, 13:1–2.)

        Defendant reiterates its argument in its Reply. (Reply, p. 3:20–26.)

        The Court found above that Plaintiff is entitled to costs post-998 Offer dated April 20, 2022. However, the Court agrees with Defendant that all of the non-Trial court reporter fees should be taxed as the Court did not order transcripts for those hearings, which is noted on the invoices for the court reporter fees. (Decl. Law, Ex. 3, pp. 2–4.) There are three such invoices at $475.00 a piece, for a total of $1,425.00.

        The Court taxes the claim for court reporter fees by $1,425.00 and awards $2,554.15 in claimed court reporter fees.

D.      Other Fees

        Defendant argues that the Court should strike or tax the $10,122.32 in “other” costs, providing specific arguments to items such as expert witness fees, vehicle inspection fee, and travel expenses. (Memorandum of Points and Authorities, pp. 6–10.)

        Plaintiff disagrees, arguing that the expert fees, vehicle inspection fees, and travel expenses are reasonable. (Opposition, pp. 13–14.)

        Defendant reiterates its argument in its Reply. (Reply, pp. 4–5.)

        The Court found above that Plaintiff is entitled to costs post-998 Offer dated April 20, 2022. The Court finds that the expert costs are reasonable. The Court also finds that the travel costs are reasonable.

The Court denies the Motion taxing the claimed “other” costs.

III.     Conclusion

Defendant’s Motion to Strike Plaintiff’s Memorandum of Costs, or, in the Alternative to Tax Costs is GRANTED in part. Plaintiff’s Memorandum of Costs is TAXED in the amount of $1,425.00. Costs are awarded for Plaintiff and against Defendant in the amount of $21,580.28 as shown in the table below.