Judge Richard Y. Lee, Case 30-2021-01217142 2022-09-15 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01217142, Date: 2022-09-15 Tentative Ruling

MOTION FOR ATTORNEY’S FEES

Plaintiff, Amanda Denny (“Plaintiff”), moves for an order awarding attorney’s fees in the total amount of $39,112.75 to be paid by Defendant Ford Motor Company (“Ford” or “Defendant”) pursuant to Civil Code section 1794(d).

Plaintiff’s seeks attorney’s fees in the amount of $39,112.75, consisting of the following:

•Based unadjusted lodestar (79.7 hours x $425/hr): $33,872.50;

•Multiplier enhancement (+0.10 only on time incurred through April 21, 2022): $2,690.25;

•Additional anticipated fees for motion, reply and oral argument: $2,550.

Plaintiff contends that Ford necessitated the accrual of Plaintiff’s attorney’s fees in this action over the course of eight months of litigation by refusing to consider reasonable compromise proposals; that Plaintiff is entitled to an award of her attorney’s fees pursuant to Civil Code section 1794(d) which mandates such fees and costs to the prevailing party under the Song-Beverly Consumer Warranty Act; that pursuant to the Judgment, Ford agreed to have the Court award Plaintiff’s attorney’s fees, costs and expenses in accordance with Civil Code section 1794(d), and that Plaintiff prevailed in the action for purposes of such determination of attorney’s fees, costs, and expenses such that the only issue for the Court is whether the requested fees in the amount of $39,112.75 is reasonable. Plaintiff contends that the actual time spent, as reflected in the billing records, are reasonable in amount to and reasonably incurred in the commencement and prosecution of this action, especially in light of Defendant’s strategy to stonewall settlement and litigate this case. Plaintiff also contends that Plaintiff’s counsel’s hourly rate of $425 is reasonable, and that a modest multiplier enhancement of 10% only on time incurred through April 21, 2022, is warranted as Plaintiff’s counsel took this matter on a contingency basis.

Ford contends that the fees requested are excessive and unreasonable. Ford contends that the Court should strike block-billed hours totaling 54.9 hours and unreasonably excessive billing entries; that Plaintiff seeks unreasonable fees for anticipated work for the instant motion; and that Plaintiff’s counsel seeks an excessive hourly rate of $425 for a routine lemon law matter and does not support that this is a reasonable non-contingent rate of attorneys that practice in the same area of law in the same county. Ford also contends that the Court should deny any lodestar enhancement because Plaintiff has failed to show any evidence that this case was particularly novel or required special expertise, that this case precluded Plaintiff’s counsel from taking other cases, and any contingency risk is a mere fiction. Ford concludes that the Court should award no more than $10,889 in fees to Plaintiff’s counsel.

Ford’s Objections to the Declaration of Larry W. Chae

The Court OVERRULES all objections consisting of Objection Nos. 1 through 16.

Entitlement to Attorney’s Fees

“[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.)

Initially, the Court notes that there is no dispute that Plaintiff is considered the prevailing party for the purposes of the award of attorney’s fees under Civil Code section 1794(d). Thus, there is no dispute that Plaintiff is entitled to attorney’s fees under Civil Code section 1794(d). The only issue is the reasonableness of the amount sought.

A court assessing a claim for attorney’s fees under Civil Code section 1794(d) uses the lodestar method to determine the reasonableness of such a claim. (Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240, 247-248 (“Mikhaeilpoor”).)

The Court of Appeal in Mikhaeilpoor explained:

“As the plain wording of section 1794, subdivision (d) makes clear, the trial court is “to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.” (Robertson, supra, at p. 817, 50 Cal.Rptr.3d 731.) In the case of contingency fee arrangements, “a prevailing buyer ... is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorneys.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 105, fn. 6, 37 Cal.Rptr.2d 149 (Nightingale), italics added.)”

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then “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.” (Nightingale, supra, 31 Cal.App.4th at p. 104, 37 Cal.Rptr.2d 149.) Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. (Ibid.) The prevailing party and fee applicant bears “the burden of showing that the fees incurred were ... ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’ ” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816, 5 Cal.Rptr.2d 770; see Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 926, 14 Cal.Rptr.3d 741 [“[c]ourts have uniformly held that the party moving for statutory attorney fees or sanctions has the burden of proof”].) It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, “then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale, supra, 31 Cal.App.4th at p. 104, 37 Cal.Rptr.2d 149.)”

(Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.)

“ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320, 81 Cal.Rptr.3d 866.) ‘ “To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘ “a proper basis for determining how much time was spent on particular claims.” ’ [Citation.]” ‘ (Ibid.) ‘The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citation.]’ (Ibid.) ‘ “The court . . . may properly reduce compensation on account of any failure to maintain appropriate time records. [Citation.]” ’ (Ibid.)”

Reasonableness of Hourly Rate

Plaintiff contends that Plaintiff’s counsel’s hourly rate of $425 is reasonable.

Ford contends that Plaintiff’s counsel seeks an excessive hourly rate of $425 for a routine lemon law matter and does not support that this is a reasonable non-contingent rate of attorneys that practice in the same area of law in the same county.

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [citations omitted] (“Morris”).)

In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.)

As to Plaintiff’s hourly rate of $425, Plaintiff’s counsel provides that this is counsel’s hourly rate set in 2020, and provides that it is reasonable and consistent with previous court orders concerning counsel’s rates and the rates of counsel’s peers. (Declaration of Larry W. Chae, ¶¶ 35(a)-(f).) Plaintiff’s counsel also provides that his previous hourly rate of $400 between 2017 through 2019 has been accepted in other cases. (Ibid.)

Although Ford argues that the hourly rate is unreasonable, Defendant proffers no opinion as what the hourly rate should be, and provides no evidence in support of any particular hourly rate.

Based on the evidence provided by Plaintiff as to his customary hourly rate and the Court’s own knowledge, the Court finds $425 per hour to be a reasonable hourly rate and in line with the prevailing rates charged by attorneys of similar skill and experience for comparable legal services in Orange County.

Reasonableness of Time Expended

Plaintiff seeks $33,872.50 based on 79.7 hours of work. (Declaration of Larry W. Chae, ¶¶ 36-38, 41; Ex. 10.)

Ford contends that the Court should strike block-billed hours totaling 54.9 hours and unreasonably excessive billing entries.

The Court has discretion to reduce the fee award where fees were not reasonably incurred. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [“ ‘[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.”] (“Ketchum”); Gorman v. Tassajara Dev. Corp. (2009) 178 Cal.App.4th 44, 101 [“A reduced [attorneys' fees] award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.”].)

“ ‘The plain wording of the statute [Civil Code section 1794(d)] requires the trial court to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of the time spent and the amount charged . . . . “It 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.” . . . [The] prevailing party has the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.’ [Citation.]” (McKenzie v. Ford Motor Company (2015) 238 Cal.App.4th 695, 698, 703.)

The trial court should consider whether the case was overstaffed, presented complex or unique issues, involved discovery motion, or went to trial, and how much time attorneys spent on particular claims. (Morris, supra, 41 Cal.App.5th at pp. 37-38.) A court also may not tie the fee award to some proportion of the buyer's damages recovery. (Id. at p. 37.) A trial court may not rubber stamp an attorney fee request, but instead must determine the number of hours reasonably expended. (Id. at p. 38.) Reasonable compensation does not include padding with inefficient or duplicative efforts. (Ibid.)

Necessary support services for attorneys, including secretarial and paralegal services, are includable within an attorney fee award where those services are necessary and reasonable. (Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 951)

“Trial courts retain discretion to penalize block billing when the practice prevents them from discerning what tasks are compensable and which are not [Citations.]” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010-1011.)

Compensation for fees incurred prior to filing the complaint are allowed where the fees are reasonably and necessarily incurred at that time by the prevailing party. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655.)

To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.) “When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Ibid.)

Here, to the extent that there was block billing or Ford claims that certain entries are unreasonably excessive as identified in Exhibit A to the Declaration of Sabrina C. Narain, Ford fails to show that any particular block billed entry prevents it from discerning which tasks are compensable and which are not, and Ford fails to show that the hours billed for the entries to which it objects were unreasonable. The tasks are sufficiently described to determine that there was no interoffice communications or administrative tasks included, and that one entry totaled 9.4 hours from 7/16/21 to 8/13/21 is not particularly notable. Although Ford argues that the discovery requests by Ford were not overly complicated or extensive, there is no evidence to support this contention. 7.6 hours to prepare, review, and finalize discovery responses over the course of two days appears reasonable. Ford’s general arguments and mere objection that the certain entries are unreasonably excessive are insufficient. In reviewing the records, attorney’s fees in the amount of $33,872.50 based on 79.7 hours of time expended appears to have been reasonably incurred.

Thus, the Court GRANTS attorney’s fees in the amount of $33,872.50.

Request for 10% Multiplier

Plaintiff seeks a multiplier enhancement of 10% only on time incurred through April 21, 2022 in the amount of $2,690.25. Plaintiff contends that a multiplier is warranted as Plaintiff’s counsel took this matter on a contingency basis, and there was a clear risk of nonpayment as Ford had elected to press the litigation early on.

Ford contends that the Court should deny any lodestar enhancement because Plaintiff has failed to show any evidence that this case was particularly novel or required special expertise, that this case precluded Plaintiff’s counsel from taking other cases, and any contingency risk is a mere fiction.

“The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased.” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) “The trial court is neither foreclosed from, nor required to, award a multiplier. [Citations.]” (Ibid.)

The lodestar may be adjusted based on factor including (1) the novelty of 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. (Ketchum, supra, 24 Cal.4th at p. 1132.) “Such fee enhancements are intended to compensate for the risk of loss generally in contingency cases as a class. [Citation.]” (Id. at p. 1133.)

Here, Plaintiff provides that this case was taken on a contingency basis, and that Plaintiff’s counsel’s “representation of Plaintiff in this case has foreclosed on [his] ability to represent other clients in other matters.” (Declaration of Larry W. Chae, ¶¶ 33-34.) In considering the factors and the papers, the Court is not persuaded that a multiplier in this lemon law case is warranted. Thus, the Court DENIES Plaintiff’s request for a multiplier enhancement of 10% on time incurred through April 21, 2022 in the amount of $2,690.25.

Fees for Instant Motion

Plaintiff requests additional anticipated fees for motion, reply and oral argument in the amount of $2,550. (Declaration of Larry W. Chae, ¶¶ 39-40.)

Ford contends that Plaintiff seeks unreasonable fees for anticipated work for the instant motion.

Fees incurred in preparing a motion for fees are recoverable in the award. (Ketchum, supra, 24 Cal.4th at p. 1133.) When attorney fees are recoverable by statute, the reasonable attorney fees incurred in bringing the motion are also recoverable. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 1002.)

Here, six (6) additional hours to review the opposition, draft a reply and to prepare for the hearings on this motion and the motion to tax costs appear reasonably incurred. Thus, the Court GRANTS fees in the amount of $2,550 for fees related to the instant motion and in responding to Ford’s motion to tax costs.

Based on the foregoing, the Court GRANTS attorney’s fees in the amount of $33,872.50 based on 79.7 hours of work, and fees for the instant motion and to respond to Ford’s motion to tax costs in the amount of $2,167.50 for 5.1 additional hours of work, at the hourly rate of $425. Thus, the Court GRANTS a total of $36,040.00 in attorney’s fees to be paid by Ford.

The Court DENIES Plaintiff’s request for a 10% multiplier in the amount of $2,690.25.

Plaintiff to give notice.

MOTION TO TAX COSTS

Defendant Ford Motor Company (“Ford”) moves for an order striking/taxing Plaintiff Amanda Denny’s Memorandum of Costs served on May 20, 2022, associated with Item 4, deposition costs, Item 5, service of process costs, and Item 16, “other” costs, for a total amount of $5,815.19.

Ford contends that costs for Item 4 ($1,542.55), Item 5 ($635+$133.84), and Item 16 ($3,503.80) related to a deposition transcript, excessive service of process fees, and out of state travel and expert fees for a vehicle inspection in Reno, Nevada in the total amount of $5,815.19, were unreasonably incurred, excessive, non-recoverable and/or unsupported by the evidence. Ford requests that the Court tax these costs and award no more than $1,491.56 of the $7,306.75 claimed in the Memorandum of Costs Plaintiff filed on 5/20/22.

Plaintiff Amanda Denny (“Plaintiff”) contends that no challenge is made to Items 1, 2, or 14, totaling $815.38, such that these costs should be awarded. Plaintiff also contends that Ford fails to provide any evidence in support of its objections, and thus, fails to meet its burden of proof to challenge the prima facie showing made by way of Plaintiff’s verified memorandum of costs. Plaintiff additionally contends that costs for Items 4 and 5 are expressly allowed and were reasonably necessary to the conduct of this litigation. As to Item 5, Plaintiff contends that a $40 charge was listed for service of summons and complaint on Ford, when it was actually $41.18, but that Plaintiff’s counsel would reduce the total by $1.18 which was inadvertently left out for an adjusted amount of $1,443.84. Plaintiff further contends that costs for Item 16 are recoverable as expenses authorized under the Song Beverly Consumer Warranty Act, Civil Code section 1794(d), and were reasonably necessary such that the motion should be denied.

The right to recover costs is purely statutory, and, in the absence of an authorizing statute, no costs can be recovered by either party. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 597.) The right to recover costs of suit is determined entirely by statute. (Code Civ. Proc. § 1032.) The prevailing party is entitled to costs as a matter of right in any action or proceeding. (Code Civ. Proc. § 1032(b).)

“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (“Jones”).) Statements in points and authorities and declaration of counsel are insufficient to rebut the prima facie showing. (Jones, supra, 63 Cal.App.4th at p. 1266.) For items that are properly objected to, the burden of proof is on the party claiming them as costs. (Ibid.)

“There is no requirement that copies of bills, invoices, statements, or any such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted. [Citation.] Once this occurs, the issue becomes whether the required documentation must be of evidentiary quality.” (Jones, supra, 63 Cal.App.4th at p. 1267.)

Items 1, 2, and 14

As noted by Plaintiff, Ford does not object to the costs claimed for Item 1 in the sum of $559.50, Item 2 in the sum of $152.25, and Item 14 in the sum of $103.63 for a total of $815.38.

Item 4: Deposition Costs

Plaintiff claims costs in the amount of $1,542.55 for deposition costs.

Code of Civil Procedure section 1033.5(a)(3)(A) and (a)(3)(C) expressly allow costs for taking, video recording and transcribing necessary depositions, as well as travel expenses to attend depositions. This includes the cost of videotaping depositions even though they are not used at trial. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557, 1560.)

In reply, Ford withdraws its objection to the costs for the deposition transcript. Thus, the Court DENIES the motion to strike Item 4.

Item 5: Service of Process Costs

Plaintiff claims $1,445.02 in costs for service of process in the Memorandum of Costs. However, Plaintiff provides that Plaintiff would reduce the total by $1.18 which was inadvertently left out for an adjusted amount of $1,443.84.

Allowable costs include service of process by a public officer, registered process server, or other means as set forth in Code of Civil Procedure section 1033.5, subdivision (a)(4). (Code Civ. Proc. § 1033.5(a)(4).)

Ford does not meet its burden to show that service of process costs were not reasonable or necessary such that Ford does not properly object to these costs and the burden of proof does not shift to Plaintiff. Rather, Ford merely argues that it does not have evidence to determine whether these costs are excessive, which Plaintiff is not required to provide.

Notwithstanding the insufficiency of Ford’s showing, Plaintiff attaches true and correct copies of invoices and receipts associated with service of process costs and explains that $40 was for service of process on Ford for service of the Summons and Complaint, and that $133.84 was for personal service on Ford’s counsel of Plaintiff’s objections to Ford’s deposition notice for Plaintiff on 2/14/22 in order to preserve objections in advance of the 2/18/22 deposition. (Chae Decl., ¶¶ 7-9; Ex. B.) Plaintiff’s counsel also provides that the two charges for $635 were incurred for personal service of deposition subpoenas on two out-of-state witnesses, Corwin Ford and Corwin Ford Technician 9188 concerning repairs that had been performed at the dealership, and that prior to serving the subpoenas, Plaintiff’s counsel spoke with Ford’s counsel, and that at no time during this call or any time before the subpoenas were personally served did Ford’s counsel state he was authorized to accept service of the deposition subpoenas on behalf of the non-party dealer witnesses. (Chae Decl., ¶¶ 10-11.) Consequently, Plaintiff establishes that the claimed costs for service of process were reasonable in amount and reasonably necessary to the conduct of the litigation.

Based on the foregoing, the Court DENIES the motion to strike costs associated with Item 5, but adjusts and reduces the amount of costs to $1,443.84 from the $1,445.02 claimed in the Memorandum of Costs.

Item 16: Other Costs

Plaintiff claims costs in the amount of $3,503.80 for other costs. This includes Plaintiff’s counsel’s travel to Reno, NV to attend Ford’s vehicle inspection, totaling $807.30 for airfare, lodging, and cab fare; Plaintiff’s expert witness fees, totaling $2,689, and a fee to obtain a copy of the signed Judgment for $7.50. Plaintiff contends that this item consists of costs that are recoverable as expenses authorized under the Song Beverly Consumer Warranty Act, Civil Code section 1794(d).

Ford contends that costs for Plaintiff’s travel costs in the total amount of $785.52 are nonrecoverable, excessive, and unsupported by the evidence; that Plaintiff’s travel expenses are not enumerated and allowable costs within Code of Civil Procedure section 1033.5 unless it is for a deposition; that it is unclear who this travel is related to, whether it is Plaintiff’s counsel or Plaintiff’s expert; and that Plaintiff’s expert witness costs in the amount of $2,689 for the expert witness’ attendance at Ford’s vehicle inspection in Reno, Nevada were not court ordered and are not recoverable, but that even if they are recoverable, they are not supported by evidence. In reply, Ford does not address Civil Code section 1794(d).

“An item not specifically allowable as costs under Code of Civil Procedure section 1033.5, subdivision (a), and not specifically prohibited under subdivision (b), may be allowed as costs at the discretion of the trial court if reasonably necessary to the conduct of the litigation. [Citation.]” (Landwatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, 645-646.) The requirement that claimed costs be reasonable does not necessarily require that the costs be the very lowest. (Id. at p.646.)

Whether an item listed on the memorandum was reasonably necessary is a question of fact to be decided by the trial court, and its decision is reviewed for abuse of discretion. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

Fees of expert witnesses ordered by the court are allowable as costs. (Code Civ. Proc. § 1033.5(a)(8).) Fees of expert witnesses not ordered by the court are not allowable as costs, except when expressly authorized by law. (Code Civ. Proc. § 1033.5(b)(1).) Thus, a prevailing party’s recoverable costs generally omit “[f]ees of experts not ordered by the court,” unless “expressly authorized by law.” (Code Civ. Proc. § 1033.5, subd. (b), (b)(1); see Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 160 [“expert witness fees are recoverable in some circumstances”].)

Under the Song-Beverly Consumer Warranty Act (Civil Code §§ 1790 et seq.), only those attorney’s fees and costs “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution” of the action are recoverable. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 770, 775; Civil Code § 1794(d).) Civil Code section 1794, provides, in relevant part: “[i]f 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.” (Civil Code § 1794(d).) This permits the recovery of expert witness fees by prevailing buyers under the Song-Beverly Consumer Warranty Act. (Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 138.)

Here, as an initial matter, in reply Ford provides that Plaintiff claims travel costs in the total amount of $785.52. However, Plaintiff provides that this total amount is $807.30. It is unclear how Ford came to calculate its amount but as claimed on the Memorandum of Points and Authorities and as supported by the invoices, the total amount for Plaintiff’s counsel’s travel to Reno, NV to attend Ford’s vehicle inspection is $807.30 for airfare ($622.20), lodging ($138.06), and cab fare ($25.26 + $21.78).

Ford properly objects to Plaintiff’s claim for other costs consisting of Plaintiff’s counsel’s travel fees and expert witness fees. Thus, Plaintiff must prove that these costs are permitted and reasonable.

As to these other costs, Plaintiff provides true and correct copies of invoices and receipts for the costs associated with Item 16; that Plaintiff is allowed to recover costs and expenses that were reasonably incurred in connection with the commencement and prosecution of this action under the Song-Beverly Consumer Warranty Act pursuant to Civil Code section 1794; that Plaintiff’s counsel’s travel charges to Reno, NV to attend Ford’s vehicle inspection were reasonable in amount and reasonably incurred to prosecute this action; and that Plaintiff’s expert witness fees and the fee to obtain a copy of the signed judgment were reasonable in amount and reasonably incurred to prosecute this action. (Chae Decl., ¶¶ 13-18; Ex. C.) It appears without dispute that Plaintiff prevailed in this action as on 4/25/22 Plaintiff accepted Ford’s Code of Civil Procedure section 998 Offer to compromise for repurchase under the Song-Beverly Consumer Warranty Act, and said offer allows the Court to set the amount of Plaintiff’s attorneys’ fees and costs by motion. (Declaration of Sabrina C. Narain, ¶¶ 6-7.)

In reply, Ford does not address Civil Code section 1794(d), and arguments that the amount of expert fees sought is not reasonable, without more, and in the face of an invoice from the expert is insufficient.

Based on the foregoing, Plaintiff establishes that the travel costs, expert witness fees, and the fee to obtain a copy of the signed Judgment are allowable, reasonable in amount and reasonably incurred in the prosecution of this action. Thus, the Court DENIES the motion to strike as to Item 16.

Plaintiff to give notice.