Judge Yolanda Orozco, Case 19STCV21757 2022-09-12 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV21757, Date: 2022-09-12 Tentative Ruling

Case Number: 19STCV21757 Hearing Date: September 12, 2022 Dept: 31

MOTION TO TAX COSTS IS GRANTED, IN PART

Background

On June 20, 2019, Plaintiff Salvador Murillo initiated this action by filing a Complaint against Defendant Kia Motors America, Inc. and Does 1 through 10. Plaintiff’s Complaint arises from Plaintiff’s purchase of a 2017 Kia Niro (“Subject Vehicle”) from Defendant and Plaintiff’s allegation that the Subject Vehicle contained serious defects and non-conformities. Plaintiff’s Complaint alleges the following causes of action against Defendant: (1) Violation of Song-Beverly Act—Breach of Express Warranty; (2) Violation of Song-Beverly Act—Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act Section 1793.2.

On April 19, 2022, Plaintiff filed a Notice of Settlement of Entire Case.

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

On July 06, 2022, Defendant Kia Motors America, Inc. filed this Motion to Tax Costs.

Plaintiff filed Opposition papers on August 19, 2022. Defendant filed a Reply on August 25, 2022.

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

Plaintiff seeks to recover $21,778.11 in costs. Defendant Kia America, Inc. seeks to tax costs on the basis that the case did not go to trial, and the costs sought by Plaintiff are excessive and unreasonable. Defendant asserts that Plaintiff should be taxed in the sum of $19,332.40.

Cost and Expense

Defendant asserts that some of the costs Plaintiff incurred were not necessary to the conduct of the litigation and that Plaintiff cannot prove that the costs were reasonably incurred.

Defendant specifically objects to the following items:

1) $121.65 in filing and motion fees, claimed under Item 1;

2) $6,242.55 in deposition costs, claimed under Item 4;

3) $621.00 in service of process fees, claimed under item 5;

4) $8,227.90 in expert fees, claimed under item 8;

5) $3,295.00 in court reporter fees, claimed under Item 12;

6) $824.30 in other costs, claimed under Item 13.

In challenging the costs, Defendant improperly tries to shift the burden to Plaintiff to show that the costs were reasonable and necessary Defendant first specifying why the costs incurred are unreasonable or not necessary. For example, Defendant objects to Item 1, $121.65 in filing fees because “Plaintiff has not identified any information he expected to obtain, or that he did obtain, as a result of the Motion to Compel, that he did not already have before he filed the motion.” (Mot. at 5:10-12.) “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[.]”].)

It is not enough that Defendant attacks the cost items merely by opining that the costs were unnecessary or unreasonable; Defendant has the burden of presenting evidence that the claimed costs are not recoverable or were unnecessarily incurred under Civil Code section 1794 subdivision (d). (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

In response to Defendant’s assertion that Plaintiff has failed to justify the costs sought, Plaintiff submitted the Declaration of Jacob Cutler, who provides a spreadsheet with a line-by-line itemization of the expenditures Defendant objects to. (See Cutler Decl. Ex. A.)

Item 1, $121.65 in Filing Fees

Defendant has failed to explain why the costs incurred are not reasonable or unnecessary and impermissibly shifts the burden to Plaintiff to justify costs. As explained by Plaintiff, filing fees are recoverable under Code of Civil Procedure section 1033.5 subdivision (a)(1). Thus, the request to tax Item 1 is denied.

Items 4 and 5: Deposition Costs ($6,242.55) and Service of Process Fees ($621.00)

Defendant states that the depositions of service advisors and technicians, and the costs associated with serving them, are unnecessary because they keep a contemporaneous record of the work on the repair orders prepared each time they work on a vehicle, and they likely would not be able to remember working on a specific vehicle. Accordingly, the cost incurred in connection with subpoenaing and serving the service advisors and technicians is not necessary. Defendant asserts that the only reasonable and necessary deposition was the one session of Kia’s Person Most Knowledgeable (PMK).

Plaintiff explains that the depositions were taken to ensure testimony to lay the foundation for the sales contract and repair order, as well as obtained testimony based on the dealership personnel’s personal knowledge of communications with Plaintiff and repairs performed on the subject vehicle. (Cuttler Decl. ¶ 9.) The five dealership depositions were essential to show there were deficiencies in the repairs performed or whether the repairs conformed with the vehicle warranty.

Accordingly, the costs for the depositions and associated costs were reasonably incurred. Moreover, Plaintiff states that Defendant’s PMK failed to appear on September 17, 2020, with the deposition of the PMK finally occurring on February 4, 2021. For the reasons stated, Defendant’s request to tax costs for items 4 and 5 is denied.

Item 8: Expert Fees ($8,227.90)

Defendant alleges that Plaintiff has provided no evidence to justify the hiring of expert Anthony Micale, who resides in Solvang, to testify as an expert in a case in Los Angles, thus incurring travel costs. Moreover, Defendant also alleges Plaintiff has failed to provide any evidence to justify Mr. Micale’s hourly rate.

Defendant again tries to shift the burden of showing that the costs incurred were reasonable and necessary to Plaintiff. Plaintiff cites Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 for the proposition that the Legislature sought to encourage consumers to seek legal redress, by allowing them to recover costs and expenses. (See id. at 138 [“‘The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshal's fees, etc., should open the litigation process to everyone.’”], citing Assembly. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

Plaintiff asserts Mr. Micale was chosen as an expert due to his experience in the field of aerospace and automotive engineering, including rigorous failure analysis. (Cutler Decl. ¶ 6.) Plaintiff provided invoices showing Mr. Micale’s reasonably hourly rate. (Id.) Furthermore, Mr. Micale’s expertise was required to show the vehicle’s defects and that repairs were not made within a reasonable number of times. Mr. Micale also needed to be present for the vehicle inspection so that he could observe and examine the vehicle, accordingly, travel expenses were necessary, including travel expenses incurred in Mr. Micale being deposed by Defendants. (Cutler Decl. Ex. A. )

In the Reply, Defendant again shifts the burden to Plaintiff to show the expert fees were unreasonable by asserting Plaintiff failed to explain why the expert fees are reasonable. Thus, Defendant has failed to meet its burden. Moreover, Defendant raised the issue with the photographer fees for the first time. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010 [“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”].) Thus, the Court will not consider Defendant’s objection to the photographer fee.

The Court finds that the expert fees incurred were reasonable, and Defendant’s request to tax Item 8 is denied.

Item 12: Court Reporter Fees ($3,295.00)

Defendant objects to the court reporter fees and transcripts because they were not court ordered by the Court and none of the hearings involved the adjudication of a dispositive motion and Plaintiff failed to present any evidence as to why the Court’s Minute Order would not control the conduct of the case.

Plaintiff asserts that the court reporter fees were necessary because the hearings were important for the prosecution of the case, including Final Status Conferences and hearings on Motions in Limine where substantive issues were discussed. Moreover, Plaintiff asserts the reporter is authorized by statute under Code of Civil Procedure section 1033.5 subdivision (a)(11) and the California Rules of Court rule 2.956(c).

The Court agrees that Plaintiff has not shown that Plaintiff is entitled to “Court reporter fees as established by statute” under section 1033.5 subdivision (a)(11) or that Plaintiff was granted a fee waiver under California Rules of Court rule 2.956 subdivision (c). The Court notes that in Warren v. Kia Motors America, Inc. (2018), the Appeal Court awarded the prevailing party costs for trial transcripts because there was an eight-day jury trial and the party would not have been able to defend the jury award without the trial transcripts. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 43.)

In this case, there was no trial. The Court is not persuaded that Plaintiff needed a court reporter for the Final Status Conferences occurring on 05/06/21, 03/15/22, and 03/29/12 and those conferences involve little more than the Court discussing with counsel the preparation of the joint trial documents. The Court agrees with Plaintiff that the court reporter’s fees for the hearing on the motions in limine on o4/04/22 should be awarded as substantive issues arising at the trial are often discussed at these hearings. (See Cuttler Decl. Ex. A.) However, the Court is not persuaded that a court reporter was needed for the hearing on the Motion for Attorney’s Fees. Accordingly, $2,495.00 will be taxed.

Item 13: Other Costs

Defendant objects to $624.72 in fees for Attorney Services and Messenger for Court Filings and Service, $15.00 for Court Call and $65.00 for Attorney Appearance; all totaling $704, 72. Defendant asserts the costs are not reasonable in amount and not allowed. (See Code Civ. Proc. § 1035.5 subd. (b)(3) [postage, telephone and photocopying charges are not allowable]; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [Federal Express expenses not allowed]; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132 [messenger fees not allowed].)

For costs incurred for messenger for court filings, Plaintiff asserts they are not expressly prohibited under Code of Civil Procedure section 1033.5(b) and have been awarded in cases where there is evidence the “charges were related to trial preparation and were incurred for such matters as filing documents with the court, the complaint with plaintiffs’ document demands, and transporting exhibits to and from the courtroom.” (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 77 5 [finding the trial court did not abuse its discretion in allowing charges for courier and messenger services.].)

Plaintiff asserts the costs were necessary because these were before e-filing, and Plaintiff provides itemized recipients for the charges. (Cutler Decl. ¶ 4, Ex. A.) Furthermore, it was reasonable for Plaintiff’s counsel to use a lower-cost attorney service to file documents because the alternative would be inefficient. After all, it would require an attorney to personally file the documents which would result in an increase to the lodestar hourly rate for travel and it would be inefficient to have an office member travel back and forth from the courthouse. The Court agrees that the Attorney Services and Messenger Court Filings and Service fees were reasonably incurred and necessary for the commencement and prosecution of the case and will not be taxed.

Defendant asserts Plaintiff cannot recover $119.58 for Plaintiff’s counsel to travel. (See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775-76 [“Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”].) Plaintiff states that under Code of Civil Procedure section 1033.5 subdivision (a)(3)(C), reimbursement for travel expenses to attend depositions is recoverable, by the same logic so are travel expenses to attend hearings and trial. (See Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548 [section 1033.5 subd. (a)(3) should not be read to contain restrictions it does not contain.].) Plaintiff argues that since travel costs are not prohibited under section 1033.5 the costs to attend hearings and trial are certainly necessary to the conduct of the litigation under Civil Code section 1794(b).

Plaintiff has failed to explain why the costs were necessary or reasonable for this case or why Diana F., the person who seeks reimbursement, needed to attend the trial hearing on April 4, 2022. Accordingly, the $119.58 for travel will be costs will be taxed.

Costs associated with Opposing the Motion

Plaintiff asserts that as the prevailing party it is entitled to reasonable attorney’s fees incurred for the time spent preparing fee applications, such as this one. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 639 [“We hold therefore that, absent circumstances rendering the award unjust, fees recoverable under section 1021.5 ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.”].) Plaintiff’s counsel requests attorney’s fees for 1.0 hour spent reviewing Defendant’s motion, 3.2 hours spent drafting an Opposition and supporting declaration, 0.5 hours reviewing the Reply, and 1.0 hour to prepare and attend the hearing; billed at an hourly rate of $450.00 per hour totaling $2,565.00 in fees. (Cuttler Decl. ¶¶ 15-17.)

The Court finds the amount billed to be excessive and awards 1.5 hours of work, totaling $675.00 in attorney’s fees.

Conclusion

Defendant Kia Motors America, Inc.’s Motion to Tax Costs is GRANTED IN PART and $2,614.58 will be taxed from Plaintiff’s costs.

With respect to attorney fees for opposing this motion, the Court awards Plaintiff’s counsel $675.00.

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.