Judge Michelle C. Kim, Case Number: 22STCV02983, Date: 2024-11-14 Tentative Ruling

Superior Court of California

County of Los Angeles

Department 78

BRIAN GUADALUPE MAGALLANES, et al. Plaintiff(s), vs. GENERAL MOTORS, LLC, et al., Defendant(s).	Case No.:	22STCV02983
	Hearing Date:	November 14, 2024

	[TENTATIVE] ORDER DENYING MOTION TO TAX COSTS

I. BACKGROUND

Plaintiffs Brian Guadalupe Magallanes and Patricia Rodriguez (collectively, “Plaintiffs”) filed this lemon law action against defendant General Motors (“Defendant”).

On February 22, 2024, Plaintiffs filed a notice of settlement of entire case.

On July 12, 2024, Plaintiffs filed and served the memorandum of costs.¿

On July 24, 2024, Defendant filed the instant motion to tax costs.

On October 31, 2024, Plaintiffs filed an opposition.

On November 6, 2024, Defendant filed a reply.¿

II. LEGAL STANDARD

“ ‘The right to recover any of the costs of a civil action “is determined entirely by statute.” ’ [Citation.] “ ‘[I]n the absence of an authorizing statute, no costs can be recovered by either party.” ’ [Citation.] ‘Section 1032 governs the award of costs of trial court litigation.’ [Citation.]” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 737.)¿

¿ “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).) (Emphasis added.) Code of Civil Procedure section 1032, subdivision (a) defines a “prevailing party” as “[1] the party with a net monetary recovery, [2] a defendant in whose favor dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant.”¿

Costs are allowable if incurred, whether or not paid. (Code Civ. Proc., § 1033.5, subd. (c)(1).) Costs must also be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” and must be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).)¿

¿ “ ‘[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first [sentence] of the provision. “As rewritten [in 1986], section 1032 now declares that costs are available as a ‘matter of right’ when the prevailing party is within one of the four categories designated by statute.” ’ ” (Charton v. Harkey, supra, 247 Cal.App.4th at p. 738.)¿

A prevailing party claiming costs must file and serve a memorandum of costs either (1) within 15 days after the date of service of a notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5, (2) 15 days after the service of written notice of entry of judgment or dismissal, or (3) within 180 days after entry of judgment, whichever is first. (Cal. Rules of Court, rule 3.1700, subd. (a).)¿

III. DISCUSSION

Any motion to strike or tax costs must be served and filed 15 days after service of the memorandum, plus an additional 5 days if served by mail or 2 days if served electronically. (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) Plaintiff filed and served the costs memorandum on July 12, 2024, and Defendant filed and served the instant motion on July 24, 2024. The motion is therefore timely.¿

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).) Although not specifically identified by item, Defendant appears to seek to tax Item 1 (filing and motion fees), Item 4 (deposition costs), Item 5 (service of process) and Item 16 (other costs).¿

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.¿If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Foothill De Anza Cmty. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 2930.) “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

Item 1 – Filing and Motion Fees

Pursuant to Code of Civil Procedure § 1033.5(a)(1), filing, motion, and jury fees are allowable as costs.

Defendant seeks to tax $166.79 for “Jury Fees” from Item 1, arguing the case never went to trial and therefore Defendant should not be billed for a jury deposit. However, posting jury fees is a necessity for Plaintiffs to have preserved their right to jury trial, since trial is always a possibility prior to settlement. The cost was therefore necessary. The request to tax $166.79 is therefore denied.

Defendant also seeks to tax $12.34 for the “Notice of Change of Address”, arguing that this is business overhead costs unrelated to litigation of Plaintiffs’ claims. In opposition, Plaintiffs argue that the Notice of Change of Address was necessary to keep the Court and all parties apprised of any change in contact information, including address. The Court finds that Defendant has not rebutted the presumption that the cost was proper and necessary. The request to tax $12.34 is therefore denied.

Item 4 – Deposition Costs

Pursuant to Code of Civil Procedure § 1033.5(a)(11), court reporter fees are recoverable as costs. (See also Gov’t Code § 68086(d)(2).) However, other related fees are only recoverable when ordered by the court. (Code Civ. Proc. § 1033.5(a)(9), (b)(5).)

Defendant argues $7,216.40 in transcript costs related to the depositions of Michelle Mock, Scott Cardonna, and James Oaks should be taxed because they were not generated to support any motion and the matter did not proceed to trial. In opposition, Plaintiffs contend these three PMQ witnesses were necessary to support Plaintiffs’ case in general, and that these three depositions were ordered by the Court as a result of the May 2023 informal discovery conferences and the Court’s October 19, 2023 Order compelling these depositions.

Defendant also seeks to tax $1,263.88 in transcript costs related to the hearings on the motions to compel on the grounds that the matter did not proceed to trial and was not necessary in support of any motion. In opposition, Plaintiff argues that the hearings on Plaintiff’s motion to compel was reasonably incurred because the parties had engaged in three separate IDCs regarding further documents and responses, yet Defendant continued to withhold documents. As such, Plaintiffs anticipated filing a motion for compliance, which would have likely cited the transcript from the July 3, 2023 hearing on Plaintiffs’ motion to compel.

Based on the history of this matter, the Court finds that the items appearing in the cost bill appear to be proper charges, and Defendant has not met its burden as the party seeking to tax costs to show that the items were not reasonable or necessary. The request to tax, collectively, $8,480.28 in transcript costs is therefore denied.

Item 5 – Service of Process

Pursuant to Code of Civil Procedure § 1033.5(a)(4), service of process by a public officer, registered process server is recoverable as costs.

Defendant seeks to tax $511.88 in service of process related to service of Trial Subpoenas to non-parties, and argues that the two dealerships and various technicians are independent of GM and benefitted only Plaintiffs’ counsel. In opposition, Plaintiffs contend that the trial subpoenas summoned only the Custodian of Records from Felix Chevrolet and George Chevrolet, which was necessary to authenticate the repair orders and explain the contents of the documents from those dealerships. Plaintiff argues that these third-party witnesses were able to discuss the steps taken by each dealership to eradicate the defects in the subject Vehicle.

The Court finds that the costs were reasonably necessary to the conduct of the litigation. The request to tax $511.88 is therefore denied.

Item 16 – Other

Defendant argues that $1,170 for “Automotive Technology Services” should be taxed because Plaintiffs’ counsel has provided no information of the nature and purpose of the costs. In opposition, Plaintiffs argue there is no such cost for $1,170 for “Automotive Technology Services” existing in the cost memorandum. Defendant’s does not respond to this, and merely reiterates the entirety of the moving papers in verbatim as the reply.

Indeed, the Court is unable to locate any $1,170 for “Automotive Technology Services” in the cost memorandum. The request to tax a non-existent item is denied.

IV. CONCLUSION

Defendant’s motion to tax costs is DENIED in its entirety.

Moving Party is ordered to give notice.

DATED: November 13, 2024

__________________________

Hon. Michelle C. Kim

Judge of the Superior Court

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.