Judge: Michael Small, Case: 19STCV10114, Date: 2023-08-10 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19STCV10114    Hearing Date: August 10, 2023    Dept: 57

 Plaintiff Milton Ernesto Amador Lopez (aka Milton Amador) (“Plaintiff”) sued Subaru of America, Inc., Casa De Cadillac, and Subaru Sherman Oaks (collectively “Defendants”) for violations of the Song Beverly Consumer Warranty Act and negligent repair.  On October 26, 2022, the Court granted Defendants’ motion for judgment on the pleadings as to all of the causes of action against them, without leave to amend.  Thereafter, Defendants filed a Memorandum of Costs in the amount of $17,775.25 (“the Memorandum”).   Pending before the Court is Plaintiff’s Motion to Tax Costs (“the Motion”).  In the Motion, Plaintiff seeks an order taxing costs set forth in items 1, 4, and 16 in the Memorandum.  The total costs in those items is $5,197.76.  For the reasons set forth below, the Motion is granted in part and denied in part.  In light of the portions of the Motion that have been granted, Defendants’ recoverable costs are reduced by $1851.29, which means that Defendants may recover $15,923.96

Governing Law

Code of Civil Procedure Section 1032(b) states that except as otherwise provided by statute, a “prevailing party” in an action is entitled to recover costs incurred in the action.  Here, Defendants are prevailing parties because they obtained a dismissal of Plaintiff’s action against them when the Court granted their motion for judgment on the pleadings.

Section 1033.5(a) lists the items that are allowable as recoverable costs for purposes of Section 1032.  Section 1033.5(c)(2) states that the allowable costs in subdivision (a) “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” And Section 1033.5(c)(3) states that “[a]llowable costs must be reasonable in amount.”  Section 1033.5(b) sets forth items that are not allowable as recoverable costs.  An item that is neither expressly allowable under Section 1033.5(a) nor expressly prohibited under Section 1033.5(b) may be allowed by the trial court in the exercise of its discretion.  (Section 1033.5(c)(4).)

If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that the items were not reasonable or necessary.  (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.)  A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256, 266.)  A party seeking to tax costs must provide evidence to rebut this prima facie showing.  (Jones v. Dumrichob (1998) 63 Cal. App. 4th 1258, 1266.)  If the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.  (Ibid.) 

ANALYSIS

Item 1

In Item 1, Defendants seek to recover $134.65 in fees incurred for using a document filing service.   Under Section 1033.5(a)(1), filing fees are recoverable costs.   In the Motion, Plaintiff contends that fees paid to a document filing service are not filing fees.  That may be true.  But Plaintiff overlooks Section 1033.5(a)(14), which allows for recovery of “fees for the electronic filing or service of documents through an electronic filing service provider if a court requires or orders electronic filing or service of documents.”  Rule 3.4(a) of the Los Angeles County Superior Court Rules (“the Local Rules”) requires represented parties in civil action to file documents electronically. Accordingly, pursuant to Section 1033.5(a)(14), Defendants may recover the $134.65 in fees they incurred to use the document filing service. 

Plaintiff also moves to tax two fees, totaling $27.28, Defendants incurred for using the document filing service prior to the imposition of the requirement in Local Rule 3.4 that documents be electronically filed.  The Court in its discretion is allowing those fees because they were reasonably necessary to the conduct of the litigation. 

Item 4

Code of Civil Procedure 1033.5(a)(3)(A) allows for the recovery of costs for taking, video recording, and transcribing of necessary depositions, including the costs for one copy of the deposition transcript.  Plaintiff asks the Court to tax costs associated with the transcription of two depositions that were conducted remotely.   The company that provided a reporter to transcribe the depositions, Veritext, charged $295 for the reporter’s remote appearance, on top of a regular “attendance fee” that Veritext charges.  Plaintiff contends that Defendants cannot recover both the remote appearance fee and the attendance fee.   The Court disagrees.   The evidence indicates that Veritext charges different fees based on the services rendered.  In that regard, it assesses an additional fee for taking remote depositions.  Both sides appeared remotely for the depositions of the Plaintiff and Plaintiff’s expert.  Both sides benefited from the remote appearances, which allowed everyone to avoid having to appear in person during the COVID-19 pandemic.  Under these circumstances, the Court finds that Defendants may recover the fees associated with both the attendance fee and remote appearance fee that Veritext charged. 

The Court does, however, agree with Plaintiff that Defendants are not entitled to recover $40 for the costs of two additional copies of a transcript of the deposition of a representative from the Subaru dealership.  That amount will be taxed.  By contrast, the $25 fee for a copy of the deposition of the transcript of Defendants’ expert is allowable under Code of Civil Procedure 1033.5(a)(3)(A) and this item was reasonably necessary for the conduct of the litigation.

Item 16

Plaintiff moves to tax several items listed in the Memorandum under the category of “Other.”

First, Plaintiff seeks to tax $1,441.54, which Defendants incurred for conducting background checks on Plaintiff.  Code of Civil Procedure section 1033.5(b)(2) expressly disallows the recovery of costs for investigation.  The background checks that Defendants conducted reflect an investigation.  Accordingly, the $1,441.54 that Defendants incurred for the background checks will be taxed.

Second, Plaintiff seeks to tax $675 that Defendants incurred to tow the non-functioning vehicle that was the subject of Plaintiff’s action so that Defendants could inspect the vehicle.  The Court finds the costs to tow the vehicle so that Defendants could inspect the vehicle were reasonably necessary to the conduct of the litigation,  While the Defendants agreed to bear the upfront costs of towing the vehicle, there is no evidence that the Defendants agreed that they would not seek to recover those costs if they prevailed in the action.  Thus, the Court finds that Defendants may recover the $675 in towing charges.

Third, Plaintiff seeks to tax $350 for mediation charges.  Plaintiff represents that the parties each agreed to pay $350 for the mediation, for a total of $700,  and Defendant is now trying to renege on its agreement.  The Court finds that Defendants’ $350 share of the costs of the mediation shall be taxed based on the parties’ agreement to split the costs 50-50. 

Fourth, Plaintiff seeks to tax $1,346.96 for the lodging of deposition transcripts for trial.  The basis of this request is that the case was not tried.  The Court rejects Plaintiff’s request.  Defendants are entitled to recover the costs for lodging the deposition transcripts with the Court because Local Rule 3.56 provides that all deposition transcripts must be lodged with the Court prior to the commencement of trial.  The lodging of the transcripts thus was reasonably necessary to the conduct of the litigation.  Simply put, Defendants needed to prepare the case for trial, and it did not become certain that the case would not go to trial until judgment was entered against Plaintiff. 

Fifth, Plaintiff seeks to tax costs of $19,75 for “[x]erox, postage, copy charges, and court connect fees.”  The costs incurred for xerox and postage are not recoverable because they were not helpful to aid the trier of fact during trial (as there was no trial.  As such, these fees are not recoverable under Section 1033.5(b)(3). 

Conclusion

The taxable items add up to $1851.29.  That is the amount of Defendants’ costs that will be taxed.