Judge Teresa A. Beaudet, Case Number: 22STCV19193, Date: 2025-04-18 Tentative Ruling

ERICK HERNANDEZ,

Plaintiff,

vs.

general motors, llc, et al.,

Defendants.

Case No.:

22STCV19153

Hearing Date:

April 18, 2025

Hearing Time: 10:00 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT GENERAL MOTORS LLC’S MOTION TO TAX COUNSEL’S MEMORANDUM OF COSTS

On June 10, 2022, Plaintiff Erick Hernandez (“Plaintiff”) filed a complaint against Defendant General Motors, LLC (“Defendant”) and DOES 1 through 50, inclusive, alleging causes of action for: (1) violation of subdivision (D) of Civ. Code § 1793.2, (2) violation of subdivision (B) of Civ. Code § 1793.2, (3) violation of subdivision (A)(3) of Civ. Code § 1793.2, (4) breach of express written warranty, and (5) breach of the implied warranty of merchantability.

On July 15, 2022, Defendant filed an answer to the complaint.
On July 16, 2024, Plaintiff filed a motion to compel the deposition of Defendant’s Person Most Qualified, to which Defendant filed an opposition on September 25, 2024.

On October 10, 2024, after hearing, the Court placed the motion to compel the deposition of Defendant’s Person Most Qualified off calendar due to settlement. (10/10/24 Minute Order at p. 1.) Pursuant to an oral request made by Plaintiff, the Court ordered the complaint dismissed without prejudice. (10/10/24 Minute Order at p. 1.)

On October 25, 2024, Plaintiff filed and served a memorandum of costs in which Plaintiff seeks total costs of $5,391.56. The costs are allotted as follows: (1) $2,933.79 for filing and motion fees (Item 1); (2) $1,331.85 for deposition costs (Item 4); (3) $1,125.92 for service of process costs (Item 5); and (4) attorney fees to be determined by motion (Item 10).

Defendant now moves to tax $3,013.97 from Plaintiff’s memorandum of costs. Plaintiff opposes the motion.

Defendant seeks to tax $3,013.97 from Plaintiff’s memorandum of costs. The costs that Defendant seeks to tax represents the following: (1) $362.89 in costs associated with Plaintiff’s motion to compel further responses and compel the deposition of Defendant’s PMQ; (2) $1,507.92 in costs associated with Plaintiff’s non-party subpoenas; (3) $84.00 in fees incurred with using Direct Legal Support; (4) $28.55 for payment processing fees to Direct Legal Support; and (5) $1,030.61 in costs for courtesy copies.

“Except as otherwise 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, subd. (b).) A prevailing party is “the party with a net monetary recovery.” (Code Civ. Proc., § 1032, subd. (a)(4).)

“The right to recover . . . costs is determined entirely by statute.” ((Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Ibid.) “If so, the burden is on the objecting party to show the costs to be unnecessary or unreasonable.” (Ibid. [brackets omitted].) Items not expressly allowed or prohibited by CCP § 1033.5 “may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) An award of costs is subject to the limitation that “[a]llowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Moreover, costs which are allowed “shall be reasonable in amount.” (Code Civ. Proc., § 1033.5, subd. (c)(3).)

In the context of a Song-Beverly Act action, Civ. Code § 1794(b) “permits the prevailing buyer to recover both costs and expenses.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137 [disapproved on other grounds, emphasis in original, internal quotations omitted].) “[T]he Legislature intended the word expenses to cover items not included in the detailed statutory definition of costs.” (Gorman v. Tassajara Development Corp., supra, at page 71. [internal quotations omitted]) Thus, in assessing the appropriateness of costs in an action arising under the Song-Beverly Act, a trial court must ascertain whether the costs “were reasonably incurred by the buyer in connection with the commencement and prosecution of [the] action.” ((Id. at p. 138.)

“[I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” ((Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “[T]he burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-83.) “If the items appearing on 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.” (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 774.) “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.” (Ibid.) “[T]he mere filing of a motion to tax costs may be a proper objection to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face.” ((Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [internal quotations omitted].)

In support of the motion, counsel for Defendant, Alexandria Pappas (“Pappas”), provides a declaration. Ms. Pappas states the following: Plaintiff brought a 2020 Chevrolet Colorado in March 2020. (Pappas Decl., ¶ 2.) Plaintiff sued Defendant in June 2022, asserting five Song-Beverly claims. (Pappas Decl., ¶ 3.) In the complaint, Plaintiff sought a repurchase, plus the maximum civil penalty, plus attorney fees and costs. (Pappas Decl., ¶ 3.) Counsel’s efforts in this matter simply included canned discovery to Defendant, including their “cut and paste” motion to compel Defendant’s PMQ and subpoenas to nonparty dealers. (Pappas Decl., ¶ 4.) Ms. Pappas attests that these motions did not advance Plaintiff’s case and are simply part of counsel’s litigation playbook. (Pappas Decl., ¶ 4.)

Ms. Pappas states that on September 25, 2024, this matter settled. (Pappas Decl., ¶ 5.) On October 25, 2024, counsel filed its memorandum of costs demanding $5,391.56 in costs. (Pappas Decl., ¶ 6.) Defendant asks for a reduction of $3,013.97, which reflects costs that are without merit and yet another attempt for counsel to bolster overall fees in this matter. (Pappas Decl., ¶ 6.) Defendant therefore requests that the Court tax $3,013.97 from Plaintiff’s memorandum of costs and deduct such amount from any costs the Court awards. (Pappas Decl., ¶ 7.)

In opposition to the motion, counsel for Plaintiff Lara Rogers (“Rogers”), provides a declaration. Ms. Rogers states that prior to filing the memorandum of costs, Plaintiff attempted to informally resolve fees and costs with Defendant, but Defendant was unwilling to make an offer. (Rogers Decl., ¶ 3.) Each of the service advisors were responsible for intake of Plaintiff’s complaints and all of the technicians subpoenaed diagnosed and performed repairs on Plaintiff’s vehicle. (Rogers Decl., ¶ 4; Exh. 1.) Plaintiff sought testimony regarding the defects plaguing the Subject Vehicle and the steps Defendant’s authorized repair facilities took to diagnose and repair the defects. (Rogers Decl., ¶ 5.) Similarly, Plaintiff sought to depose Montebello Auto and George Chevrolet’s PMQs regarding each repair facilities policies and procedures governing the intake of vehicles, diagnoses and repair of vehicles, as well as the process of creating and maintaining repair orders. (Rogers Decl., ¶ 6.) Furthermore, Montebello Auto and George Chevrolet’s PMQs were necessary for the authentication of Plaintiff’s repair orders, which were essential documents for proving Plaintiff’s claims. (Rogers Decl., ¶ 7.)

Ms. Rogers also sets forth her hourly rate as well as the hourly rate of senior partner Carey Wood. (Rogers Decl., ¶¶ 8-11.) Ms. Rogers indicates that other courts have affirmed the reasonableness of counsel’s hourly rates. (Rogers Decl., ¶¶ 12-15; Exhs. 2-4.) Plaintiff seeks attorney’s fees for time incurred responding to the motion to tax costs. (Rogers Decl., ¶¶ 16-17; Exh. 5.)

Although not raised as an argument in the opposition brief, the Court notes that the notice of motion is defective. “Unless 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).) “[D]ue process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” ((Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.)

Here, Defendant is not seeking to strike the entire cost memorandum. Rather, Defendant is seeking to tax $3,013.97 of the $5,391.56 claimed in Plaintiff’s cost memorandum. (Mem. of Ps and As at pp. 5-6.) However, the notice of motion merely indicates that Defendant moves “to tax costs from Counsel’s [m]emorandum of [c]osts.” (Not. of Mot. at p. 2:1-2.) Given that Defendant is not seeking to strike the entire cost memorandum, Defendant should have set forth the cost items which it sought to tax in the notice of motion.

In addition to the defects in the notice of motion, as will be explained below, Defendant has not met its burden to tax any of the cost items at issue in the motion.

Defendant contends that it should not be required to reimburse Plaintiff for the $362.89 for costs in connection with Plaintiff’s motion to compel further responses and motion to compel Defendant’s PMQ deposition. (Mem. of Ps and As at p. 6:1-3.)

The Court finds that Defendant has not met its burden to challenge the filing and motion fees of $362.89. Plaintiff has filed a verified cost memorandum which is prima facie evidence that such costs were reasonable and necessarily incurred. In the context of a motion to tax costs, “mere statements in the points and authorities accompanying its notice of motion . . . and the declaration of its counsel are insufficient to rebut the prima facie showing.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

The Court therefore denies Defendant’s request to tax $362.89 in costs for motion costs.

Defendant seeks to tax $1,507.92 in costs associated with Plaintiff’s non-party subpoenas. (Mem. of Ps and As at p. 6:6-7.) Non-party subpoenas are neither prohibited nor allowed by CCP § 1033.5. (Code Civ. Proc. § 1033.5.) “Items not mentioned in [CCP § 1033.5] . . . may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) Plaintiff’s counsel has attested to the necessity of such subpoenas. (Rogers Decl., ¶¶ 4-7.) Defendant, however, has not made a sufficient showing that such costs are improper.

The Court therefore denies Defendant’s request to tax $1,507.92 in costs associated with Plaintiff’s non-party subpoenas.

Defendant seeks to tax $84.00 in fees incurred using Direct Legal Support as well as $28.55 in costs for payment processing fees to Direct Legal Support. (Mem. of Ps and As at p. 6:10-16.)

Such fees are neither explicitly allowed nor prohibited by CCP § 1033.5. The Court finds that Defendant has not shown that such fees were unreasonable or unnecessary. The statement of Defendant’s counsel that the challenged cost items are without merit does not allow Defendant to meet its burden to properly challenge such costs. (Pappas Decl., ¶ 6.)

The Court therefore denies Defendant’s request to tax costs incurred by Plaintiff to Direct Legal Support.

Defendant moves to tax $1,030.61 in costs for courtesy copies. (Memo. of Ps and As at p. 6:17-19.) “[E]xcept when expressly authorized by law . . . [p]ostage, telephone, and photocopying charges, except for exhibits” are not allowable as costs. (Code Civ. Proc., § 1033.5, subd. (b)(3).) Plaintiff contends that the Court’s standing order requires courtesy copies for each motion, opposition, and reply paper filed. (Opp’n at p. 6:3-5.)

The Court credits Plaintiff’s argument. This department requires courtesy copies of all motions. Defendant has not met its burden in showing that the costs incurred for courtesy copies was unnecessary or unreasonable to this litigation.

The Court therefore denies Defendant’s request to tax $1,030.61 for courtesy copies from the memorandum of costs.

In the opposition, Plaintiff contends that he is entitled to recover his attorney’s fees incurred in the defense of this motion. (Opp’n at pp. 6-8.) Plaintiff seeks $2,548.00 in attorney’s fees for opposing the instant motion. (Opp’n at p. 8:11.)

Attorney’s fees are allowed when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)-(C).) Cal. Civ. Code section 1794(d) authorizes attorney fees to the prevailing party in a Song Beverly case. The Court finds that the hourly rates and the amount requested by Plaintiff for attorney fees incurred in opposing the instant motion are reasonable; therefore, the Court grants Plaintiff’s request for attorney’s fees incurred in opposing the instant motion.

For the foregoing reasons, the Court denies Defendant’s motion to tax Plaintiff’s memorandum of costs in its entirety, and awards Plaintiff attorney’s fees in the amount of $2,548.00.

Superior Court of California

County of Los Angeles

Department 50