Judge: Michael Small, Case: 19STCV35910, Date: 2024-03-20 Tentative Ruling

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

Case Number: 19STCV35910    Hearing Date: March 20, 2024    Dept: 57

Plaintiffs Jose O. Monsalve and Christian Jose Monsalve (“Plaintiffs”)  sued Defendant Kia Motors America, Inc. (“Kia”) under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).  Plaintiffs also asserted a fraud claim against Kia and requested an award of punitive damages on that claim.  The Court granted Kia’s motion for summary adjudication on Plaintiffs’ fraud claim and request for punitive damages.  The case proceeded to trial on Plaintiffs’ claims under the Song-Beverly Act claims.  The jury returned a verdict for Kia on those claims.  The Court entered judgment for Kia based on its summary adjudication order and the jury’s verdict.

Following entry of the judgment, Kia filed a memorandum of costs under Code of Civil Procedure Section 1032(b) as the prevailing party in the litigation.   (All statutory references herein are to the Code of Civil Procedure). Plaintiffs moved to tax $12,012.58 of the costs on the grounds that those costs are not recoverable Section 1033.5.   In particular, Plaintiffs seek to tax the following items in Kia’s memorandum of costs: filing fees (item 1); deposition costs (item 4); ordinary witness fees (item 8); models, enlargements and photocopies of exhibits (item 11); court reporter fees (item 12); e-filing fees (item 14); and “other” costs (item 16).  In the main, the Court is denying Plaintiffs’ motion.  The Court is, however, taxing costs in the amount of    

Governing Law

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, Kia is the prevailing party because it obtained a judgment in its favor following a jury verdict.

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

A.  Filing fees (item 1) and e-filing fees (item 14)

Plaintiffs seek to strike $1,490.10 for filing fees and $865.26 for e-filing fees from Kia’s memorandum of costs.  Filing fees and fees for the electronic filing or service of documents through an electronic filing service provider are recoverable as costs, where, as here, the Los Angeles County Superior Court Rules (“Local Rules”) require represented parties in civil actions to file documents electronically. (Code Civ. Proc., § 1033.5(a)(1) and (14); Local Rules, Rule 3.4(a).) The Court is striking Kia’s filing fees and related services associated with the filing of Kia’s unsuccessful demurrer and motion to strike.  The Court seeks the parties’ assistance in calculating this figure. Otherwise, the Court is denying Plaintiffs’ motion to tax filing fees and e-filing fees.   In particular, Plaintiffs’ contention that Kia’s filing fees for its successful motion for summary adjudication should be taxed is nonsensical and borders on frivolous.

B.  Deposition costs (item 4)

Plaintiffs seek to tax $521.25 in deposition costs for Kia’s Person Most Knowledgeable Frank Gonzalez and $295 in “Veritext Virtual Primary Participants” for Plaintiffs’ expert Anthony Micale. Costs for taking, video recording, and transcribing of necessary depositions, including the costs for one copy of a deposition transcript are recoverable. (Code Civ. Proc., § 1033.5(a)(3)(A).)  The Court taxes $25 for a “condensed transcript” in addition to the certified copy for the deposition of Mr. Gonzalez.  As to the virtual primary participation, Plaintiffs argue that it was not reasonably necessary because it is in addition to $350 in “Attendance – Full Day.” Counsel for Kia explains that this was something “the court reporters charged for using their system for conducting remote depositions” and “[b]ecause the depositions were taken remotely, neither the attorneys, nor the witnesses, had to travel” to either party’s law firm. (Douglas Decl., ¶ 12.) The Court agrees that the virtual participation fee was reasonable and necessary to the conduct of litigation. The Court thus denies Plaintiffs’ motion as to deposition costs except to tax $25.

C.  Ordinary witness fees (item 8)

Plaintiffs seek to tax $153 for “Technical Research Assistant” claimed under item 8. Kia counters that this was used for litigation support, referring to the role as a “trial presentation technician.” (Opposition, p. 5.) Since this cost was incurred to aid the jury during trial, the Court declines to tax it.

D.  Models, enlargements and photocopies of exhibits (item 11)

“Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5(a)(13).) Department 57 Courtroom Rules require counsel to prepare a separate sets of exhibits. Kia incurred $4,911.68 for making copies of trial exhibits without knowing which of the exhibits would ultimately be used at trial. (Douglas Decl., ¶ 14.)  In their Reply, Plaintiffs modify their request and seek 50% of item 11 costs to be taxed, in the amount of $2,455.84, maintaining that Kia did not explain why exhibits had to be in color. (Reply, p. 5.)   Finding that the exhibit copies were reasonably necessary, the Court denies Plaintiffs’ motion as to item 11.

E.  Court reporter fees (item 12)

Plaintiffs seek to tax $345 for a rough transcript of the trial proceeding. Plaintiffs argue that because this was not ordered by the Court, it is not recoverable. (See Code Civ. Proc., § 1033.5(a)(9).) Kia’s counsel simply states that the rough transcript was “reasonably necessary to the conduct of litigation and reasonable in amount” but does not supply that it was ordered by the Court. The Court grants Plaintiffs’ motion as to item 12.

F.   “Other” costs (item 16)

Plaintiffs seek to tax $1,717.94 for “other” costs, including “Xerox,” travel and parking. Kia in opposition does not address these “other” costs. The Court grants Plaintiffs’ motion as to “other” costs in item 16.

CONCLUSION

The total amount to be taxed is $2,087.94, plus the amount of the filing fees for Kia’s demurrer and motion to strike.