Judge: Timothy Patrick Dillon, Case: 22STCV09758, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV09758    Hearing Date: January 12, 2023    Dept: 73

GISELA ALVAREZ, et al. v. AMERICAN HONDA MOTOR CO., INC.

Counsel for Plaintiffs (Movant): Roger Kirnos, Deepak Devabose (KNIGHT LAW GROUP LLP)

Counsel for Defendant (Opposition): Nicholas Secord, Jonathan Kom (SJL LAW LLP)

Plaintiff’s Motion to Tax Costs

(filed 10/11/22)

TENTATIVE RULING

The motion to tax costs is granted as to the costs Defendant incurred for filing and withdrawing the demurrer and motion to strike. Accordingly, Defendant’s costs are reduced to $476.00.

I.                    Background

On March 21, 2022, Gisela Alvarez and Oscar Quezada (“Plaintiffs”) filed an action against American Honda Motor Co., Inc. (“Defendant”) alleging violations of the Song-Beverly Act and fraudulent inducement-concealment arising out of Plaintiffs’ purchase of a 2020 Honda Pilot (the “vehicle”). 

On August 15, 2022, the court issued a ruling staying all proceedings in the action pending completion of arbitration of Plaintiffs’ claims.  On September 21, 2022, Plaintiffs filed a request for dismissal of the entire action.

On September 26, 2022, Defendant filed a memorandum of costs seeking to recover $1,452.48 in filing and motion fees.  On October 11, 2022, Plaintiff filed the instant motion to strike the requested costs in its entirety.  On November 3, 2022, Defendant file a Notice of Errata to include invoices omitted from Defendant’s memorandum of costs. Defendant filed an opposition on December 28, 2022, and Plaintiffs filed a reply on January 5, 2023.

II.                 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, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606 (Santisas); 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.) The term “prevailing party” for costs purposes is defined by statute to include: 

·         The party with a net monetary recovery; 

·         A defendant who is dismissed from the action; 

·         A defendant where neither plaintiff nor defendant recovers anything; and 

·         A defendant as against those plaintiffs who do not recover any relief against that defendant. 

(Code Civ. Proc. § 1032, subd. (a)(4).) 

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.)

A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. §§ 1032, subds. (a)(2) and (a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, supra, 17 Cal.4th at p. 606; Cano v. Glover (2006) 143 Cal.App.4th 326, 331 (defendant in action that was dismissed without prejudice was entitled to costs under Code Civ. Proc. § 1032, subd. (a)(4)); 66 A.L.R.3d 1087 (dismissal of plaintiff’s action as entitling defendant to recover attorneys’ fees or costs as “prevailing party” or “successful party”).) “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. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989 (Bender).) “A party’s mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of counsel are insufficient to rebut the prima facie showing that the costs were necessarily incurred.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 (Dumrichob).)

The losing party may dispute any or all of the items in the prevailing party’s memorandum of costs by a motion to strike or tax costs. (CRC Rule 3.1700, subd. (b).) Technically, a motion to strike challenges the entire costs bill whereas a motion to tax challenges particular items or amounts. 

California Rules of Court Rule 3.1700 provides that: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” 

III.              Analysis

Defendant met the procedural requirements in filing a verified Memorandum of Costs on September 26, 2022. Specifically, filing and motion fees are recoverable. (Code Civ. Proc. § 1033.5, subd. (a)(1).) Defendant incurred $508.61 for filing the demurrer, $446.96 for filing the motion to strike, $454.22 for filing an ex parte application for an order staying proceedings pending arbitration, $13.65 for rescheduling the hearing for the demurrer and motion to strike, $7.26 (x 4) for filing a motion to compel arbitration, a case management statement, notice of withdrawal of its demurrer and motion to strike, and notice of ruling re ex parte application, for a total of $1,452.48. (Memorandum of Costs; Notice of Errata, Ex. A.)

Thus, as discussed above, it is Plaintiffs’ burden to show that the costs were not reasonable or necessary.

Plaintiffs first argue that Defendant’s costs are facially improper because the costs are not statutorily authorized, nor did Defendant submit evidence to support its cost award. This argument fails. As stated above, Defendant seeks to recover costs for filing fees which is expressly authorized under Code of Civil Procedure section 1033.5, subdivision (a)(1). Further, Defendant filed a verified Memorandum of Costs. This serves as “prima facie evidence of the propriety of the items listed on it.” (Bender, supra, 217 Cal.App.4th at p. 989.) Defendant also filed a Notice of Errata on November 3, 2022, which provides the invoices for the filing fees incurred in defending this action. Thus, contrary to Plaintiff’s argument, the charges appear proper on their face because Defendant seeks to recover costs that are statutorily authorized and substantiated by invoices.

Plaintiffs next argue that Defendant’s costs should be stricken in their entirety because the costs were not reasonably necessary to the conduct of the litigation. Plaintiffs argue Defendant failed to meet and confer with Plaintiffs before filing any of their motions which would have obviated the need of hearings on those motions.

The court agrees, but not for the reason identified by Plaintiffs. In their case management statements, Plaintiffs and Defendant each indicated having “met and conferred … on all subjects required by rule 3.724 of the California Rules of Court.” Further, Defendant indicated having telephonically met and conferred prior to Defendant’s filing of the demurrer. (Demurrer, Kom Decl., ¶ 2, Ex. A.) Thus, Plaintiffs’ argument that Defendant failed to meet and confer prior to filing any papers, at least with respect to the demurrer, motion to strike, and case management statement, is not well taken. As to Defendant’s motion to compel arbitration and ex parte application to stay all proceedings, Defendant requested, and Plaintiffs refused, to stay the action, including discovery, until Defendant’s motion to compel arbitration could be heard. (Ex Parte Application, Kom Decl., ¶ 4.)

However, with respect to the filing of the demurrer and motion to strike only, the court agrees with Plaintiffs that the filing of those motions were not reasonably necessary to the conduct of the litigation. “Allowable 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).) “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.” (Perko’s Enterprises Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)

Here, Defendant withdrew their demurrer and motion to strike, then filed a motion to compel arbitration. It is clear to the court that filing the demurrer and motion to strike, in this instance, was a cost unnecessarily incurred considering Defendant eventually moved to compel arbitration. Defendant does not meaningful engage with this argument in its opposition. The court also scrutinizes Defendant’s payment of two first paper fees in conjunction with the demurrer and motion to strike. (See Memorandum of Costs; Notice of Errata, Ex. A.)

Therefore, the motion to tax costs incurred for filing, rescheduling a hearing for, and withdrawing the demurrer and motion to strike is GRANTED.

IV.              Conclusion

The motion to tax costs is granted. Defendant’s Memorandum of Costs is taxed to exclude the amounts sought for the filing of the demurrer and first paper fee ($508.61), the filing of the motion to strike and first paper fee ($446.96), the cost for rescheduling the hearing on the demurrer ($13.65), and $7.26 for the withdrawal of the demurrer, for a total of $976.48. Accordingly, Defendant is awarded costs in the amount of $476.00.

Moving party is ordered to give notice.