This case was last updated from Los Angeles County Superior Courts on 02/12/2020 at 23:15:20 (UTC).

OCTAVIO HERNANDEZ FRANCO VS KIA MOTORS AMERICA INC

Case Summary

On 04/17/2017 OCTAVIO HERNANDEZ FRANCO filed a Contract - Other Contract lawsuit against KIA MOTORS AMERICA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD FRUIN, ROBERT L. HESS and DANIEL S. MURPHY. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8136

  • Filing Date:

    04/17/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD FRUIN

ROBERT L. HESS

DANIEL S. MURPHY

 

Party Details

Plaintiff, Petitioner and Appellant

FRANCO OCTAVIO HERNANDEZ

Defendants and Respondents

DOES 1-10

KIA MOTORS AMERICA INC

KIA MOTORS AMERICA INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KNIGHT LAW GROUP LLP

MORSE AMY-LYN ESQ.

LEAR EDWARD O

Defendant Attorneys

RUBEN & SJOLANDER LLP

SENIOR JULIAN GALLUS ESQ.

 

Court Documents

PLAINTIFF?S NOTICE OF MOTION AND MOTION FOR AN ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST

6/19/2018: PLAINTIFF?S NOTICE OF MOTION AND MOTION FOR AN ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST

NOTICE RE: CONTINUANCE OF HEARING

7/3/2018: NOTICE RE: CONTINUANCE OF HEARING

Unknown

7/9/2018: Unknown

PLAINTIFF'S NOTICE OF DEFENDANT'S NON-OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST

7/19/2018: PLAINTIFF'S NOTICE OF DEFENDANT'S NON-OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST

AMENDED PROOF OF SERVICE

7/23/2018: AMENDED PROOF OF SERVICE

RULING RE: MOTION FOR ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST BY PLAINTIFF OCTAVIO HERNANDEZ FRANCO

7/26/2018: RULING RE: MOTION FOR ORDER APPOINTING IRENE FRANCO AS SUCCESSOR-IN-INTEREST BY PLAINTIFF OCTAVIO HERNANDEZ FRANCO

Minute Order

7/26/2018: Minute Order

NOTICE OF CASE MANAGEMENT CONFERENCE

8/17/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

Case Management Statement

10/10/2018: Case Management Statement

Case Management Statement

10/12/2018: Case Management Statement

Minute Order

10/25/2018: Minute Order

COMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETC

4/17/2017: COMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETC

SUMMONS

4/17/2017: SUMMONS

DEMAND FOR JURY TRIAL

4/17/2017: DEMAND FOR JURY TRIAL

AFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER

4/25/2017: AFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER

Minute Order

4/26/2017: Minute Order

NOTICE OF CASE REASSIGNMENT

6/30/2017: NOTICE OF CASE REASSIGNMENT

NOTICE OF CASE MANAGEMENT CONFERENCE

9/22/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

26 More Documents Available

 

Docket Entries

  • 02/21/2020
  • Hearing02/21/2020 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Tax Costs

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  • 02/10/2020
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by Octavio Hernandez Franco (Appellant)

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  • 02/03/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion to Tax Costs - Not Held - Continued - Court's Motion

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  • 02/03/2020
  • DocketMinute Order ( (Hearing on Motion to Tax Costs)); Filed by Clerk

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  • 01/27/2020
  • DocketReply (PLAINTIFF?S REPLY TO DEFENDANT KIA MOTORS AMERICA, INC.?S OPPOSITION TO PLAINTIFF?S MOTION TO TAX COSTS); Filed by Octavio Hernandez Franco (Plaintiff)

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  • 01/24/2020
  • DocketAppeal - Notice of Default Issued (NOA 12/30/19 B303334); Filed by Clerk

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  • 01/24/2020
  • DocketOpposition (KMA's Opposition to Plaintiff's Motion to Strike); Filed by Kia Motors America, Inc. (Defendant)

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  • 01/02/2020
  • DocketNotice of Filing of Notice of Appeal (Unlimited Civil) (NOA:12/30/19); Filed by Clerk

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  • 12/30/2019
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by Octavio Hernandez Franco (Appellant)

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  • 11/22/2019
  • DocketDeclaration (of Rizza Gonzales in Support of Plaintiff's Motion to Tax Costs); Filed by Octavio Hernandez Franco (Plaintiff)

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165 More Docket Entries
  • 04/26/2017
  • DocketMinute Order

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  • 04/26/2017
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 04/25/2017
  • DocketAFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER

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  • 04/25/2017
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Octavio Hernandez Franco (Plaintiff)

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  • 04/17/2017
  • DocketSummons; Filed by Octavio Hernandez Franco (Plaintiff)

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  • 04/17/2017
  • DocketCOMPLAINT 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY ;ETC

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  • 04/17/2017
  • DocketDemand for Jury Trial; Filed by Octavio Hernandez Franco (Plaintiff)

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  • 04/17/2017
  • DocketSUMMONS

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  • 04/17/2017
  • DocketComplaint; Filed by Octavio Hernandez Franco (Plaintiff)

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  • 04/17/2017
  • DocketDEMAND FOR JURY TRIAL

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Tentative Rulings

Case Number: BC658136    Hearing Date: February 21, 2020    Dept: 24

Plaintiff Octavio Franco’s motion to tax costs is GRANTED in part. Costs are granted in the reduced amount of $12,280.03.

On April 17, 2017, Plaintiff Octavio Franco (“Plaintiff”) filed this lemon law action against Defendant Kia Motors America Inc. (“Defendant”). The action proceeded to a jury trial on August 6, 2019. On August 14, 2019, the jury returned a verdict in favor of Defendant. On November 4, 2019, Defendant filed a memorandum of costs seeking $12,767.14 in costs.

On November 22, 2019, Plaintiff filed a motion to tax Defendant’s memorandum of costs for $1,400.11, reducing costs claimed to $11,367.03. On January 24, 2020, Defendant filed an opposition to the motion to tax costs. On January 27, 2020, Plaintiff filed a reply.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).)

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.)

Plaintiff identifies specific items of costs not explicitly allowed by CCP section 1133.5(a). The Court will address each in turn.

Lepper Deposition Costs

Plaintiff first moves to tax two related items of costs associated with the deposition of Plaintiff’s expert Tom Lepper: 1) the cancellation fee and 2) the expedited transcript fee.

Lepper’s deposition was scheduled to take place on July 15, 2019. However, since Defense Counsel was in trial, Defendant cancelled the deposition. (Gonzales Decl., ¶ 3.) Defendant’s deposition vendor charged Defendant $250.00 for this cancellation. (Ibid.)

Plaintiff contends that this fee was no necessary or reasonably incurred, due to Defendant’s scheduling conflict. Further, the expedited transcript fee was only incurred because of Defendant’s unilateral cancellation.

In response, Defendant argues that the fees were reasonably incurred because by Friday, July 12, 2019, they still did not receive Plaintiff’s expert materials in violation of Code of Civil Procedure § 2034.415, and Defense Counsel was unforeseeably still engaged in trial in a different matter for an additional day. (Jo Decl. ¶ 1.) Defendant cancelled on July 12, 2019 as soon as counsel became aware of the scheduling conflict. (Jo Decl., ¶ 2.) Defendant asserts that having a court reporter scheduled for a deposition and subsequently cancelling due to unforeseeable circumstances is reasonable. Additionally, Lepper’s deposition would not have been able to go forward even if not for KMA’s counsel’s scheduling because of the lack of Plaintiff’s expert materials. Defendant proposed trailing the deposition by just one or two days, but the earliest date Plaintiff’s counsel’s office provided was July 31, 2019. (Jo Decl., ¶ 4.)

Defendant properly supports these costs as reasonably necessary for the litigation. Certainly, deposition costs associated with experts would be generally allowable. Neither party disputes this. These additional expenses were reasonably necessary to secure the deposition before trial. Simply because Defendant unilaterally cancelled the deposition does not mean the costs are unreasonable. Plaintiff does not show that the cancellation was made in bad faith, or that Defendant should have otherwise foreseen the scheduling conflict in time to avoid the cancellation fee. Scheduling conflicts happen, and Defendant reasonably offered to take the deposition as soon as possible given both counsel’s schedule. The record does not show that the cancellation fee would have been avoided even if Defense counsel cancelled sooner. Thus, the Court cannot determine that the cancellation fee was unreasonably incurred. The record also shows that the earliest time after that deposition was cancelled would have been July 31, 2019, based on Plaintiff’s counsel’s availability. (Jo Decl., ¶ 4.) This led to the deposition being set very close to trial, which justifies the expedited transcript for trial preparation.

Accordingly, the Court will not tax these costs.

Overnight Service Fees

Plaintiff objects to costs in the amount of $146.45 for overnight service. These costs are composed of a service by On-Call on June 11, 2019 in the amount of $87.25, FedEx in the amount of $24.54, and A-1 courier in the amount of $34.66. Defendant argues that these costs should be allowed per to the Court’s authority under §1033.5(c)(4). Defendant states that these are messenger fees, which may be recoverable in the trial court’s discretion if “reasonably necessary to the conduct of the litigation.” (De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.) Foothill found that there was no abuse of discretion to award such costs upon an implied finding they were reasonably incurred. (Ibid.) The plaintiff in Foothill justified the costs for same day messenger service fees since they were necessary to file a supplemental brief and peremptory challenge. (Ibid.)

Defendant states that the service fee incurred with On-Call (6/11/19) for $87.25 was for the personal delivery of the notice of Plaintiff’s deposition and notice of vehicle inspection to Plaintiff’s counsel, Knight Law Group. (Jo Decl., ¶6.) The service fee incurred with FedEx (6/13/19) for $24.54 was for the delivery of KMA’s expert designation. (Jo Decl., ¶7.) The service fee incurred with A-1 Courier (6/26/19) for $34.66 was for the delivery of KMA’s notice and subpoena of Octavio Franco, Jr.’s deposition. (Jo Decl., ¶8.) Defendant concludes, without any reasoned explanation, that each of these deliveries were necessary for trial preparation. While each of the items delivered may have been reasonably necessary for litigation, Defendant has not justified how the nature of deliveries were reasonable. Plaintiff correctly points out that these deliveries could have carried out through more economic means, such as regular U.S. mail. Other than providing convenience to Defendant, there was no reason or necessity to incur these costs for overnight or personal service fees.

Therefore, the $146.45 in costs were not reasonably necessary in this action. Accordingly, those costs will be taxed.

Defendant’s Expert’s Lodging Costs

Plaintiff also objects to the lodging costs for Defendant’s expert, in the Amount of $340.66. Defendant’s expert stayed for one night at a hotel, presumably for attending trial. (MOC Plaintiff contends that this was for Defendant’s convenience, rather than necessity. Plaintiff persuasively states that there is no reason that the in-house expert could not have driven from Orange County to Court for trial rather than staying in a hotel. (Gonzalez Decl., ¶ 4.) Defendant merely argues that the cost was a part of travel expenses, and should not have incurred in any event because it served a 998 offer. The Court does not find this to be a relevant argument. The 998 Offer has little to do with the instant motion, as costs would be awarded by CCP section 1033.5 to Defendant as the prevailing party. The fact that Plaintiff rejected a settlement offer would not make any particular cost reasonable. Further, the costs are not a part of travel expenses, but room and board. Defendant does not demonstrate that these costs were reasonably necessary. Therefore, these costs will also be taxed.

Accordingly, Plaintiff’s motion is GRANTED in part. Costs are granted in the reduced amount of $12,280.03.

Moving party is ordered to give notice.

Case Number: BC658136    Hearing Date: February 03, 2020    Dept: 24

Plaintiff Octavio Franco’s motion to tax costs is GRANTED in part. Costs are granted in the reduced amount of $12,280.03.

On April 17, 2017, Plaintiff Octavio Franco (“Plaintiff”) filed this lemon law action against Defendant Kia Motors America Inc. (“Defendant”). The action proceeded to a jury trial on August 6, 2019. On August 14, 2019, the jury returned a verdict in favor of Defendant. On November 4, 2019, Defendant filed a memorandum of costs seeking $12,767.14 in costs.

On November 22, 2019, Plaintiff filed a motion to tax Defendant’s memorandum of costs for $1,400.11, reducing costs claimed to $11,367.03. On January 24, 2020, Defendant filed an opposition to the motion to tax costs. On January 27, 2020, Plaintiff filed a reply.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).)

“Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (CCP § 1033.5(c)(2).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.)

Plaintiff identifies specific items of costs not explicitly allowed by CCP section 1133.5(a). The Court will address each in turn.

Lepper Deposition Costs

Plaintiff first moves to tax two related items of costs associated with the deposition of Plaintiff’s expert Tom Lepper: 1) the cancellation fee and 2) the expedited transcript fee.

Lepper’s deposition was scheduled to take place on July 15, 2019. However, since Defense Counsel was in trial, Defendant cancelled the deposition. (Gonzales Decl., ¶ 3.) Defendant’s deposition vendor charged Defendant $250.00 for this cancellation. (Ibid.)

Plaintiff contends that this fee was no necessary or reasonably incurred, due to Defendant’s scheduling conflict. Further, the expedited transcript fee was only incurred because of Defendant’s unilateral cancellation.

In response, Defendant argues that the fees were reasonably incurred because by Friday, July 12, 2019, they still did not receive Plaintiff’s expert materials in violation of Code of Civil Procedure § 2034.415, and Defense Counsel was unforeseeably still engaged in trial in a different matter for an additional day. (Jo Decl. ¶ 1.) Defendant cancelled on July 12, 2019 as soon as counsel became aware of the scheduling conflict. (Jo Decl., ¶ 2.) Defendant asserts that having a court reporter scheduled for a deposition and subsequently cancelling due to unforeseeable circumstances is reasonable. Additionally, Lepper’s deposition would not have been able to go forward even if not for KMA’s counsel’s scheduling because of the lack of Plaintiff’s expert materials. Defendant proposed trailing the deposition by just one or two days, but the earliest date Plaintiff’s counsel’s office provided was July 31, 2019. (Jo Decl., ¶ 4.)

Defendant properly supports these costs as reasonably necessary for the litigation. Certainly, deposition costs associated with experts would be generally allowable. Neither party disputes this. These additional expenses were reasonably necessary to secure the deposition before trial. Simply because Defendant unilaterally cancelled the deposition does not mean the costs are unreasonable. Plaintiff does not show that the cancellation was made in bad faith, or that Defendant should have otherwise foreseen the scheduling conflict in time to avoid the cancellation fee. Scheduling conflicts happen, and Defendant reasonably offered to take the deposition as soon as possible given both counsel’s schedule. The record does not show that the cancellation fee would have been avoided even if Defense counsel cancelled sooner. Thus, the Court cannot determine that the cancellation fee was unreasonably incurred. The record also shows that the earliest time after that deposition was cancelled would have been July 31, 2019, based on Plaintiff’s counsel’s availability. (Jo Decl., ¶ 4.) This led to the deposition being set very close to trial, which justifies the expedited transcript for trial preparation.

Accordingly, the Court will not tax these costs.

Overnight Service Fees

Plaintiff objects to costs in the amount of $146.45 for overnight service. These costs are composed of a service by On-Call on June 11, 2019 in the amount of $87.25, FedEx in the amount of $24.54, and A-1 courier in the amount of $34.66. Defendant argues that these costs should be allowed per to the Court’s authority under §1033.5(c)(4). Defendant states that these are messenger fees, which may be recoverable in the trial court’s discretion if “reasonably necessary to the conduct of the litigation.” (De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.) Foothill found that there was no abuse of discretion to award such costs upon an implied finding they were reasonably incurred. (Ibid.) The plaintiff in Foothill justified the costs for same day messenger service fees since they were necessary to file a supplemental brief and peremptory challenge. (Ibid.)

Defendant states that the service fee incurred with On-Call (6/11/19) for $87.25 was for the personal delivery of the notice of Plaintiff’s deposition and notice of vehicle inspection to Plaintiff’s counsel, Knight Law Group. (Jo Decl., ¶6.) The service fee incurred with FedEx (6/13/19) for $24.54 was for the delivery of KMA’s expert designation. (Jo Decl., ¶7.) The service fee incurred with A-1 Courier (6/26/19) for $34.66 was for the delivery of KMA’s notice and subpoena of Octavio Franco, Jr.’s deposition. (Jo Decl., ¶8.) Defendant concludes, without any reasoned explanation, that each of these deliveries were necessary for trial preparation. While each of the items delivered may have been reasonably necessary for litigation, Defendant has not justified how the nature of deliveries were reasonable. Plaintiff correctly points out that these deliveries could have carried out through more economic means, such as regular U.S. mail. Other than providing convenience to Defendant, there was no reason or necessity to incur these costs for overnight or personal service fees.

Therefore, the $146.45 in costs were not reasonably necessary in this action. Accordingly, those costs will be taxed.

Defendant’s Expert’s Lodging Costs

Plaintiff also objects to the lodging costs for Defendant’s expert, in the Amount of $340.66. Defendant’s expert stayed for one night at a hotel, presumably for attending trial. (MOC Plaintiff contends that this was for Defendant’s convenience, rather than necessity. Plaintiff persuasively states that there is no reason that the in-house expert could not have driven from Orange County to Court for trial rather than staying in a hotel. (Gonzalez Decl., ¶ 4.) Defendant merely argues that the cost was a part of travel expenses, and should not have incurred in any event because it served a 998 offer. The Court does not find this to be a relevant argument. The 998 Offer has little to do with the instant motion, as costs would be awarded by CCP section 1033.5 to Defendant as the prevailing party. The fact that Plaintiff rejected a settlement offer would not make any particular cost reasonable. Further, the costs are not a part of travel expenses, but room and board. Defendant does not demonstrate that these costs were reasonably necessary. Therefore, these costs will also be taxed.

Accordingly, Plaintiff’s motion is GRANTED in part. Costs are granted in the reduced amount of $12,280.03.

Moving party is ordered to give notice.