Judge Yolanda Orozco, Case 19STCV13227 2022-09-20 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV13227, Date: 2022-09-20 Tentative Ruling

Case Number: 19STCV13227 Hearing Date: September 20, 2022 Dept: 31

MOTION TO STRIKE/TAX COSTS IS DENIED

Background

On April 16, 2019, Plaintiff Yvonne M. Garcia filed the instant action against Defendant Kia Motors America, Inc. (“Defendant”). The Complaint asserts causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly Act Section 1793.2; (4) Fraudulent Inducement – Concealment; and (5) Fraudulent Inducement – Intentional Misrepresentation.

On April 15, 2021, the Court granted Defendant’s motion for summary adjudication as to the second, fourth, and fifth causes of action and the claim for punitive damages, leaving the first and third causes of action.

On May 23, 2-22, Plaintiff accepted Defendant’s section 998 Offer.

On May 26, 2022, Plaintiff filed a Notice of Settlement.

On August 17, 2022, Plaintiff filed a Memorandum of Costs.

On August 24, 2022, Defendant filed a Motion to Strike Costs, or in the Alternative Tax Costs.

On September 07, 2022, Plaintiff filed Opposition Papers. On September 13, 2022, Defendant filed a Reply.

Legal Standard

Under the Song-Beverly Act, the prevailing party can recover “costs and expenses . . . 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.” (Civ. Code, § 1794(d).)

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.¿ (CCP § 1032(a)(4).)

After judgment is entered, the prevailing party “who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).) “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 this case.” (Id.)¿

In turn, the losing 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.” (Id.) “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).)¿

Discussion

Defendant alleges that because the Memorandum of Costs specifically references Sections 1032 and 1033.5, and not Civil Code Section 1794(d), Defendants can properly object to Plaintiff’s costs under Sections 1032 and 1033.5. Defendants ignore the statutory scheme of Section 1794(d).

Defendants cite no legal authority to permit the Court to tax costs in a case brought under the Song-Beverly Act while ignoring Civil Code Section 1794(d). Under Civil Code section 1794(d), the inclusion of the word “expenses” includes expenses beyond those enumerated under Code of Civil Procedure section 1035.5. (See Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137-138 [examining the legislative history of Song-Beverly to determine that the “costs and expenses” language was to be interpreted broadly to include such things as filing fees, expert witness fees, marshal’s fees, etc., to “‘open the litigation process to everyone.’”]; see also Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42-43 [finding buyer could recover reasonable costs incurred in connection with her action under Song-Beverly, including trial transcripts that were not court ordered.].)

Accordingly, the Court will not limit Plaintiff’s costs to specifically enumerated under Code of Civil Procedure section 1033.5. Next, the Court analyzes the specific Items objected in turn. In support of their opposition to this motion, Plaintiff submits a line-by-line itemization of the expenditures to which Defendant objects. (Cutler Decl. Ex. A.)

Item 1: Filing Fees

Defendant opposes $123.30 in filing fees for Plaintiff’s motion to compel depositions of Kia and Covian Valley Kia and another $120.00 for ex parte applications to advance those motions. First, Defendant asserts that the Motion to Compel was unnecessary because Kia offered dates for the earliest availability of their Persons Most Knowledgeable (PMK), but it was Plaintiff who was unhappy with the proffered date. (Yoa Decl. ¶ 3.) Moreover, Defendant could not produce a witness from a non-party for which it did not have control, making the $20.44 charge for continuing the hearing on the motion to compel the Deposition of Covina Valley Kia, as well as the deposition costs, unnecessary. The Court notes that none of these objections to deposition of dealership personnel appears in the meet and confer emails with Plaintiff’s counsel. Hence, the objection will not be considered by the Court.

Plaintiff asserts that they met in good faith with Defendants and narrowed the notice in the deposition to categories 2, 3, 4, 18, and 39. Moreover, Plaintiff asserts that Defendant refused to provide a date for their PMK until after Plaintiff filed their motion to compel. (Cuttler Decl. ¶ 6, Ex B.) The November date offered by Kia was, according to Plaintiff, months away and would prejudice Plaintiff’s ability to prepare for trial. Accordingly, the Court finds the filing costs associated with PMK deposition to be reasonably incurred.

Defendants assert that under the Court’s September 25, 2019 Case Management Order, Plaintiff was required to provide good cause for requiring depositions of dealership personnel. (Yoa Supp. Decl. ¶¶ 6, 7, Ex. B, C.) Correspondence shows that Plaintiff noted Defendants’ objection to deposition notices of dealership personnel and requested that Defendant provide alternative dates for the deposition, which the Defendant did not. (You Supp. Decl. Ex. B, C.) The fact that Plaintiff’s failed to meet and confer in the manner prescribed by the Case Management Order, does not mean that the Court can penalize Plaintiff by refusing to award her costs necessarily incurred in filing the deposition notices. Moreover, Defendant fails to cite any authority supporting such a proposition. Plaintiff also explains because the witnesses were nonparties, the law requires each witness to be served his own subpoena. (Cutter Decl. ¶ 8.) Moreover, it was Defendant who failed to appear at the deposition. (Id. ¶ 7). More importantly, Plaintiff explains that dealership personnel needed to be deposed to lay the foundation for or authenticate the sales contract and repair orders and confirm that repairs were performed on the subject vehicle. (Id.)

Therefore, the request to tax Item 1 is DENIED.

Item 5: Service of Process

Defendants oppose $1740.00 for 20 separate service of process fees for depositions of the dealership personnel because Plaintiff never met and conferred with defense counsel regarding the additional depositions per this Court’s Addendum to the Case Management Order. As stated above, the taking of depositions of dealer personnel appears to be reasonable. Defendant could have filed a protective order if Defendant believed the depositions were not noticed in good faith.

Accordingly, Defendant’s request to tax item 5 is DENIED.

Item 12: Court Reporter Fees

Defendant claims that the court reporter fees are excessive and that the court reporter hired for the April 15, 2021, ex parte, which was denied, was unnecessarily incurred. Plaintiff provides an itemized list for the court reporter costs. (See Cutler Decl. Ex. A.) Plaintiff maintains that court reporter fees are recoverable to the prevailing party under Code of Civil Procedure section 1033.5(a)(11), Government Code section 68068 subdivisions (c) and (d), and California Rules of Court, rule 2.956 (c). (See also Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58 [“Section 1033.5, subdivision (a)(11) includes “court reporter fees as established by statute” among the items allowable as costs.”].) Moreover, Defendants signed the reporter’s stipulation.

Defendant does not refute Plaintiff’s claim in its reply or address the points raised by Plaintiff in her opposition.

Accordingly, the request to tax item 12 is DENIED.

Item 13: Other Costs

Defendant opposes the $1,112.69 for “other” costs because Plaintiff failed to provide sufficient itemization for the expenses.

First, the burden is on the Defendants to prove that the costs are not reasonable or necessary. “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.) A party challenging the costs incurred cannot rely on statements made in its motion to argue that the costs incurred by the prevailing party are unreasonable and unnecessary. (See¿Jones v.¿Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [“[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[.]”].)

Accordingly, Defendant has not met its burden to show that the “other” costs sought by Plaintiff are unnecessary. Moreover, because Plaintiff has provided an itemized spreadsheet, Defendant’s objection to Item 13 is moot. (See Cutler Decl. Ex. A.)

Accordingly, the request to tax Item 13 is DENIED.

Attorney’s Fees for Opposing the Motion

The Court agrees that Plaintiff’s counsel is entitled to recover attorney’s fees for opposing this Motion. (See Serrano v. Unruh¿(1982) 32 Cal.3d 621, 639 [“We hold therefore that, absent circumstances rendering the award unjust, fees recoverable under [CCP] section 1021.5 ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.”].)

Plaintiff requests 5.5 hours billed at a rate of $450 per hour for reviewing the motion, the reply, drafting the opposition, and attending and preparing for the hearing. The total requested is $2,475.00.

The Court finds the amount requested excessive and therefore unreasonable, and awards instead 1.5 hours of work, billed at a rate of $450.00. The total award is $675.00 in attorney fees.

Conclusion

Defendant Kia’s motion to strike, or in the alternative, tax costs is DENIED.

Plaintiff’s counsel is awarded $675.00 in attorney’s fees for opposing the motion.

Defendant to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.