Juan Madriz vs. Bmw of North America, LLC

Motion to Strike

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

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KNIGHT LAW GROUP Steve B. Mikhov (SBN 224676) 1801 Century Park East, Suite 2300 Los Angeles, CA 90067 Telephone: (310) 552-2250 Facsimile: (310) 552-7973 O’CONNOR LAW GROUP, P.C. Mark O’Connor (SBN 157680) Shawna Melton (SBN 276989) Amy L. Hajduk (SBN 230211) 384 Forest Ave, Suite 17 Laguna Beach, CA 92651 Telephone: (949) 494-9090 Fax: (949) 494-9913 Attorneys for Plaintiff, JUAN MADRIZ SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE JUAN MADRIZ, Plaintiff, Vv. BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company, D. SHELLY GROUP, INC., a California Corporation, dba IRVINE BMW MINI and DOES 1 through 10, inclusive, Defendants. -1- Case No.: 30-2016-00882645-CU-BC-CJC Unlimited Jurisdiction Assigned to the Honorable Michael Brenner PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT BMW OF NORTH AMERICA, LLC’S MEMORANDUM OF COSTS OR IN THE ALTERNATIVE TAX COSTS SOUGHT BY DEFENDANT ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF SHAWNA MELTON Hearing Date: August 16, 2018 Hearing Time: 9:00am Dept: C-62 MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 16,2018 at 9:00 am in Department 62 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana California, 92701, Plaintiff JUAN MADRIZ will move this court to strike Defendant BMW OF NORTH AMERICA, LLC (“BMW?”)’s Memorandum of Costs filed and served in this matter on June 12, 2018 or in the alternative tax costs sought by Defendant BMW in its Memorandum of Costs. This Motion is made pursuant to California Rules of Court, rule 3.1700(b), California Code of Civil Procedure §§ 1032, 1034, 1033.5 and 998 on grounds that Defendant, BMW is not the prevailing party in this matter, BMW’s CCP § 998 offers to compromise were not capable of valuation, were vague and ambiguous, and Plaintiff obtained a judgment more favorable than BMW?s offers and therefore the offers did not shift costs. Additionally, BMW's claimed costs in its Memorandum of Costs, are not allowable as costs, are unreasonable in necessity and/or in amount and otherwise not recoverable. This Motion is based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, the declaration of Shawna Melton, the pleadings, records and files in this action, such matters of which Court may take judicial notice, and such further evidence and argument as may be presented by Plaintiff at hearing on this Motion. Date: June 26, 2018 O’CONNOR LAW GROUP, PC Shawna Melton Mark O’Connor Attorneys for Plaintiff JUAN MADRIZ 2. MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. B. Iv. TABLE OF CONTENTS INTRODUCTION ....coiiueiiiueiineiiiseesssiesessessssssssssassssasessssesssssssssssssessssssssssssssssssssssssssssssessssssssasssssssssssassssssssssssans 1 FACTS .ieeiieieets sees see sess seas sees ssa e ses ae seas ses as sess a sae s eae ses ae ses asessssasassasasassssassssssessssessssesssassssassssssasssnanns 1 ARGUMENT ....ceetiiitiieiisetieseesesaesssssssssesessssssasssssssssssassssesssssssssssssssssessesssssssssssssssssssssssssssssssssssssssssasssassssans 2 BMW’S MEMORANDUM OF COSTS SHOULD BE STRICKEN. ............ooiitiiiiieniieniee eisai esis sireseves 2 1. BMW Is NOt The Prevailing POILY................coooeeuuiiieiieeeeieeiiiieeee ee esssitteaa eee esssttttaaa eee ssssstsaeaaaeessssasssnees 3 2. BMW’s CCP § 998 Offers Were Invalid Or Alternatively Plaintiff's Recovery Was More Favorable Than TRE Off@FS .....ccooeeeeeeeeeeeeeeeeeteeseeeeeee e eset tee eee east te eae e ee aaa atte eae ee eee nat ttt atte eee anntttrraaeeeaan 3 BMW’S MEMORANDUM OF COSTS SHOULD BE TAXED..........ccoitiiiiiiiiiieieeeeeeciiieeeeeeesesitineeeee es ssnesnneeeeens 9 1. Filing/Motion Fees (Cost Memo, Attachment 1Q) ................ccc.ccoueeeueeccueeecieeeceeeeieeeiieeeeiee ees esaeeeanenn 10 2. Costs To Take Depositions (Cost Memo, Attachment 4e) .....................ooeeeeeeeeeeeeeeeeeeeeeeeeeeeeveeesevsesesnnnns 10 3. Models, Blowups, And Photocopies Of Exhibits (Cost Memo, Attachment 11)......................cccccuvvnee.. 11 4. COUPE REPOITEE FEES ..........c.ccoeeeeeeeee eeeeeeeee eeeeeeesate eee tease tte eee ttae esata ees ataa ees ataeaastaaeasstaaass 11 5. Travel and Hotel Accommodations (Attachment 13) ..................ooevieeeeieiiiiieiieeeeiiciiiieeaeeeessciireaaaeeeas 11 CONCLUSION ....ceiiiiiiiiesrsneeetesissesssnnseesssssssssssnssssssssssssssssssssssssssssnnsssssssssssssnnssssssssssssssnsssssssssssssnnsesssssssssnnns 12 -i- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Adams v. Ford Motor Company (2011) 199 Cal.App.4th 1475 Berg v. Darden (2004) 120 Cal.App.4th 721 Bodell Const. Co. v. Trustees ofCalifornia State University (1998) 62 Cal.App. 4" 1508, ---------------- Chen v. Interinsurance Exchange of the Automobile Club (2018) 164 Cal.App.4th 117 ------------------- Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App4th 740 SE7 SE4 Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4* 1004 4 4,5 7, 8 7, 8 10Gibson v. Bobroff(1994) 49 Cal.App.4th 1202, Jensen v BMW (1995) 35 Cal.App.4th 122 8 Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761 MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036 Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187 11 3,5 Melendrez v. Ameron International Corporation (2015) 240 Cal.App.4th 632, Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4™" 324 Mitchell v. Olick (1996) 49 Cal.App.4th 1194 Nelson v. Anderson (1999) 72 Cal. App. 4th 111, Perko’s Enterprises, Inc. v. RRNS Enterprises, 4 Cal.App.4th 238 Pfeiffer v. Ford Motor Company 517 N.W.2d 76 Pierotti v. Torian (2000) 81 Cal.App.4" 17 Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351 Sherifv. Mehusa, Inc. (2015) 241 Cal.App.4th 185 Thon v. Thompson (1994) 29 Cal.App.4th 1546 10 Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4™ 109 -1i- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTES Cal Civ. Code § 1795.4 Cal. Civ. Code § 1644 11 10 Cal. Code Civ. Proc. § 1033.5 14, 15, 16 10Cal. Code Civ. Proc. § 685.010 Cal. Code Civ. Proc., § 1032 8 Cal. Code Civ. Proc., § 998 9 10 Civil Code § 3287 Civil Code section 1793.23 11 iii MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On February 22, 2018, a jury rendered a verdict in favor of Plaintiff, Juan Madriz, in the amount of $16,542.85 and against Defendant, BMW ofNorth America, LLC (“BMW”) for breach of express warranty claim under the Song-Beverly Consumer Warranty Act (“SBA”). (Melton Decl.,9 4, Ex. 1, Notice of Entry of Judgment) On June 4, 2018, judgment was entered. (Melton Decl., 9] 4, Ex. 1, Notice of Entry of Judgment) This Motion follows the service and filing of BMW’s Memorandum of Costs on June 12, 2018. The Memorandum should be stricken since there is no basis for BMW to recover any costs in this matter. BMW was not the prevailing party under Cal. Code Civ. Proc., § 1032(b) and BMW's two Cal. Code Civ. Proc., § 998 offers to compromise were not valid to shift costs since they were not certain, were vague and ambiguous and because Plaintiff acquired a judgment more favorable than the offers. Alternatively, and to the extent BMW is entitled to costs, BMW's claimed costs are in excess of what is permitted under the code and should be taxed accordingly. IL FACTS Plaintiff leased a new 2014 BMW X1 on February 3, 2014 paying $18,035.27 over the 3-year lease term. Plaintiff had an option to purchase the vehicle at the “Scheduled Termination of the lease for the [vehicle’s] residual value of $23,231.25.” (Melton Decl. § 5, Ex. 2, p. 2 § 12) However, terminating the lease early would result in a “substantial charge...up to several thousand dollars. The actual charge [would] depend on when the Lease [was] terminated.” (Melton Decl 9 5, Ex. 2) The vehicle was returned multiple times for repairs to various defective components that eventually rendered it a lemon, with the final warranty repair occurring on August 29, 2016. (Melton Decl. 9 6) BMW made two C.C.P. §998 statutory offers, the first shortly after the lawsuit was filed on December 7, 2016 and the other as trial approached on September 28, 2017. The first offer was made during the lease term, when Plaintiff still had possession of the vehicle. (Melton Decl. 917, Ex. 3) BMW offered to “repurchase” the vehicle for $51,000.00 in exchange for Plaintiff to -1- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 return the vehicle and “on the same date execute the California Department of Motor Vehicle Forms, including DMV form 262 necessary to transfer title of the subject vehicle to BMWNA free and clear of all liens and encumbrances (other than the lender’s or lessor’s interest in the vehicle.)” (Melton Decl. § 7, Ex. 3) Not only was it unclear whether Plaintiff was required to transfer legal and equitabletitle to the vehicle or just equitable title but the cost for Plaintiff to obtain legaltitle was uncertain and only known by BMW. BMW’s second 998 offer was made on September 28, 2017, after the lease had terminated. BMW agreed to “pay” $37,000.00. (Melton Decl. 4 8, Ex. 4) BMW offered to have judgment taken and required Plaintiff to dismiss the action after payment was received. BMW did not intend to “repurchase” or reacquire the vehicle and brand title and failed to include any terms necessary to create a duty or obligation for BMW to do so. (Melton Decl. 4 8, Ex. 4) On February 22, 2018, a jury rendered a verdict in favor of Plaintiff in the amount of $16,542.85 for BMW?’s breach of express warranty claim under the Song-Beverly Consumer Warranty Act (“SBA”). Judgment was entered on June 4, 2018. (Melton Decl. § 4, Ex. 1) The jury found that the vehicle met the criteria for repurchase and was a lemon under the SBA, thus triggering BMW?’s obligation to reacquire the vehicle and brand title, something BMW now apparently concedesit is obligated to do. III. ARGUMENT Preliminarily, BMW’s Memorandum of Costs should be stricken since BMW is not the prevailing party in this action under Cal. Code Civ. Proc, § 1032(b), and is not entitled to costs under Cal. Code Civ. Proc, § 998 sinceits offers to compromise were vague, not capable of valuation, and Plaintiff's judgment was more favorable than both offers. Even to the extent BMW is entitled to costs, the claimed costs are well beyond whatis permitted in the code and BMW?’s claimed costs should be taxed accordingly. A. BMW’S MEMORANDUM OF COSTS SHOULD BE STRICKEN BMW’s Cost Memorandum should be stricken since BMW is neither a prevailing party nor entitled to costs under Cal. Code Civ. Proc., § 998. 2. MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. BMW Is Not The Prevailing Party “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Cal. Code Civ. Proc., § 1032(b)) A prevailing party includes: [T]he party with the net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (Cal. Code Civ. Proc., § 1032(a)(4)) For cost awards under the general cost statute, a net monetary recovery means the party in whose favor the net amountis due. (Mitchell v. Olick (1996) 49 Cal.App.4th 1194, 1198) There is a single prevailing party for costs awarded under CCP § 1032(a)(4). (Sherifv. Mehusa, Inc. (2015) 241 Cal.App.4th 185, 194) In MacQuiddy, the parties stipulated that the plaintiff was entitled to a repurchase and tried only the issue of plaintiff’s entitlement to a civil penalty under the Song-Beverly Consumer Warranty Act (“SBA”). The plaintiff failed to obtain a civil penalty and therefore was not a prevailing party under the SBA for purposes of attorney’s fees but because the plaintiff had obtained a monetary recovery for the stipulated repurchase, he was the prevailing party under the costsstatute. (see MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1051) Here, Plaintiff had only 1 cause of action against BMW,a claim for breach of warranty under the SBA. Plaintiff obtained a judgment in his favor against BMW on that claim in the amount of $16,542.85. Plaintiff obtained relief against BMW, BMW did not secure a dismissal and given the net monetary recovery to Plaintiff, Plaintiff, not BMW,is the prevailing party for purposes of the costs statute. 2. BMW’s CCP § 998 Offers Were Invalid Or Alternatively Plaintiff’s Recovery Was More Favorable Than The Offers Additionally, neither ofBMW’s CCP § 998 offers to compromise were valid to invoke the fee shifting provisions ofthat section and alternatively, Plaintiff obtained a more favorable result when he obtained a judgment in the amount of $16,542.85. If an offer made by a defendant 3- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is not accepted and the plaintiff fails to obtain a more favorable judgment, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time ofthe offer. (Cal. Code Civ. Proc., § 998(c)(2)) Only valid § 998 offers are capable ofshifting costs. (See Chen v. Interinsurance Exchange ofthe Automobile Club (2018) 164 Cal.App.4th 117, 121) In order for a CCP § 998 offer to be valid it must have several features, including a requirementthat “the terms and conditions must be sufficiently certain to be capable of valuation. Otherwise it may not be possible to determine whether any recovery at trial is ‘more favorable’.” (Chen, supra at 121) Any ambiguity in an offer is construed against the drafting party. (Chen, supra a 121) In addition, there is a good faith requirementthat an offer be realistically reasonable in light ofthe circumstances ofthe case. (Melendrez v. Ameron International Corporation (2015) 240 Cal.App.4th 632, 647) The reasonableness of an offer will be evaluated in light of what the offeree knows or should know under the circumstances of the case. (/d.) In order to be reasonable, a plaintiff must have access to the facts that influences defendant’s determination that the offer was reasonable. (Adams v. Ford Motor Company (2011) 199 Cal.App.4th 1475, 1485.) The drafting party bears the burden of assuring the offer is drafted in compliance with the requirements of § 998. (Berg v. Darden (2004) 120 Cal.App.4th 721, 727) Neither of BMW's offers were sufficiently certain and capable of valuation nor reasonably in light of the circumstances ofthe case and therefore BMW cannot rely on either offer to validly shift costs in this action. a. December 2016 Offer to Compromise At the time of BMW’s December 2016 offer to Compromise, Plaintiff only held equitable title to the vehicle and to acquire legaltitle would have been costly in that Plaintiff would have been required to purchase the vehicle out of the lease and pay early termination fees of some unknown amount. BMW inserted ambiguity into the offer by requiring that Plaintiff transfertitle of the subject vehicle free and clear of all liens and encumbrances and then excepted the lessor’s interest, clouding the requirementto transfer legal and equitabletitle with a provision that apparently only required the transfer of equitable title. The offer is ambiguous at best. BMW had the burden of drafting a clear and specific offer capable of valuation and BMW failed to do 4- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 so here. The requirement of having Plaintiff transfer legal and equitable title would have greatly impacted the value ofthe offer, reducing it by at least $23,231.25, the amount of the purchase option. (Ex. 1, 4 12) In addition, Plaintiff would have incurred early termination fees of some unknown amount. Not only would this have been costly, but it would have been burdensome since Plaintiff necessarily would have purchased the vehicle upfront only to recover the costs of doing so after the vehicle was surrendered. In other words, as a condition of the offer, Plaintiff would have had to come up with at least $23,231.25 to obtain legaltitle. The offer was not only incapable of proper valuation but impractical, which is problematic in light of BMW's obligation to make offers in good faith and with reasonable belief that it can be accepted. b. September 2017 Offer to Compromise In the September 2017 offer, BMW offered to havejudgment taken againstitself for $37,000.00 while at the same time requiring that Plaintiff dismiss the action after payment was received. (Melton Decl. q 8, Ex. 4). The difference between and judgment and a dismissal cannot be understated. While both end litigation, a judgment gives rise to pre-judgment interest and post-judgment interest, a dismissal does not. (See Civil Code § 3287(b): “every person who is entitled under any judgment to receive damages based upon a cause of action in contract...may also recover interest...from a date prior to the entry ofjudgment...”; See also Cal. Code Civ. Proc. § 685.010(a): “interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.”) Thus, one offer permitted interest, while the other did not and the offer rendered it impossible to determine whether this Court was to enter a dismissal or a judgment. A trial court lacks authority to adjudicate the terms of the purported settlement. (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036; Berg v. Darden (2004) 120 Cal.App.4th 721.) If a material term is ambiguous judgment cannot be entered until the ambiguity is appropriately resolved. (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 369) The ambiguity in the offer renders it invalid. Even to the extent the offer is valid, Plaintiff acquired a more favorable judgment than the September 2017 offer to compromise. -5- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In interpreting an offer under the offer ofjudgment rule, general contract principles apply when they neither conflict nor defeat the statute’s purpose of encouraging settlement of lawsuits prior to trial. (Westamerica Bank v. MBG Industries, Inc. (2007) 158 Cal.App.4™ 109) Words are to be understood in their ordinary and popular sense. (Cal. Civ. Code § 1644) The September 2017 offer provides that BMW “will pay plaintiff the sum of $37,000.00.” The offer is silent on any terms requiring BMW to reacquire, repurchase or brand the title of the subject vehicle. This silence must be construed against BMW and supports the interpretation that BMW did not intend to repurchase the vehicle. Had BMW intended to reacquire, repurchase or brandtitle, they would have undoubtedly included this term in the offer as they have done numerous times in the past, including the December 2016 offer to “repurchase” the vehicle. BMW’s offer to “pay”is simply that, an offer to extricate itself from liability in this case by paying Plaintiff and nothing more. BMW imposed no further duties or obligations on itself with the September 2017 offer. Plaintiff’s judgment necessarily created a duty on BMW to reacquire and brand title and the judgment also gave Plaintiff a right to prejudgment interest, both of which must be considered when deciding whether Plaintiff obtained a more favorable result in his judgment than the offer. Plaintiff obtained a judgment against BMW with a jury finding that the vehicle met the criteria for a statutory repurchase under the SBA. With that finding comes the obligation to reacquire the vehicle and brandtitle. (see Civil Code section 1793.23: any manufacturer who reacquires a vehicle shall “inscribe the ownership certificate with the notation ‘Lemon Law Buyback’...”) A manufacturer of leased goods has the same duties and obligations under the [Consumer Warranty] chapter with respect to the goods as they would have if the goods had been| purchased by the lessee. (Cal Civ. Code § 1795.4(b)) Therefore, the branding requirements of the Automobile Consumer Notification Act (Civil Code section 1793.23) apply to leased vehicles. This is further bolstered by policy behind the Act which is designed to protect not just the initial purchase of the vehicle but subsequent purchasers. (Pfeiffer v. Ford Motor Company 517 N.W.2d 76) Interpretations of the SBA that would “vitiate a manufacturer’s incentive to comply with the Act” or would otherwise encourage a manufacturer to delay should be avoided” (See Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 195; see also Jiagbogu -6- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 118 Cal.App.4th at 1244.) If the duty to brand was separate and independent from the duty to repurchase, then a manufacturer of a leased vehicle would have no incentive to comply withits obligations to “promptly” repurchase a vehicle during the lease term to avoid added costs of branding title. Thus, the verdict gave rise to a duty to brand, the value of which must be quantified in order to determine if Plaintiff obtained a more favorable judgment. In addition, the judgment gave rise to a right to prejudgment interest which must be calculated.! An award of prejudgmentinterest under Civil Code § 3287 is intended to make the plaintiff whole and is an element of compensatory damages, not a court cost. (Bodell Const. Co. v. Trustees ofCalifornia State University (1998) 62 Cal.App. 4" 1508, 1525) Pre-offer prejudgment interest recoverable under Civil Code section 3287 in a non-tort action shall be included in determining whether the plaintiff has obtained a “more favorable judgment.” (Bodell Const. Co. at 1526) California Civil Code section 3287(a) provides for prejudgment interest as a matter of right where damages are known or calculable. (Pierotti v. Torian (2000) 81 Cal.App.4™ 17, 27 (citing Leff'v. Gunter (1983) 33 Cal.3d 508, 520.) Awards under the SBA must also include pre- judgment interest. This is true even though the Act does not address it specifically. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4™ 1004, 1010 citing County ofSolano v. Lionsgate Corp. (2005) 126 Cal.App.4™ 741, 752; See Jensen v. BMWofNorth America, Inc. (1995) 35 Cal.App.4™ 112, 138 fn 12.) “[E]ven a dispute as to the amount of alleged damages... did not prevent those damages from ‘being made certain by calculation’ within the meaning of section 3287 where the amount of recovery closely approximated plaintiffs’ claims,” particularly where, as here, that amount “was determined by simple mathematics.” (Leffat 519-520 (emphasis in original) (quoting Koyer v. Detroit Fire & Marine Ins. Co. (1937) 9 cal.2d 336, 345-46.) Itis sufficient for the defendant to know the amount or have the capability to compute it from reasonably available information. (Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App4th 740, 774.) Damages do not have to be known even at the time offiling of a complaint to ensure an award of 1 Plaintiff will be filing a Request for Prejudgment Interest. -7- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prejudgment interest. (Chesapeake Industries, supra, at 910.) Prejudgment interest on tort and other non-contractual claims is calculated at the rate of seven percent (7%) per annum from the date the claim arose. (Cal. Const., Art. 15 § 1; see Children’s Hosp., supra, at 775.) Thisis the rate calculated for damages awarded for breach of express and implied warranties under the Act (Doppes at 1007.). In this case, Plaintiff specifically requested prejudgment interest at the legal rate in his Complaint, in addition to a general prayer for relief. (Complaint, p. 5, line 25) Plaintiff is thg prevailing party in this action as determined by the jury in its verdict. At a minimum Plaintiff’s right to repurchase and associated right to prejudgment interest, vested at the final warranty repair on August 29, 2016. Atthis time all the payments made and to be made by the Plaintiff for the vehicle were known and a final accounting could be performed based on the lease agreement. BMW even stipulated to the restitution amountfor the jury, evidencing BMW's ability to quantify the repurchase amount. Thus, as provided under Civil Code section 3287(a), the recoverable amount was calculable and capable of being made certain as of August 29, 2016. Prejudgment interest in the amount of $1,352.32 should be considered in determining whether Plaintiff obtained a more favorable judgment. The following is a breakdown ofthe calculations: Annual interest = $1,158.00 [$16,542.85 x 7%] The daily amount ofinterest is $3.1704298 [$1,158.00 / 365.25] 395 days passed between August 29, 2016 and the September 28, 2017 offer $3.1704298 x 395 days = $1,252.32 ® ® ® ® Finally, in considering whether Plaintiff obtained a judgment more favorable than BMW's offer, this Court must also consider Plaintiff’s pre-offer costs.” (See Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4" 324: plaintiff’s pre-offer costs are included in deciding whether a judgment following the plaintiff’s rejection of the offer is more or less favorable than the offer.) Allowable costs and expenses under the SBA are not governed by the general cost provision of Civil Code § 1033.5 but by the specific cost provision of the SBA. (seg Jensen v BMW (1995) 35 Cal.App.4th 122, 137-138: finding the qualification under Code Civ. Proc. § 1033.5(b) of “except as expressly authorized by law” to apply due to the availability of] 2 Plaintiff's Cost Memorandumsare the subject of BMW’s Motion to Strike also set for August 16, 2018. -8- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “cost and expenses” to the prevailing buyer under Civ. Code § 1794(d).) The recourse of Codd Civ. Proc. § 1794(d) for a prevailing plaintiff/buyer under the SBA, rather than Code Civ. Proc. § 1032(d) or 1033.5, not only broadens the scope of allowable “costs and expenses,” but subjects] the same to a lower standard of “reasonably incurred in connection with the commencement and prosecution of such action.” (Code Civ. Proc. §1794(d).) O’Connor Law Group associated in on the case on October 6, 2017, right around the date of BMW's September 28, 2017 CCP § 998 offer, thus the costs of $13,452.28 from Knight Law Group, the handling firm before the association, should be considered in determining whether Plaintiff achieved a result more favorable than the September 2017 offer. B. BMW’S MEMORANDUM OF COSTS SHOULD BE TAXED Alternatively, BMW’s Memorandum of Costs should be taxed since the claimed costs are not permitted under the general cost statute. Only those costs specifically enumerated in Cal. Code Civ. Proc. § 1033.5(a) and not explicitly excluded under Cal. Code Civ. Proc. § 1033.5(b) are allowable as long as the claimed costs are reasonable in amount and “reasonably necessary to the conduct oflitigation”. (Cal. Code Civ. Proc. § 1033.5(c)(2)-(3)) In determining whether an item is properly allowable as a cost, the court must first determine whether the Code of Civil Procedure expressly allows for the particular item and whether it appears proper on its face. (Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131) If it is allowable and proper onits face, then the memorandum ofcosts is prima facie evidence that thg expense was necessarily incurred by the party and the objecting party has the burden of showing that the item is not properly chargeable or is unreasonable. (/d.) Once an item of cost is properly objected to, it is put in issue and the burden shifts back to the party claiming the costs to show they were necessarily incurred and reasonable. (/d.) A motion to tax costs is sufficient to put thg objectionable costs at issue. (/d.) BMW's costs memorandum, seeking a staggering $21,047.36 in costs, is inflated with expenses and fees that are not properly recoverable under the Code and/or are not reasonable in necessity or amount 9. MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Filing/Motion Fees (Cost Memo, Attachment 1g) While the Code explicitly permits the recovery offiling fees (Cal. Code Civ. Proc., § 1033.5(a)(1)), allowable costs shall be reasonably necessary to the conduct of the litigation and reasonable in amount. (Cal. Code Civ. Proc., § 1033.5(b)(2)-(3)) Whether a cost is reasonably necessary to the conduct oflitigation is a question of fact for the trial court and is reviewed for abuse of discretion. (Gibson v. Bobroff(1994) 49 Cal.App.4th 1202, 1209; see also Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548: the trial court has a duty to determine whether the cost in reasonable in need and amount.) The Court has authority to disallow costs otherwise recoverable, if they do not meet these standards. (Perko’s Enterprises, Inc. v. RRNS Enterprises, 4 Cal.App.4th 238, 245) BMW seeks $664.17 for unknown “court costs.” The invoice submitted in support does not identify what these costs are for. Additionally, BMW’s Motions in Limine were not reasonably necessary, and in fact some of them (Motion in Limine No. 7 seeking Judgment on the Pleadings) entirely improper and some even unnecessary in light of the evidence Plaintiff intended to introduce. Many of these Motions were boilerplate and not fact- specific. BMW should not recoverfiling fees for Motions regarding evidence that Plaintiffs never intended to introduce or for subject matters that were better objected to during trial. (See Cal. Code Civ. Proc., § 1033.5(c)(2): “Allowable costs shall be reasonably necessary to the conduct oflitigation rather than merely convenient or beneficial to its preparation.” (emphasis added)). Further, BMW should not be able to recover the $60.00 in filing fees associated with its Motion to Strike Plaintiff’s Cost Memorandum because the Motion has no merit since Plaintiff is the prevailing party for purposes ofthe coststatute. Finally, BMW seeks $150.00 for posting jury fees. This is not a filing fee and it is unclear whether BMW seeks to double dip on these fees since a similar invoice bearing the same date was submitted in support of BMW's claim for costs associated with jury fees. 2. Costs To Take Depositions (Cost Memo, Attachment 4e) Ordinarily, a prevailing party is entitled to costs associated with one copy of a deposition taken by the party against whom costs are allowed. (Code Civ. Proc., § 1033.5(a)(3)(A).) However, in this case the parties stipulated at the conclusion of each of the depositions for -10- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Webber, Lance, Williams, Woodie and Piper that BMW's counsel would maintain the original transcripts for each of these depositions. (Melton Decl. q 9) Hence, BMW had in its possession the original transcript making an extra copy entirely unnecessary to the conduct oflitigation in this matter, particularly where most of these individuals were not identified as witnesses nor called as witnesses at trial. BMWs claimed costs in the amount of $751.00 associated with these depositions are not recoverable. Even to the extent they are, costs for shipping and handling (a total of $120.00) should be taxed. 3. Models, Blowups. And Photocopies Of Exhibits (Cost Memo, Attachment 11) Confusingly, BMW claims that costs in this attachment are “claimed pursuant to CCP §1033.5(a)(12). However, costs for “[m]odels, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they are reasonably helpful to aid the trier of fact” under Cal. Code Civ. Proc., § 1033.5(a)(13). BMW provided invoices associated with the $43.80 purchase of a flash drive, with unknown contents (dated November 30, 2017), a $25.29 purchase for data conversion and messenger and delivery fees (including charges for wait times) of unknown items. (See December 6, 2017 invoices and December 12, 2017 invoice) BMW also claims $150.00 for converting video files. These charges are not reasonably necessary to the litigation and not helpful to the trier of fact. As such the Cost Memorandum should be taxed accordingly. 4. Court Reporter Fees A prevailing party is entitled to court reporter fees as established by statute. (Cal. Code Civ. Proc., § 1033.5(a)(11)) However, costs for transcripts of proceedings not ordered by the court are not recoverable. (Cal. Code Civ. Proc., § 1033.5(b)(5)) Hidden within the invoices for court reporter fees is $76.00 in parking expenses and $685.69 for real time. Neither of these fees are established by statute and BMW's claimed costs should be taxed accordingly. 5. Travel and Hotel Accommodations (Attachment 13) The only travel expenses permitted under the Code are those incurred in attending depositions. (See Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761) BMW seeks to recover parking and mileage to attend event beyond depositions including two separate -11- MADRIZ V. BMW - MOTION TO STRIKE COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vehicle inspections. In addition, BMW seeks travel expenses for multiple individuals to attend trial while at the same time seeks recovery for hotel accommodations for those same individuals. There is inherent duplication in these expenses and it is unclear how each of these charges are reasonably necessary to the litigation as opposed to merely convenient to litigation. IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court strike BMWs cost memorandum or alternatively tax the foregoing costs. Date: June 28, 2018 O’CONNOR LAW GROUP PC Shawna Melton Mark O’Connor Attorneys for Plaintiff, JUAN MADRIZ -12- MADRIZ V. BMW - MOTION TO STRIKE COSTS © 0 J I a N w n B A W O N = N N N N N N N N O N e m e m e m e m p m e m p m e m c o N N O N n n k A W I N D = O O O N N N R E W I N D = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 384 Forest Ave., Suite 17, Laguna Beach, CA 92651. On June 28, 2018, I served the foregoing document(s) described as: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT BMW OF NORTH AMERICA, LLC’S MEMORANDUM OF COSTS OR IN THE ALTERNATIVE TAX COSTS SOUGHT BY DEFENDANT ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF SHAWNA MELTONto all interested parties in this action as set forth on the attached service list in the following matter: [X] U.S. MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Laguna Beach, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [1] BY FACSIMLE: In addition to service by mail as set forth above, a copy of said document(s) was also delivered by facsimile transmission to the addressee(s) pursuant to Code of Civil Procedure §1013(e) [1] BY PERSONAL SERVICE: I caused a true copy of said document(s) to be hand- delivered to the addressee(s) via a California registered process server pursuant to Code of Civil Procedure §1011 [1] BY EXPRESS MAIL: I caused said document(s) to be deposited in a box or other facility regularly maintained by the express service carrier providing overnight delivery pursuant to Code of Civil Procedure §1013(c) [1] BY ELECTRONIC MAIL: 1 caused said document(s) to be served electronically pursuant to Code of Civil Procedure §1010.6(a) to: dvillegas@lehrmanlawgroup.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was ex cuted on June 28, 2018 at Laguna Beach, California. /7 ( ST Alexandria Wilson SERVICE LIST Kate Lehrman Lehrman Law Group 12121 Wilshire Blvd., Suite 1300 Los Angeles, CA 90025 Attorneys for Defendant -1- Proof of Service