Evelyn C. Gacho vs. Ford Motor Company

Opposition

Cal. Super. - 4th Dist.August 24, 2016

© 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 NI O N Ln B A W N = DO V N Y N RE E W N = O KNIGHT LAW GROUP, LLP Steve B. Mikhov (SBN 224676) 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Telephone: (310) 552-2250 Fax: (310) 552-7973 Email: stevem @knightlaw.com DANIELS FINE ISRAEL SCHONBUCH & LEBOVITS LLP Moses Lebovits (SBN 66552) 1801 Century Park East, Floor 9 Los Angeles, CA 90067 Telephone: (310) 556-7900 Fax: (310) 556-2807 Email: lebovits@dfis-law.com Attorneys for Plaintiff, EVELYN C. GACHO EVELYN C. GACHO EVELYN C. GACHO, Plaintiff, VS. FORD MOTOR COMPANY, a Delaware Corporation, and DOES 1 through 10, Inclusive, Defendant. ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 09/06/2018 at 05:21:00 PM Clerk of the Superior Court By Monique Ramirez, Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE Case No.: 30-2016-00871249-CU-BC-CJC PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS SOUGHT BY PLAINTIFF [Filed Concurrently with Declaration of Steve Mikhov in Support of Plaintiff’s Opposition; Evidentiary Objections to Declaration of Randolph T. Moore] Assigned for All Purposes to the Honorable Frederick P. Horn Date: September 19, 2018 Time: 1:30 p.m. Dept.: C64 PLAINTIFF'S OPPOSITION TO DEFENDANT'S 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 NI O N Ln B A W N = DO V N Y N RE E W N = O TABLE OF CONTENTS Page(s) I. INTRODUCTION ....coiiiiiiiie cece eects see eects sree sees eee see een eaees 1 II. oR 3 TTI Tsismis ES SEEGER 08 3 A. The Law Addressing Motions to Tax Costs Places the Burden on Defendant to Properly Challenge Costs Sought by Plaintiff as Prevailing Party .................... 3 B. Recovery of Costs and Expenses is Extended by the Song-Beverly Act .......... 4 C. Response to Specific Line Items Contested by Defendants..........ccccccceeveennnnne 7 1) Item 5: Service of Process ......cccvveeeeiiiiieeiiiiie cece ee ees 7 2) Item 8: EXPErt DEES «xu seuss an scsunss swum ss anmsan asansn.ss svwasss awa ds sass avsasss 8 3) Item 12: Court Reporter FEes .........covimniiniiiiiiniiiniecececneeee 9 4) ler 1.3¢ CHher COS sesame mosses ummesn 10 a) Attorney Services and Messengers for Court Filings. .............. 10 b) Court Call.......cooiiiiiiiiiciiee eee 11 @) Over ght COUFLEPR um mmusnssmussvsnssusesinme mss s maemm sms snes 11 d) POSTAZE .coonviiiiiiieiiie ee ee 11 €) COPIES netic cece eee sees 12 D) TLAVEL ours 12 III. CONCLUSION... cotter sre eects sree sete saree e esr ee sree sane eae en nees 13 i PLAINTIFF'S OPPOSITION TO DEFENDANT'S 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 TABLE OF AUTHORITIES Page(s) Cases Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. APPA AOA... eee eee este seers t esses eevee sees aee as 6 Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.APP-Ath 11 cee sbe eee anes 10 Hadley v. Krepel (1985) 167 CAlAPD.IL B77 «suman snssnnonsnosnss swans. sons sess is 5555555 555055. 5555 5508 S55555738 SAFER S555 3 Jensen v. BMW of North America, Inc. (1995) 35 Cal. APPALh 112 cei testes ee seas sabes sees ee ns 5 Ladas v. California State Auto. Ass’n (1993) 19 Cal APP.ALh TOL oie eee eee eee eee saee eevee ne ee ee ns 4 Murillo v. Fleetwood Enterprises, Inc. {2008 15 Cal 21 “TB wonsoussiansnsesstussans comusnnesssi oes onssssss cesses ass aos a ss 65S ER SHA AS SSIS 6 Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.LAPP.2A 678... eee eee esas sees ebaeesbeenneas 4 Ripley v. Pappadopoulos (1994) 23 Cal. APPAh 1616 «cenit eee eaters sees eevee ee ae ns 6 State v. Meyer (1985) Cal. APP.3A TOOT nieces eee et teeta eet ee she sateen sees s ee saae eens 4 Warne v. Harkness (1963) 60 Cal.2A 579 «eee eee eee eee eee eres sees saree sabres sabe ee eaae ee saae ee eraeeerae es 5 Wilson v. Nichols (1942) 55 CAL ADP 2, GTB. 1n.s0sumuns snssnonsnosnss swans 5505555 5550555515 5555557 5550555.58 55555508 S55555738 RATHER 55559 4 Statutes and Codes California Code of Civil Procedure SECHON 128.7 «eee eee eee eee eee sees atee sates sabe e esate ee sabe ee sabe ee sabe ee saaeeensaean 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S 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 NI O N Ln B A W N = DO V N Y N RE E W N = O California Code of Civil Procedure SECTION 1032 eee eee eee eee eee eee teeter esas estes e aa es esse serena esse es eessnsanneseseeeesens 3,4 California Code of Civil Procedure SCION 1033.5. cee e esate e esate ee nbae eas passim California Civil Code SECON 1794(C) cuuvreie eit eect eects eres eset ee eee tae ee esaae ae as saas ae es esssae ae snsseeeanssseaeenssnsaeananns 1 California Civil Code SECON 1794(A) curries eee eee eects eee eases eee bbe ee setae ae ee essaae ae ensaeeeas iii PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Ford Motor Company (“Defendant” or “Ford”) presents a disingenuous attempt to cut many of the costs and expenses incurred by Plaintiff Evelyn C. Gacho (“Plaintiff”) in her extremely successful litigation of this matter, which resulted in Plaintiff obtaining a successful settlement. Defendant now seeks to tax over 86% of Plaintiff’s cost bill-costs that were incurred largely as a result of Defendant’s litigation conduct. Ford’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 and expenses are excessive or unreasonable. In its motion, Ford purposely attempts to mislead this Court by seeking to tax costs on incorrect statutory grounds. As expressly stated in its Notice of Motion, Ford moves this Court based on California Code of Civil Procedure (“CCP”) § 1033.5, but Ford 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. Ford and its counsel are experienced in this area of law and know that the analysis does not start and stop with CCP § 1033.5. Plaintiff seeks recovery as the undisputed “prevailing party” in this action as statutorily permitted under the Song-Beverly Consumer Warranty Act (“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. Ford 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 Ford has failed to move on applicable legal grounds to bring its motion, and has further failed to mention the operative statutes that actually confer Plaintiff’s right to reimbursement of litigation expenditures, Ford’s Motion to Tax Costs must be summarily denied. It is procedurally flawed and completely bereft 1 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O of relevant legal analysis. Plaintiff’s recovery in this case was the result of her experienced attorneys’ vigorous representation. Prior to filing this lawsuit, Plaintiff first sought informal resolution by contacting Ford directly and asking for a buy-back of her defective vehicle, which Ford outright denied despite its affirmative duty under the law to promptly repurchase or replace its nonconforming vehicle. Had Ford done the right thing, it could have avoided these costs in their entirety incurred by Plaintiff in pursuing her claim under the Song-Beverly Act. All Ford had to do was simply acknowledge the defective nature of Plaintiff’s vehicle and either buy it back or replace it. Ford had knowledge of the defective vehicle’s repair history and did nothing. Litigation costs against a billion-dollar company like Ford are almost always significant. Ford 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 Ford's defense strategy is to force Plaintiff’s 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 fourteen months of litigation. Over that time, Plaintiff’s counsel advanced all costs and expenses on behalf of Plaintiff in the reasonable amount of $5,199.23. In doing so, the cost bill, alone, is indicative of Plaintiff’s attorneys’ efforts to keep costs to a minimum. In essence, Ford’s motion seeks to tax over 86% 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, Plaintiff’s 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 Plaintiff did not prevail. Now, Ford is arguing that Plaintiff’s Memorandum of Costs failed to satisfy its burden of showing reasonableness or proper documentation. In making this argument, Defendant has turned the burden on its head. California law states that a verified memorandum of costs creates a presumption of reasonableness that must be properly rebutted by Defendant. Plaintiff’s burden 2 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O was satisfied in the context of costs recovery the moment a verified memorandum of costs was filed. Having done so, the burden shifts to Defendant to show the costs were unreasonable. In its efforts to do so, Defendant makes half-hearted objections that are unsupported by evidence or applicable law. Although Ford has failed to make a single legitimate objection, Plaintiff’s counsel, nevertheless, submits its internal spreadsheet in the interests of full transparency. It provides a line- by-line itemization of the expenditures to which Ford has lodged an objection. (Declaration of Steve Mikhov (“SM Dec.”) { 4, Ex. A.) Of primary significance is that Ford has failed to rebut the critical presumption of reasonableness afforded to Plaintiff’s memorandum of costs and expenses, because the burden is on Ford 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 Plaintiff to itemize these costs items, prior to the filing of Defendant’s motion. To be clear, Plaintiff is under no obligation to provide an itemization as part of its memorandum of costs; the verified cost memorandum isprima facie evidence. Only once items are properly challenged under California law is Plaintiff required to provide an itemization for these items. Though Ford’s challenge is legally insufficient, Plaintiff is providing this additional detail anyway. But, ultimately, it is Defendant’s burden to demonstrate the unreasonableness of a particular expense. Accordingly, Defendant’s motion should be denied in full. II. ARGUMENT A. The Law Addressing Motions to Tax Costs Places the Burden on Defendant to Properly Challenge Costs Sought by Plaintiff as Prevailing Party Ford acknowledges the fact that Plaintiff is the prevailing party and is, therefore, entitled to recover her 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 Plaintiff here, the burden then shifts to the opposing party to show that the costs were unnecessary. (Id.) If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O 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 Plaintiff's 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).) Plaintiff seeks reimbursement of filing fees, jury fees, deposition costs, service of process, etc. The cost memorandum is signed by Plaintiff’s 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 Defendant to rebut the presumption of reasonableness attributed to a verified memorandum of costs. Defendant is the party obligated to assert specifically why any objectionable costs are unnecessary and may not simply give conclusory and unsubstantiated objections. As a result, Ford 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. B. 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 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N N N N N N N ND e m e m e m e m e m p m e m pe c o NJ O N Wn RA W O N D = DO OO 0 N N N R E W I N D = O 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 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, 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 » ‘costs’. (Ibid.) The remedial purpose of Civil Code section 1794, subdivision (d) is thus readily 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, 59 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 5 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N N N N N N N ND e m e m e m e m e m p m e m pe c o NJ O N Wn RA W O N D = DO OO 0 N N N R E W I N D = O 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 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 Plaintiff prevailed under the Song-Beverly Act, CCP § 1033.5 addresses the recoverable “costs” and creates a helpful baseline for guidance 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O 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 Plaintiff requests 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 Ford’s motion. C. Response to Specific Line Items Contested by Defendant 1) Item 5: Service of Process Plaintiffs costs for service of process total $1,247.95. (SM Dec. 5, Ex. A.) The services of process include the service of Summons, three deposition subpoenas for Huntington Beach Ford’s employees including their PMQ, and eight deposition subpoenas for AutoNation Ford’s employees, including their PMQ. (/d.) Defendant disingenuously claims that Plaintiff made no meaningful effort to coordinate the depositions at issue, and assumes Plaintiff did not intend to conduct these depositions at all. In making such argument, Defendant’s counsel fails to acknowledge that Ford made objections to the notice of depositions. On or about September 26, 2017, Plaintiff received Defendant’s objections to the notice of depositions of Huntington Beach Ford’s PMQ and personnel and AutoNation Ford’s PMQ and personnel. (/d.) It was Ford who attempted to thwart the efforts of Plaintiff from taking these depositions. Next, Defendant takes issue with Plaintiff serving subpoenas after Ford claims to have notified Plaintiff that it was admitting full liability and damages on Plaintiff’s Song-Beverly claims. However, Ford fails provide any support for its self-serving conclusion that there were no longer any disputed claims. By making such an argument Ford is attempting to avoid the fee- shifting statute. More importantly, had Defendant’s intention been to resolve this matter at that time, Ford would have tendered Plaintiff a reasonable 998 offer, with unambiguous terms. Plaintiff certainly would have accepted the 998 offer had it properly reflected Ford’s liability. Further, costs for service of process are specifically recoverable under the CCP § 7 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N N N N N N N ND e m e m e m e m e m p m e m pe c o NJ O N Wn RA W O N D = DO OO 0 N N N R E W I N D = O 1033.5(a)(4). Since these costs for service of process are recoverable under the CCP, they must also be recoverable under the more inclusive Song-Beverly Act. The service of process of subpoenas for depositions is of the utmost necessity in lemon law litigation. Plaintiff’s service of subpoenas were necessary to position this case to where it would be resolved favorably for Plaintiff. Ford denied Plaintiff's buyback request, essentially forcing her to litigate in order to vindicate her rights. Ford has no basis to now complain that Plaintiff was required to serve deposition subpoenas to do so. “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.) There is no doubting the necessity of these subpoenas. These depositions were needed to obtain information regarding repairs to the vehicle, authenticate repair orders, rebut Defendant’s anticipated argument that the problems with Plaintiff’s vehicle were somehow caused by Plaintiff’s neglect or abuse, as well as to determine if these witnesses had independent recollection of facts concerning the case. Furthermore, a PMQ deposition is one of the most important ones to be taken in the discovery process. Therefore, it was necessary for Plaintiff to issue all of these deposition subpoenas. The notice of depositions is normal, necessary and expected in the context of litigation. Plaintiff should recover the service of process costs. 2) Item 8: Expert Witness Fees Plaintiff requests $1,622.40 for expert witness fees. (SM Dec., { 6, Ex. A.) These fees are for the work of Mr. Gregory Barnett and Dr. Barbara Luna. (/d.) Mr. Barnett oversaw the inspection of Plaintiff’s vehicle on August 29, 2017- which was demanded by Ford. Plaintiff retained and designated Dr. Luna as an expert in the field of forensic accounting. (/d.) Dr. Luna began work on this matter in preparation of the litigation. (/d.) Defendant argues that there was not a 998 offer in this matter, so the expert fees are not recoverable. However, Jensen expressly holds that expert witness fees are recoverable under the Song-Beverly Act even though CCP § 1033.5 states they are not recoverable unless ordered by court. (See Jensen, supra, 35 Cal.App.4th at 138 compare with Code Civ. Proc. § 1033.5(a)(8).) The testimony of Plaintiff’s designated expert is the most crucial evidence upon which Plaintiff 8 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O must rely. As indicated previously, Ford denied Plaintiff’s buyback request, essentially forcing her to litigate in order to vindicate her rights. Then, Ford denied Plaintiff’s First Amended Complaint, deposed Plaintiff and demanded the vehicle inspection. Ford has no basis to now complain that Plaintiff’s counsel was required to hire experts in the litigation of this matter in order to assist Plaintiff vindicate her rights. As mentioned earlier, “a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the opposition in response.” (En Palm, supra, 162 Cal.App.4th at 786.) Mr. Barnett’s overseeing the inspection of the vehicle and Dr. Luna’s preparation were absolutely critical to this case. A review of this evidence reveals that the time spent by Mr. Barnett and Dr. Luna was reasonably incurred-they did nothing more than prepare for and attend those litigation activities that Ford demanded of Plaintiff’s expert witnesses. Accordingly, Plaintiff's counsel should be reimbursed for advancing payment to Mr. Barnett, and Dr. Luna the reasonably incurred expert fees. Defendant’s attempt to strike these fees should be denied, and the entirety of the expert fees should be recovered. 3) Item 12: Court Reporter Fees Plaintiff seeks $1,000.00 for hearing reporter fees. (SM Dec., 7, Ex. A.) As revealed by the internal spreadsheet, these court reporters were engaged to transcribe Ford’s Ex Parte for Leave to Amend and Ford’s Motion for Leave to Amend. (Id.) These are reporters authorized by statute. (Code Civ. Proc. § 1033.5(a)(11).) Plaintiff’s counsel routinely pays for a reporter for court hearings it deems material. Furthermore, in order for the court reporters to transcribe the hearings, a threshold matter is that both parties must sign the reporter’s stipulation. Defendant stipulated to the use of these reporters but now seeks to tax them so that Plaintiff will exclusively bear these costs. Defendant also benefitted from Plaintiff’s decision to use a court reporter inasmuch as Defendant was thereby given the option to read the record at the hearing. Defendant claims that further documentation is necessary to support this cost. By making this claim, Defendant is attempting to improperly shift the burden in this matter. 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 9 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N N N N N N N ND e m e m e m e m e m p m e m pe c o NJ O N Wn RA W O N D = DO OO 0 N N N R E W I N D = O therein listed were reasonably and necessarily incurred and satisfies Plaintiff’s burden. The burden has been shifted to Ford to demonstrate the unreasonableness of this particular expense. Defendant fails to support this burden. These court reporter fees were incurred in the commencement and prosecution of this matter. Defendant’s attempt to strike these fees should be denied, and the hearing reporter fees should be recovered. 4) Item 13: Other Costs a) Attorney Services and Messengers For Court Filings and Service Plaintiff requests $153.56 for attorney services and messengers for court filings and service. (SM Dec., | 8, Ex. A.) Again, Defendant attempts to improperly shift the burden, claiming that these costs should be taxed because Plaintiff has not shown supplemental information. As mentioned above, 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 Plaintiff’s burden. 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 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. Furthermore, Defendant acknowledges that messenger fees are discretionary costs that may be recoverable. However, the Court need not make a decision based on discretion, as in Foothill or Ladas 10 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O and as argued by Defendant; instead the Court must simply consider whether or not the costs were incurred in the “commencement and prosecution of such action.” The costs in this matter were incurred for the filing of documents, including but not limited to the Complaint, First Amended Complaint, Case Management Statements and Opposition to Ex Parte Leave to Amend. (SM Dec., 18, Ex. A.) As such, these costs were reasonably incurred in the commencement and prosecution of this matter, and Plaintiff should recover these costs. b) Court Call Plaintiff requests $172.00 for the cost of their counsel making two court appearances via “Court Call.” (SM Dec., 19, Ex. A.) “Court Call” is an acceptable and efficient way for the parties and courts to handle cases. This “Court Call” was for counsel’s appearance at the Ex Parte for Leave to Amend on September 15, 2017, and Order to Show Cause on February 23, 2018. (Id.) As such, these telephonic appearances at the hearings were reasonably necessary in the litigation of this matter. Therefore, the cost for “Court Call” should not be taxed. ¢) Overnight Plaintiff requests reimbursement of $150.55 for overnight fees spent in this matter. (SM Dec., 10, Ex. A.) The term “expenses” includes any non-overhead expenditures. (Bussey, supra, 225 Cal.App.3d 1162.) The overnight delivery costs relate to this case only and are not overhead expenditures. Moreover, overnight courier fees are certainly within the type of expenses from which the Song-Beverly Act seeks to shield prevailing consumers, and are therefore recoverable by Plaintiff. These costs were incurred to serve Ford via GSO documents related to this case. (Id.) It is clear that these costs were reasonably incurred in the prosecution of this matter. As such, Plaintiff should recover these costs. d) Postage Plaintiff seeks reimbursement of $2.03 in postage fees. (SM Dec., | 11, Ex. A.) Postage is precisely the type of litigation expenses that most clients have to pay to their attorneys. 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.) As discussed above, 11 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N N N N N N N ND e m e m e m e m e m p m e m pe c o NJ O N Wn RA W O N D = DO OO 0 N N N R E W I N D = O the term “expenses” includes any non-overhead expenditures. (/d. at 1162.) The cost for postage sought relates to this case only. These are not overhead expenses. It is quite typical for such costs to be incurred by a party litigant. (Ripley, supra, 23 Cal. App.4th at 1626.) 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. These costs or expenses were incurred in the “commencement and prosecution” of this action. Therefore, Plaintiff should recover these nominal fees. e) Copies Plaintiff requests $14.60 for copies, which were incurred in this matter. (SM Dec., | 12, Ex. A.) These costs were incurred making copies of correspondence and case documents. (Id.) As with postage, these costs of copies should be considered authorized by the Song-Beverly Act and the settlement agreement. The cost for copies is another “expense” that relates to this case only and is not an overhead expenditure. These photocopy costs were reasonably incurred in the prosecution of this action and were the type of cost that would otherwise be reimbursed by a client to counsel. (Civ. Code § 1794, subd. (d).) As such, Plaintiff should recover these costs. pH Travel Plaintiff is requesting reimbursement in the amount of $112.92 for travel fees incurred. (SM Dec., | 13, Ex. A.) The California Code of Civil Procedure specifically permits reimbursement of “travel expenses to attend depositions.” (Code Civ. Proc. § 1033.5(a)(3)(C)) 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 conferences and the like. (Civ. Code § 1794, subd. (d)) These costs were incurred when Plaintiff’s attorneys traveled to and attended the Mandatory Settlement Conference and hearing on Ford's Demurrer. (SM Dec., { 13, Ex. A.) Here, the travel expenses include reimbursement of costs for mileage, parking and a meal. (Id.) These mileage fees are charged at the federal rate. (/d.) These expenses were both reasonably incurred and necessary in the prosecution of this action. Accordingly, Plaintiff should recover these costs. 12 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TAX COSTS OO 0 NN O N Wn kA W N = N N ND N N N N N N mm e m e m e R e m e m e m e m c o NN O N Wn BA W N = O OVO 0 0 N D B R A W N = O III. CONCLUSION Ford’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 Defendant’s contentions. The evidence, as presented by Plaintiff, clearly indicates that each and every one of the items sought to be recovered as costs and expenses by Plaintiff either falls within the categories of CCP § 1033.5 and/or was 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: September 6, 2018 KNIGHT LAW GROUP, LLP HA Steve Mikhov (SBN 224676) Attorneys for Plaintiff, EVELYN C. GACHO 13 PLAINTIFF'S OPPOSITION TO DEFENDANT'S 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 10250 Constellation Blvd., Suite 2500, Los Angeles, CA 90067. I served the foregoing document described as: PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TAX COSTS SOUGHT BY PLAINTIFF 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: Randolph T. Moore, Esq. SNELL & WILMER LLP 600 Anton Blvd., Suite 1400 Costa Mesa, Ca, 92626-7689 Counsel for Defendant, FORD MOTOR COMPANY (Overnight 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 September 6, 2018 at Los Angeles, California. -Cacquolang Q pw JACQUELINE GIDNEY -1- PROOF OF SERVICE