Judge: Yolanda Orozco, Case: 19STCV13337, Date: 2022-10-03 Tentative Ruling

Case Number: 19STCV13337    Hearing Date: October 3, 2022    Dept: 31

MOTION TO TAX COSTS IS DENIED 

Background 

On April 16, 2019, Plaintiff Salvador Anaya (“Plaintiff”) filed the instant action against Defendant Kia Motors America, Inc. (“Defendant”) and Does 1 through 10. On August 27, 2019, Plaintiff filed the First Amended Complaint (“1AC”). The 1AC asserts five 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 the Song-Beverly Act Section 1793.2;

4)     Fraudulent Inducement – Concealment; and

5)     Fraudulent Inducement – Intentional Misrepresentation. 

On March 1, 2021, this Court heard and granted Defendant Kia’s Motion for Summary Adjudication as to Plaintiff’s first, second, fourth and fifth causes of action, leaving only the third cause of action. 

On August 12, 2022, Judgment was granted in favor of Defendant Kia. The Court granted Defendant’s Motion for Nonsuit on the grounds Plaintiff presented no evidence of recoverable damages as a result of the repair of the subject vehicle taking longer than 30 days. 

On August 19, 2022, Defendant filed a Memorandum of Costs. 

Plaintiff filed a Motion to Tax Costs on September 02, 2022. Defendant filed an opposition on September 19, 2022. Plaintiff filed a reply on September 26, 2022. 

Legal Standard 

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1).  Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)  Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”  (Code Civ. Proc., §1033.5(c)(4).)   

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs.  Under Rule 3.1700(b)(1), “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).”  

Discussion 

Defendant Kia seeks $18,736.77 in reasonable costs. Plaintiff now moves to Tax Costs in the amount of $15,723.78. 

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.  (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.) Here, Defendant Kia has filed a verified memorandum of costs, therefore the burden is on Plaintiff to rebut the necessity, or the unreasonableness of the charges incurred. (See Bender¿v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.) 

$917.90 in Filing Fees 

Plaintiff asserts that $917.90 in filing fees were unnecessary if Defendant had sought to resolve the issues by meet and confer or an Informal Discovery Conference (IDC) rather than by motion practice. This includes Kia’s Demurrer and Motion to Strike, all filings related to Plaintiff’s Motion to Compel and the IDC, Kia’s motion to reclassify, Kia’s motion for Judgment on the pleadings, and Kia’s motion for a protective order. Moreover, Plaintiff objects to the refiling fees for Kia’s CMC statement and MSJ documents because Plaintiff asserts it should not be responsible for the rejected filing. 

“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, subd. (b) [emphasis added.].) “[T]he mere fact that an alternative procedure, which would have been less expensive, was available does not mandate that the option chosen was unreasonable or unnecessary.” (Rostack Investments, Inc. v. Sabella¿(2019) 32 Cal.App.5th 70, 80.) 

The Court finds that the costs sought by Defendant for filing fees were reasonably necessary to the conduct of the litigation and incurred as a result of the litigation, including the refiling fees for the rejected filings. Moreover, filing fees are allowable costs under the Code of Civ. Proc. section 1033.5(a)(1). 

Therefore, no costs will be taxed as to the filing fees. 

Deposition Cost and Expert Witness Fees 

Plaintiff opposes the deposition costs of Plaintiff’s expert on the basis that the deposition lasted 2 days due to delays caused by Kia. Plaintiff also opposed the cost of the “PTX” file since there is no explanation of what it is or why it was necessary for the litigation. 

Defendant asserts that because Plaintiff’s expert opted to appear remotely, technical difficulties were to be anticipated and only caused a few minutes delay. (Yao Decl. ¶ 5.) Moreover, Defendant asserts that the delay was due to Plaintiff’s expert producing more than 1,000 pages of document when there was only one cause of action for violation of failing to repair the vehicle within 30 days. (Id. ¶ 6.) Defendant also asserts that the PXT file was necessarily incurred to prepare for trial because “PTX [] is a type of electronic format the deposition transcript come in.” (Yao Decl. ¶ 7) 

The Court finds that the deposition costs and expert witness fees were reasonably and necessarily incurred due to the litigation and the items will not be taxed. 

Other Costs 

Plaintiff opposes costs alleged to be overhead items such as “binder tabs” and “reading glasses for Plaintiff.” This also includes courtesy copies, remote appearances, and overnight service that were done solely for the convenience of Kia’s counsel and were not necessary to the conduct of the litigation. Plaintiff also opposes expense due to parking and meals associated with travel for depositions. 

Defendants point out that the Code of Civil Procedure section 1033.5(c)(4) permits the court to allow for costs not mentioned in the section. Meals, lodging expenses, and courier fees have been held to be recoverable, “at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation.” (See Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696.) In Doe, the meals for trial and depositions were recoverable because the depositions were “out-of-town” or not local. (Id, see also Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Plaintiff points out that Defendant’s office was in El Segundo and was thus local. 

Defendant asserts that this action was tried between July 18, 2022, and July 21, 2022, during the midst of a global pandemic, such that quarantining from family was necessary due to the possible risk of exposure to COVID-10 caused by contact with a large group of people like prospective jurors. Given the extenuating circumstances, the Court finds that the meal and hotel lodging costs were necessary to the conduct of the litigation. 

Furthermore, after reviewing the other costs challenged by Plaintiff, the Court also finds they were reasonable and necessary for the conduct of the litigation. 

Accordingly, the request to tax other costs is DENIED. 

Conclusion 

Plaintiff’s Motion to Tax Costs is DENIED. 

Plaintiff to give notice.