On 01/23/2018 a Contract - Other Contract case was filed by ISRAEL HERNANDEZ against FORD MOTOR COMPANY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GALPIN MOTORS INC
DOES 1 TO 10
FORD MOTOR COMPANY
10/1/2018: Minute Order
10/1/2018: CASE MANAGEMENT ORDER
3/1/2019: Request for Judicial Notice
3/1/2019: Motion re:
3/19/2019: Request for Judicial Notice
4/2/2019: Minute Order
4/18/2019: Notice of Ruling
4/18/2019: Minute Order
6/4/2019: Substitution of Attorney
2/26/2018: NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF ACTION TO FEDERAL COURT
3/7/2018: NOTICE OF ORDER TO SHOW CAUSE RE PROOF OF SERVICE
1/30/2018: ORDER TO SHOW CAUSE HEARING
1/30/2018: PROOF OF SERVICE SUMMONS
1/31/2018: PROOF OF SERVICE SUMMONS
1/23/2018: COMPLAINT 1. FRAUD IN THE INDUCEMENT - INTENTIONAL MISREPRESENTATION ;ETC
Substitution of Attorney; Filed by Ford Motor Company (Defendant)Read MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion to Compel (Requests for Production) - Held - Motion GrantedRead MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion to Compel (further Responses to Special Interrogatories) - Held - Motion GrantedRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Israel Hernandez (Plaintiff)Read MoreRead Less
Minute Order ( (Hearing on Motion to Compel Requests for Production; Hearing ...)); Filed by ClerkRead MoreRead Less
Notice of Ruling (Ruling Re Plaintiff Israel Hernandez's Motion to Compel Further Responses to Request for Production of Documents and Special Interrogatories From Defendant Ford Motor Company); Filed by ClerkRead MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion to Compel (Motion to Compel Requests for Production) - Not Held - Continued - Court's MotionRead MoreRead Less
at 09:00 AM in Department 61; Hearing on Motion to Compel (Motion to Compel further Responses to Special Interrogatories) - Not Held - Continued - Court's MotionRead MoreRead Less
Minute Order ( (Hearing on Motion to Compel Motion to Compel Requests for Pro...)); Filed by ClerkRead MoreRead Less
Reply ( IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES FROM DEFENDANT FORD MOTOR COMPANY, AND REQUEST FOR SANCTIONS); Filed by Israel Hernandez (Plaintiff)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
DEMAND FOR JURY TRIALRead MoreRead Less
COMPLAINT 1. FRAUD IN THE INDUCEMENT - INTENTIONAL MISREPRESENTATION ;ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Israel Hernandez (Plaintiff)Read MoreRead Less
Case Number: BC691206 Hearing Date: March 04, 2020 Dept: 61
Plaintiff Israel Hernandez’s Motion to Tax Costs is GRANTED in the amount of $13,682.06, leading to a total remaining cost award of $9,573.64.
MOTION TO TAX COSTS
“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).” (California Rules of Court Rule 3.1700, subd. (b)(1).)
“Code of Civil Procedure section 1032, subdivision (b) , guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘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.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).
“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)
Ford seeks costs in the amount of $23,169.98. Hernandez argues that various fees are impermissible or excessive.
Hernandez acknowledges that the present motion is untimely, but seeks relief under Code of Civil Procedure § 473, on the grounds that Hernandez’s counsel erroneously failed to calendar the deadline for filing a motion to tax costs, and did not learn of the error until after the January 3, 2020 post-mediation status conference. (Kalinowski Decl. ¶ 6.) Hernandez thereafter sought ex parte relief from the error, and was told to seek it in a noticed motion to tax costs. (Motion at pp. 2–3.) Ford argues that Hernandez cannot seek section 473 relief because he delayed almost one month before seeking ex parte relief. (Opposition at p. 5.)
The court finds that the calendaring error of Hernandez’s counsel was excusable neglect under Code of Civil Procedure § 473, subd. (b), and that relief from the untimeliness of their motion is appropriate. The court considers Hernandez to have acted with reasonable diligence in seeking both ex parte and noticed-motion relief after discovering the issue. The court will now proceed to analyze the costs to which Hernandez objects.
Hernandez points to the $3,134.73 sought in filing and motion fees, and notes that certain expenses listed thereunder include duplicative charges, and for fees far in excess of the applicable fee schedule. (Motion at p. 6.) These include $1,159.77 for filing fees associated with oppositions to motions to compel, and a $108.40 fee for filing an opposition to a motion for sanctions. (Motion at p. 6.) For claims both $870 in filing fees for an answer and $57.79 for a conformed copy of the same. (Motion at p. 6.) Ford also overcharges for two ex parte applications by $13.65 ($27.30 total) and by $124 for filing two stipulated protective orders. (Motion at p. 6.) Hernandez’s arguments as to these points are corroborated by the applicable LASC fee schedule, and Ford fails to justify them in opposition. Accordingly these $2,347.26 in costs is taxed.
Hernandez next objects to a variety of “other” costs not specifically enumerated as reimbursable under Code of Civil Procedure § 1033.5. (Motion at pp. 8–12.) It is Ford’s burden to justify these costs as reasonable and necessary. (See Foothill-De Anza Community College Dist. V. Emerich (2007) 158 Cal.App.4th 11, 29 [“Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.”].)
Hernandez moves to tax the following “other” costs:
$24.19 sought for meals;
$475.82 for mileage and parking for hearings;
$1,122.90 for research and investigation;
$214.83 for messenger services;
$86 for an appearance fee;
$49.99 for a vehicle history report;
$47.51 for an overnight postage charge;
$655.10 for transcripts of two hearings;
$7,600.38 for bate stamping Ford’s document production;
$1,260.00 in sanctions awarded against Ford by the court;
$135.12 for printing and delivery of ex parte application.
Ford does little to satisfy its burden to show that most of these costs were reasonable and necessary to the litigation, and many of the justifications in its opposition reflect notsomuch reasonable need for the expense as a desire to punish Hernandez for bringing this action. As such, most of these “other” expenses are not compensable. Ford’s attorneys presumably would have eaten meals whether or not a particular deposition had been taken on that day, so the $24.19 in food charges is not compensable. And $488.73 charged for mileage and travel, as well as $86 in a court-call appearance fee, was incurred because Ford insisted that an attorney from another San Diego-based firm attend hearings in this action. The court cannot award $1,122.90 in costs for research and investigation or $49.99 for a vehicle history report, however necessary these charges might have been, since research and investigation charges are expressly non-compensable. (See Code Civ. Proc. § 1033.5, subd. (b)(2).) The court also cannot award $47.51 in “overnight” charges because postage is not a permissible cost. (Code Civ. Proc. § 1033.5, subd. (b)(3).) Ford also fails to justify the necessity of its request for $655.10 in transcripts for hearings except to say that it charged for the transcripts in good faith. (Opposition at p. 10.) Ford also fails to justify the unusual expense of $7,600.38 for bates stamping document production, or explain how this charge was calculated. Nor will the court reimburse Ford for the $1,260.00 in sanctions ordered against it. Accordingly, $11,334.80 of these “other” charges are properly taxed.
Hernandez’s motion to tax costs is therefore GRANTED in the amount of $13,682.06, leading to a total remaining cost award of $9,573.64.
 Hernandez repeatedly argues that the cost items sought are improper because no invoices were provided. However, it is not the burden of the party seeking costs to provide invoices, and costs may be awarded without invoice if they appear proper on their face. (See Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Because Hernandez’s sole objections to the deposition and interpreter fees is the failure to provide receipts for facially appropriate charges, these arguments furnish no basis to tax the costs. (Motion at p. 7.)
 Ford repeatedly states that certain costs, such as the sanctions awarded by this court against them, were “only incurrrred because Plaintiff wrongly brought meritless and legally impermissible claims against Defendants.” (Opposition at pp. 10–11.)
Case Number: BC691206 Hearing Date: October 31, 2019 Dept: 61
Defendant Ford Motor Company’s Motion for Judgment on the Pleadings is GRANTED without leave to amend.
MOTION FOR JUDGMENT ON THE PLEADINGS
A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc. § 438 subd. (c)(2)(A).) If a defendant moves for a judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendant’s motion only if the court finds as a matter of law that the complaint fails to alleges facts sufficient to constitute the cause of action. (See id., § 438 subd. (c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.)
“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings, the court not only should assume that all facts alleged in the SAC are true but also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In particular, the court should liberally construe the alleged facts “‘with a view to attaining substantial justice among the parties.’ [Citation.]” (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232, 44 Cal.Rptr.2d 352, 900 P.2d 601.)
Ford argues that all of Hernandez’s claims are time-barred. (Motion at p. 1.) Ford also argues that Hernandez’s fraud claims are inadequately pleaded. (Motion at p. 1.) Ford finally argues that the basis for the claim against Galpin is unclear. (Motion at p. 1.)
STATUTE OF LIMITATIONS — ALL CAUSES OF ACTION
“An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.” (Com. Code § 2725, subd. (1).) “A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Com. Code § 2725, subd. (2).) This statute applies to Song-Beverly claims, and thus to Hernandez’s Fourth and Fifth Causes of Action. (See Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 214.)
There is a three-year statute of limitations for “[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc., § 338, subd. (d).) Thus a three-years-from-discovery limitations period applies to Hernandez’s First, Second, Third, and Sixth Causes of Action for Fraud.
The “discovery rule. . . postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’” (Ibid..) Courts “look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Ibid.) The accrual of a cause of action in relation to the discovery rule is normally a question of fact. (Id. at p. 810.)
On a demurrer, the court must take as true statements such as that as plaintiff “did not discover, nor suspect, nor was there any means through which her reasonable diligence would have revealed, or through which she would have suspected,” the cause of an injury was the defendant in question. (Id. at p. 811.) However: “A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Id. at p. 808.) The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer. (Ibid.)
Ford argues that all of Hernandez’s claims are barred because he is alleged to have purchased the vehicle on February 13, 2009, and yet he filed the Complaint on January 23, 2018, almost nine years later. (Motion at p. 5.) Ford argues that the Complaint makes clear that Hernandez was on inquiry notice of his claims by May 2009, when he alleges he submitted a mediation complaint to the DMV for having been sold a car that was previously a lemon. (Motion at p. 6; Complaint ¶ 22.) Ford also argues that the Complaint discloses eight repair attempts in 15 months after the sale, from 2009 to 2011, which ought to have placed Hernandez on inquiry notice of the defects, in conjunction with his knowledge of the car’s previous “lemon” status. (Motion at p. 7; Complaint ¶ 55.)
Hernandez, meanwhile argues that repair efforts continued to at least August 2015, and after each repair attempt Ford and its technicians represented that they had “fixed” the problems, and that Hernandez had relied on these representations. (Complaint ¶¶ 24–27.) Hernandez first sought a buy-back of the vehicle in February 2016. (Complaint ¶ 29.)
All of Hernandez’s claims are time-barred. Although it is alleged that Ford’s sales agents told Hernandez that the vehicle had been repurchased for credit reasons, disclosure forms provided with the sale explained that Ford had repurchased the vehicle for defects pursuant to lemon law, and provided a four-page repair history of the vehicle. (Complaint ¶¶ 18–19.) It is further alleged that Hernandez, mere months after the purchase, attempted to initiate a DMV mediation process with Ford, stating that Ford had misrepresented the reasons for which the vehicle had been taken, stating that the DMV had notified him that the vehicle was a “Lemon vehicle,” and further stating that he had obtained a Carfax history report to confirm the history of the vehicle. (Complaint ¶ 22.) In that same notice, Hernandez describes returning to the dealership to complain, and them laughing at him and stating he was a “dumb . . . buyer.” (Complaint ¶ 22.) Once more, this was in May 2009. (Complaint ¶ 22.) It is around this time that Hernandez is alleged to have begun experiencing problems with the vehicle. (Complaint ¶ 23.)
Under the inquiry notice standard that is the basis for the discovery rule, “the limitations period begins once the claimant has notice or information of circumstances to put a reasonable person on inquiry. A claimant need not be aware of the specific ‘facts’ necessary to establish the claim. Once the claimant has a suspicion of wrongdoing, and therefore an incentive to sue, it must decide whether to file suit or sit on its rights. So long as a suspicion exists, it is clear that the claimant must go find the facts; it cannot wait for the facts to find it.
(Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 368, alterations and citations omitted.)
Here, Hernandez is alleged to have purchased the vehicle in February 2009, received documents outlining its repair history and purchase by Ford as a lemon (albeit with oral misrepresentations as to the reason for the buyback), and by May 2009 is alleged to have taken the vehicle in for repairs, received notice of the vehicle’s prior “lemon” status, confronted the dealers about it, , and then attempted to initiate DMV mediation proceedings. Hernandez’s allegations here establish as a matter of law that he was on inquiry notice of the defective nature of his vehicle and the fact that he had been defrauded. Hernandez’s subsequent allegations that mechanics represented that the defects to have been “fixed” over the course of 16 repair attempts from 2009 to 2015 do not alleviate the inquiry notice created at the outset of his purchase of the vehicle. Hernandez’s claims are time-barred.
The Motion for Judgment on the Pleadings is GRANTED without leave to amend.
Defendant to provide notice.