Judge: Yolanda Orozco, Case: 19STCV28125, Date: 2023-02-15 Tentative Ruling
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Case Number: 19STCV28125 Hearing Date: February 15, 2023 Dept: 31
DEFENDANT’S MOTION TO TAX COSTS
TENTATIVE RULING
Defendant’s Motion to Tax Costs is GRANTED IN PART and $1,728.91
will be taxed from Plaintiff’s Memorandum of Costs.
Background
On
August 8, 2019, Plaintiff Sheila Ann Seals (“Plaintiff”) filed the instant
action against
Defendants
Jaguar Land Rover North America, LLC (“JLRNA” or “Defendant”); Penegon West,
Inc.
dba Hornburg Jaguar (“Hornburg”); and Does 1 through 10. The Complaint asserts
causes of
action for:
(1)
Violation of the Song-Beverly Act – Breach of Express Warranty;
(2)
Violation of the Song-Beverly Act – Breach of Implied Warranty; and
(3) Violation of the Song-Beverly Act § 1793.2
The Complaint alleges, inter alia, that, on March 7, 2015, Plaintiff purchased a used 2013 Jaguar XF, and certain express warranties accompanied the sale. The subject vehicle contained various defects and nonconformities relating to the engine, electrical components, suspension, and exterior.
On June 30, 2022, Defendant’s Motion for Summary Adjudication was granted as to Plaintiff’s second and third cause of action.
On October 7, 2022, Plaintiff filed a Notice of Settlement.
On December 29, 2022, Plaintiff filed a Memorandum of Costs.
On January 18, 2023, Defendant filed a Motion to Tax Costs.
Plaintiff filed opposing papers on February 1, 2023.
Defendant filed a reply on February 7, 2023.
Legal Standard
A prevailing party in entitled to recover costs, including
attorneys’ fees, as a matter of right.¿ (Code Civ. Proc., §§ 1032(a)(4), 1032(b),
1033.5.)¿ In a breach of contract action, attorneys’ fees shall be awarded when
a contract provides that one of the parties or the prevailing party shall be
awarded attorneys’ fees in an action on that contract.¿ (Civ. Code, §1717.)¿¿
¿
The fee setting inquiry in California ordinarily begins
with the “lodestar” method, i.e., the number of hours reasonably expended
multiplied by the reasonable hourly rate. A computation of time spent on a case
and the reasonable value of that time is fundamental to a determination of an
appropriate attorneys’ fee award. The lodestar figure may then be adjusted,
based on consideration of factors specific to the case, in order to fix the fee
at the fair market value for the legal services provided.¿ (Serrano v.
Priest (1977) 20 Cal.3d 25, 49.)¿ Such an approach anchors the trial
court’s analysis to an objective determination of the value of the attorney’s
services, ensuring that the amount awarded is not arbitrary.¿ (Id. at
48, fn.23.)¿ After the trial court has performed the lodestar calculations, it
shall consider whether the total award so calculated under all of the
circumstances of the case is more than a reasonable amount and, if so, shall
reduce the section 1717 award so that it is a reasonable figure.¿ (PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.)¿
¿
The factors considered in determining the modification of
the lodestar include the nature and difficulty of the litigation, the amount of
money involved, the skill required and employed to handle the case, the
attention given, the success or failure, and other circumstances in the case.¿
(EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App.
4th 770, 774 (emphasis in original).)¿ A negative modifier was appropriate when
duplicative work had been performed.¿ (Thayer v. Wells Fargo Bank, N.A.
(2001) 92 Cal.App.4th 819.)¿
Defendants seek to either strike or tax costs on the basis that Plaintiff’s costs were not “reasonably incurred.”
Allowable costs under the Code of Civil Procedure 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).¿Similarly, 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).)
On a motion to tax costs, 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.¿ (Id.)
Item 4: Deposition Costs
Defendants seek to tax $757.25 for duplicative/vague “PMQ” entry since Plaintiff already included costs for the three PMQs deposed. (See Reynolds Decl. ¶ 3, Ex. A.)
A verified memorandum of costs generally satisfies the moving party’s burden of establishing that costs were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Once this fact is established, as done by Plaintiff here, the burden then shifts to the opposing party to show that the costs were unnecessary. (Id.)
A breakdown of the $7527.25 for PMQ costs is included in the Memorandum of Costs. Plaintiff asserts that on June 9, 2022, Plaintiff took a statement of non-appearance of the deponent in order to file her Motion to Compel incurring $557.25 in costs. (Cutler Decl. ¶ 10, Ex. A.) The Deposition went forward on September 12, 2022, but not every deponent that was noticed was produced resulting in a $200.00 cancellation fee.
The Court finds the costs were reasonably incurred and no item will be taxed.
Item 8.B - $6,474.63 in Expert Witness Fees
Defendant objects to $6,474.63 in Expert Witness Fees because the amount is not itemized and the rates vary. Moreover, one of the three expert witnesses, Mr. Miller was never designated, and the other two experts, Mr. Lepper and Mr. Micale had expected testimony that would overlap. (Reynolds Decl. Ex. B.)
Plaintiff asserts that Steven Miller was an expert witness scheduled to appear at the first vehicle inspection on March 13, 2022 but due to an error, the inspection did not go forward. (Cutler Decl. ¶ 5.) Plaintiff still paid $348.71 for Mr. Miller’s services. Thomas Lepper was utilized by Plaintiff for the vehicle inspection and when Mr. Leeper was no longer available, Plaintiff utilized Anthony Micale as an expert. (Cutler Decl. ¶¶ 6-8.)
The Court notes that the vehicle inspection on March 13, 2020, did not take occur due to Plaintiff’s error and Plaintiff cannot show the costs were reasonably incurred or to advance the litigation.
Accordingly, $348.71 will be taxed from Item 8.
Item 12: $2,011.00 in Court Reporter Fees
Defendant asserts that $688.00 in court reporter fees for the February 21, 2021 hearing on Defendant’s Motion for Leave to Amend and an additional $688.00 for the April 19, 2021 hearing on Defendant’s Motion to Compel Vehicle Inspection should be taxed because both motions were unnecessarily brought.
Court reporter fees are an allowable cost under the Code of Civil Procedure section 1033.5 subdivision (a)(11). “Any allowable costs must be ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,’ and reasonable in amount. (§ 1033.5, subd. (c)(2), (3).)” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990.)
Plaintiff fails to explain why a court reporter was necessary at the hearing for leave to amend and the motion to compel the vehicle inspection. At most, Plaintiff shows that having a court reporter at these two hearings was convenient and could be beneficial but fails to state any facts to show that having a court reporter at these two hearings was reasonably necessary to the conduct of the litigation. The reasonable standard is imposed both by the Code of Civil Procedure section 1033.5 subdivision (c) and Civil Code section 1794(d).
Accordingly, $1,376.00 will be taxed.
Defendant also requests that $635.00 in anticipated court reporter fees in connection with Plaintiff’s motion for attorney’s fees should be taxed because the cost has not yet been incurred. The Court declines to tax $635.00 in connection with the motion for attorney’s fees because the hearing on that motion has already been held. Moreover, should Plaintiff decide to appeal the motion for attorney’s fees, a transcript of the hearing would a reasonable cost.
No further item will be taxed under Item 12.
Item 13: Other Costs
a. $835.57 for Attorney Services
Defendant seeks to tax $835.57 for “Attorney Services and Messengers
for Court Filings
and Service” because Plaintiff fails to provide information detailing the cost in order to determine if the cost was reasonably incurred.
Plaintiff asserts that the fees were incurred for the purposes of filing court documents. (Cuttler Decl. ¶ 4, Ex. A.) Exhibit A to the Jacob Cuttler Declaration includes an itemized list of all charges, including costs to file trial documents and Plaintiff’s motions in limine. The Court finds the costs were reasonably incurred and no items will be taxed for “Attorney Services.”
b. $4.20 for Travel
Defendant seeks to tax $4.20 in “travel expenses” because no information is provided as to how, when, where, or by whom the cost was incurred. “The only travel expenses authorized by section 1033.5 are those to attend depositions. (§ 1033.5, subd. (a)(3).) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775–776.)
Per Exhibit A to the Cuttler Declaration, the $4.20 pertained to a mileage charge dated March 13, 2020. (Cuttler Decl. Ex. A.) Defendants point out that on January 26, 2023, the Court found that Plaintiff should not recover costs incurred on the March 13, 2020 vehicle inspection because it was canceled at the last minute by Plaintiff. (Min. Or. 01/26/23.)
Accordingly, $4.20 will be taxed.
In declining to award attorney’s fees related to the March
13, 2020 vehicle inspection, the Court relied on the information provided in
Defendant’s opposition to Plaintiff’s motion for attorney’s fees. Despite raising
this argument in its opposition to the motion for attorney’s fees, Defendant,
on this instant motion, raises the argument for the first time on reply.
Defendant believed Plaintiff should not recover costs associated with the March 13, 20220 inspection when it filed its opposition to the motion for attorney’s fees. The opposition to the motion for attorney’s fees occurred before the filing of this instant motion. Yet, Defendant fails to explain why this argument to tax costs related to the March 13, 2020 vehicle inspection is being raised for the first time on reply. “Points raised for the first time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.)
Accordingly, the Court declines to tax additional costs that were not raised in Defendant’s Motion as it deprives Plaintiff of the opportunity to reply.
Plaintiff’s Request for Attorney’s Fees
Plaintiff asserts she is entitled to attorney’s fees for opposing this motion. “[T]he time expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys' fee application, and in the court's fee award.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 631.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Id. at 635.)
The Court finds that there is no prohibition on Plaintiff recovering attorney’s fees for opposing a Motion to Tax Costs. Moreover, Defendants fail to cite any legal authority holding that Plaintiff is precluded from filing a motion to recover additional attorney’s fees. Therefore, the Court finds that Plaintiff is entitled to recover attorney’s fees for opposing this Motion.
Plaintiff’s counsel’s hourly billing rate is $495.00 per hour. (Cuttler Decl. ¶ 13.) Plaintiff’s counsel asserts he spent 1.0 hour reviewing Defendant’s motion, 3.0 hours drafting the opposition and supporting declaration, and anticipates spending 0.5 hour reviewing the reply, and 1.0 hour attending the hearing by CourtCall. (Cuttler Decl. ¶ 14.)
In total, Plaintiff seeks $2,722.50 in attorney’s fees (5.5 x $495 = $2,722.50).
The Court finds that the fee request is excessive given the simplicity of this Motion. The Court awards $1,485.00 in attorney’s fees for 3.0 hours of work billed at a rate of $495.00 per hour.
Conclusion
Defendant’s Motion to Tax Costs is GRANTED IN PART and $1,728.91 will be taxed from Plaintiff’s Memorandum of Costs.
The Court awards Plaintiff $1,485.00 in attorney’s fees for opposing Defendant’s Motion to Tax Costs.