Judge Yolanda Orozco, Case 20STCV01828 2022-08-10 Tentative Ruling

Judge: Yolanda Orozco, Case: 20STCV01828, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV01828 Hearing Date: August 10, 2022 Dept: 31

MOTION TO STRIKE OR TAX COSTS IS DENIED

Background

This lemon law action was filed on January 15, 2020, by Plaintiff Sam Navid against Mercedes-Benz USA, LLC (“MBUSA”) and Does 1 to 30.

A Notice of Settlement was field on January 13, 2022.

On April 18, 2022, Plaintiff filed a Memorandum of Costs.

On May 03, 2022, Defendant moved to Strike or Tax Costs of Plaintiff.

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).”

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.)

Discussion

Plaintiff’s attorney submitted a memorandum of costs seeking $5,161.95 in costs. This includes $4,200.00 for expert fees as follows:

Category 8: Expert Fees - $4,2000.00

· Darrel Blasjo $450.00

· David Gurul $3,750.00

Defendant MBUSA now moves to strike or tax costs of the expert fees (category 8).

“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.)

Defendant bears the burden of rebutting Plaintiff’s evidence that the expert witness costs were not necessary or reasonably incurred. Defendant asserts that the cost of the experts on its face appears unreasonably incurred because the entire case consisted of Plaintiff’s standard lemon-law complaint, serving of Plaintiff’s Counsel’s template written discovery, and settlement discussions. Moreover, the only motion filed by Plaintiff in this case was a Motion for Attorney’s Fees after a settlement was reached.

Therefore, Defendant MBUSA assets expert costs incurred by Plaintiff are unreasonable and should be stricken or taxed because the case was never prepared for trial, no expert discovery occurred, there was no legal vehicle inspection, and it is unlikely that an expert was retained or that the expert was prepared for trial.

In Opposition, Plaintiff asserts they worked with experts to inspect the subject vehicle. (See invoices Opp. Ex. A.) The Court has also awarded attorney fees to Plaintiff for attorney’s hours incurred during the vehicle inspections. Plaintiff argues the vehicle inspections were necessary because Defendant opposed the request. Lastly, Plaintiff requests sanctions in the amount of attorney’s fees incurred in opposing this motion.

In Reply, Defendants again assert that expert costs were not reasonably incurred. Defendants point out that Plaintiff’s Exhibit A attaches an invoice from “AE Works Enterprises Inc.” for $503.26 from 12/11/2019. (Opp. Ex. A.) However, according to Defendants, AE Works has no affiliation with expert witness, Darrel Blasjo, per Blasjo’s resume obtained by Defendants in a different case. Per Plaintiff’s memorandum of costs, Blasjo’s fee is $150.00 an hour and Plaintiff asserts Blasjo was paid for 3 hours of work, totaling $450.00, but the invoice is for $503.26.

Plaintiff’s submitted the declaration of Hovanes Margarian Re: Deficiencies asserting that the invoice attached to Plaintiff’s opposition was incorrect and the correct invoice is attached to Margrian’s supplemental declaration attesting that Blasjo was paid $637.30. David Gurul also submitted a declaration attesting to the authenticity of his invoice. (See generally, Gururl Decl.)

The Court finds that the expert fees charged in connection with the vehicle inspection were reasonably necessary. Defendants have failed to meet their burden of showing that the costs incurred by Plaintiff were not necessary. “If the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the” prevailing party. To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115 [internal citation omitted] [italics original].)

Here, Defendant has not presented any evidence that vehicle inspections were unnecessary, and the costs incurred in the form of expert fees from said vehicle inspections were unreasonable. Plaintiffs have offered evidence of invoices attesting to the vehicle inspections and a declaration attesting to their authenticity and correctness. (Margarian Decl. ¶ 2.) The Defendant cannot rely on statements made in its motion to argue that the costs incurred by Plaintiff are unreasonable and unnecessary. (See Jones, supra, Cal.App.4th at 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[.]”].)

Therefore, Defendant’s request to strike or tax costs of Plaintiff’s expert fees is DENIED. Plaintiff will be allowed to recover costs as reflection in the Memorandum of Costs filed with this Court on April 18, 2022.

Additionally, Plaintiff’s request for Sanctions for time spent opposing this motion is DENIED.

Conclusion

Defendant MBUSA’s Motion to Strike or Tax Costs is DENIED.

Plaintiff’s request for Sanctions is also DENIED.

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.