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This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 06:20:55 (UTC).

RAMON TE LOMINGKIT VS BMW OF NORTH AMERICA LLC ET AL

Case Summary

On 05/31/2017 RAMON TE LOMINGKIT filed a Contract - Other Contract lawsuit against BMW OF NORTH AMERICA LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL JOHNSON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3315

  • Filing Date:

    05/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL JOHNSON

 

Party Details

Plaintiff and Petitioner

LOMINGKIT RAMON TE

Defendants, Respondents and Cross Plaintiffs

BMW OF NORTH AMERICA LLC

DOES 1 TO 10

PACIFIC BMW

FINCHEY CORPORATION OF CALIFORNIA

FINCHEY CORPORATION OF CALIFORNIA DBA PACIFIC BMW

Cross Defendants

TK HOLDINGS INC.

TAKATA CORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MIKHOV STEVEN B. ESQ.

WIRTZ RICHARD

Defendant and Cross Plaintiff Attorneys

LEWIS BRISBOIS BISGAARD & SMITH LLP

LEWIS BRIBBOIS BISGAARD & SMITH LLP

RAPHAEL ROGER SCOTT

 

Court Documents

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

2/15/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Unknown

2/20/2018: Unknown

REQUEST FOR DISMISSAL

8/2/2018: REQUEST FOR DISMISSAL

Declaration

11/13/2018: Declaration

Declaration

12/28/2018: Declaration

Request for Judicial Notice

12/28/2018: Request for Judicial Notice

Minute Order

1/11/2019: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/11/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Motion re:

2/1/2019: Motion re:

Motion to Deem RFA"s Admitted

3/5/2019: Motion to Deem RFA"s Admitted

Unknown

11/6/2017: Unknown

DEFENDANT AND CROSS- COMPLAINANT BMW OF NORTH AMERICA, LLC AND DEFENDANT FINCHEY CORPORATION OF CALIFORNIA, A CALIFORNIA CORPORATION, D/B/A PACIFIC BMW'S NOTICE OF POSTING JURY FEES

11/6/2017: DEFENDANT AND CROSS- COMPLAINANT BMW OF NORTH AMERICA, LLC AND DEFENDANT FINCHEY CORPORATION OF CALIFORNIA, A CALIFORNIA CORPORATION, D/B/A PACIFIC BMW'S NOTICE OF POSTING JURY FEES

Unknown

11/7/2017: Unknown

CIVIL DEPOSIT

11/7/2017: CIVIL DEPOSIT

PROOF OF SERVICE SUMMONS

6/13/2017: PROOF OF SERVICE SUMMONS

DEFENDANT BMW OF NORTH AMERICA, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT

6/22/2017: DEFENDANT BMW OF NORTH AMERICA, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT

DEFENDANT FINCHEY CORPORATION OF CALIFORNIA, D/B/A PACIFIC BMW'S ANSWER TO PLAINTLFF'S COMPLAINT

6/29/2017: DEFENDANT FINCHEY CORPORATION OF CALIFORNIA, D/B/A PACIFIC BMW'S ANSWER TO PLAINTLFF'S COMPLAINT

NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE RE PROOF OF SERVICE

8/2/2017: NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE RE PROOF OF SERVICE

57 More Documents Available

 

Docket Entries

  • 05/13/2019
  • at 09:30 AM in Department 56; Jury Trial - Held - Continued

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  • 04/30/2019
  • at 08:30 AM in Department 56; Hearing on Motion to Compel Interrogatories (Plaintiff's Responses to Form Interrogatories (Set One)) - Not Held - Advanced and Vacated

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  • 04/30/2019
  • at 08:30 AM in Department 56; Hearing on Motion to Deem Request for Admissions Admitted (Set One) - Not Held - Advanced and Vacated

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  • 04/30/2019
  • at 08:30 AM in Department 56; Final Status Conference - Held - Continued

    Read MoreRead Less
  • 04/30/2019
  • at 08:30 AM in Department 56; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 04/30/2019
  • at 08:30 AM in Department 56; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 04/17/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Judgment on the Pleadings - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 04/15/2019
  • at 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Held

    Read MoreRead Less
  • 04/15/2019
  • at 08:30 AM in Department 56; Hearing on Motion to Compel (Motion to Compel a Person Most Knowledgeable and Request for Sanctions) - Held

    Read MoreRead Less
  • 04/15/2019
  • Minute Order ( (Hearing on Motion to Compel Motion to Compel a Person Most Kn...)); Filed by Clerk

    Read MoreRead Less
104 More Docket Entries
  • 06/13/2017
  • Proof of Service (not Summons and Complaint); Filed by Ramon Te Lomingkit (Plaintiff)

    Read MoreRead Less
  • 06/13/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 06/08/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/08/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/08/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 06/08/2017
  • NOTICE OF CASE MANAGEMENT CONEFRENCE

    Read MoreRead Less
  • 05/31/2017
  • Complaint; Filed by Ramon Te Lomingkit (Plaintiff)

    Read MoreRead Less
  • 05/31/2017
  • COMPLAINT 1. VIOLATION OF THE SONGBEVERLY ACT - BREACH OF 1MFLIED WARRANTY ;ETC

    Read MoreRead Less
  • 05/31/2017
  • SUMMONS

    Read MoreRead Less
  • 05/31/2017
  • DEMAND FOR JURY TRIAL

    Read MoreRead Less

Tentative Rulings

Case Number: BC663315    Hearing Date: July 20, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RAMON TE LOMINGKIT,

Plaintiff,

vs.

BMW OF NORTH AMERICA, LLC, etc., et al.,

Defendants.

CASE NO.: BC663315

[TENTATIVE] ORDER RE: MOTION TO TAX AND/OR STRIKE COSTS

Date: July 20, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Ramon Te Lomingkit

RESPONDING PARTIES: Defendants BMW of North America, LLC (“BMW NA”) and Finchey Corporation of California dba Pacific BMW (“Pacific BMW”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s complaint arises from an allegedly defective Takata airbag in a 2013 BMW 335i (the “Subject Vehicle”) that Plaintiff purchased from Defendants. Plaintiff filed a complaint against Defendants alleging causes of action for: (1) violation of the Song-Beverly Act—Breach of Implied Warranty; (2) Violation of the Song-Beverly Act Section 1793.2; (3) fraudulent inducement—concealment; and (4) fraudulent inducement—intentional misrepresentation. On January 1, 2019, the Court granted Defendants’ motion for summary adjudication as to the second cause of action and denied it as to Plaintiff’s first, third, and fourth causes of action.

Defendants filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that there are no disputed issues of material fact as to the remaining causes of action with respect to Plaintiff’s first, third, and fourth causes of action because Plaintiff admitted at deposition that he sustained no damages or injury of any kind. On October 8, 2019, the Court granted Defendants’ motion for summary judgment in its entirety.

On January 27, 2020, the Court entered judgment with respect to Defendants’ motion for summary judgment, which indicated in part that Plaintiff failed to present a triable issue of material fact as to: (1) the cause of action for breach of the implied warranty of merchantability; and (2) the causes of action alleging fraudulent inducement—concealment and misrepresentation. The Court indicated that it was ordered, adjudged, and decreed that Plaintiff shall take nothing and Defendants shall have judgment against Plaintiff. The Court also indicated that in granting Defendants’ summary judgment motion, judgment was entered in favor of Defendants.

On February 11, 2020, Defendants filed and served a memorandum of costs requesting costs for: (1) filing and motion fees; (2) deposition costs; (3) fees for electronic filing or service; and (4) other costs. In sum, pursuant to their memorandum of costs, Defendants seek $4,478.09 in costs.

Plaintiff filed a motion to tax and/or strike Defendants’ costs on the grounds that many of the claimed costs are unrecoverable, unnecessary, or were excessive in amount. Plaintiff contends that the Court should strike at least $435.00 in costs and up to $4,478.09 in Defendants’ claimed costs.

DISCUSSION

A prevailing party “includes the party with a net monetary recovery . . . [or] a defendant in whose favor a dismissal is entered.” (Code Civ. Proc. § 1032(a)(4).) “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032(b).) California Civil Code, Section 1794(d) provides that “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover . . . the aggregate amount of costs and expenses . . . determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” The Song-Beverly Act “has no comparable provision for prevailing sellers.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990.) California Civil Code, Section 1794(d) “does not expressly disallow recovery of costs by prevailing sellers; any suggesting that prevailing sellers are prohibited from recovering their costs is at most implied.” (Id. at 991.) “Civil Code section 1794(d) does not provide an express exception to the general rule permitting a seller, as a prevailing party, to recover its costs under section 1032(b).” (Id.) “Had the Legislature intended to prohibit prevailing sellers from recovering their costs in litigation, it would not have chosen . . .an obscure mechanism to achieve its purpose.” (Id. at 992.) “[I]f a seller should prevail in an action brought under the [Song-Beverly] Act, it is entitled to costs under section 1032(b).” (Id.)

“Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Id.) “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.” (Id.) “Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Id.) “[T]he items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Once a party shows that an expense or cost was necessarily incurred “the burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683.) “[T]he losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) “[Nevertheless], because the right to costs is governed strictly by statute . . . a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) California Code of Civil Procedure, Section 1033.5(c)(4) gives a court discretion to allow or deny a claimed cost where it is not explicitly allowed or prohibited by Section 1033.5. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Filing and Motion Fees

Defendants seek filing and motion fees in the total amount of $2,093.75 pursuant to Item 1 in the memorandum of costs. Under California Code of Civil Procedure, Section 1033.5(a)(1) filing and motion fees are allowable as costs. Moreover, because Defendants have submitted a verified memorandum of costs, Defendants have presented prima facie evidence that the costs were necessarily incurred.

Plaintiff presents no evidence that the $2,093.75 in filing and motion fees were unnecessary or unreasonable. Neither Plaintiff’s moving nor reply brief attaches a declaration.

Therefore, the Court DENIES Plaintiff’s request to tax $2,093.75 of Defendants’ costs with respect to filing and motion fees.

Deposition Costs

Defendants seek deposition costs in the total amount of $926.25 pursuant to Item 4 in the memorandum of costs. Under California Code of Civil Procedure, Section 1033.5(a)(3)(A) deposition costs are allowable as costs. Moreover, because Defendants have submitted a verified memorandum of costs, Defendants have presented prima facie evidence that the costs were necessarily incurred.

Plaintiff presents no evidence that the $926.25 in deposition costs were unnecessary or unreasonable. Neither Plaintiff’s moving nor reply brief attaches a declaration.

Therefore, the Court DENIES Plaintiff’s request to tax $926.25 of Defendants’ costs with respect to deposition costs.

Fees for Electronic Filing or Service of Documents

Defendants seek costs for fees for electronic filing or service in the total amount of $1,200.09 pursuant to Item 14 in the memorandum of costs. Under California Code of Civil Procedure, Section 1033.5(a) (14) “[f]ees for the electronic filing or service of documents through an electronic service provider if a court requires or orders electronic filing or service of documents” are allowable costs.

The declaration of Defendants’ counsel Sharon Shin (“Shin”) does not indicate that the electronic filing or service of documents via an electronic service provider was required or ordered by the Court. Defendants’ memorandum of costs worksheet, however, indicates that such fees were required by the Court. (Memorandum of Costs Worksheet at ¶ 14.)

Plaintiff presents no evidence that the $1,200.09 in costs for fees for electronic filing or service of documents through an electronic service provider was unnecessary or unreasonable. Neither Plaintiff’s moving nor reply brief attaches a declaration.

Therefore, the Court DENIES Plaintiff’s request to tax $1,200.09 of Defendants’ costs with respect to fees for electronic filing or service of documents through an electronic service provider.

Other Costs (CourtCall)

Defendants seek “other” costs in the total amount of $258.00 pursuant to Item 16 in the memorandum of costs. Defendants’ memorandum of costs worksheet indicates that such costs are for CourtCall. Under California Code of Civil Procedure, Section 1033.5 fees for CourtCall are not explicitly permitted or prohibited.

The declaration of Defendants’ counsel, Sharon Shin (“Shin”) does not set forth any indication about the necessity of incurring fees for CourtCall.

Therefore, the Court exercises its discretion to California Code of Civil Procedure, Section 1033.5(c)(4) and denies Defendants’ request for costs in connection with CourtCall.

The Court GRANTS Plaintiff’s request to tax Defendants’ costs with respect to CourtCall in the amount of $258.00.

Plaintiff’s motion to tax and/or strike costs in GRANTED IN PART.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 20th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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