This case was last updated from Los Angeles County Superior Courts on 11/24/2022 at 11:49:16 (UTC).

ISRAEL GONZALES VS MERCEDES-BENZ USA, LLC

Case Summary

On 11/14/2017 ISRAEL GONZALES filed a Contract - Other Contract lawsuit against MERCEDES-BENZ USA, LLC. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are MARK A. YOUNG, CRAIG D. KARLAN and MITCHELL L. BECKLOFF. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8379

  • Filing Date:

    11/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARK A. YOUNG

CRAIG D. KARLAN

MITCHELL L. BECKLOFF

 

Party Details

Plaintiffs

DARMONT CONSTRUCTION CORP.

GONZALES ISRAEL

Claimant

SHANGRI-LA CONSTRUCTION L.P.

Defendant

MERCEDES-BENZ USA LLC

Not Classified By Court

STRATEGIC LEGAL PRACTICES APC

Attorney/Law Firm Details

Plaintiff Attorneys

ROSENSTEIN MARK H.

SOGOYAN GREGORY

SOHAL VIKRAM

SHIPPEN-MURRAY BRIAN TATE

DEVLIN MICHAEL G.

MCCARTHY MICHAEL

Claimant Attorney

BREUCOP PAUL A

Defendant Attorneys

OAKS ASHLEY E.

OAKS ASHLEY ELISE

TAHSILDOOST SOHEYL

 

Court Documents

Notice of Lien

5/1/2020: Notice of Lien

Objection - OBJECTION MBUSA'S OBJECTIONS TO PLAINTIFFS' PROPOSED JUDGMENT

4/2/2020: Objection - OBJECTION MBUSA'S OBJECTIONS TO PLAINTIFFS' PROPOSED JUDGMENT

Memorandum of Costs (Summary)

4/21/2020: Memorandum of Costs (Summary)

Judgment - JUDGMENT ON JURY VERDICT

3/29/2020: Judgment - JUDGMENT ON JURY VERDICT

Trial Brief

4/3/2019: Trial Brief

Witness List

6/7/2019: Witness List

Answer

1/5/2018: Answer

Notice of Ruling

9/19/2019: Notice of Ruling

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

9/13/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

Minute Order - MINUTE ORDER (STATUS CONFERENCE)

10/21/2022: Minute Order - MINUTE ORDER (STATUS CONFERENCE)

Stipulation and Order - RE RELEASE OF DEPOSITED FUNDS TO SHANGRI-LA CONSTRUCTION, LP AND STRATEGIC LEGAL PRACTICES

10/19/2022: Stipulation and Order - RE RELEASE OF DEPOSITED FUNDS TO SHANGRI-LA CONSTRUCTION, LP AND STRATEGIC LEGAL PRACTICES

Notice Re: Continuance of Hearing and Order

8/22/2022: Notice Re: Continuance of Hearing and Order

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/20/2022: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice of Ruling

3/22/2022: Notice of Ruling

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/21/2022: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice of Continuance

3/14/2022: Notice of Continuance

Notice Re: Continuance of Hearing and Order

3/14/2022: Notice Re: Continuance of Hearing and Order

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION FOR CLARIFICATION; HEARING O...)

11/3/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION FOR CLARIFICATION; HEARING O...)

225 More Documents Available

 

Docket Entries

  • 10/21/2022
  • Docketat 09:00 AM in Department M, Mark A. Young, Presiding; Status Conference - Held

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  • 10/21/2022
  • DocketMinute Order ( (Status Conference)); Filed by Clerk

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  • 10/19/2022
  • DocketSTIPULATION RE RELEASE OF DEPOSITED FUNDS TO SHANGRI-LA CONSTRUCTION, LP AND STRATEGIC LEGAL PRACTICES; ORDER; Filed by Shangri-La Construction, L.P. (Claimant)

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  • 08/24/2022
  • Docketat 08:30 AM in Department M; Status Conference - Not Held - Continued - Stipulation

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  • 08/22/2022
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 07/20/2022
  • Docketat 08:30 AM in Department M, Mark A. Young, Presiding; Case Management Conference - Held

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  • 07/20/2022
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 04/21/2022
  • Docketat 08:30 AM in Department M; Hearing on Motion for Order (NOTICE OF MOTION AND MOTION FOR AN ORDER THAT THE UNDISPUTED AMOUNT OF ISRAEL GONZALES AND DARMONT CONSTRUCTION CORP?S RIGHT TO MONEY UNDER JUDGMENT BE APPLIED TO SATISFACTION OF SHANGRI-LA CONSTRUCTION, L.P.?S LIENS) - Not Held - Rescheduled by Court

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  • 03/22/2022
  • Docketat 08:30 AM in Department M; Hearing on Motion - Other (Enforcement of Lein on Judgment) - Not Held - Advanced and Continued - by Court

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  • 03/22/2022
  • DocketNotice of Ruling; Filed by Shangri-La Construction, L.P. (Claimant)

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276 More Docket Entries
  • 01/05/2018
  • DocketDemand for Jury Trial; Filed by Attorney for Defendant

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  • 12/14/2017
  • DocketNotice; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)

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  • 12/14/2017
  • DocketNotice (NOTICE OF CASE MANAGEMENT CONFERENCE 3-14-18 8:30 AM DEPT M ); Filed by Attorney for Plaintiff

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  • 11/20/2017
  • DocketProof-Service/Summons; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)

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  • 11/20/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff

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  • 11/14/2017
  • DocketSummons; Filed by Plaintiff

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  • 11/14/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 11/14/2017
  • DocketCivil Case Cover Sheet

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  • 11/14/2017
  • DocketComplaint Filed

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  • 11/14/2017
  • DocketComplaint; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)

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Tentative Rulings

b"

Case Number: ****8379 Hearing Date: December 15, 2021 Dept: M

Case Name: Israel Gonzales v. Mercedes-Benz USA, LLC

Case No.: ****8379

Motion: 1. Shangri-La Construction, L.P.’s motion for an order that the undisputed amount of Israel Gonzales and Darmont Construction Corp’s right to money under the judgment be applied to the satisfaction of Shangri-La Construction, L.P.’s liens pursuant to CCP 708.470

2. Motion to be Relieved as Counsel

Hearing Date: 12/15/2021

1. Shangri-La Construction, L.P.’s motion for an order that the undisputed amount of Israel Gonzales and Darmont Construction Corp’s right to money under the judgment be applied to the satisfaction of Shangri-La Construction, L.P.’s liens pursuant to CCP 708.470

LEGAL STANDARD

“A judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action or special proceeding may obtain a lien under this article, to the extent required to satisfy the judgment creditor's money judgment, on both of the following:

(1) Any cause of action of such judgment debtor for money or property that is the subject of the action or proceeding. (2) The rights of such judgment debtor to money or property under any judgment subsequently procured in the action or proceeding.” (Code Civ. Proc., ; 708.410(a).)

“To obtain a lien under this article, the judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment creditor's money judgment in the pending action or special proceeding.” (Code Civ. Proc., ; 708.410(b).) “At the time of the filing under subdivision (b) or promptly thereafter, the judgment creditor shall serve on all parties who, prior thereto, have made an appearance in the action or special proceeding a copy of the notice of lien and a statement of the date when the notice of lien was filed in the action or special proceeding. Service shall be made personally or by mail. Failure to serve all parties as required by this subdivision does not affect the lien created by the filing under subdivision (b), but the rights of a party are not affected by the lien until the party has notice of the lien.” (Code Civ. Proc., ; 708.410(c).)

“If the judgment debtor is entitled to money or property under the judgment in the action or special proceeding and a lien created under this article exists, upon application of any party to the action or special proceeding, the court may order that the judgment debtor's rights to money or property under the judgment be applied to the satisfaction of the lien created under this article as ordered by the court. Application for an order under this section shall be on noticed motion. The notice of motion shall be served on all other parties. Service shall be made personally or by mail.” (Code Civ. Proc., ; 708.470(a) [emphasis added].)

[W]hen a trial court presented with an application under section 708.470 has notice of an attorney's claim of a contractual lien against the proceeds of the judgment that, if valid, would have priority over the judgment lien that is the subject of the application, the trial court must take all relevant circumstances—including the potential existence of a senior lien—into account in exercising its discretion whether to grant or deny the application. Moreover, the court must bear in mind that the party making the application bears the burden of persuading the court the application should be granted and the judgment proceeds applied to satisfy the judgment creditor's lien, notwithstanding the attorney's potentially senior claim of a lien on those proceeds.

(Brown v. Superior Court (2004) 116 Cal.App.4th 320, 335.)

Code of Civil Procedure section 708.480 provides, “A lien created under this article may be enforced by any applicable procedure: (a) After the judgment subject to the lien is entered and the time for appeal from the judgment has expired. (b) If an appeal is filed from the judgment subject to the lien, after the appeal is finally determined.” (Code Civ. Proc., ; 708.480(b).)

ANALYSIS

On November 19, 2021, Shangri-La Construction filed a motion for an order that the undisputed amount of Israel Gonzales and Darmont Construction Corp.'s right to money under the judgment be applied to the satisfaction of Shangri-LA Construction, L.P.'s liens pursuant to Code of Civil Procedure Section 708.470.

Shangri-La Construction makes this motion pursuant to Code of Civil Procedure Sections 708.430 and 708.470, which permit a judgment creditor to seek an order that the judgment debtor’s rights to money or property under the judgment be applied to the satisfaction of the lien created under this article as ordered by the court. The motion is further made on the grounds that during the November 3, 2021 hearing on Shangri-La Construction’s motion to enforce its liens, this Court ordered Shangri-La Construction and Plaintiffs to meet and confer to resolve the amounts in dispute from the judgment Plaintiffs obtained in this action (the “Mercedes Judgment”) and permitted Shangri-La Construction to re-file its motion to enforce its judgment liens. Shangri-La Construction notes that while $325,036.67 of the Mercedes Judgment remains in dispute, the remainder is not disputed.

For the purposes of this motion, although Shangri-La Construction maintains it is entitled to all money owed to Plaintiffs from the Judgment to satisfy Shangri-La Construction’s judgment lien, Shangri-La Construction is seeking only the amount of the Mercedes Judgment that is not in dispute. Shangri-La Construction is not asking the Court to release the disputed amounts from the attorney’s fees award.

Whether Shangri-La has a lien

Shangri-La Construction presents evidence that it obtained a judgment against Plaintiffs in a separate action in the amount of $563,315.15. (11/19/2021 Breucop Decl. ¶ 2., Ex. 1.) Shangri-La Construction also points out that Mercedes deposited $611,762.05 with the Court.

Shangri-La Construction argues that it has a lien and that its notices of the liens complied with Code of Civil Procedure section 708.420. Shangri-La Construction also cites In re Marriage of Katz (1991) 234 Cal.App.3d 1711, 1720 fn.8, in support of its argument that the served notices comply with section 708.420. The Court expressly stated that “[a]t present, Judicial Council form EJ–185 is a form which complies with the requirements of section 708.420 which relates to the contents of a judgment lien notice.” (In re Marriage of Katz (1991) 234 Cal.App.3d 1711, 1720, fn. 8 modified (Nov. 13, 1991). Here, Shangri-La Construction provides evidence that it served the notices of lien on all parties and filed an abstract in the Mercedes Action. (11/19/2021 Breucop Decl. ¶ 4, Exs. 3-6.) The notices provided comply with Code of Civil Procedure section 708.420. In addition, Shangri-La Construction also provides evidence that neither Plaintiffs Darmont nor Mr. Gonzales sought an exemption from the liens within 30 days. (11/19/2021 Breucop Decl. ¶ 6.)

Whether judgment debtor is entitled to money or property under the judgment in the action

Shangri-La Construction argues that judgment debtor is entitled to money or property under the judgment in the action such that Shangri-La Construction’s lien applies.

Shangri-La Construction presents evidence that Plaintiffs Darmont and Mr. Gonzales obtained a $355,841.07 judgment against Mercedes and, therefore, have a right to that amount from Mercedes. (11/19/2021 Breucop Ex. 2 at p. 9.) Strategic Legal Practices, APC (“SLP”) claims it is entitled to $94,890.95 of the $355,841.07 jury award. (Ex. 18 to 11/19/2021 Breucop Decl.) Although Shangri-La Construction disputes SLP’s claim to the $94,890.95, Shangri-La Construction and SLP have no dispute as to the $260,950.12 in excess of Shangri-La Construction’s claim. Shangri-La Construction argues that this amount should be applied toward partially satisfying Shangri-La Construction’s judgment lien against Plaintiffs. Shangri-La Construction also points out that Plaintiffs are entitled to interest on the judgment. (11/19/2021 Breucop Decl. Ex. 2 at p. 9.) SLP contends that it is entitled to $31,744.25 in interest. (Ex. 18 to 11/19/2021 Breucop Decl.) Shangri-La Construction argues that it is entitled to all interest above SLP’s claim. Currently, Mercedes-Benz USA, LLC (“MBUSA”) has indicated that it intends to deposit $57,519.51 in interest. (Ex. 15 to 11/19/2021 Breucop Decl.) Therefore, Shangri-La Construction argues that it is entitled to at least $25,775.26 of interest since that amount is undisputed.

The Court concludes that Shangri-La Construction has demonstrated that judgment debtors are entitled to money under the judgment in this action, but that $286,725.38 of the judgment (or $260,950.12 and $25,775.26) is undisputed. Shangri-La Construction acknowledges that there is currently a dispute regarding the distribution of a portion of the Mercedes Judgment and argues that it reserves all rights regarding SLP’s attorney lien.

Shangri-La Construction filed a notice of non-opposition indicating that Israel Gonzales or Darmont Construction Corp have not filed an opposition. Shangri-La Construction also provided further clarification regarding the specific amount that it seeks to apply towards its liens. On November 8, 2021, the Court granted MBUSA permission to deposit $611,762.05 (the “Deposited Funds”) with the Court until further order of the Court. (12/8/2021 Breucop Decl. ¶ 2.) According to MBUSA’s counsel, MBUSA deposited the $611,762.05 with the Court. (Ibid.) SLP has asserted an attorney’s lien of $325,036.67 on the Deposited Funds and that amount remains in dispute. (Ibid.) Shangri-La Construction notes that this leaves $286,725.38 of the Deposited Funds undisputed and subject to Shangri-La Construction’s lien.

Shangri-La Construction is only seeking an order as to the undisputed amounts of the judgment debtors’ rights to money or property under the judgment be applied to the satisfaction of its judgment lien. Plaintiffs failed to exclude any of these funds from Shangri-La Construction liens within 30 days of receiving notice of the lien. Therefore, Shangri-La Construction request that the Court apply this $286,725.38 of the undisputed amount of the judgment toward Shangri-La Construction’s liens is GRANTED. Pursuant to an order prepared by Shangri-La Construction, the Court will release $286,725.38 of the Deposited Funds to Shangri-La Construction.

2. Motion to be Relieved as Counsel

BACKGROUND

On November 15, 2021, attorney Payam Shahian (“Counsel”) of Strategic Legal Practices, APC filed a motion to be relieved as counsel for Plaintiffs Israel Gonzales and Darmont Construction Corp.

Legal Standard

The Court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.) An application to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC Rule 3.1362(a), (c), (e).) “The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case.” (CRC Rule 3.1362(d).)

“The [proposed] order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (CRC Rule 3.1362(e) (emphasis added).) The requisite forms must be served “on the client and on all parties that have appeared in the case.” (CRC Rule 3.1362(d).) The required forms may be served “by personal service, electronic service, or mail.” (CRC Rule 3.1362(d).) In addition, “[i]f the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address.” (CRC Rule 3.1362(d)(2).) Furthermore, as used in CRC 3.162, “‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. . . .’” (CRC Rule 3.1362(d).)

ANALYSIS

Here, Counsel for Plaintiffs has filed Judicial Council Form MC-051 (Notice of Motion and Motion). While Counsel included a declaration, Counsel did not file the declaration on Form MC-052 (Declaration) and failed to include a filled-out Form MC-053 (Proposed Order). A declaration in support of an application to be relieved as counsel must be made on Judicial Council Forms MC-052 (Declaration) and the application must also include MC-053 (Proposed Order). (CRC Rule 3.1362(c), (e).) Since the application is defective, the motion is denied without prejudice.

"


b"

Case Number: ****8379 Hearing Date: November 3, 2021 Dept: M

Case Name: Israel Gonzales v. Mercedes-Benz USA, LLC

Case No.: ****8379

Motion(s): (1) MBUSA’s Amend/clarify judgments

(2) Shangri-La Construction, L.P.’s motion to enforce lien

(3) Plaintiff’s motion to compel compliance

Hearing Date: 11/03/2021

Legal Standard

Code of Civil Procedure section 473(d) concerns clerical mistakes in orders or void judgments. That subdivision provides that “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., ; 473(d).) “The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination. [Citations.]” (Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 209 quoting Estate of Doane (1964) 62 Cal.2d 68, 71.) “Clerical error . . . is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.]” (Id. at 210. [quoting In re Candelario (1970) 3 Cal.3d 702, 705].)

Analysis

  1. Amend/clarify the judgment

On August 26, 2021, Defendant Mercedes-Benz USA, LLC (“Defendant” or “MBUSA”) filed a motion for an order for clarification and/or amendment of the March 29, 2020, Judgment and the Court’s December 8, 2020, Order. Specifically, MBUSA seeks clarification as to whether the judgment lien on the March 29, 2020, Judgment attaches to the Court’s December 8, 2020, Order and Plaintiffs’ Attorneys’ fees. In addition, MBUSA seeks clarification as to whether Plaintiffs Israel Gonzales and Darmont Construction Corp (“Plaintiffs”) are required to surrender possession, right, title, and interest in the subject vehicle, a 2015 Mercedes-Benz S63 AMG, vehicle identification number WDDXJ7JB4FA005876 (hereinafter, the “Subject Vehicle”), and whether MBUSA is required to proceed with the repurchase pursuant to California Civil Code sections 1793.2, 1793.23, and 1793.24.

  1. The March 29, 2020, Judgment

MBUSA argues that despite the statutory requirement for MBUSA to retake possession of the Subject Vehicle, the March 29, 2020, Judgment is devoid of language specifically requiring Plaintiffs to turn over the vehicle. MBUSA contends that it is unable to comply with its statutory obligations to brand the vehicle following the Judgment unless Plaintiff agrees to surrender his rights, title, and interest in the subject vehicle. MBUSA further argues that Plaintiff has maintained that he has no obligation to return the vehicle, and yet he also refused to make payments on the vehicle. MBUSA seeks to have this Court clarify the judgment and order that Plaintiff is required to surrender possession, right, title, and interest in the subject vehicle and that MBUSA is required to proceed with the repurchase.

In opposition, Plaintiff argues that the judgment cannot be modified. Plaintiff cites to Lankton v. Superior Court (1936) 5 Cal.2d 694, 695-696 for the proposition that “judicial error” can be corrected by court only upon motion for new trial, or by appellate court upon appeal. Plaintiff implies that MBUSA seeks a correction of a judicial error and not a clerical error. MBUSA argues that it is not claiming judicial error and is seeking clarification and/or amendment of the judgment. MUBUSA also argues that the Court has inherent authority to on its own motion to correct errors pursuant to Code of Civil Procedure Section 473(d) nunc pro tunc, citing Bastajian v. Brown (1941) 19 Cal.2d 209; Brashear v. Gerbracht (1954), 128 Cal.App.2d 263, 268.)

In Lankton, the Supreme Court explained, “[i]f the court misconstrued the evidence before it, or misapplied the law applicable to the facts disclosed by the evidence, or was even misled by counsel, such an error was in no sense a clerical error which could thereafter be corrected by the court upon its own motion or in any proceeding except on motion for a new trial.” (Lankton, 5 Cal.2d 694 at 696 [emphasis added] [citations omitted].) The Supreme Court in Bastajian v. Brown (1941) 19 Cal.2d 209 further found that the vacation of a judgment was based on a clerical error and not a judicial error. There, “Defendants through substituted counsel, served and filed a notice of motion for an order of the court vacating the findings and judgment on the grounds that they did not conform to and were not the true judgment rendered by the court; that by reason of clerical mistake the findings and judgment did not conform to the judgment which the court directed to be prepared; that the judgment was rendered through the mistake, inadvertence, surprise and excusable neglect of defendants; and that the judgment was procured from the court by fraud and deception. On September 29, 1937, the trial court made the order, from which the appeal is here taken, granting the motion and vacating the findings and judgment and directing defendants to prepare findings of fact and conclusions of law and judgment in accordance with the decision of the court[.]” (Bastajian, 19 Cal.2d at 211.) The Court looked to the judge’s declaration and the minute entry shortly after trial to determine that the error was a clerical error. (Id. at 214–215.) In Brashear v. Gerbracht (1954) 128 Cal.App.2d 263, the Court of Appeal held that “[t]he trial court had the right to amend the judgment so that it would express the decision which was actually rendered. The record shows that the court acted properly and within its jurisdiction in amending the judgment as shown by said order.” (Brashear v. Gerbracht (1954) 128 Cal.App.2d 263, 270 [emphasis added].)

Here, MBUSA does not point to anywhere in the Trial Court record that indicates the judgment does not conform to and set forth the true judgment rendered by the court. Moreover, MBUSA does not point to a clerical error made by the court. The issue, however, is that Plaintiffs’ counsel stipulated in open court to the return of the Subject Vehicle, and whether that stipulation should have been incorporated into the judgment. The Court will discuss this issue with counsel at the hearing, and will consider the failure to include counsel’s agreement a clerical error that can be remedied.

  1. Clarification - The motion for attorney’s fees

MBUSA seeks and order clarifying which portion of the attorney’s fees award if any is subject to the lien filed in this case. MBUSA does not point to authority within Code of Civil Procedure section 473 for this request. Instead, MBUSA cites United States Supreme Court case Regal Knitwear Co. v. N.L.R.B. (1945) 324 U.S. 9 in support of its clarification request, where the Court stated, “we think courts would not be apt to withhold a clarification in the light of a concrete situation that left parties or ‘successors and assigns' in the dark as to their duty toward the court.” (Regal Knitwear Co. v. N.L.R.B. (1945) 324 U.S. 9, 15.)

MBUSA argues that it needs clarification on the attorney’s fees order because there is a dispute between the parties as to whether the lien filed by Shangri-La Construction, L.P applies to the attorney’s fee liens. In opposition, Plaintiffs argues that this is another “issue” manufactured by MBUSA to delay payment as the Court’s order and the applicable case law leave no doubt whatsoever that those fees belong to Plaintiffs’ counsel, SLP, and are not subject to Shangri-La’s liens. The December 8, 2020, Order unequivocally directs Defendant MBUSA to “remit payment, in the full amount of $198,401.47 to Plaintiffs’ counsel in the form of a single check made payable to Strategic Legal Practices, APC.” Here, the Court agrees that the order unequivocally directs MBUSA to “remit payment, in the full amount of $198,401.47 to Plaintiffs’ counsel in the form of a single check made payable to Strategic Legal Practices, APC.” (See 12/8/2020 Amended Order.)

Since MBUSA points to nothing in the attorney’s fees order that needs to be clarified, the motion to clarify is DENIED.

  1. Motion to Enforce Lien

LEGAL STANDARD

“A judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action or special proceeding may obtain a lien under this article, to the extent required to satisfy the judgment creditor's money judgment, on both of the following:

(1) Any cause of action of such judgment debtor for money or property that is the subject of the action or proceeding. (2) The rights of such judgment debtor to money or property under any judgment subsequently procured in the action or proceeding.” (Code Civ. Proc., ; 708.410(a).)

“To obtain a lien under this article, the judgment creditor shall file a notice of lien and an abstract or certified copy of the judgment creditor's money judgment in the pending action or special proceeding.” (Code Civ. Proc., ; 708.410(b).) “At the time of the filing under subdivision (b) or promptly thereafter, the judgment creditor shall serve on all parties who, prior thereto, have made an appearance in the action or special proceeding a copy of the notice of lien and a statement of the date when the notice of lien was filed in the action or special proceeding. Service shall be made personally or by mail. Failure to serve all parties as required by this subdivision does not affect the lien created by the filing under subdivision (b), but the rights of a party are not affected by the lien until the party has notice of the lien.” (Code Civ. Proc., ; 708.410(c).)

“If the judgment debtor is entitled to money or property under the judgment in the action or special proceeding and a lien created under this article exists, upon application of any party to the action or special proceeding, the court may order that the judgment debtor's rights to money or property under the judgment be applied to the satisfaction of the lien created under this article as ordered by the court. Application for an order under this section shall be on noticed motion. The notice of motion shall be served on all other parties. Service shall be made personally or by mail.” (Code Civ. Proc., ; 708.470(a) [emphasis added].)

[W]hen a trial court presented with an application under section 708.470 has notice of an attorney's claim of a contractual lien against the proceeds of the judgment that, if valid, would have priority over the judgment lien that is the subject of the application, the trial court must take all relevant circumstances—including the potential existence of a senior lien—into account in exercising its discretion whether to grant or deny the application. Moreover, the court must bear in mind that the party making the application bears the burden of persuading the court the application should be granted and the judgment proceeds applied to satisfy the judgment creditor's lien, notwithstanding the attorney's potentially senior claim of a lien on those proceeds.

(Brown v. Superior Court (2004) 116 Cal.App.4th 320, 335.)

Code of Civil Procedure section 708.480 provides, “A lien created under this article may be enforced by any applicable procedure: (a) After the judgment subject to the lien is entered and the time for appeal from the judgment has expired. (b) If an appeal is filed from the judgment subject to the lien, after the appeal is finally determined.” (Code Civ. Proc., ; 708.480(b).)

ANALYSIS

On October 15, 2021, the Court granted Shangri-La Construction, L.P.’s ex parte application to advance the motion to enforce lien on judgment. Shangri-La makes this motion pursuant to Code of Civil Procedure sections 708.410, et seq., and in particular, Code of Civil Procedure sections 708.430 and 708.470, which permit a judgment creditor to seek an order that the judgment debtor’s rights to money or property under the judgment be applied to the satisfaction of the lien created under this article as ordered by the court. Shangri-La contends that (i) SLC placed liens on Darmont and Mr. Gonzales’s right to recovery from Mercedes in this action; (ii) Darmont and Mr. Gonzales have a right to money from Mercedes pursuant to the jury’s award of $355,841.07, and this Court’s award of $198,401.47 for attorneys’ fees and costs; and (iii) Darmont and Mr. Gonzales failed to claim any exemption to SLC’s liens.

Shangri-La presents evidence that it obtained a judgment against Plaintiffs in a separate action in the amount of $563,315.15. (Breucop Decl. ¶ 2., ex. 1.) In this action, Plaintiffs obtained a jury verdict of $355,841.07 (the “Mercedes Judgment”). (Breucop Decl. ¶ 3; Ex. 2 at 2:9-11, 9:1-9.) The Judgment left the attorney’s fees award blank and provided (TBD by noticed Motion). Plaintiffs argue that their attorneys have a contractual lien on part of the judgment. As the Brown Court noted, the Court does not determine the validity of a contractual lien, but the Court must consider whether a potential senior lien when determining whether to exercise its discretion and grant an application under CCP 708.470. (Brown v. Superior Court (2004) 116 Cal.App.4th 320, 335.)

Here, Plaintiffs’ counsel may have a lien on a part of the judgment which is senior to the judgment lien. Moreover, while the Court awarded attorney’s fees directly to Plaintiffs’ counsel, the award is still part of the judgment. Since a more senior lien may exist, the court exercises its discretion and denies Shangri-La’s motion without prejudice.

  1. Motion to Compel Compliance

LEGAL STANDARD

“Every court shall have the power to do all of the following: . . . (4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., ; 128(a)(4); Brown v. Brown (1971) 22 Cal.App.3d 82, 84.) Disobedience of a lawful court order is punishable as contempt. (Code Civ. Proc. ;1209(a)(5).) “A proceeding for the punishment of an indirect contempt is commenced by the presentation of an affidavit setting forth the alleged contemptuous acts. (Code Civ. Proc., ; 1211.) The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.’[citations omitted]” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1549.) If contempt is committed outside the presence of the court (indirect contempt), the party requesting an order of contempt must supply an affidavit or declaration setting forth the facts constituting the required elements. (Code Civ. Proc. ;1211(a).) “After notice to the opposing party's lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. [Citations]” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286, as modified on denial of reh'g (Oct. 24, 2000).) The elements of contempt of a court order are (1) a valid order, (2) respondent’s knowledge of the order, (3) respondent’s ability to comply with the order, and (4) respondent’s willful disobedience. (Conn v. Superior Court (1987) 196 Cal.App.3d 774.)

Analysis

After the Court denied SLP’s motion to compel compliance as procedurally improper, Plaintiffs filed a motion to compel compliance. Plaintiffs do not seek a contempt order. Instead, Plaintiffs seek to enforce the attorney’s fees order. MBUSA opposes, arguing that this motion is duplicative of SLP’s prior motion to compel compliance. Shangri-La Construction, L.P. also opposes the motion to compel compliance MBUSA argues that this is SLP’s Motion, disguised as Plaintiffs’ Motion, and is therefore, once again procedurally improper and moot and should be denied in its entirety. MBUSA points out that the declarations are not from Plaintiff himself. MBUSA speculates whether Plaintiffs authorized this motion and requests that Plaintiff file a supplemental declaration.

MBUSA also argues that it does not dispute that the Court has authority to compel parties to comply with its orders and fully intends to comply with the Court’s Order, and is seeking clarification so that it may do so. The Court found above that the order did not need clarification and that MBUSA failed to point the Court to authority with the State that allows the Court to clarify its order. In addition, MBUSA, in its motion for clarification did not point out portions of the order that rendered the order vague.

Shangri-La opposes the motion to compel compliance. Shangri-La is the judgment creditor with a judgment lien. Shangri-La argues that its judgment lien attached the attorney’s fees award because the language in Civil Code 1794 refers to buyer which is unambiguous as it is a defined term in the statute. Here the dispute between the judgment creditor and Plaintiffs (plaintiff’s attorneys) affects MBUSA’s ability to comply with the order. Therefore, Plaintiffs’ motion to compel compliance is denied.

MBUSA requested permission to deposit the funds to the Court to distribute the Court deems appropriate. This request is GRANTED. The funds shall be deposited within ten days.

"


b"

Case Number: ****8379 Hearing Date: September 7, 2021 Dept: M

Case Name: Israel Gonzales v. Mercedes-Benz USA, LLC

Case No.: ****8379

Motion: Strategic Legal Practices, APC’s Motion to Compel Compliance with the Court’s December 8, 2020, Order

Hearing Date: 09/07/2021

Background

Strategic Legal Practices, APC (“SLP”) filed a motion to compel compliance with this Court’s December 8, 2020, attorney’s fees order. SLP represented Plaintiffs Israel Gonzales and Darmont Construction Corp. in this Song-Beverly Consumer Warranty Act suit. Plaintiffs prevailed at trial. After a hearing on a motion for attorney’s fees, the Court granted Plaintiff’s’’ motion for attorney’s fees and awarded SLP attorney’s fees and costs. On December 18, 2020, SLP filed a notice of entry of order of the Amended Order Regarding MBUSA’s Motion to Tax Costs and Plaintiffs’ Motion For Attorney Fees. The order provides, “IT IS ORDERED THAT Plaintiffs’ Motion be granted in the amount of $169,963.50.” It further provides, “Defendant is ordered to remit payment, in the full amount of $198,401.47 to Plaintiffs’ counsel in the form of a single check made payable to Strategic Legal Practices, APC.” (See 12/18/2020 Notice.)

Legal Standard

“Every court shall have the power to do all of the following: . . . (4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” (Code Civ. Proc., ; 128(a)(4); Brown v. Brown (1971) 22 Cal.App.3d 82, 84.) Disobedience of a lawful court order is punishable as contempt. (Code Civ. Proc. ;1209(a)(5).) “A proceeding for the punishment of an indirect contempt is commenced by the presentation of an affidavit setting forth the alleged contemptuous acts. (Code Civ. Proc., ; 1211.) The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.’[citations omitted]” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1549.) If contempt is committed outside the presence of the court (indirect contempt), the party requesting an order of contempt must supply an affidavit or declaration setting forth the facts constituting the required elements. (Code Civ. Proc. ;1211(a).)

“After notice to the opposing party's lawyer, the court (if satisfied with the sufficiency of the affidavit) must sign an order to show cause re contempt in which the date and time for a hearing are set forth. [Citations]” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286, as modified on denial of reh'g (Oct. 24, 2000).) The elements of contempt of a court order are (1) a valid order, (2) respondent’s knowledge of the order, (3) respondent’s ability to comply with the order, and (4) respondent’s willful disobedience. (Conn v. Superior Court (1987) 196 Cal.App.3d 774.)

ANALYSIS

SLP brings this motion on behalf of itself and brings this motion pursuant to Code of Civil Procedure section 128 and the Court's inherent authority to enforce its orders. (See Notice of Motion.) MBUSA opposes this motion, arguing that SLP does not have standing to bring this motion on behalf of itself. MBUSA argues that SLP is not a party to this action and so this motion is procedurally improper. An attorney representing a party are not themselves parties in an action. (See Hendricks v. Superior Court In and For City and County of San Francisco (1961) 197 Cal.App.2d 586, 588.) Here, SLP is attempting to enforce an order itself. SLP is not a party to this action and, therefore, this motion is procedurally improper.

For these reasons, the motion is denied.

"


Case Number: ****8379    Hearing Date: December 08, 2020    Dept: M

CASE NAME: ISRAEL GONZALES v. MERCEDES-BENZ USA, LLC

CASE NUMBER: ****8379

MOTION: Plaintiff’s Motion for Attorneys’ Fees

Plaintiff’s Motion for Prejudgment interest

HEARING DATE: 12/8/2020

Background

Plaintiff prevailed at trial against Defendant Mercedes-Benz USA, LLC. Plaintiff moves for attorneys’ fees pursuant to the Song-Beverly Consumer Warranty Act, Civil Code ; 1794(d). Plaintiff seeks attorneys’ fees in the amount of (1) $100,961.00 for Strategic Legal Practices, APC ("SLP"); (2) $61,502.50 for the Law Office of Michael Rosenstein; (3) a 1.35 multiplier enhancement on the attorney fees (or $56,862.23); and (4) $7,500 in connection with time incurred on this motion, the motion for prejudgment interest, and the motion to tax costs, for a total of $226,825.73. While Plaintiff references $262,697.25 in the motion, this amount also includes the costs that are not properly included in a motion for attorney’s fees.

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

“If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code ; 1794(d) (emphasis added).)

In determining whether requested fees are reasonable, courts consider the following factors: (1) the number of hours spent on the case, (2) reasonable hourly compensation for the attorney, (3) the novelty and difficulty of the questions involved, (4) the skill displayed in presenting them, and (5) the extent to which the litigation precluded other employment by the attorney. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 880.)

evidentiary objections

Defendant’s objections to Declaration of Payam Shahian

Objection no. 1 – 5 overruled

Defendant’s objections to Declaration of Jacob W. Cutler

Objections nos. 1 – 3 overruled.

Plaintiffs’ objections to the Declaration of Ashley Oaks

Objection no. 1 – overruled.

Objection no. 2 – sustained.

Objection no. 3 – overruled.

Objection nos. 4 – 9, sustained.

Objection no. 10 - 14 – overruled.

Analysis

  1. Basis for attorney fees

Plaintiffs are entitled to attorney’s fees under the Song-Beverly Consumer Protection Act since they prevailed at trial.

  1. Reasonableness of attorney’s fees and rates

“Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. [Citations omitted.]” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [quoting United Steelworkers of America v. Phelps Dodge Corp. (9th Cir.1990) 896 F.2d 403, 407].)

The parties dispute whether the hourly rate is reasonable. In general, Defendants argue that the hourly rates are unreasonable, but fail to provide evidence showing that such hourly rates are actually unreasonable. Plaintiffs list eleven attorneys, but respond that two attorneys, Gregory Sogoyan and Brian Murray, billed over 70 percent of the time expended by Plaintiff. As noted above, Plaintiff seeks Plaintiff seeks attorney’s fees in the amount of $100,961.00 in attorney fees for SLP and (2) $61,502.50 in attorney fees for the Law Office of Michael Rosenstein. (See Shahian Decl. ¶ 40.) Here, this case was filed on November 14, 2017 and trial was February 2020. Plaintiffs also provided evidence showing that their rates are reasonable. The hourly rates range from $350 to $600. (See Mot. at 8:12 -17.) The Court finds that these hourly rates are reasonable.

The parties also dispute whether the time spent on the case was reasonable. Plaintiffs provide evidence that they spent a total of 410.2 hours on this case. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Defendant created a table purporting to contain Plaintiffs’ attorney’s billing entries. However, the Court sustained objections to the tables created by Defendant. Defendant had the burden of “point[ing] to the specific items challenged” and did not have the burden of creating its own separate billing table in support of its argument. Here, Plaintiffs provided their billing entries. (See Ex. 14 to Shahian Decl. at 196 – 204; see also Ex. A to Rosenstein Decl.) Plaintiff also submitted a declaration in support of the motion for attorney’s fees in the amount of $7,500 incurred in connection with the pending post-trial motions. (See Reply Nguyen Decl.) The Court is satisfied that, after reviewing the billing entries provided by counsel and the supporting declarations, the Court finds that the time spent by Plaintiffs’ counsel in litigating this action was reasonable.

Therefore, Plaintiffs’ request for attorney’s fees in the amount of $162,463.50 and $7,500 is granted.

  1. Multiplier

A trial court is “not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum v. Moses The Court finds that a multiplier is not necessary here. This was a standard lemon law action. Therefore, Plaintiff’s request for a 1.35 multiplier is Denied.

PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.” (Civ. Code, ; 3287, subd. (a).) Civil Code section 3287(a) “is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.” (Ibid.)

In addition, “[e]very person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” (Civ. Code, ; 3287(b).) “Under subdivision (b) the court has discretion to decide whether prejudgment interest should be awarded on an unliquidated contractual claim. It is up to the judge to determine the date from which interest runs, but in no event may the court fix a date earlier than the filing of the action.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 829.) The statutory rate is 10 percent interest on breach of contract damages. (Civ. Code, ; 289(b).). The discretionary provision in Civil Code section 3287 allows the court the flexibility to determine whether an award of prejudgment interest is appropriate in light of the particular facts and circumstances in the case. (A & M Produce Co. v. FMC Corp.

ANALYSIS

The Court finds that Plaintiffs are not entitled to prejudgment interest under Civil Code section 3287(a). The amount at issue in this case was not capable of being made certain by calculation.

In the alternative, Plaintiffs argue that the Court should exercise its discretion to award prejudgment interest under Civil Code ; 3287(b). Defendant’s opposition is silent as to whether Plaintiffs’ claims arise from contract or whether Plaintiffs should be awarded discretionary prejudgment interest under section 3287(b). Plaintiffs, on reply, argue that Defendant has thus conceded the issue. The Court agrees that Defendant failed to rebut Plaintiffs arguments. However, in light of the facts and circumstances of this case, the Court exercises its discretion and declines to award discretionary prejudgment interest.

The motion for prejudgment interest is denied.



Case Number: ****8379    Hearing Date: October 22, 2020    Dept: M

CASE NAME: Israel Gonzales, et al. v. Mercedes-Benz USA, LLC, et al

CASE NO.: ****8379

MOTION: Motion to Tax Costs

date: 10/22/2020

Background

Plaintiffs prevailed at trial on February 27, 2020. Plaintiffs’ memorandum of costs was filed on April 21, 2020. On May 8, 2020, Defendant Mercedes-Benz USA, LLC filed their motion to strike, or in the alternative, tax costs.

Legal standard

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., ;1033.5(a)(1). Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., ;1033.5(c)(4).)

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs. Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)

Under the Song-Beverly Act, “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, ; 1794(d).)

Analysis

This motion is timely. Defendant requests that the court strike the entire memorandum of costs or, in the alternative, tax thirteen categories of items in the memorandum of costs.

Item 1 – filing fees

Defendant seeks to tax $573.75 of the costs claimed by Plaintiffs under Item 1. Plaintiffs claim $1,008.75 in filing fees and those fees are itemized at page 1 of the Memorandum of Costs. Defendant argues that the fees for the summary judgment are not recoverable because the Court did not hear a motion for summary judgment and because Plaintiffs reserved a summary judgment after the deadline to hear such a motion. Defendant also argues that the costs associated with the motion for prejudgment interest are not recoverable. The Court agrees that the filing fee for the motion for summary judgment was not reasonably incurred. However, the costs associated with reserving a motion for prejudgment interest is still a cost in the prosecution of this action. Therefore, the motion to tax $513.75 from item 1 is GRANTED IN PART.

Item 4 – deposition costs

Defendant seeks to tax $3,726.95 of the deposition costs. Plaintiffs claims a total of $5,396.20 in deposition costs. Defendant argues that the depositions of certain individuals were not reasonably necessary to conduct this litigation. Defendant argues that it paid for the deposition of Gregory Barnett. (See Ex. E. to Oaks Decl.) In opposition, Plaintiffs argue that Defendant did not pay the full costs of the deposition and provides the invoice. (See Ex. 2 at 2 to Nguyen decl.) Defendant has not shown that the $1,784.80 was not reasonably incurred. Defendant argues that the PMQ deposition of the Mercedes-Bez dealership was not warranted because the PMQ only read from the repair orders and Plaintiffs had no intention of calling this PMQ to testify at trial. These arguments are not persuasive. Defendant has not shown that these costs were not reasonably incurred at the time they were incurred. Therefore, the motion to tax these costs is DENIED as to item 4.

Item No. 5 - service of process costs, Item no. 8 - ordinary witness fess, and Item No. 12 – exhibits

Plaintiffs claim $1,613.80 in service of process costs, $70.00 in witness fees, and $993.02 in exhibits. Defendants seek to tax $1,535.50 for service of process costs for 17 individuals who were served subpoenas, but the vast majority were never deposed. The Court GRANTS the motion to tax $1,535.50 for service of process in item 5. Defendant has shown that such fees were not reasonably incurred. The motion to tax the witness fees under item 8 is DENIED since these costs are recoverable under Song-Beverly. Finally, the court DENIES the motion to tax item 12 as to exhibits since Song-Beverly provides for costs reasonably incurred and Defendant has not shown that such costs were not reasonably incurred.

Item No. 11 claiming $9,353.75 for court reporter fees

 

Defendant argue that the Court should strike item no. 12 for court reporter fees because only $5,616 appear to be related to the four-day trial. Defendant argues that the Court should tax item no. 12 in the amount of $3,737.75 because such transcripts were not ordered by the Court. Specifically, Defendant argues that there was no hearing on August 9, 2019. Defendant also argues that the Court did not order transcripts for the hearings on June 10, 2019, September 3, 2019, February 18, 2020 and February 21, 2020, and therefore, these costs are not recoverable under Section 1033.5(b)(5).

In opposition, Plaintiffs argue that the costs are allowable under the Song-Beverly Act. Plaintiffs argue that Courts have permitted court reporter costs under Civil Code section 1794(d). (See Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42 [holding that trial court erred in disallowing costs for transcripts not ordered by the Court under Civil Code section 1794(d).]). Plaintiffs argue that on August 9, 2019, Plaintiffs took the deposition of Defendant’s PMQ, Mario Haro, which Defendant concedes was “reasonable and necessary.” Plaintiffs argue that the $735 was mislabeled as an expense for an August 9, 2019 hearing and instead is supposed to be for an April 5, 2019 hearing. In reply, Defendant argues that the costs associated with the court reporters were not reasonably incurred but does not give reasons why the costs are unreasonable. Since the court reporter transcript costs are recoverable under Civil Code section 1794 and since the Cost appear to have been reasonably incurred, the Court DENIES the request to tax $3,737.75 in costs as to item 12.

 

Item No. 16 – “Other”

Plaintiffs seek $17,011.15 in costs labeled as other. Defendant argue that the Court should tax item no. 16, by taxing six line-item costs in item 16. Defendant seeks to tax: (1) $416.05 for the various “other” filing fees claimed under Item 16; (2) $2,454.30 for the video-conference deposition costs claimed under Item 16; (3) $932.00 for the additional service of process costs claimed under Item 16; (4) $907.96 for delivery and messenger fees, claimed under Item 16; (5) $623.43 for travel, mileage, parking and meals, claimed under Item 16; and (6) $308.67 for additional “other” costs, claimed under Item 16; and (7) $10,485.10 for expert witness fees not ordered by the Court, claimed under Item 16.

  1. Fees of $416.05 other – electronic fling

Defendant argues that the $416.05 are not recoverable under section 1033.5 because e-filing fees are costs of convenience. In opposition, Plaintiffs argue that these fees are recoverable under the Song-Beverly Act. On reply, Defendant argues that the costs are not reasonably incurred. Defendant has not provided any substantive reasons as to why e-filing costs were not reasonably incurred. Here, such costs are recoverable under the Song-Beverly Act. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137, as modified on denial of reh'g (June 22, 1995).) The Court of Appeal concluded that the legislature intended that the phrase costs and expenses to be broad. (See id. at 138.) Since Defendant has not shown that the costs were not reasonably incurred, the motion to tax these costs is DENIED.

  1. Fees of $2,454.30 for the video-conference deposition costs

Defendant argues that the videoconferencing costs should be taxed because Plaintiffs did not take a video deposition of the expert. In opposition, Plaintiffs argue that such fees were incurred as a result of having to video conference Plaintiffs’ expert for the trial. On reply, Defendant argues that the $2,454.30 in fees for videoconferencing services for Plaintiffs’ expert, Greg Barnett, to appear at trial should be taxed as unreasonable in amount and not reasonably incurred because, at the 11th hour, Plaintiffs attempted to convince the Court that his expert was unavailable for trial based on a false declaration from Plaintiffs’ expert. Defendant has shown that this cost was not reasonably incurred under Civil Code section 1794(d). Therefore, the Court GRANTS Defendant’s request to strike $2,454.30 (line 7 and line 12 on page 7) in fees associated with video conferencing the expert.

  1. Fees of $932.00 for the additional service of process costs and fees of $907.96 for delivery and messenger fees

Defendant argues that the costs of $932.00 for service of trial subpoenas and the $907.96 incurred for delivery and messenger fees were not reasonable and not properly claimed under Code of Civil Procedure section 1033.5. Defendant concludes that these costs were not reasonably incurred. On reply, Defendant insists that the costs are not recoverable under Code of Civil Procedure section 1033.5 As noted above, such costs are recoverable under the Song-Beverly Act and Defendant has not provided evidence to rebut the prima facie showing that the costs incurred were reasonably necessary. The motion to tax these costs is DENIED.

  1. Fees of $308.67 for additional “other” costs, claimed under Item 16 and Fees of $623.43 for travel, mileage, parking and meals

Defendant argues that $308.67 and $623.43 for travel, milage, parking, and meals in costs were not reasonably necessary under Code of Civil Procedure section 1033.5. Defendant has failed to make argument as to Civil Code section 1794(d) with respect to these costs. Defendant has not shown that the costs were not “reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, ; 1794(d).). Therefore, the motion to tax these costs is DENIED.

  1. Fees of $10,485.10 for expert witness fees

Defendant argues that the $10,485.10 in expert fees are not recoverable under Code of Civil Procedure section 1033.5. Defendant argues that the cost of $4,185.00 to prepare Plaintiff’s expert for his deposition are excessive and unsubstantiated. In opposition, Plaintiffs argue that the expert fees are recoverable under Song-Beverly. Plaintiffs provide the expert invoices for the deposition and the trial. (See Ex. 5.) Plaintiffs also point out that Defendant admits that these costs are recoverable under the Song-Beverly Act. It appears that the expert’s hourly rate is $200 per hour and that the expert’s hourly trial testimony rate is $350 per hour. Defendant argues that the expert did not need to spend as much time to prepare for the deposition as was incurred. The expert spent two days preparing for the deposition and two days preparing for trial testimony, or 30 hours combined, at a rate of $200 per hour. These costs are permissible under the Song-Beverly act so long as they are reasonably incurred. The Court finds that the time spent by the expert was not reasonable given the complexity of this case and expert’s testimony at trial. Therefore, the Court grants the motion to tax. The Court taxes $3,000 in preparation time, which the Court believes to have been excessive, such that Plaintiffs’ expert costs read as $7,485.10

Conclusion

For the reasons stated above, the motion to tax costs is GRANTED IN PART AND DENIED IN PART. Defendant to prepare a proposed order consistent with this ruling.



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