Judge Ralph C. Hofer, Case Number: 22GDCV00529, Date: 2024-03-15 Tentative Ruling

Plaintiff Mabel S. Vera alleges that in May of 2021 plaintiff leased a 2021 Infiniti QX50 vehicle from an authorized dealer and agent of defendant Nissan North America, Inc., the manufacturer of the vehicle, and that the subject vehicle was leased to plaintiff with express warranties that the vehicle would be free from defects in materials, nonconformities, or workmanship during the applicable warranty period and to the extent the subject vehicles had defects, defendant Nissan would repair the defects.

Plaintiff alleges that beginning in August of 2021, plaintiff returned the subject vehicle to defendant for repairs under the applicable warranties because the vehicle exhibited defects, nonconformities, maladjustments, or malfunction relating to the rear collision light turning on at times, the intelligent brake assist light turning on at times, and sonar control unit issues. Subsequently, the vehicle exhibited further defects, including front collision lights turning on intermittently, doors failing to lock or unlock with the key fob or interior switches, problems with the left and right rear door actuators, and freezing of the top screen.

Plaintiff alleges that defendant has failed to make the subject vehicle conform to the applicable warranties, despite being permitted a reasonable number of attempts to do so, and that defendant is unable or unwilling to make the vehicle conform to the warranties.

The complaint alleges that plaintiff delivered the subject vehicle to defendant Promenade Imports, LLC dba Glendale Infiniti for repair and that defendant Glendale Infiniti negligently performed the services of storing, preparing, and repairing the vehicle in accordance with industry standards, and also breached its duty to record and describe all work on the invoice given to plaintiff, proximately causing plaintiff damages.

Under CCP §1032 (b), “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.” CCP § 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law. CCP § 1033.5 (a)(10).

“(d) If 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.”

“3. NNA shall pay Plaintiff’s attorney's fees, costs, and expenses actually and reasonably incurred in the commencement and prosecution of this action, including post-offer acceptance attorney's fees, costs, and expenses incurred in performing on the settlement and/or completing the case, pursuant to Civil Code section 1794(d), which may be resolved by agreement of the parties or, if the parties cannot agree, upon properly noticed motion to the Court. If a motion is needed, Plaintiff shall be deemed the prevailing party in this action under section 1794(d). The judgment, if any, shall be amended to include the fees and costs awarded by the Court or agreed by the parties. NNA will pay the attorney’s fees, costs, and expenses amounts determined by the Court within 30 days’ notice of the Court’s ruling on same.

There is accordingly no dispute here that plaintiff is the prevailing party under section 1784(d), entitled to attorney's fees actually and reasonably incurred in the commencement and prosecution of this action, including fees incurred post-offer acceptance.

This posture leaves the issue of the reasonableness of the attorney’s fees sought by plaintiff. Plaintiff seeks an award of attorney’s fees in the lodestar amount of $43,810.00, plus a lodestar multiplier/enhancement of 1.5x, in the sum of $21,905.00, for a total fee award of $65,715.00. The motion seeks a total of 17.0 hours spent by counsel Norman Taylor & Associates at rates of $645 per hour for attorney time and $250 per hour for paralegal time. The motion seeks a total of 92.8 hours spent by counsel Wirtz Law ranging from $750 per hour to $450 per hour for attorney time and $250 to $300 for paralegal time.

“[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award." Margolin v. Regional Planning Com. (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49.) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." ( Melnyk v.Robledo (1976) 64 Cal. App. 3d 618, 623 624 [134 Cal. Rptr. 602].)

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

“The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended, and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited, and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ ”

An award of attorney fees under the Song-Beverly Act is reviewed for abuse of discretion, and the determination of the value of professional services rendered in the trial court “will not be disturbed unless the appellate court is convinced that it is clearly wrong.” Goglin, at 470-471, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.

The opposition argues that the billing rates charged are excessive. Defendant objects to the rates charged, but then argues that the court should apply hourly rates no greater than $645 per hour for attorney Taylor, $550 per hour for Underwood and Inscore, and additional attorneys on the case at $450 per hour.

The moving papers submit evidence justifying the billing rates claimed, describing the experience and expertise of counsel, as well as the Laffey Matrix, justifying the rates claimed by Taylor of $645 per hour, and the paralegals billed at $250 per hour. [Taylor Decl., paras. 6-20, Ex. 5]. Information is submitted concerning Richard Wirtz’ experience and expertise in support of the $750 per hour rate, and information is provided justifying the $550 and $450 rates for other attorneys assigned to the case, and the $300 and $250 per hour rates charged by paralegals, including a United States Consumer Law Attorney Fee Survey Report, and Real Rate Report. [Wirtz Decl., paras. 4-30, Exs. 2, 3]. The court under the circumstances finds the billing rates reasonable and does not reduce the rates charged.

Defendant argues that plaintiff’s attorneys billed an unreasonable amount for client communications, which total 16.6 hours and $7,465.00, with generic entries which do not explain the type of communication or the reason for the communication.

The entries do appear a bit vague, generally listing, “Client Communication,” without further explanation. However, given the potential for disclosing attorney-client privileged or privileged attorney work product information in connection with such communications, the entries are not surprising. The opposition urges that the court reduce the entire amount billed for such communications by $10,000, at the same time indicating that the total billed was $7,465.00. This assertion is not helpful, as the reduction sought is more than what is charged, and at least some time in communication with the client are justified, particularly in the early investigative stages of the litigation, in defending against a motion to compel arbitration, and in preparing for mediation. The charges are made generally for only 0.20 hours for each communication and are not excessive or improper. The reply submits further explanation of the charges, which the court finds satisfactory. [See Reply Wirtz Decl., para. 6, Ex. 31].

Defendant also argues that the plaintiffs have billed for tasks in sums that do not reflect the time actually spent, as there is time billed to draft or review documents that are standardized pleading, discovery, and vehicle specific repair orders in any routine lemon law case. The charges are not improper or excessive, as the matter would involve specific modifications with respect to the specific alleged defects with respect to plaintiff’s vehicle.

Defendant argues that the time billed by attorney Taylor to prepare the transfer of the case to co-counsel, or 0.80 hours of time, should not be allowed. It does appear that this charge would reflect duplicative time in seeing that new counsel became familiar with the case which should not be charged to defendants. The motion indicates that no time was charged for the time of the new law firm to intake the case and get up to speed, which is appropriate. The time charged of 0.80 hours at attorney Taylor’s rate of $645 per hour is reduced from the lodestar amount requested, in the sum of $516.

Defendant argues that fees are also improperly claimed for one hour of time for researching technical issues on NHTSA and other websites, for a total of 7.3 hours to draft a boilerplate opposition to a motion to compel arbitration, and for charges of more than ten hours to draft the current motion for attorney’s fees and costs. Defendant also argues that plaintiff has improperly billed 10.8 hours for anticipated time not actually incurred for anticipated fees to prepare for and attend the hearing on the motion for fees, as well as to prepare a reply brief.

The research specific to the technical issues relating to the specific defects in plaintiff’s vehicle are warranted in a matter of this nature. With respect to the opposition to the motion to compel arbitration, defendants here chose to file two motions to compel arbitration, despite the fact they were not signatories to the arbitration agreement upon which they relied. The issues presented by the motions involved emerging legal issues concerning equitable estoppel and third-party beneficiary enforcement of arbitration provisions in agreements entered into by buyers/lessors with vehicle dealerships. The file shows that plaintiff in opposition was required to address these issues at length, research federal case law in light of the fact that state appellate law had not yet addressed in depth the issues, and that plaintiff also dealt successfully with issues involving the authentication of evidence. Plaintiff prevailed in defeating those motions, and the time spent is not unreasonable under the circumstances.

With respect to the current motion for fees, the settlement between the parties apparently anticipated that the fees for bringing such a motion would be shifted to defendant if no agreement for the amount of fees to be awarded was reached between the parties. In general, a party is entitled to all fees reasonably incurred, including the fees for time expended in obtaining a reasonable fee award. Serrano v. Unruh (1982) 32 Cal.3d 621, 631. In addition, the settlement agreement between the parties specifies that fees to be awarded to plaintiff are to include:

“post-offer acceptance attorney's fees, costs, and expenses incurred in performing on the settlement and/or completing the case, pursuant to Civil Code section 1794(d), which may be resolved by agreement of the parties or, if the parties cannot agree, upon properly noticed motion to the Court.”

It is customary to estimate the fees to be incurred in following through on a motion to recover attorney’s fees, including reviewing opposition, preparing reply, and preparing for and appearing at a hearing on such a motion. This approach seems especially appropriate in this case, where the opposition makes specific arguments concerning specific fees sought, which required detailed analysis in the reply. The reply submits billings for the time spent since the motion was filed, are reasonable and within the range estimated. [Reply Wirtz Decl., Ex. 29]. The fees sought are not fees which were not in fact incurred or would be required to be incurred and are not unreasonable in time or overall amount.

The opposition also submits a declaration and chart addressing additional specific charges, including time preparing and updating a proprietary damages chart, drafting discovery, and preparing a mediation brief. [Tolmoyan Decl., para. 3, Ex. A]. Plaintiff in the reply objects to the court considering this material, as it is essentially further argument concerning the fees charged which operates to permit defendants to exceed the page limitations for their memorandum of points and authorities in opposition to the motion. The court agrees that this method is improper without defendants having obtained leave of court to file an oversized brief, but the court has nevertheless in the interest of judicial economy reviewed the arguments and the billings, as well as the further information provided with the reply, and finds that the charges were reasonably incurred, and specifically that the proprietary documents charting is appropriate, and the preparation of a mediation brief was reasonable not only to assist the mediator, but as a helpful step toward trial preparation.

Plaintiff argues that a lodestar enhancement is appropriate here to adjust the to increase the fee award based on factors not already taken into account when setting the hourly rates, such as the risk of taking the case on a contingency basis and delay in receiving payment.

The opposition argues that no multiplier is warranted in this case, as the case is a routine lemon law case, and did not present novel issues or preclude plaintiff’s counsel from handling other matters while this case was litigated. Defendant also argues that the prosecution of a lemon law case is relatively simple, and that plaintiff’s counsel improperly here demands extraordinary rates because they are experts, but at the same time demands a lodestar multiplier because the issues are novel.

It has been held that despite the specific language of Civil Code § 1794(d) that fees must be “based on actual time expended, determined by the Court to have been reasonably incurred by the buyer,” the lodestar adjustment method, including use of a lodestar fee multiplier, is applicable to an award of attorney’s fees under the Song-Beverly Act. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 821.

The court of appeal in Robertson, although concluding that the use of a multiplier is authorized in such cases, remanded that case to the trial court to recalculate the award on the ground the trial court had considered some of the same factors in reaching the lodestar amount as it did in applying a multiplier. Robertson, at 821.

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.

Plaintiff also cites to Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, in which the court of appeal observed, in connection with a statutory award of fees under FEHA under Government Code § 12965(b), the trial court “in its discretion, may award to the prevailing party reasonable attorney’s fees and costs….” :

“It has long been recognized, however, that the contingent and deferred nature of the fee award in a civil rights or other case with statutory 395 attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1132–1133, 104 Cal.Rptr.2d 377, 17 P.3d 735.) “ ‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’ ” (Id. at p. 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735, quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.)”

“In particular, as reiterated by the Supreme Court in Ketchum v. Moses, supra, 24 Cal.4th at pages 1132–1134, 104 Cal.Rptr.2d 377, 17 P.3d 735, the market value of the services provided by plaintiffs' counsel in a case of this magnitude must take into consideration that any compensation has been deferred for up to four years from the time an hourly fee attorney would begin collecting fees from his or her client; that the demands of the present case substantially precluded other work during that extended period, which makes the ultimate risk of not obtaining fees all the greater (since the attorneys must use savings or incur debt to keep their offices afloat and their families fed during the years-long litigation); and that a failure to fully compensate for the enormous risk in bringing even a wholly meritorious case would effectively immunize large or politically powerful defendants from being held to answer for constitutional deprivations, resulting in harm to the public.”

The motion here submits evidence that the case was taken by both sets of counsel on a contingency fee basis, so that plaintiff’s counsel would have recovered nothing had plaintiff lost. [Taylor Decl., para. 21; Wirtz Decl., para. 32]. Plaintiff argues that the risk was further compounded by the fact that plaintiff’s attorneys advanced all litigation costs and expenses without reimbursement. [Wirtz Decl., para. 32]. Counsel states:

“We are motivated to keep billing low due to the contingency risk posed by this and all lemon law cases. This case was taken on a purely contingent basis. We would have recovered nothing if Plaintiff had lost. My firm is small and the fees and costs we must bear when we do lose a lemon law case are a significant hardship. We take the risk very seriously.”

The court has also weighed the factor that the nature of the case is a bit more complicated than the usual lemon law litigation because of the involvement of a party other than just the vehicle manufacturer, in this case, a repair facility defendant being pursued for negligent repair. Plaintiff’s counsel was accordingly in a position to assert in this matter all of the rights of the client in this consumer protection litigation. Defendants brought motions to compel arbitration in which plaintiff’s counsel displayed skill in defeating.

In consideration of these factors, the court finds that an appropriate enhancement or multiplier in this case is a 1.25 multiplier. The court finds that reducing the multiplier from 1.50 to 1.25 is reasonable given the case was not extraordinarily complex but recognizes the need to compensate plaintiff’s attorneys for the high risk of the contingent fee nature of the plaintiff’s legal representation. The plaintiff also brought a motion to compel arbitration, which, while brought with probable cause, had substantially reduced the probability of success. These motions complicated the case and served as obstacles to the plaintiff in the litigation.

The court notes that defendants have not filed a timely motion challenging the costs sought by plaintiff in the Memorandum of Costs filed by Norman Taylor & Associates. That memorandum of costs seeks $825.33, and those costs will be entered by the clerk pursuant to Code.

With respect to the costs claimed by Wirtz Law, APC, as noted above, the parties agreed in their settlement agreement that plaintiff was to be awarded costs, attorney’s fees and expenses pursuant to the Song-Beverly Act, which provides, at Civil Code § 1794 (d), with respect to consumer warranty protection:

Case law has interpreted this section to permit a prevailing buyer to recover both costs and “expenses” to cover costs which may not be included in the statutory definition of costs under CCP §1033.5. In Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, the court of appeal found the trial court had erred in denying plaintiff expert witness fees claimed in her cost bill, reasoning:

“Code of Civil Procedure section 1033.5 defines items allowable as “costs.” The statute expressly excludes “[f]ees of experts not ordered by the court” “except when expressly authorized by law.” (Code Civ. Proc., § 1033.5, subd. (b)(1), italics added.)

Section 1794, subdivision (d), permits the prevailing buyer to recover both “costs” and “expenses.” Examining the language of the statute (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1238), it is clear the Legislature intended the word “expenses” to cover items not included in the detailed statutory definition of “costs.” However, because the scope of the term “expenses” is uncertain, we turn to legislative history for clues about the Legislature's intent. (Ibid.) 138.

The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, § 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshal’s fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

In Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616 [28 Cal.Rptr.2d 878], we stated that the “Legislature has reserved to itself the power to determine selectively the types of actions and circumstances in which expert witness fees should be recoverable as costs and such fees may not otherwise be recovered in a cost award.” (Id. at p. 1625.) In this case, the Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act and within the meaning of Ripley.

The trial court denied Jensen's request for expert witness fees based on the legal determination those fees were barred by Code of Civil Procedure section 1033.5. For this reason, we remand the case to permit the court to determine whether the amount of fees sought by Jensen were “reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action.” (§ 1794, subd. (d).)

Plaintiff accordingly argues that under these authorities the question for the court in this matter is whether the costs and expenses are proper on their face insofar as they either fall within the categories of CCP section 1033.5 and/or were incurred in the “commencement and prosecution” of this case. Civil Code section 1794 (d); Jensen, at 138.

In general, where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761. Where items are properly objected to as not reasonable or necessary, however, they are put in issue and the burden of proof is on the party claiming them as costs. Id. The trial court’s determination on a motion to tax or strike costs will be reversed only for an abuse of discretion. Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 121.

Defendants seek to tax this item, which claims $61.65 in filing and motion fees for plaintiff’s motion for attorney fees. This cost is appropriate on its face. In addition, as set forth above, the parties in their settlement agreement agreed that a noticed motion could be filed to recover attorney’s fees.

The motion argues that a review of the court docket shows that no such motion had been filed. However, as argued in the opposition, at the time the Memorandum of Costs was filed the motion had been reserved but not yet filed, and plaintiff incurred the cost to reserve the hearing fearing negotiations to resolve the fees, costs and expenses could fall apart.

The reply concedes that as of the filing of the reply, the motion for attorney fees has been filed, and this item is no longer at issue, and defendants concede the costs are allowable. The motion is denied, and the costs claimed for this item are awarded in full.

Defendants argue that plaintiff requests $3,525 in court reporter fees for a case management conference ($1,000), motion to compel arbitration ($1,000), status conference ($625), and motion for attorney fees ($900), but does not provide evidence that the court ordered these transcripts or that court reporter fees are established by statute.

Defendants cite to CCP section 1033.5 (a)(11), under which allowable costs include “Court reporter fees as established by statute.” Defendants also cite subsection (a) (9), under which allowable costs include “Transcripts of court proceedings ordered by the court.”

Plaintiff in opposition argues that these costs are not sought under CCP section 1033.5, but under the more expansive provision in the Song Beverly Act at Civil Code section 1794 (d). Plaintiff provides the receipts for the reporter charges for the first three hearings, which are shown to have been incurred in the prosecution of this action. [Rottman Decl., para. 6, Exs. 4-6]. Plaintiff argues that plaintiff has reserved a court reporter to appear at the hearing on the motion for attorney fees, but has not yet been invoiced, and indicates that the anticipated cost was estimated at $900, which is $100 less than plaintiff’s counsel has been charged for other hearings on motions for attorney’s fees in other matters. [Rotman Decl., paras. 7, 8, Ex. 3]. Plaintiff argues that since the court no longer provides court reporters for every hearing, plaintiff incurred these costs, which were reasonable and necessary to the prosecution of the action.

The expenses for which invoices are submitted are reasonably incurred in the prosecution of this action and will be awarded under the liberal standard under Civil Code section 1794 (d). There are as yet no receipts proving that expenses will be incurred at the hearing in the future, and it could be that no reporter will be present. The court will tax the item by the $900 claimed for that cost, without prejudice to such expense being claimed once incurred, if appropriate.

Defendant concedes that this court requires courtesy copies of all motions and related pleadings, and that it is within the Court’s discretion to allow costs for courtesy copies under CCP section 1033.5 (c)(4), which provides, “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

The court finds that the court’s requirement that courtesy copies be submitted directly to the Department warrants the court in discretionarily allowing the costs of providing such courtesy copies to the prevailing party. In addition, such expense was in this instance reasonably incurred in the prosecution of the action by the buyer.

The opposition submits an Activities Export report which shows that the cost to file courtesy copies for each of seven documents were charged at $40 per document, and one document at $65, for a total of $305. [Rotman Decl., Ex. 8]. Two additional documents, the motion for attorney’s fees and the reply in support of the motion for attorney’s fees were “Anticipated” to cost an additional $140 and $40, for a total of $180. [Rotman Decl., Ex. 8].

These appear to be very high charges for the copying of and delivery of documents such as objections, orders, and a Request for Judicial Notice which were likely brief, and apparently delivered on the same day, February 14, 2023. These could have been provided by mail, or all together at a single attorney service fee. The court will allow copying costs in a reasonable sum of $140 for the seven documents, and one delivery fee of $40 for a total of $180. The fees “Anticipated,” but which had not yet been incurred, will be denied without prejudice to pursuing them once incurred, if appropriate. The total costs claimed of $485 will be taxed by $345 and reduced to $140.00.

The motion argues that the cost of $8.60 for making a copy of the court’s minute order is not allowed under CCP section 1033.5(b)(3), which provides those items “not allowable as costs,” include “Postage, telephone, and photocopying charges, except for exhibits.”

Plaintiff in opposition argues that this was a fee set by the court to download the court’s order on the CMC, motion to compel arbitration, which was necessary to be sure plaintiff’s counsel knew everything the court ordered during the joint hearing, and that plaintiff had to pay the amount required by the court. The receipt is attached to the opposition papers. The expense falls within the standard for an expense reasonably incurred in the prosecution of the action by the buyer, and the cost is allowed in full.

With respect to the costs claimed for Mediation ($600), defendants argue that the parties agreed to split the costs of mediation evenly, and the agreement did not provide for a prevailing party to later recover the shared mediation costs. Defendant submits a copy of the letter to counsel from the mediation team, in which it is stated:

Defendant relies on Anthony v. Li (2020) 47 Cal.App.5th 816, 825, in which the Court of Appeal found that the trial court had not erred in taxing mediation fees as items of costs, concluding, “Because the parties agreed to share mediation…fees equally, without providing for later recovery of those shared fees by a prevailing party, we see no error or abuse of discretion in the trial court’s taking those fees as items of costs.” Anthony was not a Song Beverly case, but a personal injury action, with costs sought exclusively under CCP section 1033.5.

Plaintiff argues that here the cost was incurred and submits the invoice. [Rotman Decl., Ex. 10]. Plaintiff argues that the mediation was court ordered, as at the CMC on February 24, 2023, the court ordered mediation when it set a Status Conference regarding mediation for June 20, 2023. Plaintiff argues that the expenses are awardable under the Song Beverly Act as a reasonable amount set by the mediator, and necessary to the prosecution of the action.

Defendant relies on Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, in which the court of appeal held that although mediation fees are not included in the cost statute, they are also not excluded, and that legislation therefore does not foreclose an award of mediation expenses as costs. Gibson, at 1208. Gibson limited its holding to court-ordered mediation:

It is held that because CCP section 1033.5(b)(2) precludes recovery of “investigation expenses,” “Fees for legal research, computer or otherwise, may not be recovered…” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 772, 776.

This showing does not establish a necessity here. The costs of the availability of computer research to attorneys is ordinarily included in the billing rates which are awarded in the fee award. This oversight in the billing records does not appear to establish necessity or reasonableness, and the motion is granted, and the item taxed as requested by $10.64.

Plaintiff in the opposition indicates that the charge of $199.29 is for the costs of plaintiff’s counsel’s paralegal to travel to the vehicle surrender in this matter, consisting of a Lyft receipt to get from the paralegal’s home to a car rental location in San Diego, and then to rent a vehicle to travel to Glendale for the surrender. Plaintiff argues that because defendant missed the surrender deadline it wrote into its 998 offer, it was necessary that someone attend the surrender to ensure it was handled correctly, and all forms were properly filled out so that ownership would transfer to Nissan and the loan would be paid off, without extra cost to plaintiff. [Rotman Decl., paras. 17-20, Exs. 12, 13]. This showing does not establish the reasonable necessity for incurring these costs. As argued in the reply, it is not explained why it was necessary to rent a vehicle to accomplish this surrender. It is also not explained why counsel in San Diego should be reimbursed for such travel when plaintiff’s choice of distant counsel should fairly be borne by plaintiff and is a matter of convenience rather than necessity. The motion accordingly is granted, and the costs are taxed at $199.29.

Similarly, the costs sought for business meals for which the paralegal stopped on the trip from San Diego to Glendale have not been established as reasonably necessary to the prosecution of this action but appear to have been for the convenience of counsel. The meal costs sought of $22.27 will also be disallowed and taxed by that amount.

The item for “Other” costs sought for $1,325.80 is reduced by $345 with respect to courtesy copies, reduced by $10.64 for legal research, reduced by $199.29 for travel expenses, and reduced by $22.27 for business meals, for costs awarded for the item of $748.60.

The Court finds that the parties agree that plaintiff Mabel S. Vera was a prevailing party in the action, and so is under Civil Code § 1794 (d) allowed by the court to recover as part of the judgment a sum to cover attorney's fees based on actual time expended, and determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

Remaining Objections are OVERRULED. The Court notes it has reluctantly considered Attachment A to the Tolmoyan Declaration but is mindful that this material should have been included in the opposition memorandum, and effectively operates to exceed the page limits for opposition papers without obtaining advance permission from the Court. Defendants are cautioned that in the future the Court may refuse to consider papers which do not conform with the statutes and rules governing this litigation.

The Court finds that the parties agree that plaintiff Mabel S. Vera was a prevailing party in the action, and so is under Civil Code § 1794 (d) allowed by the court to recover as part of the judgment a sum to cover costs and expenses determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

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