Judge: Richard S. Whitney, Case: 37-2019-00068176-CU-BC-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00068176-CU-BC-CTL CADE COLMENERO VS KIA MOTORS AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT KIA AMERICA, INC. (FORMERLY KNOWN AS KIA MOTORS AMERICA, INC.) TO STRIKE OR TAX COSTS is GRANTED, in part.

Defendant KIA MOTORS AMERICA, INC. ('Defendant') seek to strike or tax costs in the amount of $21,769.22 included in Plaintiffs CADE COLMENERO and VANESSA WENGELER's ('Plaintiffs') filed Memorandum of 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.

(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 'An award of costs shall be subject to the following: ... (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.' (Code Civ. Proc., § 1033.5(c)(2)-(3).) Defendant challenges the following costs: (1) $3,046.85 in deposition costs, claimed under Item 4; (2) $927.19 in service of process fees, claimed under Item 5; (3) $8,486.83 in expert fees, claimed under item 8; (4) $4,715.00 in Court reporter fees, claimed under item 12; (5) $4,593.35 in other costs, claimed under Item 13.

The Court finds Defendant has not sufficiently demonstrated the deposition costs were not reasonably necessary to this litigation. (Code Civ. Proc., § 1033.5(a)(3).) While the Court understands that service advisors and technicians may not always remember the vehicles they encounter, Defendant fails to demonstrate the facially valid cost were not actually necessary in this particular case. The motion is denied as to deposition costs.

The same analysis above applies to the service of process as to subpoenas with the difference being the subsection that specifically authorizes service of process costs. (Code Civ. Proc., § 1033.5(a)(4).) The motion is denied as to service of process costs.

The Court finds the expert fees were not unreasonable and are allowable under Jensen v. BMW of North Calendar No.: Event ID:  TENTATIVE RULINGS

2958497  65 CASE NUMBER: CASE TITLE:  CADE COLMENERO VS KIA MOTORS AMERICA INC [IMAGED]  37-2019-00068176-CU-BC-CTL America, Inc. (1995) 35 Cal.App.4th 112. The Court finds the expert fees incurred to perform a vehicle inspection and to prepare for and to be deposed were 'reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action.' (Id. at 138; Civ. Code, § 1794(d).) The motion is denied as to expert fees.

The Court reporter transcripts were not ordered by this Court; therefore, they are not allowable. (Code Civ. Proc., § 1033.5(b)(5).) The Court does not believe the transcripts of the proceeds were reasonably necessary in this case. The motion is granted as to $4,715.00 in Court reporter fees.

The 'other' costs claimed by Plaintiffs under item 13 include $4,593.35 for attorney service and messenger fees, Court Call, overnight fees, and travel fees. These costs are not recognized as being recoverable under CCP section 1033.5. However, some could be allowable if 'reasonably necessary to the conduct of the litigation' and are 'reasonable in amount.' (Code Civ. Proc., § 1033.5(c)(2) and (3); Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.) The Court declines to exercise its discretion to allow such costs as the Court is not convinced they were 'reasonably necessary to the conduct of the litigation,' except as to CourtCall costs ($94). (Code Civ.

Proc., § 1033.5(c)(2).) In sum, the motion is granted as to $4,715.00 in Court reporter fees and $4,499.35 ($4,593.35 minus $94) in other costs (besides CourtCall). The costs are hereby taxed in the total amount of $9,214.35.

Calendar No.: Event ID:  TENTATIVE RULINGS

2958497  65