Judge Teresa A. Beaudet, Case Number: 21STCV10768, Date: 2025-05-13 Tentative Ruling

On March 19, 2021, Plaintiffs Daniel Villa and Jasmine P. Sepulveda (“Plaintiffs”) filed this action against Defendants BMW of North America, LLC (“Defendant”), Sai Long Beach B, Inc. d/b/a Long Beach BMW (“Long Beach BMW”), and Does 1 through 10. Plaintiffs allege causes of action for (1) Violation of the Song-Beverly Act – Breach of Express Warranty, (2) Violation of the Song-Beverly Act – Breach of Implied Warranty, (3) Violation of the Song-Beverly Act – Section 1793.2, and (4) Negligent Repair.

On September 3, 2024, all parties signed Plaintiffs’ Second Amended Statutory Offer to Compromise Pursuant to Code of Civil Procedure Section 998 (“Compromise”), which the Court received on April 11, 2025. On September 9, 2024, Plaintiffs filed a Notice of Settlement. On November 18, 2024, the Court entered Plaintiff’s Request for Dismissal of Long Beach BMW, which was a term within the Compromise. (Compromise, ¶ 4.) On November 19, 2024, a judgment was entered. On December 3, 2024, Plaintiffs filed a Memorandum of Costs to which Defendant timely filed a Motion to Strike or Tax Costs on December 19, 2024. Plaintiffs timely oppose. Defendant timely replies.

“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.” (Code Civ. Proc., § 1032(b).) “‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032(a)(4).)

The parties agreed that Plaintiff would recover $50,000.00 from Defendant in exchange for surrendering the vehicle to Defendant. (Compromise, ¶¶ 1-2.) The parties also agreed that if a motion to resolve costs is needed, Plaintiffs shall be deemed the prevailing party in this action. (Compromise, ¶ 3.)

Per the Compromise, the parties agreed Defendant would “pay attorney fees, costs, and expenses actually and reasonably incurred in the commencement and prosecution of this action, including post-offer acceptance attorney fees, costs, and expenses incurred in performing on the settlement and/or completing the case against all parties, pursuant to Civil Code section 1794(d)…” (Compromise, ¶ 3.) Civil Code section 1794, subdivision (d), states “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.”

“A ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.) “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., supra, 19 Cal.App.4th at 774.) Costs otherwise allowable as a matter of right may be disallowed if the court determines they were not reasonably necessary, and the court has power to reduce the amount of any cost item to an amount that is reasonable. (See Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 [finding that “the intent and effect of section 1033.5, subdivision (c)(2) is to authorize a trial court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily”].)

Plaintiffs’ memorandum of costs claims $23,832.49, which Defendant argues is “excessive and unreasonable.” (MTS or Tax Costs, p. 1:21.) Defendant argues that the costs outlined in Plaintiffs’ memorandum of costs are “not proper on their face because there is no statutory basis supporting recovery,” such that “the burden is on Plaintiffs as the claiming party to justify the request for the expense items.” (MTS or Tax Costs, p. 3:16-19.) Further, Defendant argues the costs are not reasonable, violating Code of Civil Procedure Section 1033.5, subdivision (c)(3), and the costs are not reasonably incurred, violating Civil Code section 1794, subdivision (d). Defendant moves for the Court to strike or tax all the costs claimed by Plaintiffs, or in the alternative, the witness fees, court reporter fees, other costs, and service of process and electronic filing fees. (MTS or Tax Costs, pp. 2:13, 4:14, 5:14-15, 6:7-8., 6:15-16, 6:18-19.)

In opposition, Plaintiffs assert Civil Code section 1794(d) is a more expansive statute and controls over Code of Civil Procedure section 1033.5 in determining the scope of costs that Plaintiffs can recover. (Opposition, p. 2:2-3.) Plaintiffs cite Jensen v. BMW (1995) 35 Cal.App.4th 112, 137, which indicates the costs provision under Civil Code section 1794(d) “is meant to include recovery beyond those codified in [Code of Civil Procedure section] 1033.5.” (Opposition, p. 2:9-10.) Plaintiffs assert this wider scope is to ensure “consumers would not have to pay out of pocket for the expensive costs of litigation.” (Opposition, p.2:27-28.) The Court notes that this supposedly broader scope in recovering costs does not preclude the requirement of those costs to be reasonably necessary or reasonably incurred. It is with that lens the Court evaluates the challenged costs here.

Defendant argues Plaintiffs’ claim for $13,191.23 in expert witness fees is unsubstantiated by the number of hours worked and rate of billing. (MTS or Tax Costs, p. 3:24-25.) Defendant argues Plaintiffs have not provided an explanation for why the expert fees were reasonably necessary to the litigation since the expert was never deposed due to case settlement. (MTS or Tax Costs, p. 4:5-8.) In opposition, Plaintiffs attach an invoice from the expert indicating his work, which entailed preparing for and attending Defendant’s vehicle inspection and preparing for the deposition even though it ultimately did not take place. (Rotman Decl., ¶ 2, Exh. 2.) The invoice indicates 26.75 hours of work at $375.00 per hour, as well as costs for mileage, taxi, travel time, and a meal. (Rotman Decl., Exh. 2.) Defendant replies that the invoice submitted fails to explain each itemized expense, further supporting that these costs are not necessary. (Reply, p. 2:6-9.)

The itemization that exists is sufficient to show that Plaintiff’s expert engaged in work reasonably necessary and reasonably incurred as they pertain to preparation for the inspection, the inspection itself, and preparation for the deposition that did not occur, including travel time. The itemized meal for $141.66 is unreasonable, per Ladas, which concluded that expenses for attorney meals incurred while attending local depositions are not reasonably necessary. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at 774.) This can be analogized here for the expert witness. Ladas is also persuasive in concluding costs for local travel from Solvang to Los Angeles ($169.65 mileage and $10.84 taxi) are not recoverable. Relatedly, the hotel charge for $385.33 is unreasonable because the expert witness staying in a hotel on the vehicle inspection day is not reasonably necessary or reasonably incurred for the litigation.

The Court GRANTS, in part, Defendant’s motion to strike or tax $707.48 from the total $13,191.23 in expert witness costs, for a REDUCED total of $12,483.75.

Defendant argues Plaintiffs’ claim for $4,325.00 in court reporter fees is also unsubstantiated and that only one hearing required a court reporter, necessitating a court reporter fee. (MTS or Tax Costs, p. 4:23-26.) Defendant argues the post mediation status conference was taken off-calendar and only the parties appeared at the case management conference. (MTS or Tax Costs, p. 4:26-28.) Further, Defendant states that the LASC Fee Schedule outlines court reporter fees as $30.00 for civil proceedings lasting up to one hour, and that transcripts of hearings not ordered by the Court are not allowable as costs under Code of Civil Procedure Section 1033.5, subdivision (b)(5). (MTS or Tax Costs, p. 5:1-7.) In opposition, Plaintiffs assert that considering Civil Code section 1794, subdivision (d)’s applicability here, the limitations of Code of Civil Procedure section 1033.5 are not dispositive. (Opposition, p. 2:26-28.) Further, Plaintiffs assert the transcripts were necessary and reasonable to the prosecution of the action and these costs would not have been incurred if the Court still provided these reporters. (Opposition, p. 6:1-3.) In reply, Defendant restates arguments from the motion.

The Court notes that “court reporting services provided at the expense of the Court” charge a fee of $30.00 for civil proceedings lasting one hour or less. (Code of Civ. Proc., § 68086(a)(1).) This fee may not mirror the fee to hire reporters through third-party services, such as Network Deposition Service, Inc, here. (Rotman Decl., Exh. 3.) The invoice includes fees incurred for two transcripts not required by the Court, a reporter for a post-arbitration status conference which was taken off-calendar, a reporter for a case management conference (with a late scheduling fee added on), a reporter for an ex parte, a reporter for the hearing on motion to lift stay of action, and an anticipated reporter for the hearing on attorney’s fees later this year. (Rotman Decl., ¶ 7, Exh. 3.) Though Civil Code section 1794 may allow a wider scope of recovery for costs, these costs must still have been reasonably incurred.

Code of Civil Procedure section 1033.5, subdivision (a)(9), states that “[t]ranscripts of court proceedings ordered by the court” are allowable as costs. The Court did not order the two transcripts here and find their costs ($525.00 for each transcript) were not reasonably incurred, nor do Plaintiffs explain the necessity of the transcripts apart from asserting they “were necessary and reasonable to the prosecution of the action.” (Opposition, p. 6: 2-3.) The transcripts appear to be “merely convenient or beneficial” to the preparation of litigation, and thus, are struck. (Code Civ. Proc., § 1033.5(c)(2).) The Court also finds the reporter fees for the post-arbitration status conference which was taken off calendar ($625.00) and the late scheduling fee for the case management conference ($150.00) are not reasonably necessary or reasonably incurred since one hearing did not take place and the late fee is due to Plaintiffs’ failure to schedule timely. The Court finds the reporter fee for the upcoming attorney’s fees hearing is reasonable, but this amount must be remitted back to Defendant if the hearing does not take place.

The Court GRANTS, in part, Defendant’s motion to strike or tax $1,825.00 from the total $4,325.00 in court reporter fees, for a REDUCED total of $2,500.00.

Defendant argues Plaintiffs’ claim for $2,695.91[1] in other costs, which include legal research, courtesy copy, mileage, and meals, are not reasonably necessary to the conduct of the litigation nor reasonable in amount, violating Code of Civil Procedure section 1033.5, subdivisions (c)(2) and (3). (MTS or Tax Costs, pp. 5:20-22, 6:3-5.) Defendant also argues these costs were not reasonably incurred, violating Civil Code section 1794, subdivision (d). (MTS or Tax Costs, p. 6:5-6.) For the mediation costs in particular, Defendant argues the parties agreed to share the costs and Defendant should not have to cover Plaintiffs’ half. (MTS or Tax Costs, p. 6:1-2.) In opposition, Plaintiffs note Defendant fails to mention $22.70 for the Court Connect reservation, printer charges, and a Minute Order download. (Opposition, p. 6:23-25.)

Plaintiffs assert that the Court requires courtesy copies ($981.08) for all filings, so the cost incurred is reasonable and necessary to the litigation. (Opposition, p. 7:6-12; Rotman Decl. ¶ 8, Exh. 5.) Defendant does not address courtesy copies on reply. Nevertheless, the Court finds these copies reasonably necessary and reasonably incurred.

Plaintiffs assert the legal research through Westlaw ($640.66) was performed for relevant motions in this action, indicating the costs are reasonable and necessary. (Opposition, p. 7:16-22; Rotman Decl. ¶ 12, Exh. 9.) Defendant replies that a Westlaw subscription is part of the overhead of Plaintiffs’ attorney. (Reply, p. 3:26-28.) Though legal research is, of course, necessary to the prosecution and defense of an action, the Court finds this is not a cost recoverable under either Code of Civil Procedure section 1033.5 or Civil Code section 1794, subdivision (d). The Court strikes this cost.

Plaintiffs assert the mileage ($127.07) and meals costs ($85.50) were incurred by the attorney when attending Defendant’s vehicle inspection, indicating the costs were reasonable and necessary. (Opposition, pp. 7:23-28, 8:1-5, Rotman Decl. ¶¶ 10, Exh. 7 and 9, Exh. 6.) Defendant replies these costs are not recoverable, citing Ladas. The Court finds this case persuasive here, noting that routine expenses such as mileage and attorney meal expenses cannot be justified as necessary to conduct litigation. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at 774, 775-776.) The Court strikes these costs.

Plaintiffs assert, as to mediation costs ($838.90), that the parties did not agree each side would bear half the total cost for mediation, nor did Plaintiffs agree not to seek reimbursement if they were the prevailing party. (Opposition, p. 8:8-10; Rotman Decl. ¶ 13.) Plaintiffs cite Berkeley Cement, Inc. v. Regents of Univ. of Calif. (2019) 30 Cal.App.5th 1133, 1142 (Berkeley),[2] to support the assertion that mediation costs are recoverable by the prevailing party. The Fifth District Court of Appeal in Berkeley states “mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as ‘not reasonably necessary to the conduct of litigation.’ The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.” (Berkeley Cement, Inc. v. Regents of Univ. of Calif., supra, 30 Cal.App.5th at 1143.) Defendant replies that mediation charges are not specified in the statute and restates the parties agreed to share the costs of mediation. (Reply, p. 4:14-19.) Here, the Court finds it reasonable for mediation fees to be split by the parties since the parties mutually agreed to mediation in search of a resolution to this action. The Court strikes this cost.

The Court GRANTS, in part, Defendant’s motion to strike or tax $1,692.13 from the total $2,695.91 in other costs, for a REDUCED total of $1,003.78.

Defendant argues Plaintiffs’ claim for $302.22 for service of process and $713.38 for electronic filing or service of documents is excessive, for a total of $1,015.60. (MTS or Tax Costs, p. 6:13-19.) Defendant argues the only service of process cost Plaintiffs “reasonably incurred was $40.00 for serving the Summons and Complaint on Defendant.” (MTS or Tax Costs, p. 6:14-15.) In opposition, Plaintiffs assert that service of process costs are recoverable under Code of Civil Procedure section 1033.5, subdivision (a)(4). (Opposition, p. 4:25.) Plaintiffs assert the remainder of the service of process costs were to serve Long Beach BMW with the Summons and Complaint, serve both defendants with discovery requests, and to serve the JAMS demand. (Opposition, pp. 4:26-28, 5:1; Rotman Decl., Exh. 1.) In reply, Defendant revises the concession that only the $41.18 cost to serve Defendant the Summons and Complaint is reasonably incurred. (Reply, p. 4:26-27.) Defendant replies that it should not be responsible for paying service of process for Long Beach BMW or McKenna BMW, the latter which was not a party to the action. (Reply, pp. 4:27-28, 5:1-2.) Defendant also argues Plaintiffs have not submitted evidence to show the costs for serving discovery requests were reasonably incurred. (Reply, p. 5:2-5.)

“If service is by a process server … the recoverable cost is the amount actually incurred in effecting service …” (Code Civ. Proc., 1033.5(a)(4).) “Fees for the electronic filing or service of documents through an electronic filing service provider” are also recoverable costs. (Code Civ. Proc., 1033.5(a)(14.).)

The Court agrees that Defendant is not responsible for the costs of serving other parties. Consequently, $41.18 and $137.50 must be deducted from the service of process fees. Otherwise, the Court finds the service of process and electronic filing fees reasonably necessary and reasonably incurred.

The Court GRANTS, in part Defendant’s motion to strike or tax service of process and electronic filing fees in the amount of $178.68.

Based on the foregoing, the Court grants Defendant’s motion to strike or tax costs in part and denies the motion in part. The Court reduces the total requested costs of $23,832.49 by $4,403.29 ($707.48 + $1,825.00 + $1,692.13+$178.68). Thus, the Plaintiffs’ costs are reduced to the amount of $14,429.20.

[1] The Court notes Defendant misstated the total as $2,698.91.

[2] The Court notes that Plaintiffs misspell this case name and misstate the citation for this case.

DANIEL VILLA, et al., Plaintiffs, vs. BMW OF NORTH AMERICA, LLC, et al., Defendants.	Case No.:	21STCV10768
	Hearing Date:	May 13, 2025
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE OR TO TAX COSTS

Superior Court of California

County of Los Angeles

Department 50