Judge: Monica Bachner, Case: 20STCV16064, Date: 2022-10-19 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV16064    Hearing Date: October 19, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Ford Motor Company’s motion to tax costs submitted by Wirtz Law, APC, is granted in the reduced amount of $2,553.79.  Plaintiff Lino Urquiza is therefore entitled to costs in the reduced total amount of $9,147.38.

Defendant Ford Motor Company’s motion to tax costs submitted by Quill & Arrow, LLP, is denied.  Plaintiff Lino Urquiza is therefore entitled to costs in the total amount of $7,212.03.

Plaintiff’s request for attorneys’ fees for the instant motion are granted in the reduced amount of $2,000.00.

Defendant Ford Motor Company (“Ford”) (“Defendant”) moves to tax or strike unrecoverable, not reasonably incurred, uncertain, and unsubstantiated costs requested by Plaintiff Lino Urquiza (“Urquiza”) (“Plaintiff”) and submitted by Wirtz Law, APC (“Wirtz”), and award Plaintiff no more than $8,987.60 in costs or another reasonable sum.  (Notice of Motion Wirtz, pg. 2.)  Defendant also moves to tax or strike unrecoverable, not reasonably incurred, uncertain, and unsubstantiated costs requested by Plaintiff and submitted by Quill & Arrow, LLP (“Quill”), and award Plaintiff no more than $662.65 in costs or another reasonable sum.  (Notice of Motion Quill, pg. 2.) 

Evidentiary Objections

Wirtz’s and Quill’s 10/5/22 identical evidentiary objections to the declaration of Mahfam Sadeghi (“Sadeghi”) are overruled as to No. 1.

Background

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). This case settled on December 3, 2021, when Plaintiff accepted Defendant’s C.C.P. §998 Offer to Compromise (“998 Offer”), and this Court issued judgment for Plaintiff, pursuant to the settlement, on January 6, 2022.  (Judgment, pg. 2, Exh. A.)  On May 9, 2022, Plaintiff filed a memorandum of costs seeking a combined sum of $18,973.20 in actual costs from Defendant.  (Motion Attorneys’ Fees, pg. 1.)  Wirtz Law submitted a memorandum of costs on Plaintiff’s behalf seeking $11,701.17 in costs.  (Motion Attorneys’ Fees, Decl. of Wirtz ¶2, Exh. B.)   Quill submitted a memorandum of costs on Plaintiff’s behalf seeking $7,212.03 in costs. (Motion Attorneys’ Fees, Decl. of Jacobson ¶14.)  On May 20, 2022, Defendant filed the instant motion. On October 5, 2022, Wirtz and Quill filed their oppositions and evidentiary objections.  Defendant filed its replies on October 12, 2022.

Motion to Tax Costs

“‘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 they were not reasonable or necessary. On the other hand, 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.’” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.  [Citation] However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations]” (Id.)

“The court’s first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation]” (Id.)

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, except as otherwise expressly provided by statute. (C.C.P.  §1032(b).)  California law recognizes three types of litigation costs: allowable, not allowable, and discretionary.  (C.C.P. §1033.5(a), (b), (c)(4).)  Items not specifically allowable as costs under C.C.P. §1033.5(a), and not specifically prohibited under §1033.5(b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. (Citizens for Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 506, citing Ladas v. California State Auto Association (1993) 19 Cal.App.4th 761, 774.)  For allowable costs, C.C.P. §1033.5(c) provides:

(2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.

(3) Allowable costs shall be reasonable in amount.

(C.C.P. §1033.5(c)(2)-(3).) 

To the extent Defendants challenges costs, they must be challenged as costs that were not, “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation” or not “reasonable in amount.”  (C.C.P. §1033.5(c)(2)-(3).)  As discussed above, Plaintiff is the prevailing party in this action, and as such, is entitled to costs pursuant to C.C.P. §1032(b).

Wirtz Costs

Wirtz Item Nos. 1, 2, and 3; Cost Memorandum Category 12 (Court reporter fees)

Defendant argues Plaintiff is not entitled to Wirtz’s request for $1,455.00 in court reporter fees for an Order to Show Cause Conference ($525.00), Post-Mediation Status Conference ($465.00), and the future hearing on Plaintiff’s Motion for Attorneys’ Fees ($465.00).  (Motion Wirtz, pgs. 3, 6.)  Defendant argues these costs are not recoverable because Plaintiff was never ordered by the Court to retain a court reporter for the hearings.  (C.C.P. §1033.5(a)(9).)  Further, Defendant argues Plaintiff should not be able to recover court reporter fees for the “Order to Show Cause re Failure to Appear” hearing as this hearing was set for Plaintiff’s counsel’s failure to attend a prior hearing, and was later taken off-calendar when this matter settled.  (Motion Wirtz, pg. 6.)  

The Court finds that Plaintiff’s court reporter fees for non-trial hearings were not reasonably incurred in the prosecution of this action, and accordingly, an order taxing them is warranted.   Wirtz also indicated in its opposition that Wirtz’s charge for $465.00 for a court reporter for Plaintiff’s Motion for Attorney’s Fees is no longer anticipated. (Decl. of Barns ¶2, Exh. A.) 

Based on the foregoing, Defendants’ motion to tax Item No. 3 for court reporter fees for the future hearing on Plaintiff’s Motion for Attorneys’ Fees and Costs is granted in the requested amount of $1,455.00.

Wirtz Item No. 4; Cost Memorandum Category 15 (Fees for hosting electronic documents)

Defendant argues Plaintiff is not entitled to Wirtz’s request for $85.05 in fees for “hosting electronic documents” under C.C.P. §1033.5(a)(15) because this Court did not order Plaintiff to host any documents “by an electronic service provider.”  (Motion Wirtz, pg. 6.)  Wirtz argues in opposition that costs for electronically filing documents was inadvertently included on Wirtz’s Cost Memorandum under Category 15, fees for hosting electronic documents, when it should have been listed under Category 14, fees for electronic filing or service. (Decl. of Barns ¶4, Exh. C; see Motion Attorneys’ Fees, Decl. Wirtz, Exh. B.)  In reply, Defendant withdrew its objection to the cost.

Accordingly, Defendant’s motion to tax Item No. 4 is moot.

Wirtz Item Nos. 5, 6, 7, 8, 9, & 10; Cost Memorandum Category 16 (“Other”)

a.     Item Nos. 5 & 6; Copy/print/fax and postage

Defendant argues Plaintiff is not entitled to Wirtz’s request for $2.00 for copy/print/fax and $72.73 for postage because these costs are not recoverable unless they were incurred in connection with exhibits, and this case settled prior to conducting expert discovery.  (Motion Wirtz, pgs. 3, 6.)  Civil Code §1794(d) provides that costs must be reasonably incurred in the commencement and prosecution of this action.  (Civ. Code §1794(d).)  Wirtz declares that in the pursuit of this case, certain documents needed to be printed and served via mail. (Decl. of Barns ¶6.)

Accordingly, Defendant’s motion to tax Item Nos. 5 and 6 are denied.

b.    Item No. 7; Courtesy copies

Defendant argues Plaintiff is not entitled to Wirtz’s request for $122.76 for courtesy copies because these costs were unreasonably incurred since this Court does not require courtesy copies.  (Motion Wirtz, pg. 7.)  Courtesy copies were submitted for Plaintiff’s Motion for Attorney’s Fees, Costs and Expenses and the Proposed Judgment on the accepted 998 Offer. (Decl. of Barns ¶5.)  However, this Court does not request or require the courtesy copies.

Accordingly, Defendant’s motion to tax Item No. 7 is granted in the amount of $122.76.

c.     Item No. 8; Interest on costs

Defendant argues Plaintiff is not entitled to Wirtz’s request for $931.88 in interest on costs from June 3, 2022, through September 1, 2022, because interest accrues daily on the Court’s final ruling by operation of law until it is satisfied, and Plaintiff has calculated this interest based on the entire amount of costs that he is seeking.  (Motion Wirtz, pg. 7.)  Plaintiff cites California Rules of Professional Conduct, Rule 4-210 (now Rule 1.8.5) which permits a lawyer to advance costs; however this rule does not mention interest.  Plaintiff’s citation to the L.A. County Bar Association’s Professional Responsibility and Ethics Committee’s Formal Ethics Opinion No. 499 discusses the ethical aspect of charging clients with interests and is “advisory only.”  It does not provide authority for post-judgment interest as a cost.

Accordingly, Defendant’s motion to tax Item No. 8 is granted.

d.    Item No. 9; Westlaw legal research

Defendant argues Plaintiff is not entitled to Wirtz’s request for $21.62 in Westlaw legal research charges because Civil Code Section 1033.5(b)(2) prohibits the recovery of “Investigation expenses”. Based on this provision, the Court of Appeals held in Ladas v. California State Automobile Association that “[f]ees for legal research, computer or otherwise, may not be recovered under section 1033.5.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 776.)  Accordingly, Defendant’s motion to tax Item No. 9 is granted.

e.     Item No. 10; “Uber”

Defendant argues Plaintiff is not entitled to Wirtz’s request for $22.53 for “Uber” because Plaintiff has not provided any description for this cost, has not stated in connection with which event this cost was incurred, has not stated when this cost was incurred, and has not submitted any documentation to support this cost.  (Motion Wirtz, pg. 5.)  Pursuant to Civil Code §1794(d), all costs and expenses reasonably incurred in the prosecution of this action shall be awarded to Plaintiff. (Civ. Code §1794(d).)  Plaintiff declares it was reasonably necessary to surrender the subject vehicle to Defendant pursuant to the parties’ settlement agreement, which required Plaintiff to drive the subject vehicle to Defendant’s dealership, and leave it there; Plaintiff required a means of transportation to return home from the vehicle surrender, and Defendant refused to provide Plaintiff with a courtesy shuttle home.  (Decl. of Barns ¶7.)  Plaintiff’s Uber ride home after complying with the settlement agreement was not reasonably incurred in the prosecution of this action.  Moreover, Plaintiff did not submit an invoice to substantiate this cost.

Accordingly, Defendant’s motion to tax Item No. 10 for $22.53 is granted.

Quill Costs

Quill Item No. 1; Cost Memorandum Category 4 (Deposition Costs)

Defendant argues that Plaintiff is not entitled to Quill’s request for $4,644 in deposition costs because Plaintiff’s Memorandum of Costs does not include a description of what the costs pertain, to which deposition the cost relates, when the cost was incurred, and has not submitted any documentation to support the cost.   (Motion Quill, pgs. 3, 5.)

Quill incurred $2,305.00 for a Court Reporter at the Deposition of Jeff Harkness, $728.60 for a Court Reporter at the Deposition of Jim Twitchell, and $905.20 for a Court Reporter at the Deposition of Guillermo Ramos, which all took place on January 15, 2021.  (Decl. of Jacobson ¶3, Exh. B; Decl. of Underwood ¶2.)  The cost of a court reporter at a deposition (including an original transcript and one copy) is all recoverable under C.C.P. §1033.5.  Quill argues these depositions were needed to obtain information regarding repairs to the vehicle, authenticate and interpret the repair orders, and rebut Defendant’s anticipated argument that the problems with Plaintiff’s vehicle were somehow caused by Plaintiff’s neglect or abuse.  (Decl. of Jacobson ¶3.) These individuals are regularly asked their recollection of the subject vehicle, of their interactions with the Plaintiff, to interpret their own handwriting or to explain the meaning behind their notes on the repair orders, and about the dealership’s specific protocols and rules regarding repair attempts.  (Decl. of Jacobson ¶3.) Quill’s costs were reasonably incurred in connection with the commencement and prosecution on this action.  (C.C.P. §1794(d).)

Accordingly, Defendant’s motion to tax Item No. 1 for $4,644 is denied.

Quill Item No. 2 (Service of Process)

Defendant argues that Plaintiff is not entitled to Quill’s request for $537.50 in costs for service of process because Plaintiff does not include a description of what the costs pertain, what and who was served, when the cost was incurred, and has not submitted any documentation to support the cost.  (Motion Quill, pgs. 3, 5.)

Quill incurred service of process costs for personal service of the complaint and summons on Defendant and deposition subpoenas to non-party dealership personnel who attempted repairs on the subject vehicle and/or interacted with Plaintiff.  (Decl. of Jacobson ¶4, Exh. C.)  Quill’s costs were reasonably incurred in connection with the commencement and prosecution on this action.  (C.C.P. §1794(d).)

Accordingly, Defendant’s motion to tax Item No. 2 for $537.50 is denied.

Quill Item No. 3 (Witness Fees)

Defendant argues that Plaintiff is not entitled to Quill’s request for $805.08 in witness fees because no description has been provided for the cost and Plaintiff has not submitted any invoices to the support the witness fees.  (Motion Quill, pgs. 3, 6.)  Defendant further argues expert witness fees are not recoverable under Civil Code §1033.5(b)(1).  (Motion Quill, pg. 6.) 

Quill incurred costs in expert fees for Plaintiff’s Expert Witness to attend the Vehicle Inspection (which FMC demanded) on December 2, 2020.  (Decl. of Jacobson ¶5, Exh. D.)  Defendant cites an incorrect standard for the recovery of expert witness fees in a Song-Beverly Act case, which is controlled by C.C.P. §1794(d).  Quill’s costs and expenses for witness fees were reasonably incurred in connection with the commencement and prosecution on this action.  (C.C.P. §1794(d).)

Accordingly, Defendant’s motion to tax Item No. 3 for $805.08 is denied.

Quill Item No. 4 (“Other” Costs)

Defendant argues that Plaintiff is not entitled to Quill’s request for $562.50, for “other” costs because Plaintiff does not include a description of what the costs pertain and has not submitted any documentation to support the cost.  (Motion Quill, pgs. 3, 5.)

Quill incurred costs for one half of the cost of mediation of this case with SmartADR on June 25, 2021, indicated as the $562.50 sought under the “other” category.  (Decl. of Jacobson ¶6, Exh. E.)  Quill’s costs and expenses for mediation costs were reasonably incurred in connection with the commencement and prosecution on this action.  (C.C.P. §1794(d).)

Accordingly, Defendant’s motion to tax Item No. 4 for $562.50 is denied.

Additional Attorneys’ Fees

Plaintiff requests additional attorneys’ fees incurred in opposing Defendant’s motion.  Pursuant to the Song-Beverly Act and parties’ settlement agreement, the prevailing party in this action is entitled to recoup all reasonable attorney’s fees, costs, and expenses.  (C.C.P. §1032(a)(4); Civ. Code §1794(d); Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 557; Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139.)  Plaintiff submits declarations of Erin Barns in support of the fees incurred related to the Motions to Tax Costs.  (Opposition Wirtz, Decl. of Barns ¶9, Exh. D; Opposition Quill, Decl. of Barns ¶2, Exh. A.)  Plaintiff’s exhibits list counsel’s hourly rate at $500 for Erin Barns, for a total of 11.5 hours in preparation of these motions, for a request of additional attorneys’ fees totaling $3,530.00. Considering that much of the two motions submitted by Plaintiff’s counsel are identical, the Court grants Plaintiff attorney fees for these motions in the reduced amount of $2,000.

Conclusion

Based on the foregoing, Defendant’s motion to tax costs on Wirtz Law, APC’s, Memorandum of Costs is granted in the reduced amount of $2,553.79.  Defendant’s motion to tax costs on Quill & Arrow, LLP’s, Memorandum of Costs is denied. Plaintiff’s attorneys are granted attorneys’ fees for this motion in the reduced amount of $2,000.00.  Plaintiff is therefore entitled to costs in the total amount of $18,359.41

Dated: October _____, 2022

Hon. Monica Bachner

Judge of the Superior Court