Motion_to_tax_costsMotionCal. Super. - 2nd Dist.April 19, 2016Electronically FILED by Superior Court of California, County of Los Angeles on 02/19/2019 07:10 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk Oo © NN A Lh A W N N D N N N N N N N NN N / m = = e m e m e s e s co NN AN n h W N = O O N N N D R E W ND = O 9 Oo LEHRMAN LAW GROUP KATE S. LEHRMAN [Bar No. 123050] DANIEL R. VILLEGAS [Bar No. 159935] BLAKE H. RAMSAY [Bar No. 300025] 12121 Wilshire Boulevard Suite 1300 Los Angeles, CA 90025 (310) 917-4500 (310) 917-5677 (FAX) Attorneys for Defendant BMW OF NORTH AMERICA, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL CIVIL WEST COURTHOUSE Case No. BC617690 [Filed: April 19, 2016] NORBERTO MASUPIL MARQUINEZ and GLAIZA M. MARQUINEZ, Hon. David S. Cunningham Dept. 37 Plaintiffs, V. NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company, FINCHEY CORPORATION OF CALIFORNIA dba PACIFIC BMW, a California Corporation, and DOES 1 through 10, inclusive, [Filed and Served Concurrently with N e N o N a N e N a N a N a N a N a N a N o N a N a N a N a N a N a N a N a N a N a N a N F Defendants. [Proposed] Order] Date: July 25, 2019 Time: 8:30 a.m. Dept.: 37 Res. ID.: 487685897726 DISCOVERY CUT-OFF: 11/13/18 MOTION CUT-OFF: 11/26/18 TRIAL DATE: 01/08/19 1] ni 55.146.DRYV - 00363448.DOC I BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS Oo 0 0 O N Wn BA W N BN N N N N N N N N = e m em a e d e m e m e d pe d p e p a 0 NN NA Un BA W N = O O N O N R W = o 9 Oo TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN, that on July 25, 2019, at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department 37 of the above-entitled Court located at 111 N. Hill Street, Los Angeles, California 90012, defendant BMW of North America, LLC (BMW NA or defendant) will move the Court, pursuant to Rule 3.1700, subdivision (b) of the California Rules of Court, to strike the Memorandum of Costs filed by O'Connor Law Group, P.C. or tax $30,845.51 in costs, as follows: (1) $500.00 in filing fees for an unsuccessful Motion for Summary Judgment, claimed under Item 1; (2) $3,310.01 in deposition costs, claimed under Item 4; 3) $1,085.00 for service of process costs, claimed under Item 5; 4) $140.00 for witness fees, claimed under Item 8; 5) $17,368.82 for court reporter fees, claimed under item 12; (6) $2,058.23 for attorney service and messenger fees, claimed under item 13; (7) $331.27 for document delivery, claimed under item 13; (8) $258.00 for hearing expenses, claimed under item 13; 9) $881.65 for research, claimed under item 13; and (10) $4,912.53 for travel, food, lodging, mileage, parking and tolls, claimed under item 13. This Motion will be made on the grounds that: (1) the judgment of $3,930.00 in this case could have been rendered in a limited civil case or a small claims case; (2) the claimed costs are not substantiated; (3) these costs are not allowable, under Code of Civil Procedure section 1033.5, subdivision (b); (4) the costs were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(2); (5) the costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (¢)(3); (6) the costs were not reasonably incurred by plaintiffs, in violation of Civil Code section 1794, subdivision (d); and (7) these items are not properly claimed as a cost in this action. 55.146.DRYV - 00363448.DOC 2 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS OO © 3 a Wn Bs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 2Q This Motion will be based on this Notice, the pleadings, records and files herein, the Memorandum of Points and Authorities and Declaration filed and served herewith, and on such oral and documentary evidence as may be presented at the hearing of this Motion. DATED: February 19, 2019 LEHRMAN LAW GROUP KATE S. LEHRMAN DANIEL R. VILLEGAS BLAKE H. RAMSAY W OF NORTH AMERICA, LLC 55.146.DRYV - 00363448.DOC 3 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS SS OO XX a0 O N nn B R A W N BRN RN N N ND N N N N m e em e m e a e m p m e m e e a © NN NN nn A W N = O O O D D W N J oO MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION Plaintiff's Memorandum of Costs should be stricken, or the costs claimed by plaintiffs should be taxed, in the sum of $30,845.51. Code of Civil Procedure section 1033.5, subdivision (c)(2) provides that allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. Code of Civil Procedure section 1033.5, subdivision (¢)(3) provides that allowable costs shall be reasonable in amount. This was a routine lemon law case. Plaintiffs obtained a judgment for $3,930.00, which could have been rendered in a limited civil case or even a small claims case. The costs claimed by plaintiffs, of almost ten times this amount, are excessive and unreasonable. II. PLAINTIFFS HAVE NOT PROVEN THEIR ENTITLEMENT TO ANY COSTS Plaintiff has not provided documentation to substantiate any of her claimed costs. By way of comparison, in Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, the plaintiffs filed a Memorandum of Costs which included the worksheet! as well the underlying bills. (/d.) at 1108, 1109. The Court upheld an award of costs because plaintiffs had "offered the bills to support the amounts requested." (Jd. 1115.) Because Civil Code section 1794, subdivision (d) allows for the recovery of "costs and expenses," the Court of Appeal in Jensen v. BMW of North America, Inc. (1995) 35 Cal. App.4th 112, held that the statute allows prevailing plaintiffs to recover not only the costs specified in Code of Civil Procedure section 1033.5, but also other "expenses" like expert witness fees that would not otherwise be recoverable. (/d. at 138.) However, the Court stressed that section 1794 ! The inclusion of the worksheet can be determined from the Court's reference to expert fees "listed in item 8.b." Item 8.b only appears on the worksheet (Judicial Council Form MC-011), not on the summary page (Judicial Council Form MC-010). 55.146.DRV - 00363448.DOC 4 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS OO © JN O Y Dn BA W N NN N N N N N N N N = e a e e e m e m e m e m e m e m 0 NN A n t BR W N = O 0 N N N D R A W N = o 2 oO only entitles lemon law plaintiffs to costs and expenses that are "reasonably incurred ... .' (§ 1794, subd. (d).)" (Id. at 138.) This Court has the power to disallow even costs "allowable as a matter of right" if they were not "reasonably necessary"; and to reduce the amount of any cost item to that which is "reasonable." (Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 ["intent and effect of (§ 1033.5(c)(2)) is to authorize trial Court to disallow recovery of costs, including filing fees, when it determines the costs were incurred unnecessarily"].) Under these standards, all of the costs claimed by plaintiffs should be taxed. Plaintiffs have not carried their burden of showing their entitlement to any of these costs. III. PLAINTIFFS ARE NOT ENTITLED TO RECOVER THE FILING FEE FOR AN UNNECESSARY AND UNSUCESSFUL MOTION FOR SUMMARY JUDGMENT Plaintiffs claim $500.00 for filing a Motion for Summary Judgment. The Court denied plaintiff's Motion. The unsuccessful Motion was not reasonably necessary to the conduct of the litigation. The filing fee is not recoverable, pursuant to Code of Civil Procedure section 1033.5, subdivision (c¢)(2) [allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation]. IV. PLAINTIFFS ARE NOT ENTITLED TO RECOVER THE COSTS OF TAKING UNNECESSARY DEPOSITIONS AND SERVING UNNECESSARY DEPOSITION SUBPOENAS Plaintiffs seek to recover the costs of serving process on defendant's attorneys, Lehrman Law Group, as well as serving process on 24 people at Pacific BMW. Plaintiffs also seek to recover the cost of taking nine depositions at Pacific BMW. As attorneys who specialize in this area of the law, plaintiffs’ attorneys know there is no reason to take the depositions of service advisors and technicians because the service advisors and technicians keep a contemporaneous record of their work on the repair orders they prepare each time they work on a vehicle. Plaintiffs’ attorneys also know the service advisors and 55.146.DRV - 00363448.DOC 5 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS O O 0 9 A Un BA W N BN N N ND N N N N N NN - = a a p m p m e e e a p d em 0 NN A L h A W N = O V N N N RA W N -~ Oo 9 o technicians work on hundreds of vehicles each year and cannot remember each one. There was no reason to incur the cost of serving deposition Subpoenas on and taking the depositions of the service advisors and technicians in this case. The only reasonable and necessary depositions were the depositions of Ron Webber, BMW NA's person most knowledgeable, and Luis Holguin, BMW NA's expert. The cost of these depositions was $2,629.41. The unnecessary deposition costs are $3,310.01; the unnecessary service of process costs are $1,085.00; and the unnecessary witness fees are $140.00, for a total of $4,535.01. These costs were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(2). These costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(3), and these items are not properly claimed as a cost in this action. Vv. PLAINTIFF ARE NOT ENTITLED TO RECOVER THE COST OF TRANSCRIPTS Plaintiffs claim $17,368.82 in court reporter fees, under item 12. Transcripts of court proceedings not ordered by the Court are not allowable as costs, under Code of Civil Procedure section 1033.5, subdivision (b)(5). These costs were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(2). These costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(3), and these items are not properly claimed as a cost in this action. VI THE DELIVERY AND MESSENGER FEES CLAIMED BY PLAINTIFFS ARE NOT RECOVERABLE The "other" costs claimed by plaintiffs under item 13 include: $2,058.23 for attorney service and messenger fees; $331.27 for document delivery; $258.00 for hearing expenses; and $881.65 for research. These costs are not recoverable. They were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(2). These costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(3), and they are not properly claimed as a cost in this action. (See Code 55.146.DRV - 00363448.D0C 6 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS O O 0 9 a Wn B ~ A W w W N 10 11 12 13 14 15 16 17 18 19 20 21 5 23 24 25 26 27 28 20 of Civ. Proc., § 1033.5, subd. (b)(3)[postage, telephone and photocopying charges not allowable]; Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1627 [Federal Express expenses not allowed]; Nelson v. Anderson (1999) 72 Cal. App.4th 111, 132 [messenger fees not allowed].) VIL. PLAINTIFFS ARE NOT ENTITLED TO RECOVER FOR THE COST OF TRAVEL The $4,912.53 for travel, food, lodging, mileage, parking and tolls, claimed by counsel are not recoverable. (See Ladas v. California State Auto. Assn. (1993) 19 Cal. App.4th 761, 775- 76 ["Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation."]. Plaintiffs’ attorneys are not only billing for their purported travel expenses, by way of their cost Memorandum, but also for their travel time, by way of their fee Motion. These costs were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (¢)(2). These costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(3), and these items are not properly claimed as a cost in this action. VIII. CONCLUSION For the foregoing reasons, and for such other and further reasons as may be adduced in a Reply Memorandum and upon the hearing of this Motion, BMW NA respectfully prays that costs be taxed as set forth above. DATED: February 19, 2019 LEHRMAN LAW GROUP KATE S. LEHRMAN DANIEL R. VILLEGAS BLAKE H. RAMSAY ERICA, LLC 55.146.DRYV - 00363448.DOC ~ 3 - BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS SS OO 0 N N N nn B R A W N e e N N N N N N N N N m= m k m m md e d e m e m p d pe 0 3 AN Un k W =, O V N Y E W N ) 2 oO DECLARATION OF DANIEL R. VILLEGAS I, Daniel R. Villegas, declare as follows: 1. I am an attorney at law duly licensed and entitled to practice in the State of California. I am of counsel to Lehrman Law Group, attorneys of record for defendant BMW of North America, LLC (BMW NA or defendant). I am one of the attorneys with primary responsibility for handling this matter on behalf of BMW NA. In that capacity, [ am personally familiar with the facts set forth herein and if called as a witness in this case, I could and would competently testify hereto. 2, The facts set forth in the foregoing Memorandum are true and correct. I declare under penalty of perjury that the foregoing is true and correct. Executed this 19th day of February, 2019, at Los Angeles, California. 55.146.DRV - 00363448.DOC | BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS O O 0 9 O Y Un B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 97 28 7Q PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 12121 Wilshire Blvd., Suite 1300, Los Angeles, CA 90025. On February 19, 2019, I served, in the manner indicated below, the foregoing document described as: NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS on the interested parties in this action by placing true copies thereof, enclosed in sealed envelopes, at Los Angeles, CA addressed as follows: SEE ATTACHED SERVICE LIST BY OVERNIGHT DELIVERY: I caused such envelopes to be delivered by Golden State Overnight air courier, with next day service, to the offices of the addressees. (C.C.P. § 1013(c)(d).) BY FACSIMILE: (C.C.P.§ 1013(e)(f).) BY MAIL: I caused to be delivered by U.S. mail by placing a true copy thereof enclosed in sealed envelopes addressed as stated above. [ am “readily familiar” with the firm’s practice of collection and processing documents for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid in the ordinary course of business. BY PERSONAL SERVICE: 1 caused such envelopes to be delivered by hand to the offices of the addressees. (C.C.P. § 1011(a)(b).) BY ELECTRONIC MAIL: I transmitted such document from Los Angeles, California, to the electronic mail address maintained by the person(s) on the SERVICE LIST as last indicated by that person on a document that he or she has filed in the above-entitled cause and served on this party. (C.C.P. § 1010.6(a)(6).) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 19, 2019 at Los Angel ‘alifornia. 55.146.DRV - 00363448.DOC | BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS 2/19/2019 SO AGLS www.gso.com Ship From : i rack : 543834660 LEHRMAN LAW GROUP Tracking + 38346 CPS KAREN ROSALES LOS ANGELES, CA 90025 Ship To KNIGHT LAW GROUP -~-STEVE B. MIKHOV, ESQ. AMY-LYN MORSE, ESQ. 10250 CONSTELLATION BOULEVARD SUITE 2500 LOS ANGELES LOS ANGELES, CA 90067 COD: $0.00 S90067A Weight: 0 Ib(s) Reference: 55.146 (MOTIONS TAX COSTS) Delivery Instructions: Signature Type: REQUIRED 98434220 Print Date: 2/19/2019 6:15 PM LABEL INSTRUCTIONS: Do not copy or reprint this label for additional shipments - each package must have a unique barcode. Step 1: Use the “Print Label” button on this page to print the shipping label on a laser or inkjet printer. Step 2: Fold this page in half. Step 3: Securely attach this label to your package and do not cover the barcode. TERMS AND CONDITIONS: By giving us your shipment to deliver, you agree to all of the GSO service terms & conditions including, but not limited to; limits of liability, declared value conditions, and claim procedures which are available on our website at WWW.(S0.CoMm. 11 2/19/2019 LEHRMAN LAW GROUP LOS ANGELES, CA 90025 | I HEN | 384 FOREST AVENUE SO (HGLS a PA WWWw.gso.com Ship From Tracking #: 543834670 CPS KAREN ROSALES 12121 WILSHIRE BLVD #1300 Ship To O'CONNOR LAW GROUP - MARK O' C CONNOR, ESQ. O rR A THOR ERICKSON, ESQ. AND SHAWNA MELTON, ESQ. 3 LAGUNA BEACH 17 LAGUNA BEACH, CA 92651 S92651A COD: $0.00 Weight: 0 Ib(s) Reference: 55.146 (MOTIONS TO TAX COSTS) Delivery Instructions: Signature Type: REQUIRED 329 98434 Print Date: 2/19/2019 6:17 PM LABEL INSTRUCTIONS: Do not copy or reprint this label for additional shipments - each package must have a unique barcode. Step 1: Use the “Print Label” button on this page to print the shipping label on a laser or inkjet printer. Step 2: Fold this page in half. Step 3: Securely attach this label to your package and do not cover the barcode. TERMS AND CONDITIONS: By giving us your shipment to deliver, you agree to all of the GSO service terms & conditions including, but not limited to; limits of liability, declared value conditions, and claim procedures which are available on our website at WWW.JS50.Co0m, 1/1 O© 0 NN Oo wn ~~ W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 PROOF OF SERVICE LIST BMW OF NORTH AMERICA, LLC/MARQUINEZ (B137-146)(55.146) Case No. BC617690 Steve B. Mikhov, Esq. Amy Morse, Esq. KNIGHT LAW GROUP, LLP 10250 Constellation Boulevard Suite 2500 Los Angeles, CA 90067 (310) 552-2250 (310) 552-7973 (FAX) stevem(@knightlaw.com Paralegals: Angie Martinez: angiem(@knightlaw.com Lorena Velazquez: Lorenav(@knightlaw.com Mark O’Connor, Esq. Shawna Melton, Esq. Eric Whitman, Esq. Rebecca Goethals O’CONNOR LAW GROUP 384 Forest Avenue, Suite 17 Laguna Beach, CA 92651 (949) 494-9090 (949) 494-9913 (FAX) hello@teamolg.com moconnor(@teamolg.com smelton@teamolg.com ewhitman(@teamolg.com rgoethals(@teamolg.com Paralegal: Rebecca Goethals 55.146.DRV - 00363448.DOC Page 1 Attorneys for Plaintiffs NORBERTO MASUPIL MARQUINEZ and GLAIZA M. MARQUINEZ Attorneys for Plaintiffs NORBERTO MASUPIL MARQUINEZ and GLAIZA M. MARQUINEZ 2 BC617690 NOTICE OF MOTION AND MOTION OF DEFENDANT BMW OF NORTH AMERICA, LLC TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL R. VILLEGAS Make a Reservation | Journal Technologies Court Portal Journal Technologies Court Portal Make a Reservation NORBERTO MASUPIL MARQUINEZ ET AL VS BMW OF NORTH AMERICA LLC Case Number: BC617690 Case Type: Civil Unlimited Category: Contract/Warranty Breach - Seller Plaintiff (no fraud/negligence) Date Filed: 2016-04-19 Location: Stanley Mosk Courthouse - Department 37 Reservation Case Name: NORBERTO MASUPIL MARQUINEZ ET ALVSBMW OF Case Number: NORTH AMERICA LLC BC617690 Type: Status: Motion to Tax Costs RESERVED Filing Party: Location: BMW of North America, LLC (Defendant) Stanley Mosk Courthouse - Department 37 Date/Time: Number of Motions: 07/25/2019 8:30 AM 1 Reservation ID: Confirmation Code: 487685897726 CR-ZQUBMFPKM5BRPIEMF Fees Description Fee Qty Amount Motion to Tax Costs 60.00 1 60.00 Credit Card Percentage Fee (2.75%) 1.65 1 1.65 TOTAL $61.65 Payment Amount: Type: $61.65 Visa Account Number: Authorization: XXXX2314 05394G ®=4 Print Receipt =~ ++ Reserve Another Hearing Copyright © Journal Technologies, USA. 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