Steven W. Hopkins vs. Fca Us LLC.

Opposition

Cal. Super. - 4th Dist.June 21, 2016

© 0 J O N nm BA W O N = N N N N N N N NN N m e m e m e m e m p m e m e m e d co NN O N nn kA W I N D = D O O N N N R E W I N D = O KNIGHT LAW GROUP, LLP Steve B. Mikhov (SBN 224676) Roger Kirnos (SBN 283163) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 552-2250 Facsimile: (310) 552-7973 Email: stevem@knightlaw.com rogerk@knightlaw.com Attorney for Plaintiffs, STEVEN W. HOPKINS and KAREN L. HOPKINS, ELECTRONICALLY FILED Superior Court of California, County of Orange 06/25/2018 at 04:27:00 Pi Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE STEVEN W. HOPKINS and KAREN L. HOPKINS, Plaintiffs, VS. FCA US LLC, a Delaware Limited Liability Company; REDLANDS AUTO CENTER, INC., a California Corporation dba REDLANDS CHRYSLER JEEP DODGE; and DOES 1 through 10, inclusive, Defendants. Case No.: 30-2016-00859037-CU-BC-CIC PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS SOUGHT BY PLAINTIFFS [Filed Concurrently with Declaration of Steve Mikhov in Support of Plaintiffs’ Opposition] Date: July 9, 2018 Time: 9:00 a.m. Dept.: CX103 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 J O N nm BA W O N = N N N N N N N NN N m e m e m e m e m p m e m e m e d co NN O N nn kA W I N D = D O O N N N R E W I N D = O L II. III. TABLE OF CONTENTS INTRODUCTION eit steers eee sree steerer ene 1 ARGUMENT Lc. eee eee eesteeeebeesbe eee shee ne eee 3 A. Defendants’ Motion to Tax Costs of Plaintiffs Fails to Comply with the California Rules of Court § 3.1700(b)(1) veeevvreeerieeiiieeeeeeceeeee e e e 3 B. The Law Addressing Motions to Tax Costs Places the Burden on Defendants to Properly Challenge Costs Sought by Plaintiffs as Prevailing PALLY eee eee eee eee estes eee 4 Recovery of Costs and Expenses is Extended by the Song-Beverly Act .......... 5 D. Response to Specific Line Items Contested by Defendants............ccoceveeuenne. 7 1) Item 2: JULY FEES weenie 7 2) Item 4: Deposition COSES .....cueeeveeriieniieeiieeiieieeesiieeiie re es e esses eee e ns 8 3) Item 5: Service of PrOCESS ....cccvvievvieieiiecceie cec eee eee 9 4) Ttem 8: Witness FEeS.....uviiiiiiiiiieiiie cies eee 10 5) Item 13: Other COStS......cceeviiiiiiieciieie c ce eee eee 10 a) Attorney Services and Messengers for Court Filings.............. 10 Db) Court Call......ccoviiiiieceieeeee cece 11 C) OVEIMIZNE Loctite 12 RLY TROVE Lm soos it, RA RSA ARF 12 CONCLUSION cities eee sees sate shee sees es be satesaee ses ae eae enne ns 13 i PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 J O N nm BA W O N = N N N N N N N NN N m e m e m e m e m p m e m e m e d co NN O N nn kA W I N D = D O O N N N R E W I N D = O TABLE OF AUTHORITIES Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. APPA 404... eee eee ete eter estes sree saree eee eee ns 6 Bussey v. Affleck CLOG) ATT LBs ST sng sossinsrecansossnsotemsmsemessinsoros es o m emesis sos 00s 5 AB SA ASSES 6 En Palm, LLC v. Teitler (2008) 162 Cal. APP-ALh 770 weno saee eevee eee ne ns 9 Foothill-De Anza Community College Dist. v. Emerich (2007) 158 CalLAPP-Ath 11 coerce eects steers sbae seb enaeas 10 Hadley v. Krepel (2007) 158 Cal.APP-Ath T1 coer eee eee sae eevee aa a 4 Jensen v. BMW of North America, Inc. (1995) 35 Cal. APP.Ath 112 oors eerste sates erases passim Ladas v. California State Auto. Ass’n (1993) 19 Cal APPA, TON, runic mums smn smsns55055 65505555 550555. HVE 55, A E55 Fh 4 Molski v. Arclero Wine Group (1998) 17 Cal.dth O85... eects sates estes st ee sabe sabe enna esses ease ens 9 Murillo v. Fleetwood Enterprises, Inc. (2008) 164 Cal Ath 786 ...c.eeeeeieeeieeieeeeeeet ee eet te ee st esate este e se eens ee este esse annee esas esse ens 6 Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. P20 GTB coorssesmossmmmesosmsssme se se mess as e Saas 4 Ripley v. Pappadopoulos (1994) 23 Cal. APPA 1616 cei sere erases saan 7 State v. Meyer (1985) Cal. APP.3A TOOT ener a esa esas eae esas sane ees 4 Warne v. Harkness (1963) 60 Cal.2d 579 .eeeeeie cetera ete eesb ee sateen e ree rae saan 5 Wilson v. Nichols (1942) 55 Cal.APP.2A 678 cee ects sates st ee ease abe ares sree sane ens 4 il PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 J O N nm BA W O N = N N N N N N N NN N m e m e m e m e m p m e m e m e d co NN O N nn kA W I N D = D O O N N N R E W I N D = O Statutes and Codes California Code of Civil Procedure SEC ION 128.7 eee eee eee ee eee eee eee eee eee eee eee eee eee eee eee ee eee eee ee eee eee ea eee eee ease ee eaea ea ea eaaasasaeaaaaaaaaaaaas 4 California Code of Civil Procedure SECLION 031(D) 1oovviieeiiiieciie ieee eee eee cetera e sees eee e eee eeaae ee eaae ee eabe ee sabe ee saae ee eraeens 8 California Code of Civil Procedure SECTION 1032 oii eee eee eee eee tsetse ee tees essa at ae se sees esse staeseeeeesssisans 4,5 California Code of Civil Procedure SCION 1033.5. ieee eerste eee eee etree sree eae eerste ee eare aetna eens passim California Civil Code SECLION 1794(C) c.vviieiuieeeeie ieee eee eee ete eee e sees eee e sates saae ee saae ee saae ee ssae ae sasesessneens 1 California Civil Code SECION 1794(A) c..vviieceiiieee eee eee eee eee eee ee eres eraser eset passim California Government Code SECHION O8093....eeeeeeeee eee eee eee eee eee eee eee eee eee ee eee eee eee ee ease eee eee e eee sess ee aa as ae sees sean esas esas as anaaanans 10 California Rules of Court RULE 3.1700(D)(1) worries eects eects e cree ete eases ae sree eats ens sense ease sane eneeenneas 3 iii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION FCA US LLC and Redlands Auto Center, Inc. dba Redlands Chrysler Jeep Dodge (“Defendants or “FCA”) present a disingenuous attempt to cut many of the costs and expenses incurred by Plaintiffs Steven W. Hopkins and Karen L. Hopkins (“Plaintiffs”) in their extremely successful litigation of this matter, which resulted in Plaintiffs obtaining a successful settlement. By doing so, Defendants now seek to tax 89% of Plaintiffs’ cost bill-costs that were incurred largely as aresult of Defendants’ litigation conduct. FCA’s wholly conclusory arguments, which are lacking in factual analysis, fail to provide this Court with any supporting law or actual evidence that the costs are excessive or unreasonable. In its motion, FCA purposely attempts to mislead this Court by seeking to tax costs on incorrect statutory grounds. As expressly stated in its Notice of Motion, FCA moves this Court based on California Code of Civil Procedure (“CCP”) § 1033.5, but FCA knows that this statute is not the operative statute that applies to the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). The Song-Beverly Act has its own statutory authorization under Civil Code § 1794, subd. (d) for the prevailing party to recover costs. FCA and its counsel are experienced in this area of law and know that the analysis does not start and stop with CCP § 1033.5. Plaintiffs seek recovery as the undisputed “prevailing party” in this action as statutorily permitted under the Song-Beverly Act, e.g. Civil Code § 1794(c), the latter of which permits recovery of not just costs, but also “expenses.” As the controlling case law indicates, the inclusion of the term “expenses” is intended to broaden the scope of recoverable litigation expenditures. FCA and its counsel know this principle, have seen the case law cited below countless times, yet they consistently persist in misinforming the court of the applicable law related to this matter. The question is not simply whether cost items appear in the list of recoverable costs set forth under CCP § 1033.5, but whether the costs were reasonably incurred “in the commencement and prosecution of such action.” Since FCA has failed to move on applicable legal grounds to bring its motion, and has further failed to mention the operative statutes that actually confer Plaintiffs’ right to reimbursement 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O of litigation expenditures, FCA’s Motion to Tax Costs must be summarily denied. It is procedurally flawed and completely bereft of relevant legal analysis. Plaintiffs’ recovery in this case was the result of their experienced attorneys’ vigorous representation. Prior to filing this lawsuit, Plaintiffs first sought informal resolution by contacting FCA directly and asking for a buy-back of their defective vehicle, which FCA outright denied despite its affirmative duty under the law to promptly repurchase or replace its nonconforming vehicle. Had FCA done the right thing, it could have avoided these costs in their entirety incurred by Plaintiffs in pursuing their claim under the Song-Beverly Act. All FCA had to do was simply acknowledge the defective nature of Plaintiffs’ vehicle and either buy it back or replace it. FCA had knowledge of the defective vehicle’s repair history and did nothing. Litigation costs against a billion-dollar company like FCA are almost always significant. FCA has a virtually infinite litigation war-chest to fund its defense. It hires national law firms and tenaciously defends these cases at every turn. The result of FCA’s defense strategy is to force Plaintiffs’ counsel to engage in equal measure, where they are forced to expend reasonably necessary costs and expenses to bring the case to a successful end, as was done here. The positive result in this case came after over sixteen months of litigation. Over that time, Plaintiffs’ counsel advanced all costs and expenses on behalf of Plaintiffs in the reasonable amount of $4,882.51. In doing so, the cost bill, alone, is indicative of Plaintiffs’ attorneys’ efforts to keep costs to a minimum. In essence, FCA’s motion seeks to tax 89% of the costs and expenses reasonably incurred, even though every dollar spent has been shown, prima facie, to be within the scope of reasonable and necessary costs in prosecuting this action. Ordinarily, litigants pay these costs to attorneys as they are incurred during the representation and seek reimbursement in the event they are a prevailing party. Here, Plaintiffs’ counsel held the requests for payment of costs and expenses in abeyance, and carried the total over the course of the litigation, risking never being paid back if Plaintiffs did not prevail. Now, FCA is arguing that Plaintiffs’ Memorandum of Costs failed to satisfy its burden of showing reasonableness or proper documentation. In making this argument, Defendants have turned the burden on its head. California law states that a verified memorandum of costs creates a 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O presumption of reasonableness that must be properly rebutted by Defendants. Plaintiffs’ burden was satisfied in the context of costs recovery the moment a verified memorandum of costs was filed. Having done so, the burden shifts to Defendants to show the costs were unreasonable. In its efforts to do so, Defendants make half-hearted objections that are unsupported by evidence or applicable law. Although FCA has failed to make a single legitimate objection, Plaintiffs’ counsel, nevertheless, submits its internal spreadsheet in the interest of full transparency. It provides a line- by-line itemization of the expenditures to which FCA has lodged an objection. (Declaration of Steve Mikhov (“SM Dec.”) 44, Ex. A.) Of primary significance is that FCA has failed to rebut the critical presumption of reasonableness afforded to Plaintiffs’ memorandum of costs and expenses, because the burden is on FCA to properly object to it with evidence and analysis, not simply make conclusory objections that certain items were unreasonably incurred, or to shift the burden on Plaintiffs to itemize these costs items, prior to the filing of Defendants’ motion. To be clear, Plaintiffs are under no obligation to provide an itemization as part of its memorandum of costs; the verified cost memorandum is prima Jacie evidence. Only once items are properly challenged under California law are Plaintiffs required to provide an itemization for these items. Though FCA’s challenge is legally insufficient, Plaintiffs are providing this additional detail anyway. But, ultimately, it is Defendants’ burden to demonstrate the unreasonableness of a particular expense. Accordingly, Defendants’ motion should be denied in full. II. ARGUMENT A. Defendants’ Motion to Tax Costs of Plaintiffs Fails to Comply with the California Rules of Court § 3.1700(b)(1) Defendants’ Motion to Tax Costs of Plaintiffs was not properly served on Plaintiffs. Specifically, Defendants failed to comply with the time provisions of the California Rules of Court] 3.1700(b)(1). Under said rules, the party who seeks to strike or tax the costs must serve and file the Motion within “15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700(b)(1).) The Memorandum of Costs was served upon Defendants on May 17, 2018, via] 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O overnight. Thus, the Motion to tax was due to be served on Plaintiffs by June 1, 2018. However, Defendants served the Motion to Tax after that date. It was not until June 5, 2018 that Plaintiffs received the Motion to Tax from Defendants. Defendants’ have no ground to argue that the period of time for filing the Motion to Tax should be extended. On this basis alone, the Court should deny Defendants’ Motion to Tax Costs of Plaintiffs. B. The Law Addressing Motions to Tax Costs Places the Burden on Defendants to Properly Challenge Costs Sought by Plaintiffs as Prevailing Party FCA acknowledges the fact that Plaintiffs are the prevailing party and are, therefore, entitled to recover their costs and expenses. (Code Civ. Proc. § 1032; Civ. Code § 1794(d).) To this end, 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 Plaintiffs here, the burden then shifts to the opposing party to show that the costs were unnecessary. (Id.) Ifthe items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698), and the burden of showing that an item is not properly chargeable or is unreasonable is upon the party challenging the costs. (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683.) Conclusory and unsubstantiated objections to a claim for costs are inadequate to rebut the presumption that the claiming party’s costs were reasonably and necessarily incurred. (State v. Meyer (1985) Cal.App.3d 1061, 1075; Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774.) On the face of Plaintiffs’ verified Memorandum of Costs, it is clear that all of the costs were “incurred in the commencement and prosecution of this action.” (Civ. Code § 1794(d).) Plaintiffs seek reimbursement of filing fees, jury fees, deposition costs, etc. The cost memorandum is signed by Plaintiffs’ attorney, Steve Mikhov, with all of the obligations imposed by Code of Civil Procedure section 128.7. Thus, the document itself is prima facie evidence that gives rise to a presumption of necessity of the costs. (See Hadley, supra.) Since the costs and expenses claimed are proper on their face insofar as they either fall within the categories of CCP § 1033.5 and/or were incurred in the “commencement and prosecution” of this case, the burden is on Defendants to rebut 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O the presumption of reasonableness attributed to a verified memorandum of costs. Defendants are the party obligated to assert specifically why any objectionable costs are unnecessary and may not simply give conclusory and unsubstantiated objections. As a result, FCA disingenuously objects to various categories of costs and expenses, claiming that these costs are not recoverable simply because they are not included in CCP § 1033.5, without any justification or authority supporting these objections. C. Recovery of Costs and Expenses is Extended by the Song-Beverly Act Code of Civil Procedure section 1032, et seq., allows for the recovery by a prevailing party in any civil action of certain delineated expenses. Unrestricted to those costs allowable solely under the CCP § 1033.5, the Song-Beverly Act allows for the additional recovery of “reasonably incurred” “costs and expenses” by a successful plaintiff under that code section: If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees 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) [emphasis added].) “When the same subject matter is covered by inconsistent provisions, one of which is special and the other general, the special one...is an exception to the general statute and controls unless an intent to the contrary clearly appears.” (Warne v. Harkness (1963) 60 Cal.2d 579, 588.) Here, Civil Code § 1794(d) is the “special” statute that governs recoverability of costs and expenses under the Song-Beverly Act and controls over the “general” statute of CCP § 1033.5. The seminal case to address the scope of recovery costs and expenses under the Song- Beverly Act is Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112: “Section 1794, 932 subdivision (d), permits the prevailing buyer to recover both ‘costs’ and ‘expenses.”” (Jensen v. BMW of North America, Inc. (1995) 35 Cal. App. 4th at 137.) “[I]t is clear the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of 99 ‘costs’.” (Ibid.) The remedial purpose of Civil Code section 1794, subdivision (d) is thus readily 5 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O apparent. Jensen expressly states that the costs provision under the Song-Beverly Act is meant to include recovery beyond the list of items codified in CCP § 1033.5. (See Jensen, supra, 35 Cal.App.4th at 137.) Jensen considered the legislative history behind the term “expenses” in Civil Code section 1794, subd. (d) and noted: “[a]n analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: ‘Indigent consumers are often discouraged from seeking legal redress due to court costs. 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, marshall’s fees, etc., should open the litigation process to everyone.” (Jensen, supra, 35 Cal. App.4th at 138, quoting Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.) The fundamental purpose of the Song-Beverly Act, including its fee-shifting provision, is to level the playing field against large corporations with substantially more resources to litigate these matters than an average consumer, and if that consumer prevails, he or she is entitled to recover more litigation expenditures than is generally permitted. As the California Supreme Court also noted, “[b]y permitting prevailing buyers to recover their attorney fees in addition to costs and expenses our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994.) Thus, the additional term “expenses” was included in the statute to include reimbursement of costs that would not otherwise be covered under the Code of Civil Procedure so that consumers would not have to pay out of pocket for the expensive costs of litigation. The general interpretation is that the term “expenses” is intended to include all expenditures not part of overhead and which are ordinarily billed to paying clients regardless of whether they are recoverable under § 1033.5. (Bussey v. Affleck (1990) 225 Cal. App.3d 1162; see also, Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. App.4th 464, 491 [holding litigation “expenses” are far broader than “costs.”].) In the absence of awarding “expenses” incurred in the litigation, consumers would be required to reimburse their attorneys for those items, including such high costs of an expert. “It has long been held that in the absence of a special agreement to the contrary, in addition to attorney fees, a client must repay an attorney for all outlays in the payment of the expenses of 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O carrying on litigation.” (Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626.) The Legislature consciously sought to avoid saddling a consumer with the expenditures of litigation that would not ordinarily be covered under CCP § 1033.5. The result is that a consumer is given the opportunity to retain all his or her damages, which at times may be relatively nominal, without having to pay a substantial portion of those damages back to his or her attorney for fees and costs. For example, in Jensen, supra, the trial court initially ruled that expert fees were not recoverable under Song-Beverly since they are not recoverable under CCP § 1033.5. However, the appellate court reversed the ruling and held that expert fees are recoverable. (Jensen, supra, 35 Cal. App.4th at 138.) Thus, it is clear that the costs permitted under Civil Code § 1794(d) of the Song-Beverly Act are broader in scope than those permitted by CCP § 1033.5, which in fact expressly prohibits expert fee recovery. Insofar as Plaintiffs prevailed under the Song-Beverly Act, CCP § 1033.5 addresses the recoverable “costs” and creates a helpful baseline for guidance as to what is recoverable here, and then that list must be expanded to account for the additional permissible “expenses.” Accordingly, the question for this Court to resolve is not simply whether the items Plaintiffs request in costs and expenses are listed in CCP § 1033.5, but rather whether the costs and expenses were reasonably incurred “in the commencement and prosecution of such action.” (Civ. Code § 1794(d).) On their face, each claimed amount was incurred in this case during its commencement and prosecution. Thus, the Court should deny FCA’s motion. D. Response to Specific Line Items Contested by Defendants 1) Item 2: Jury Fees Plaintiffs request reimbursement of $150.00 for jury fees. (SM Dec., § 5; Ex. A.) Defendants argue that there is not a description or itemization of this expenditure. Defendants’ argument does not state sufficient facts to demonstrate the jury fees they are objecting to are not properly claimed. Certainly, Defendants are aware that in the State of California jury fees are required in court cases where there is a jury trial demand. This California jury fee provision has been established by the legislature and is set forth in the California Code of Civil Procedure. Specifically, the Code of Civil Procedure requires that “each party demanding a jury trial shall deposit in advance jury fees with 7 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O the clerk or judge.” (Civ. Pro. Code § 631(b).) In this case, the jury fees were paid to the clerk of the Orange County Superior Court. (SM Dec., 4 5.) Plaintiffs Memorandum of Costs in this matter clearly indicates the amount of jury fees. (Ex. A.) The verified Memorandum of Costs is prima facie evidence that the costs, expenses and services therein listed were reasonably and necessarily incurred and satisfies Plaintiffs’ burden. Furthermore, jury fees are specifically allowed costs under CCP § 1033.5(a)(1). Therefore, Defendants’ request to strike these fees should be denied, and Plaintiffs should recover these jury fees. 2) Item 4: Depositional Costs Plaintiffs request $1,862.36 for deposition costs. (SM Dec., q 6; Ex. A.) Defendants again attempt to improperly shift the burden, claiming that these costs should be taxed because Plaintiffs have not shown copies of invoices or documentation. The mere lack of unrequired documentary support does not constitute a valid reason for these costs to be taxed. The verified Memorandum of Costs is prima facie evidence that the costs, expenses and services therein listed were reasonably and necessarily incurred and satisfies Plaintiffs’ burden. These fees consist of costs associated with the taking of depositions of Plaintiffs and seven FCA employees. (Id.) Specifically, this category includes the costs of transcripts, copies, and mileage charged at the federal rate. (Id.) Under CCP § 1033.5(a)(3)(A) the costs of “transcribing necessary depositions, including an original and one copy” are expressly recoverable fees. CCP §1033.5(a)(3)(C) also expressly allows recovery for travel expenses to attend depositions Witness depositions constitute an important part of the discovery process. Plaintiffs needed to depose the dealership personnel who originally took down Plaintiffs’ complaints and worked on the vehicle, as well as the dealerships’ PMQs. This is typically done in lemon law cases both in order to authenticate and explain the records, as well as to determine whether any of these individuals had an independent recollection of the events potentially relevant to the case. These depositions also provide information about how authorized repair facilities interact with Ford corporate for payment of warranty repairs, and FCA’s policies for reporting vehicles that may qualify for repurchase under the Song-Beverly Act. As such, these depositions were reasonably incurred in the prosecution of this case. 8 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O Defendants object to $48.92 in travel costs associated with the depositions of Plaintiffs, which Defendants noticed. For Defendants to notice Plaintiffs’ depositions and then complain of the travel costs associated with Plaintiffs’ trial counsel defending those depositions is absurd. Defendants’ attempt to strike the fees should be denied, and the entirety of the deposition fees should be recovered. 3) Item 5: Service of Process Plaintiffs’ costs for service of process total $1,632.25. (SM Dec. q 7, Ex. A.) Plaintiffs have included their internal worksheet showing the service of process costs that have been incurred. These costs include service of the summons and deposition subpoenas. Eleven deposition subpoenas were served on FCA employees, including Browning Dodge Chrysler’s and Redland Chrysler’s PMQs. Id.) Costs for service of process are recoverable under the CCP so they must also be recoverable under the Song-Beverly Act. CCP § 1033.5, subd. (a)(4). The service of process of subpoenas for depositions are very important in lemon law litigation. As indicated earlier, depositions are necessary to obtain relevant information regarding Plaintiffs’ vehicle’s repair history, to authenticate and explain the records, and to determine if these witnesses had independent recollection of facts concerning the case. Ultimately, “A party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the opposition in response.” (En Palm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 786; see also Molski v. Arclero Wine Group (2008) 164 Cal.App.4th 786.) In sum, had FCA acted in accordance with its statutory obligations under the Song-Beverly Act from the outset, it not only could have avoided this sum it now seeks to tax, but it could have avoided the more substantial costs, too, including the payment of Plaintiffs’ attorneys’ fees bringing this lawsuit in vindication of their statutory rights. The costs listed are reasonable, necessary and recoverable. While FCA does not dispute that costs for service of process are recoverable by the prevailing party, FCA wants more - the actual invoices. As discussed above, the verified Memorandum of Costs is prima facie evidence that the costs, expenses and services therein listed were reasonably and necessarily incurred and satisfies Plaintiffs’ burden. Nevertheless, Plaintiffs provide their 9 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O internal worksheet to show how the total cost in the Memorandum was incurred. (SM Dec., 9 4; Ex. A.) Therefore, the Service of Process costs should not be taxed. 4) Ordinary Witness Fees Plaintiffs request $245.00 for ordinary witness fees. (SM Dec., § 8; Ex. A.) Again, Defendants argue that Plaintiffs did not provide invoices or documentation for these fees. As to these specific costs and as discussed previously, the verified Memorandum of Costs is prima facie evidence that the costs, expenses and services therein listed were reasonably and necessarily incurred and satisfies Plaintiffs’ burden. Surely, Defendants are familiar with ordinary witness fees. The California legislature provides that individuals are entitled to witness fees for each day of actual attendance at a civil action or proceeding. (Gov. Code § 68093.) The legislature sets these fees at $35.00 a day. (/d.) These fees are to be given to the witnesses called to appear in court or testify at depositions. Plaintiffs deposed seven witnesses in the prosecution of this matter. (SM Dec., § 8; Ex. A.) As such, Plaintiffs paid $35.00 to each witness for their appearance at their deposition. (/d.) These fees are separate from the deposition costs noted earlier. Ordinary witness fees are specifically allowed as recoverable under CCP § 1033.5(a)(7). Therefore, Defendants’ attempt to strike these fees should be denied, and the entirety of the ordinary witness fees should be recovered. 5) Item 13: Other Costs a) Attorney Services and Messengers for Court Filings Plaintiffs request $181.96 for attorney services and messengers for court filings and service. (SM Dec., 9 9; Ex. A.) FCA argues that postage costs are excluded under section 1033.5(b)(3). Plaintiffs disagree with Defendants regarding the issue of postage fees, yet the issue here is one of reimbursement for the messenger costs. Although costs for courier or messenger fees are not specifically enumerated as allowable costs in CCP § 1033.5, subd. (a), neither are they prohibited in § 1033.5, subd. (b), and so messenger fees may be recoverable in a trial court’s discretion if reasonably necessary to the conduct of the litigation, pursuant to § 1033.5, subd. (c)(2). (Foothill- De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11 [emphasis added].) In 10 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O Ladas v. California State Automobile Association, a messenger fees award was upheld because sufficient evidence indicated they “were related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants’ document demands, and transporting exhibits to and from the courtroom.” (Ladas v. California State Automobile Association (1993) 19 Cal. App.4th 761, 776.) The foregoing cases involve decisions under CCP § 1033.5. Accordingly, since messenger fees are recoverable under the general cost provisions of the CCP, they are surely recoverable under the expanded scope of the Song-Beverly Act. However, the Court need not make a decision based on discretion, as in Foothill or Ladas; instead the Court must simply consider whether or not the costs were incurred in the “commencement and prosecution of such action.” FCA further argues that there may be an overlap or misclassification of these fees. There is neither overlap nor misclassification of these costs. The costs in this matter were incurred for the messengers that filed case documents, including but not limited to the Complaint, Proof of Service of Summons, and Case Management Statements. (SM Dec., § 9; Ex. A.) As such, these costs were reasonably incurred in the commencement and prosecution of this matter, and Plaintiffs should recover these costs. b) Court Call FCA fails to provide any direct authority for its challenge to Plaintiffs’ recovery of the costs for Court Call, but argues that Plaintiffs failed to provide invoices or documentation. Contrary to FCA’s argument, Court Call is an acceptable and efficient way for the courts and parties to handle cases. Plaintiffs request $86.00 for costs of their counsel making one appearance via “Court Call.” (SM Dec., § 10, Ex. A.) This “Court Call” was for counsel’s appearance at the Case Management Conference on September 19, 2016. (Id.) Counsel is required to attend these hearings. As such, these telephonic appearances at the hearings were reasonably necessary in the litigation of this matter. Therefore, the costs for Court Call should not be taxed. 1 I 11 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O c) Overnight Plaintiffs request $131.48 for overnight courier fees spent in this matter. (SM Dec., § 11, Ex. A.) These costs were incurred to serve documents related to this case on FCA via GSO. (Id.) FCA argues that Plaintiffs have not provided enough information on this cost. As discussed above, the verified Memorandum of Costs is prima facie evidence that the costs, expenses and services therein listed were reasonably and necessarily incurred. The requisite authority for these costs is found in the Song-Beverly Act. (Civ. Code § 1794, subd. (d).) This authority is also found in the statutes that authorize parties to stipulate or contract for the payment of attorneys’ fees and costs. (Bussey, supra, 225 Cal.App.3d 1167.) Here, by way of the settlement agreement, Defendants agreed to pay attorneys’ fees and costs. Moreover, overnight courier fees are among the type of expenses the Song-Beverly Act seeks to grant prevailing consumers, and are therefore recoverable by Plaintiffs. The term “expenses” includes any non- overhead expenditures. (Bussey, supra, 477 U.S. at 1162.) Overnight delivery is precisely the type of litigation expenses that most clients have to pay their attorneys. That is why the legislature broadened the recovery of costs to include “expenses,” so that consumers retain their money. This was the policy espoused in Jensen cited above. It is clear that these costs were reasonably incurred in the commencement and prosecution of this matter. As such, Plaintiffs should recover these costs. d) Travel Plaintiffs are requesting reimbursement in the amount of $52.49 for travel fees incurred. (SM Dec., 9 12; Ex. A.) Here, the travel expenses include reimbursement of costs for mileage incurred when Plaintiffs’ counsel traveled to the Case Management Conference on June 26, 2017. (SM Dec., 9 12; Ex. A.) These mileage fees are charged at the federal rate. (1d.) Defendants argue that the only travel expenses authorized by section 1033.5 are those to attend depositions. The California Code of Civil Procedure specifically permits reimbursement of “travel expenses to attend depositions.” (Code Civ. Proc. § 1033.5(a)(3)(C).) Yet, nowhere in the statute does it indicate that attending depositions is the only allowable cost. In fact, in interpreting this statute in connection with depositions, it makes sense to expand the allowance to travel expenses incurred in the “prosecution of such action” for other appearances, such as hearings, pretrial 12 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 9 O N nn Rk W N = N N N N N N N N O N e m e m e m e m e m e m p m e m co NN AN Un BRA W N = O OD N N N B R E W I N = O conferences and the like. (Civ. Code § 1794, subd. (d).) FCA argues that Plaintiffs must provide further explanation or itemization but the costs memorandum alone serves as prima facie evidence. Such travel expenses are entirely unavoidable. Furthermore, this nominal expense was both a reasonably incurred and necessary expense in the prosecution of this action. Accordingly, Plaintiffs should recover these costs. III. CONCLUSION FCA’s Motion relies on arguments that are conclusory and unsubstantiated by the record or California law. In fact, the applicable and unrefuted authority directly contradicts many of Defendants’ contentions. The evidence, as presented by Plaintiffs, clearly indicates that each and every one of the items sought to be recovered as costs and expenses by Plaintiffs either fall within the categories of CCP § 1033.5 and/or were reasonable, necessary and incurred “in the commencement and prosecution” of this case and are properly recoverable under the Song-Beverly Act’s specific statute. Dated: June 25, 2018 KNIGHT LAW GROUP, LLP Steve Mikhov (SBN 224676) Attorney for Plaintiffs, STEVEN W. HOPKINS and KAREN L. HOPKINS 13 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS © 0 J O N Un B W ND = ND N N N N N N N ND = m EE Em Em em em em e m c o NN O N Un BA W N D = OO VO 0 0 N D B R A W N = Oo PROOF OF SERVICE (Code of Civil Procedure §1013a) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 1801 Century Park East, Suite 2300, Los Angeles, CA 90067. I served the foregoing document described as: PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TAX COSTS SOUGHT BY PLAINTIFFS Said document was served on the interested parties in this action, by placing true copies thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: Barry R. Schirm, Esq. HAWKINS, PARNELL, THACKSTON & YOUNG LLP 445 S Figueroa St., #3200 Los Angeles, CA 90071 Counsel for Defendants, FCA US LLC, et al. (via Overnight Mail only) BY OVERNIGHT MAIL/DELIVERY: I caused such envelope to be delivered by hand to the office(s) of the addressee(s) via OVERNIGHT EXPRESS or by local courier service. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 25, 2018 at Los Angeles, California. Hector Almeyda -1- PROOF OF SERVICE