Judge Ronald F. Frank, Case Number: 21TRCV00822, Date: 2024-12-04 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00822, Date: 2024-12-04 Tentative Ruling

Case Number: 21TRCV00822 Hearing Date: December 4, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: December 4, 2024¿¿

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CASE NUMBER: 21TRCV00822

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CASE NAME: DSG International, LLC v. General Motors, LLC, et al.

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MOVING PARTY: (1) Plaintiff, DSG International, LLC

(2) Defendant, General Motors, LLC

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RESPONDING PARTY: (1) Defendant, General Motors, LLC

(2) Plaintiff, DSG International, LLC

TRIAL DATE: Not Set.

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MOTION:¿ (1) Plaintiff’s Motion for Attorney’s Fees

(2) Defendant’s Motion to Tax Costs

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Tentative Rulings: (1) GRANTED in the reduced amount of $44,500.

(2) GRANTED in part and DENIED in part. A net of $3,212 in costs is awarded after taxing some of the amounts claimed.

I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On November 5, 2023, Plaintiff, DSG International, LLC (“Plaintiff”) filed a Complaint against Defendant, General Motors, LLC, and DOES 1 through 50. The Complaint alleges causes of action for: (1) Violation of Civil Code Section 1793.2 (d); (2) Violation of Civil Code section 1793.2(b); (3) Violation of Civil Code section 1793.2(a)(3); (4) Breach of Express Warranty – Civil Code section 1791.2(a), 1794; and (5) Breach of the Implied Warranty of Merchantability – Civil Code section 1791.1, section 1794.

This action has since settled in favor of Plaintiff who obtained a $159,115.34 settlement including: (1) GM buying back the vehicle for the full amount provided by law ($70,048.55); (2) GM paying Plaintiff civil penalty damages ($56,951.45); and (3) GM having to pay Plaintiff prejudgment interest ($32,115.34).

Now, Plaintiff states the only issue left for this court to decide is whether the $53,989.50 in attorney’s fees are reasonable under the circumstances. Thus, Plaintiff has filed this Motion for Attorney’s Fees. Defendant GM has also filed a Motion to Tax Costs.

B. Procedural

On August 6, 2024, Plaintiff filed this Motion for Attorney’s Fees. On November 19, 2024, GM filed an opposition brief. On November 25, 2024, Plaintiff filed a reply brief. On September 5, 2024, GM filed a Motion to Tax Costs. On November 20, 2024, Plaintiff filed an opposition brief. On November 26, 2024, GM filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE:

Along with Plaintiff’s moving papers, Plaintiff also requested this court take judicial notice of the following court orders of unpublished cases:

1. An October 6, 2017 Fee Order in the matter of Fuller v. FCA US LLC (L.A. Super. Ct. Case No. BC556964), attached as Exhibit 3 to the Declaration of Joshua D. Fennell.

2. An August 8, 2018 Fee Order in the matter of Caplan v. FCA US LLC (L.A. Super. Ct. Case No. BC580793), attached as Exhibit 4 to the Declaration of Joshua D. Fennell.

3. A May 9, 2017 Fee Order in the matter of Vanwaus v. FCA US, LLC (L.A. Super. Ct. Case No. BC591282) attached as Exhibit 5 to the Declaration of Joshua D. Fennell.

4. A January 11, 2019 Court Order in Abraham Forouzan v. BMW of North America, Inc., et al. (US District Court, Case No. 2:17-cv-03875), attached as Exhibit 6 to the Declaration of Joshua D. Fennell.

5. An October 23, 2019 Court Order in Noormohammad et al. v. BMW of North America, Inc. (San Bernardino Super. Ct. Case No. CIVDS1717263), attached as Exhibit 7 to the Declaration of Joshua D. Fennell.

6. A September 3, 2020 Court Order in Zayas v. FCA US LLC (Orange County Super. Ct. Case No. 30-2019-01053549-CU-BC-CJC), attached as Exhibit 8 to the Declaration of Joshua D. Fennell.

7. A November 23, 2020 Court Order in Galligan v. GM (Orange County Super. Ct. Case No. 30-2019-01045846-CU-BC-CJC), attached as Exhibit 9 to the Declaration of Joshua D. Fennell.

8. A June 1, 2021 Court Order in Dikov v. MBUSA (L.A. Super. Ct. Case No. 19TRCV000971) attached as Exhibit 10 to the Declaration of Joshua D. Fennell.

9. An August 31, 2021 Court Order in Alberto Aguilar v. FCA US, LLC (Los Angeles County Super. Ct. Case No. 19STCV23470), attached as Exhibit 11 to the Declaration of Joshua D. Fennell.

10. An August 26, 2021 Court Order in Raul Duenas v. FCA US, LLC (Los Angeles County Super. Ct. Case No. 19NWCV00931), attached as Exhibit 12 to the Declaration of Joshua D. Fennell.

11. An October 22, 2021 Court Order in Daniel Rice v. FCA US, LLC (San Diego Super. Ct. Case No. 37-2018-00061430-CU-BC-CTL), attached as Exhibit 13 to the Declaration of Joshua D. Fennell.

12. An April 7, 2022 Court Order in Parsons v. VOLKSWAGEN GROUP OF AMERICA INC. (Riverside Super. Ct. Case No. MCC1900740), attached as Exhibit 14 to the Declaration of Joshua D. Fennell.

13. A January 20, 2023 Court Order in Ceberio v. FORD MOTOR COMPANY (Los Angeles Super. Ct. Case No. 19GDCV00391), attached as Exhibit 15 to the Declaration of Joshua D. Fennell.

Pursuant to California Evidence Code section 452, subdivision (d), this court may take judicial notice of the records of any court of this state and of any court of the United States. As such, judicial notice is GRANTED.

III. ANALYSIS¿

A. Plaintiff’s Motion for Attorney’s Fees

Here, Plaintiff asks for attorney’s fees of $53,989.50 and submits the declaration of its counsel, Joshua D. Fennell (“Fennell Decl.”) in support of its motion. Per Fennell’s declaration, the firm took Plaintiff’s case on a contingency bases, and thus, the fees incurred in litigation were advanced by the firm and recovery of the fees incurred was contingent upon a successful resolution of the case, emphasizing that if Plaintiff’s case would have lost, the firm would not have recovered attorneys’ fees. (Fennell Decl., ¶ 213.) Exhibit 16 of Fennell’s declaration includes the schedule of fees on this case totaling in $48,989.50 in attorneys’ fees and costs. (Fennell Decl., ¶ 210, 212, Exhibit 16.) Fennell has also accounted for an anticipated additional fee of $5,000 for review of opposition, motion reply, and attendance at the hearing. (Fennell Decl., ¶ 211-212.)

i. Legal Standard

Under the Song-Beverly Act, Civil Code section 1794, subdivision (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.” Since the California Supreme Court has held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to be applied in the absence of clear legislative intent to the contrary (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135–1136), the lodestar method of calculating fees is appropriate in motions for attorney’s fees under Civil Code section 1794. (Robertson v. Fleetwood Travel Trailers of California, Inc (2006) 144 Cal.App.4th 785, 818.)

“[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, [and] (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140, 154.) In making a lodestar calculation of proper hourly rates to apply, “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 (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009), the difficulty or complexity of the litigation to which that skill was applied (Syers Properties [III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700) . . . and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (Heritage, at p. 1009.)” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.) The moving party plaintiff bears the burden of showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34; Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.)The trial court in Levy found that some submitted charges were duplicative, others were for unnecessary or unsuccessful motions, or for travel time. There was no abuse of discretion in the pruning of the requested hours for such items. (Id.)

“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal. App. 4th 359, 396.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal. App. 4th 550, 560–63.) The Court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra, at 395.) “[T]he contingent and deferred nature of the fee award in a civil rights or other case with statutory 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.) “ ‘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, quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480.) The contingency adjustment may be made at the lodestar phase of the court's calculation or by applying a multiplier to the noncontingency lodestar calculation (but not both). (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1133–1134.)” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394-395.) Plaintiff was designated by the parties in the settlement as the prevailing party. Therefore, attorney fees may and will be awarded.

ii. Reasonableness of Hourly Rates

1. Joshua D. Fennell

Fennell states that he is a supervising attorney at Consumer Law Experts, P.C., and that he was admitted to practice law in California in January 2018. (Fennell Decl., ¶ 195.) Fennell asserts that he has been employed at consumer Law Experts, P.C. since June 3, 2019, and in that time, has litigated and resolved numerous Song-Beverly Consumer Warranty Cases. (Fennell Decl., ¶ 195.) Prior to joining Consumer Law Group, P.C., Fennell notes that he worked at the Law Offices of Michael H. Rosenstein, a lemon law firm based in Century City, where he also litigated and resolved numerous Song-Beverly Consumer Warranty Cases. (Fennell Decl., ¶ 195.) Fennell’s hourly rate on this case is $500. (Fennell Decl., ¶ 195.) Prior to his work in lemon law, Fennell worked as a family law attorney and a personal injury attorney, as well as clerking for the New York Equal Employment Opportunity Commission’s Office of Administrative Judges and for Baltimore’s Office of the Public Defender. (Fennell Decl., ¶ 195.)

The moving papers argue that Fennell’s hourly rate is appropriate given his relative experience and qualifications. The court disagrees. Assuming that Fennell started working in consumer law when he passed the California Bar Exam in January of 2018 and worked for the Law Offices of Michael H. Rosenstein, has worked as a consumer law attorney for just shy of seven (7) years total. Plaintiff submits, in its RFJN, court orders awarding attorneys fees and hourly rates of thirteen (13) cases. None of those cases awarded an hourly rate of above $495/hour, even for an attorney with ten (10) years of practice experience. Based on Fennell’s experience, and specifically, his years of experience in consumer law with respect to lemon law cases, the court will not be finding his hourly rate of $500 to be reasonable. Further, as noted in GM’s opposition brief, none of the cases submitted for evidence in Plaintiff’s RFJN approved of Fennell’s hourly rate at $475, $490, or even $500.

In Plaintiff’s reply brief, it cites to Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, in asserting that there, “the trial court conducted a lodestar analysis and awarded Reynolds attorney fees . . . at reasonable hourly rates ranging from $225/hour to $500/hour, plus a lodestar multiplier of 1.2, ‘reasonable and appropriate to accomplish the salutary objectives of the Song-Beverly Act.’” (Reynolds, supra, 47 Cal.App.5th at 1110.) Although this is true at the trial court level, Plaintiff appears to be misrepresenting what the Court of Appeal actually decided, which was whether the trial court abused its discretion in awarding fees without considering the contingency fee agreement. (Id. at 1113.)

The Reynolds Court did not determine whether $500 was a reasonable hourly rate. Instead, the Court of Appeal acknowledged that “[t]he trial court acted well within its discretion in using ‘the prevailing market value in the community for similar legal services’ (see PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095), relying on its personal knowledge [based on the trial court’s over forty years of experience in the legal field in Mendocino and Sonoma Counties] and familiarity with the area legal services, as the “ ‘touchstone’ for determination” of the reasonable hourly rates.” (Reynolds, supra, 47 Cal.App.5th at 1114 citing Serrano v. Unruh (1982) 32 Cal.3d 621, 643.) As the Attorneys for the Parties in this case may be aware, this Court has very extensive experience of over 33 years as a lawyer (with an additional nearly 10 years as a judge in Lemon Law litigation and is very aware from other fee motions in other cases what the prevailing hourly rates are for Plaintiff and defense firms in this area. Even in the absence of Mr. Fennell’s recitation of fee awards by other trial counsel in Los Angeles County and the published fee rates in numerous cases over the years, this Court has kept abreast of hourly rates not only in Song-Beverly litigation but also in other less and more complicated areas of practice. The Court finds that the reasonable hourly rates for Mr. Fennell is $400.

2. Joseph Kowalski

Additionally, associate attorney, Joseph Kowalski, who also worked on this case, was admitted to the California Bar in 2020, and his hourly rate for this case was $350. (Fennell Decl., ¶ 196.) Fennell states that prior to working at Consumer Law Experts, P.C., Mr. Kowalski represented tribunal governments in Indian Law matters. (Fennell Decl., ¶ 196.) The Court reduces his reasonable hourly rat to $300, based on the factors outlined above.

3. Elaine Paiz-Astorga

Fennell’s declaration also asserts that Elaine Paiz-Astorga, a paralegal at Consumer Law Experts, P.C., has a reasonable hourly rate – without stating what that rate is. Per the court’s review of Exhibit 16, it appears that her hourly rate ranged from $175/hour - $200/hour. (Fennell Decl., ¶ 214, Exhibit 16.) Elaine has eight years of experience in the legal industry which includes: trial preparation, trial documents/binders, discovery preparation, preparing pleadings and judicial council forms, preparing memorandum of costs, calendaring state and federal deadlines, submitting documents for filings, creating table of contents and table of authorities, and drafting subpoenas (among many others). (Fennell Decl., ¶ 214.) The court acknowledges that a $200 hourly rate is within the range of reasonableness for an experienced paralegal.

In opposition, GM argues that this court should award no more than $24,497 in attorneys’ fees and costs and urges this court to exercise its discretion to reduce Fennell’s request to include only fees actually and reasonably incurred, asserting the claimed fees are unreasonable and excessive.

iii. Reasonableness of Fees

In its opposition, GM argues that the following categories of hours should be reduced on the basis of being templates, unnecessary, padded, and/or unsupported entries. The Court rules on each as follows:

· Clerical & Administrative Tasks Billed at Attorney Rates—June 1 and 5, 2022, July 12 and 19, 2022: Mr. Fennell billed 4.0 hours ($1840.00) for clerical or administrative tasks such as “[c]onfer w/ associate” and “[e]mail responses to handling attorney.” (Fennell Decl. Ex. 16, pp. 2 & 4.) These entries are separate from entries detailing actual work performed. Purely clerical tasks, such as those performed by Mr. Fennell, are not recoverable as attorney fees. (See Missouri v. Jenkins by Agyei (1989) 491 U.S. 274) These entries relate to internal communications between Mr. Fennell and “associate” or “co-counsel.” GM should not be required to reimburse Counsel for time spent discussing general case status with individuals not actively involved in litigating Plaintiff’s case. The Court makes some reduction in the claimed hours consistent with GM’s Opposition.

· Review of Repair Orders—November 12, 2021, July 11, 2022, December 8, 2023, January 16, 2024: Counsel “billed” 3.8 hours ($1604.00) to review twenty pages of repair orders and draft a chronology. (Fennell Decl. Ex. 16, p. 1,3, 28 and 32) Presumably, Counsel had already read these documents before filing suit. Reviewing them again and preparing a chronology, when Counsel should be aware of their contents, serves only to pad the bill. Finally, these repair orders only consist of seventeen pages. GM requests that this time be stricken in its entirety for a reduction of 3.8 hours ($1604.00). The Court reduces the hours to 3 hours, not 3.8 hours.

· Discovery Responses— September 26, 2023, and October 10, 2023: Mr. Fennell “billed” 3.7 hours ($1304.00) to prepare written discovery responses and a 51-page document production. (Fennell Decl. Ex. 16, pp. 21 & 26.) GM’s requests do not substantially differ from case to case. It should not have taken Mr. Fennell more than 30 minutes to draft Plaintiff’s responses, which were almost exclusively templated objections Counsel deploys in all cases against GM. (Keshishian Decl. ¶ 10, compare Ex. G with Ex. H.) GM requests that Counsel’s fees for this “work” be reduced by 3.2 hours ($1,472.00). The court finds this amount of time reasonable to respond to discovery.

· Discovery Requests, Deposition Notices & ESI Letter—May 26, 2022, June 16, 2022, August 10, 2022, August 16, 2022, January 15, 2024: Mr. Fennell “billed” 5.6 hours ($1,692.50) to prepare templated form interrogatories, special interrogatories, requests for production, requests for admission, PMQ deposition notices, and an ESI meet and confer letter. (Fennell Decl. Ex. 16, pp. 2, 6, 7, and 31) This time is excessive given counsel’s claimed extensive experience in this area of the law, so the Court halves the hours claimed to 2.8 hours.

· Review of GM’s Discovery Responses— June 16, 2022, July 11-12, 2022, August 3 and 10, 2022, November 2, 2023: Counsel should not be permitted to recover all 3 hours ($1276.50 he “billed” to review and analyze GM’s objections to Plaintiff’s PMQ deposition notices and GM’s discovery responses. (Fennell Decl. Ex. 16, pp 3, 7, and 22) Like every other aspect of written discovery in this case, neither Plaintiff’s requests nor GM’s responses to those requests were novel nor varied significantly from other lemon law cases. (Keshishian Decl. ¶7.) GM asks that these time entries be reduced to no more than 0.5 hours for a 2.5-hour ($1,150.00) reduction. The Court disagrees and finds the time is reasonable.

· Templated Meet-and-Confer Correspondence—July 12, 19 and 27, 2022, August 3, 2022, April 23, 2024: Mr. Fennell should not be able to recover the 2.9 hours ($1,201.00) “billed” to draft various “recycled” meet-and-confer letters regarding GM’s discovery responses and review GM’s responses. (Fennell Decl. Ex. 16, pp. 4-7, and 56.) Counsel’s discovery requests and GM’s responses to those requests never differ, so it is unsurprising that their meet-and-confer letters to GM are highly similar from case to case. (Keshishian Decl. ¶ 8, compare Ex. E with Ex. F). The Court reduces the time claimed to 1.5 hours total.

· Review of GM’s Production Documents—July 11, 2022, August 17, 2023, November 2, 2023, January 16, 2024: The amount of time is lowered to 3 hours total.

· Motion for Sanctions re RFP Responses–May 30, 2023, June 8, 2023, July 26-27, 2023: It was unreasonable and unnecessary for Mr. Fennell, to bill 7.9 hours ($3,139.00) to draft Plaintiff’s templated motion and, reviewing GM’s opposition, and preparing for the hearing. (Fennell Decl. Ex. 17, pp. 35, 42, & 46-47.) GM asserts this was a “stock” motion and reply that Counsel routinely files in cases against GM. (Keshishian Decl. ¶ 9.) GM requests a reduction of 3.5 hours ($1,610.00). The Court agrees in part with GM and reduces these hours as well.

· Motion for Sanctions re PMQ Deposition—March 1 and 4, 2024 and April 4-5, 2024: GM asserts it was unreasonable and unnecessary for Mr. Fennell to bill 2.5 hours ($1,128.00) to draft Plaintiff’s “templated” motion and withdrawing the motion to compel regarding the deposition of GM’s PMK reviewing GM’s opposition and preparing for the hearing. (Fennell Decl. Ex. 16, pp. 48 & 53.) GM asserts it had already produced its PMK for deposition on March 25, 2024. (Keshishian Decl. ¶ 11.) The sanctions hearing never occurred. As noted in the reply brief, the Court requires clarification as there does not appear to be a motion for sanctions billed for those dates.

· Non-Party Dealership Subpoena & Depositions— November 10, 2023; February 5, 7 and 15, 2024, March 1, 2024: Mr. Fennell “billed” a total of 7.8 hours ($3,355.50) to “prepare” non-party deposition subpoenas for the PMK and service technicians for nonparty dealerships Martin Chevrolet, and arranging, preparing for, and taking the depositions. (Fennell Decl. Ex. 16, pp. 22, 36, 38-39 and 45.) GM argues it is unreasonable for Mr. Fennell to have spent more than a full day preparing for and deposing multiple dealership witnesses on the same topics. Indeed, there were only a total of seventeen pages of repair orders produced by Plaintiff. The Court finds that a reduction of the hours is appropriate.

· Templated Motions in Limine— February 9, 2024: Counsel should not be able to recover for the 2.9 hours ($1112.50) “billed” to prepare the same seven “templated” motions in limine that are adapted from prior cases with only minor variations for case-specific details. (Fennell Decl. Ex. 16, p. 37; Keshishian Decl. ¶ 13, compare Ex. I with Ex. J.) GM states that the work here could be done in 1.0 hour and asks for a reduction of 1.9 hours ($874.00). The Court agrees in pat and will reduce the claimed hours.

· Templated Trial Documents—February 29, 2024, March 1 and 4, 2024: Counsel “billed” 7.4 hours ($4,360.00) to draft the witness list, verdict form, statement of the case, jury instructions, exhibit list, and to finalize trial documents. (Fennell Decl. Ex. 16, pp. 44- 47.) Per GM, all of these documents are virtually identical in every case filed by Counsel. (Keshishian Decl. ¶ 14.) Counsel is padding the time here. GM request that the time be reduced to 1-hour, for a reduction of 6.4 hours ($3,040.00). The Court finds the 7.4 hours to be excessive, so it reduces the hours claimed.

· Templated Attorney Fees Motion; Reply & Attend Hearing—August 5-6, 2024; & TBD: Finally, Counsel should not get full credit for the 5.5 hours ($2,750.00) that Counsel claims it spent on the fee motion, or the additional $5,000 in “anticipated” fees to review GM’s opposition, prepare a reply brief, and attend the hearing. (Fennell Decl. Ex. 16, pp. 62-63.) GM claims that Counsel’s fee motion in this case is substantially similar to fee motions that Counsel filed in other Song-Beverly cases against GM. (See Keshishian Decl. ¶ 16 and Ex. K.) The Court agrees in part with GM and reduces the claimed hours.

iv. Plaintiff’s Motion for Attorneys’ Fees Conclusion

Based on the above analysis, the Court GRANTS Plaintiff’s Motion for Attorneys’ Fees, but in a lowered amount of $44,500 based on reasonable hourly fees as well as reasonable amount of time spent.

B. Defendant GM’s Motion to Tax Costs

i. Legal Standard

The non-prevailing party may file a motion to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) Procedurally, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Ibid.) “Unless the 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(b)(2).) “Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code of Civ. Proc., § 1033.5, subd. (c)(2).)

During the hearing, “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.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) “This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.)

“Code of Civil Procedure section 1033.5 sets forth various categories of recoverable costs. Some of the costs include filing, motion, and jury fees (Code Civ. Proc., § 1033.5, subd. (a)(1)) and service of process by a public officer, registered process server, or other means (Code Civ. Proc., § 1033.5, subd. (a)(4)). Section 1033.5 also explains that if an item is not mentioned in this section, these items may be allowed or denied in the court’s discretion. (Code of Civ. Proc., § 1033.5, subd. (c)(4).) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

ii. Discussion

GM asserts that Plaintiff’s Counsel’s firm has demanded $4,069.13 in costs for a Song-Beverly matter that did not go to trial or raise any complex or novel issues. Further, the total Counsel has proffered in its memorandum of costs includes $1,433.91 that GM argues is without merit. GM has requested an order from this Court taxing costs for several items it asserts are unreasonable, unnecessary, and for which Plaintiff is unentitled to under California law. With respect to the mentioned $1,433.91, GM states Plaintiff has failed to carry its burden in demonstrating the following expenses were actually or reasonably incurred:

· $166.79 for “Jury fees” (See Memorandum of Costs, Worksheet, p. 1, line 2.) This case never went to trial and GM should therefore not be billed for jury fees. The Court should therefore strike these costs entirely.

o DENIED. Despite this case not going to trial prior to settling, Plaintiff nonetheless had to pay a jury fee deposit in order to reserve Plaintiff’s right to a jury trial in this jurisdiction.

· $12.34 in “Notice of Change of Address” costs. (Worksheet, p. 2, line 1e.) Such costs are considered business overhead costs and are in no way related to.

o GRANTED. Irrespective of the California Rules of Court mandatory requirement, Plaintiff can cite to no portion of California Code of Civil Procedure section 1033.5 that would warrant this being an allowable cost.

· $744.80 for the “Reply Courtesy Copy”, “MIL Courtesy Copies”, “Opposition Courtesy Copies”, “Courtesy Copies for Jury Instructions” and “Courtesy Copies for Trial Filings”(Worksheet, p. 4, Attachment 1g.) Such copies are by definition unnecessary. Because these copies were not required, GM should be forced to pay Counsel’s decision to incur the unnecessary expense.

o GRANTED. Unless Plaintiff can show that GM specifically requested courtesy copies, the Court does not allow for Plaintiff to collect this cost.

· $509.98 in service of process costs related to serving the dealership deposition and trial subpoenas. (Id.; Worksheet, p. 5, Attachment 5(d).) Again, these dealerships are non-parties with their own counsel and are not controlled by GM. Moreover, none of this work by Counsel advanced Plaintiffs’ case as the dealership employees were never deposed and the case settled before trial. As such, Counsel should not recover any of these costs.

o DENIED. Pursuant to Code of Civil Procedure section 1033.5(a)(4), costs related to service are allowable.

As such, the Court GRANTS GM’s Motion to Tax Cost in part and DENIES it in part, resulting in a reduction of $757.14, for a net of $3,212 in costs awarded.