Judge Theresa M. Traber, Case Number: 20STCV33808, Date: 2023-10-19 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV33808, Date: 2023-10-19 Tentative Ruling

Case Number: 20STCV33808 Hearing Date: November 16, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 16, 2023 JUDGMENT: July 6, 2023

CASE: Eduardo Yanez Guzman v. RHC Automotive, Inc., et al.

CASE NO.: 20STCV33808

MOTION TO TAX COSTS

MOVING PARTY: Defendant FCA US LLC

RESPONDING PARTY(S): Plaintiff Eduardo Yanez Guzman

CASE HISTORY:

· 09/03/20: Complaint filed.

· 05/10/23: Jury verdict rendered.

· 05/17/23: Dismissal of RHC Automotive Inc., d/b/a Nissani Bros. Chrysler Dodge Jeep Ram

· 07/06/23: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action filed on September 3, 2020. Plaintiff purchased a new 2016 Dodge Ram 2500 on January 23, 2016, which was delivered with serious defects in the transmission and electrical systems as well as the brakes and the engine. A jury verdict was rendered on May 10, 2023 in favor of Plaintiff and against Defendant FCA US LLC. Judgment was entered on the verdict on July 6, 2023.

Defendant moves to tax costs claimed in the memorandum of costs.

TENTATIVE RULING:

Defendant’s Motion to Tax Costs is GRANTED as to anticipated court reporter fees claimed in Attachment 12c of the Memorandum of Costs and otherwise DENIED.

DISCUSSION:

Defendant moves to tax costs claimed in the memorandum of costs.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc. §1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) 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.) 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. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4). (Cal. Rules of Court, rule 3.1700(b)(1).) Further, the parties disputing costs may agree to extend the time for filing and serving a cost memorandum and motion to strike, but that agreement “must be confirmed in writing, specify the extended date for service, and be filed with the clerk.” (Id. Rule 3.1700(b)(3) [emphasis added].)

Plaintiff’s memorandum of costs was filed with the Court and served electronically on August 1, 2023. Thus, the deadline to file this motion was 15 calendar days from that date, plus two court days for electronic service. (See Code Civ. Proc. § 1010.6(a)(4).) 15 days after August 1, 2023 was August 16, 2023, and two court days after that date was Friday, August 18, 2023. Defendant’s Motion to Tax Costs was filed and served the following Monday, August 21. (Motion POS.) Both parties state that they executed a written agreement to extend the time for service by treating electronic service as mail service. (See Supplemental Declaration of Christopher M. Fisher ISO Opp. ¶ 3; see also Plaintiff’s Non-opposition to Defendant’s Opposition to Tentative Ruling.) No such agreement was ever filed with this Court. However, as Plaintiff states that he considered the motion timely served, the Court will accept the parties’ representations and construe the motion as served by mail, rather than electronic service. Under that construction, the motion to tax costs is timely. The Court will therefore address Defendant’s motion on its merits.

Disputed Cost Items

Defendants identify seven cost items in Plaintiff’s Memorandum of Costs to which they object: (1) Deposition costs in Item 4; (2) Service of Process costs in Item 5: (3) Costs for ordinary witness fees in Item 8(a); (4) Deposition Costs and expert fees in Item 8(b); (5) Models, Blowups, and Photocopies of Exhibits in Item 11; (6) Court Reporter Fees in Item 12; and (7) “Other” costs, including attorney services and messengers, travel, and interpreter costs in Item 13.

1. Deposition Costs

Defendant first challenges Item 4 and attachment 4e in the memorandum of costs, which claim a total of $5,102.80 in costs. Defendant specifically disputes the claims for the deposition of Craig Martinez on April 1, 2022 amounting to $575, and the claims for deposition of Defendant’s Person Most Knowledgeable on June 16 and July 26, totaling $529.20 and $510.50, respectively. (Item 4a-c.) According to Defendant, the deposition costs for Defendant’s Person Most Knowledgeable were not reasonably incurred because the depositions did not go forward on those dates due to the unavailability of the witness. (See Defendant’s Exh. C.) Plaintiff does not dispute that the depositions did not go forward on June 16 or July 26, but has provided invoices showing that the costs incurred were to record certificates of nonappearance. (See Declaration of Deepak Devabose ISO Opp. Exh. B. pp. 2-3.)

The Court is not persuaded by Defendant’s assertion that deposition costs for a notice of nonappearance is unnecessary. Taking a certificate of nonappearance is routine practice when a witness does not appear for a deposition to establish a record in the event that a motion to compel is needed. Plaintiff’s choice to do so demonstrates prudence and attention to detail, not unnecessary spending that should be taxed.

Defendant also argues that the April 1, 2022 deposition of Craig Martinez, person most knowledgeable for Bravo CDJR, was unnecessary and unreasonable because the most recent presentation of the subject vehicle to Bravo for services was November 2018. Defendant asserts that there was no good faith basis for conducting the deposition because the witness had no recollection of Plaintiff or Plaintiff’s vehicle. Defendant’s conclusory assertion does not suffice to substantiate an objection to this claim for costs. (See, e.g., State v. Meyer (1985) 174 Cal.App.3d 1061, 1075.)

Defendant has not demonstrated that the deposition costs claimed by Plaintiff must be taxed.

2. Service of Process

Second, Defendant challenges Item 5 in the Memorandum of Costs seeking a total of $1,118.45 in costs for service of process. (Item 5, Attach. 5d.) Defendant seeks to tax $1,088.45 of these costs as pertaining to service on Craig Martinez and the personnel of both Bravo Chrysler and Champion Chrysler. Defendant asserts that it should not be required to pay for service of process costs related to depositions that ultimately did not go forward, or, with respect to service on Mr. Martinez, for a deposition that yielded no useful testimony. This conclusory statement is not sufficient to substantiate these objections. California precedent holds that the determination of whether the prevailing party’s costs are reasonably necessary should be determined from a pre-trial perspective. (See, e.g., Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) That a deposition ultimately did not prove fruitful does not mean that costs pertaining to service of subpoenas were not reasonably necessary to the litigation. Nor is the Court persuaded by Defendant’s equally unsubstantiated assertions that because all subpoenas were likely served at the same time and the same location, service on five prospective witnesses was unreasonably duplicative.

As to Defendant’s challenge on the basis that Plaintiff apparently served each prospective witness twice, the memorandum of costs does not offer a facial justification for this apparent duplicative service. However, Plaintiff has provided invoices showing that the first set of subpoenas were served on February 5, 2022, and the second set were served on September 8. (See, e.g., Devabose Decl. Exh. A. p. 1.) As with the certificates of nonappearance, renewed service of deposition subpoenas after an extended period of time is a prudent measure, and the Court is not persuaded that Plaintiff’s costs should be taxed on this basis.

3. Ordinary Witness Fees

Defendant next seeks to tax the entirety of Plaintiff’s claim for ordinary witness fees in Item 8(a), claiming that the witness fees of Craig Martin were not necessarily incurred for the reasons asserted in connection with the deposition of that witness. As the Court rejected Defendant’s argument with respect to Item 4, that argument is likewise insufficient here. Defendant has not demonstrated that this cost item should be taxed.

4. Expert Witness Fees

Defendant next objects to Plaintiff’s claim for Expert Witness fees totaling $11,106.34 for two expert witnesses. (Item 8(b).) Defendant argues that this cost item should be taxed as to the fees of expert witness Chris Morales by $7,529.87, on the basis that Mr. Morales incurred significantly more hours and fees to prepare for his deposition, inspect Plaintiff’s vehicle, and prepare for trial than Defendant’s expert did for the same tasks. The Court is not persuaded. Mere comparison of the expert fees claimed by Plaintiff to those incurred by Defendant does not suffice to demonstrate that Plaintiff’s expert fees were unreasonably incurred. The expert fees incurred by the losing party are not evidence that the expert fees incurred by the party who prevailed in a jury trial are unreasonable. Defendant’s conclusory assertions that the expert’s hours are excessive do not carry its burden to properly challenge these costs.

5. Models, Blowups, and Photocopies of Exhibits

Defendant also objects to Plaintiff’s claim for $5,412.89 in costs for models, blowups, and photocopies of exhibits in Item 11. (Memorandum of Costs Item 11.) Defendant asserts that this cost is unreasonable because only 167 exhibits were identified in the joint exhibit list, but provides no explanation for why the number of exhibits renders this cost item excessive. Conclusory assertions do not suffice to substantiate an objection to this claim for costs. (See, e.g., State v. Meyer (1985) 174 Cal.App.3d 1061, 1075.) Defendant has failed to demonstrate that this cost item should be taxed.

6. Court Reporter Fees

Defendant next objects to Plaintiff’s claim for Court Reporter Fees in Item 12 in the amount of $10,819.03. (Memorandum of Costs Item 12.) Once again, Defendant bases its challenge on a conclusory assertion—this time, that the court reporter fees are “unreasonable” because they vary from hearing to hearing. This assertion does not suffice to demonstrate that the reporter fees are unreasonable.

That said, Defendant also objects to Plaintiff’s request for “anticipated” court reporter fees in the amount of $600. (See Attach. 12c.) As Defendant correctly states, this claim is speculative and necessarily concerns costs that have not been incurred. The Court therefore finds that this cost item should be taxed in the amount of $600.

7. Other Costs

Finally, Defendant objects to Plaintiff’s claim for other costs, including “Attorney Services and Messengers,” “travel,” and interpreter costs, totaling $12,905.08, in Item 13. Defendant offers no basis for objecting to these costs other than the conclusory assertion that they are duplicative or unreasonable. These broad assertions are not sufficient. (See, e.g., State v. Meyer (1985) 174 Cal.App.3d 1061, 1075.) Defendant has failed to demonstrate that this cost item should be taxed.

Based on the foregoing, the Court finds that Plaintiff’s memorandum of costs should be taxed by $600 as pertaining to anticipated court reporter fees claimed in Attachment 12c.

CONCLUSION:

Accordingly, Defendant’s Motion to Tax Costs is GRANTED as to anticipated court reporter fees claimed in Attachment 12c of the Memorandum of Costs and otherwise DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 16, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.