Preview
1/7/2021
1 SPENCER P. HUGRET (SBN 240424)
shugret@grsm.com
2 AMY MACLEAR (SBN 215638)
amaclear@grsm.com
3 KATHERINE P. VILCHEZ (SBN 212179)
kvilchez@grsm.com
4 HAILEY M. ROGERSON (SBN 311918)
hrogerson@grsm.com
5 GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
6 San Francisco, CA 94111
Telephone: (415) 986-5900
7 Facsimile: (415) 986-8054
8 Attorneys for Defendant
FORD MOTOR COMPANY
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN MATEO
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Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 DAVID FERGUS TAGGART, and MICHELE ) Case No. CIV538275
San Francisco, CA 94111
TAGGART, ) Unlimited Jurisdiction
13 )
Plaintiff, ) DEFENDANT FORD MOTOR
14 ) COMPANY’S MEMORANDUM OF
vs. ) POINTS AND AUTHORITIES IN
15 ) SUPPORT OF ITS MOTION TO
FORD MOTOR COMPANY, et al., a Delaware ) STRIKE/TAX PLAINTIFFS’
16 Corporation, and DOES 1 through 10, inclusive, ) MEMORANDUM OF COSTS
)
17 Defendant. ) [Served concurrently with Notice of
) Motion and Motion to Strike/Tax Costs;
18 ) Declarations of Katherine P. Vilchez
) and John Shea Pierce; and [Proposed]
19 ) Order]
)
20 ) Date: February 9, 2021
) Time: 2:00 p.m.
21 ) Dept.: 4
)
22 Complaint Filed: April 20, 2016
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION............................................................................................................6
4 II. STATEMENT OF FACTS ..............................................................................................6
5 A. Any Costs Associated with Plaintiffs’ Motion To Reset Trial (and Related
Ex PArte) Should Be Stricken. ............................................................................7
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B. Any Costs Associated with Ford’s Motion to Coordinate the Taggart Action
7 Into JCCP 4924 Should Be Stricken. .................................................................8
8 C. Any Costs Associated with Ford’s Motion for Leave to Amend the Answer
Should Not Be Recoverable. ................................................................................9
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D. Any Costs Associated with the Filing, and Appearance at the Hearing, of the
10 Multiple Fee Motions Should Not Be Recoverable. ..........................................9
11 E. The Costs Attributed to the Witness Fees Are Improperly Calculated
Gordon Rees Scully Mansukhani, LLP
..............................................................................................................................10
275 Battery Street, Suite 2000
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San Francisco, CA 94111
F. Any Costs And Expert Fees Associated Plaintiffs’ Expert, Barbara Luna,
13 Should Be Excluded As They Are Not Recoverable. ......................................10
14 1. Dr. Luna’s Fees, And Costs Related Thereto, Are Not Recoverable As
She Was Not Disclosed To Opine On The Song-Beverly Causes Of
15 Action. ......................................................................................................10
16 2. Dr. Luna’s Fees Are Improbable and Largely Unnecessary. ...................11
17 G. The Costs Attributed to Thomas Lepper Should Be Reduced. .....................12
18 H. Plaintiffs’ Counsel Cannot Recuperate Travel Costs For Local
Appearances. ......................................................................................................13
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III. LEGAL ARGUMENT AND AUTHORITIES ............................................................13
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A. Plaintiffs Have the Burden of Establishing Their Costs Were Reasonable
21 and Necessary. ....................................................................................................13
22 B. The Costs Relating To Several Motions Should Be Excluded. ......................15
23 C. The Costs Relating To Plaintiff’s Expert, Dr. Luna, Should Be Excluded
..............................................................................................................................16
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D. The Costs Relating To Plaintiff’s Expert, Mr. Lepper, Should Be Reduced
25 or Omitted...........................................................................................................18
26 E. The Costs for Local Appearances Should Be Stricken. ..................................18
27 F. Plaintiffs’ Memorandum Of Costs Is Not Supported By Evidence And
Lacks The Requisite Detail. ..............................................................................19
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 IV. CONCLUSION ..............................................................................................................20
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Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
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San Francisco, CA 94111
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 TABLE OF AUTHORITIES
Page(s)
2 Cases
3 Bach v. County of Butte
(1989) 215 Cal.App.3d 294 .....................................................................................................14
4
Baker v. Mulholland & Security Patrol, Inc.
5 (2012) 204Cal.App.4th 776 .....................................................................................................16
6 Davis v. KGO-T.V., Inc.
(1998) 17 Cal.4th 436 ..............................................................................................................14
7
Garcia v. Hyster Co.
8 (1994) 28 Cal.App.4th 724 ......................................................................................................14
9 Gorman v. Tassajara Development Corp.
(2009) 178 Cal.App.4th 44 ......................................................................................................18
10
Hensley v. Eckerhart
11 (1983) 461 U.S. 424 .................................................................................................................19
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 Jones v. Dumrichob
San Francisco, CA 94111
(1998) 63 Cal.App.4th 1258 ....................................................................................................14
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Ladas v. California State Automobile Association
14 (1993) 19 Cal.App.4th 761 ......................................................................................................18
15 Levy v Toyota Motor Sales, U S A, Inc.
(1992) 4 Cal App 4th 807 ........................................................................................................19
16
Melnyk v Robeldo
17 (1976) 64 Cal App 3d 618 .......................................................................................................19
18 Nusser v. Lakeridge Athletic Club
(2014) 227 Cal.App.4th 571 ....................................................................................................14
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Perkos v. RRNS Enterprises
20 (1992) 4 Cal.App.4th 238 ........................................................................................................14
21 Posey v. State of California
(1986) 180 Cal.App.3d 836 .....................................................................................................14
22
Stockton Theatres, Inc. v. Palermo
23 (1956) 47 Cal.2d 469 ...............................................................................................................13
24 Statutes
25 Civil Code
Section 1790 ............................................................................................................................14
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Civil Code
27 Section 1794 ................................................................................................................10, 14, 17
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 Code of Civil Procedure
Section 1032 ............................................................................................................................13
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Code of Civil Procedure
3 Section 1033.5 .......................................................................................................13, 14, 17, 18
4 Rules
5 California Rules of Court
Rule 3.1335 ................................................................................................................................7
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275 Battery Street, Suite 2000
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 I. INTRODUCTION
2 Plaintiffs David Fergus Taggart and Michelle Taggart (“Plaintiffs”) have again filed a
3 Memorandum of Costs (for a third time), in the amount of $52,143.63, in support of their Motion
4 for Attorney’s Fees, Costs and Expenses. Defendant Ford Motor Company’s (“Ford”) Motion
5 to Strike/Tax Plaintiffs’ Memorandum of Costs seeks to strike the costs, as detailed below, that
6 are excessive, unnecessary and impermissible. And, despite this being their third time to submit
7 a Memorandum of Costs, Plaintiffs’ counsel has again failed to offer any evidence, including
8 receipts, to support the costs requested. Initially, Plaintiffs have incorrectly added their costs
9 related to witnesses to total $27,031.59. When added correctly, the total is $16,991.45, a
10 difference of $10,040.41, which should be subtracted. Moreover, based on the prior receipts
11 submitted in Plaintiffs’ prior Opposition to Ford’s original Motion to Tax Costs, Ford expects
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 to request reductions in costs (at a minimum), as follows, related to: (1) Motions that were
San Francisco, CA 94111
13 deemed unnecessary or improper (-$3,092.78); (2) expert fees and costs that are not allowed by
14 statute (Dr. Barbara Luna -$15,149.00); (3) expert fees/costs that are unreasonable; (4)
15 unnecessary travel expenses totaling $13,884.25, which are largely not described or itemized;
16 and, (5) other vague entries that are unsupported by evidence (-$10,519.47).
17 II. STATEMENT OF FACTS
18 On September 4, 2018, Plaintiffs filed this action against Ford, asserting causes of action
19 for Breach of Express and Implied Warranties-Violations of the Song-Beverly Consumer
20 Warranty Act for alleged defects in their vehicle (collectively, the “Song-Beverly causes of
21 action”), as well as, causes of action for Fraudulent Inducement-Concealment, Fraudulent
22 Inducement-Intentional Misrepresentation, and Fraudulent Inducement-Negligent
23 Misrepresentation causes of action (collectively, the “Fraud-Based causes of Action”). (See,
24 Declaration of Katherine P. Vilchez (“Vilchez Decl.”), ¶2.) In March of 2019, the matter settled
25 for $170,000 at the Mandatory Settlement Conference. (Vilchez Decl., ¶3, Exh. A.) By August
26 5, 2019, the settlement agreement and release (“SAR”) had been fully executed. (Id.) Now,
27 sixteen months later, Plaintiff’s counsel has filed a third Motion for Fees and Costs (“Fee
28 Motion”), totaling $356,417.88, which includes a 1.5 loadstar multiplier. The underlying
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
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3 Memorandum of Costs totals $52,143.63. (Vilchez Decl., Exh. I.) Below, Ford has detailed
4 the costs requested by Plaintiffs that should be stricken from Plaintiffs’ Memorandum of Costs.1
5 A. Any Costs Associated with Plaintiffs’ Motion To Reset Trial (and Related Ex
PArte) Should Be Stricken.
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At page 5:3-9 of their Fee Motion, Plaintiff discusses its Motion to Reset the Trial Date,
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which was heard on February 16, 2018. (Moving Papers, p. 5:3-9.) What Plaintiffs fail to
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explain is that, in its ruling of the Motion, the Court found that this Motion not only lacked
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“good cause,” but was deceptive in nature and frivolous, stating:
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Plaintiffs have not demonstrated good cause to reset the trial date given the status of
11 the coordination action. (Cal. Rules of Court, rule 3.1335(b).) . . .
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 The grounds for Plaintiffs bringing this motion are not well taken. (Notice of Motion,
San Francisco, CA 94111
p. 2:9-14.) . . .
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The declaration of Jessica R. Underwood in support of this motion is artfully worded
14 to limit this lack of knowledge to only herself and her firm Wirtz Law, and not co-
counsel Mr. Mikhov and Knight Law Group. (Underwood Dec. ISO Motion, para. 12.)
15 ...
16 It is disingenuous for Plaintiffs to now argue that “Ford’s counsel allowed Plaintiffs’
counsel to operate on the mistaken belief that the case was included in the coordination,
17 and that some action was required to attempt to remove itfrom the coordination to
allow it to proceed individually” when co-counsel Knight Law already knew this.
18 (Memo. Pts. & Auth ISO Motion, p. 7:16-21.) . . . .
19 [ ] Ms. Underwood's statement that “Wirtz Law APC, did not learn of this case’s
exemption from the coordination until [on or around December 2017], when my
20 colleague Amy Smith was speaking to an attorney at Knight Law Group, LLP” is not
well taken. (Underwood Dec., para. 15.) As the two firms are co-counsel in the instant
21 action, no sufficient explanation is given for co-counsel's failure to communicate with
each other in the diligent prosecution of this action on behalf of Plaintiffs prior to the
22 October 2 status conference. . . .
23 The Court admonishes both Wirtz Law and Knight Law for bringing this frivolous
motion. Had Ford sought monetary sanctions in opposition, the Court would have
24 strongly considered granting them against Plaintiffs and their co-counsel. (Vilchez
Decl., Exh. B, (emphasis added).)
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In their Motion for Fees and Costs, Plaintiffs offered a skewed recitation of the underlying facts of this case in
27 its Motion to apparently attempt re-litigate the case, and sway this Court.
However, Ford will not pepper this
Motion, or its Opposition to Plaintiffs’ Motion for Fees, with unnecessary facts, and will only address pertinent
28 facts that would affect the amount of fees and costs which should be awarded.
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 From the Memorandum of Costs that has been submitted for the third time, Ford cannot
2 ascertain what costs are actually associated with Plaintiffs’ counsel filing this Motion, and
3 appearing at the hearing thereon (including costs for travel). However, itis clear from the
4 Court’s response to the Motion that Plaintiffs should have to identify said costs (including travel
5 costs), so that the Court can strike said costs as unreasonable.
6 Prior to the above Motion being heard, on December 14, 2017, Plaintiffs filed an Ex
7 Parte Application to reset the trial date which attached the Memorandum of Points and
8 Authorities found in above Motion to Reset the Trial Date, as their substantive argument in
9 support of the Ex Parte Application. (Moving Papers, p. 5:3-9 and Vilchez Decl., ¶5.) The
10 Court denied the Ex Parte Application outright as there were no exigent circumstances for the
11 Motion to be heard on shortened time. (Id.) However, the substantive argument for the Ex Parte
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 Application was the same as the Motion that was ultimately found to be deceptive and
San Francisco, CA 94111
13 potentially sanctionable, supra. (Id.) Thus, the costs associated with this Application should be
14 stricken as unreasonable. As Plaintiffs again fail to identify which costs are associated with the
15 filing and serving of said Application, as well as the costs for attending the hearing, Plaintiffs
16 should have to identify said costs (including travel costs), so that the Court can strike said costs
17 as unreasonable.
18 B. Any Costs Associated with Ford’s Motion to Coordinate the Taggart Action Into
JCCP 4924 Should Be Stricken.
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20 At page 5:13-15, Plaintiff’s Fee Motion also improperly addresses a Motion filed by Ford
21 in Judicial Council Coordination Proceeding No. 4924-Ford Motor Transmission cases (“JCCP
22 4924”), which is housed in Sacramento Superior Court. JCCP 4924 is a group of Northern
23 California coordinated cases that address essentially the same causes of action and facts (relating
24 to the purported defects in the DPS6 transmission) that are asserted in the Taggart action.
25 (Vilchez Decl., ¶6.) However, the costs relating to this Motion should not be considered as
26 recoverable in this action as the Motion was not filed in this case. (Id.) The Motion was filed
27 in JCCP 4924, and heard before the Coordination Judge who presides over those cases. (Id.)
28 As such, any recouping of costs related thereto should be addressed before the JCCP 4924 Court,
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 and not this Court, as the JCCP 4924 Motion was not filed or heard in this action. Plaintiffs
2 again fail to identify which costs are associated with the filing and serving of said Opposition to
3 the JCCP 4924 Motion, as well as the costs for attending the hearing. Thus, Plaintiffs should
4 have to identify said costs (including travel costs) relating to opposing, and attending the hearing
5 on, the JCCP 4924 Motion, so that the Court can strike said costs as unreasonable.2
6 C. Any Costs Associated with Ford’s Motion for Leave to Amend the Answer Should
Not Be Recoverable.
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At page 5:17-20 of their Fee Motion, Plaintiff discusses Ford’s Motion for Leave to
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Amend its Answer. With this Motion, Ford was seeking to amend its answer to admit liability
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as to the Song-Beverly causes of action. (Vilchez Decl., ¶16, Exh. G.) And, despite this
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significantly advancing Plaintiffs’ successful prosecution of their Song-Beverly Claims,
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Gordon Rees Scully Mansukhani, LLP
Plaintiffs opposed this Motion. (Id.) Whatever Plaintiffs’ counsels’ motive was, their
275 Battery Street, Suite 2000
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San Francisco, CA 94111
opposing a Motion that would result in Ford admitting liability under the Song-Beverly Act,
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cannot be seen as “reasonable” costs associated to the prosecution of Plaintiffs’ Song-Beverly
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claims.3 As Plaintiffs again fail to identify which costs are associated with the serving of the
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Opposition, as well as the costs for attending the hearing, Plaintiffs should have to identify
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said costs (including travel costs), so that the Court can strike said costs as unreasonable.
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D. Any Costs Associated with the Filing, and Appearance at the Hearing, of the
18 Multiple Fee Motions Should Not Be Recoverable.
19 Steve Mikhov, of Knight Law, states, in Paragraph 21 of his Declaration in support of
20 Plaintiffs’ Fee Motion, that
21 During negotiation of the settlement and release agreement, the issue of attorney’s fees and
costs was discussed and Ford stated clearly that it would be opposing any motion for
22 attorney’s fees and arguing that fees should be apportioned between Plaintiffs’ Song
Beverly Act and fraud claims. There was no chance of the parties resolving the issue of
23 attorney’s fees, costs, and expenses on their own without Plaintiffs simply agreeing to
massive reductions to purportedly account for time spent on the fraud claim.
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This is simply untrue, Plaintiffs’ counsel has not contacted Ford’s counsel once to discuss
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settling the fees and costs in this matter, much less, made any “reasonable effort” to do so.
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Moreover, if this Court was to consider the JCCP 4924 Motion as somehow recoverable, the Court should be
27 aware that the Taggart case, was only one of four cases that the JCCP 4924 Motion addressed, and as such, any
costs related thereto should be divided by four. (Vilchez Decl., ¶6.)
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Although the Court granted the Motion, Ford did not ultimately file an Amended Answer in this action.
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 (Vilchez Decl., ¶7.) As such, Plaintiffs’ counsel should not be rewarded for misleading this
2 Court and failing to put forth any effort to resolve, or narrow the issues relating to, this matter
3 absent Court intervention. Thus, Plaintiffs should have to identify said costs (including travel
4 costs) relating to the filing and appearance on this Motion, and eliminate them from the
5 Memorandum of Costs, as they are clearly unreasonable and not in “good faith.”
6 E. The Costs Attributed to the Witness Fees Are Improperly Calculated
7 Plaintiffs request $27,031.59 for “Witness Fees” which are solely comprised of Expert
8 Fees. However, when the amount properly added, it only totals $16,991.45. (Vilchez Decl.,
9 Exh. I, (Memorandum of Costs) (“MOC”) at page 3-4, Section 8.) Thus, $10,040.41 must be
10 subtracted from the total requested by Plaintiffs.
11 F. Any Costs And Expert Fees Associated Plaintiffs’ Expert, Barbara Luna, Should
Gordon Rees Scully Mansukhani, LLP
Be Excluded As They Are Not Recoverable.
275 Battery Street, Suite 2000
12 1. Dr. Luna’s Fees, And Costs Related Thereto, Are Not Recoverable As She Was
San Francisco, CA 94111
13 Not Disclosed To Opine On The Song-Beverly Causes Of Action.
As will be shown below, expert fees, are distinctly different from other litigation costs, as
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they are not generally recoverable except as authorized by statute. Here, the only specific
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statutory provision that allows Plaintiffs’ to move to recover costs (and attorney’s fees) is Civil
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Code section 1794(d), found under the Song-Beverly Act, commonly known as the California’s
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Lemon Law. However, unlike Plaintiffs’ other experts, Messrs. Micale and Lepper, who were
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disclosed to opine as to Plaintiffs’ Song-Beverly Causes of Action, Dr. Luna was disclosed to
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only offer opinions on Plaintiffs’ Fraud-Based Causes of Action. As such, Plaintiffs cannot
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avail themselves of the statutory fee and cost-shifting provisions found in the Song-Beverly Act
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to recoup Dr. Luna’s fees, and related costs. Thus, the $14,847.47 attributed to Dr. Luna’s
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expert fees, and related costs, in the Memorandum of Costs should not be deemed recoverable
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costs for Plaintiffs.
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Initially, the scope of expert Dr. Luna’s expert disclosure clearly indicates that she was
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designated to address Plaintiff’s Fraud-Based Causes of Action:
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 2. [ ] Dr. Luna has at least thirteen certifications and accreditations, including Certified
Fraud Examiner. [ ]
2
3. Dr. Luna is expected to testify in Plaintiffs’ case in chief as to matters including, but not
3 limited to, indicia of fraud, corporate business culture, customs and practices, industry
standards of concealing or omitting material information, the materiality of such
4 information, repeated intentional omissions, and corporate philosophy and risk
management strategy.
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4. Dr. Luna is also expected to testify as to the valuation of damages based on the financial
6 impact of omissions, the quantification of culpability of the defendant, the quantification
of the reprehensibility of Ford's conduct including, but not limited to, the repeated
7 wrongdoing, and profitability of the scheme. (Vilchez Decl., Exh. C, (emphasis added.)
8 Moreover, as is apparent from other DPS6 transmission cases filed by Plaintiff’s counsel,
9 Plaintiff’s counsel discloses Dr. Luna as an expert when Plaintiffs allege Fraud-Based Causes
10 of Action in other Knight Law cases (e.g., the Buck, Lytle, Belmore, Murphy, Bartlett and
11 Matthews cases). (Vilchez Decl., ¶9.) And, Plaintiff’s counsel does not disclose Dr. Luna as
Gordon Rees Scully Mansukhani, LLP
an expert when Plaintiffs do not allege Fraud-Based Causes of Action in other DPS6
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13 transmission cases (e.g., the Vanvleet and Larson4 cases). (Id.)
14 As such, it is clear that Dr. Luna is disclosed in DPS6 transmission cases (including this
15 case) to opine solely as to Plaintiffs’ Fraud-Based Causes of Action. Thus, as will be shown
16 below, because Dr. Luna was not disclosed to support Plaintiff’s Song-Beverly Causes of
17 Action, her expert fees, and related costs, should not be recoverable.
18 2. Dr. Luna’s Fees Are Improbable and Largely Unnecessary.
19 Assuming arguendo that the Court were to consider Dr. Luna’s fees as recoverable, there
20 are notable irregularities with their computation. First, there is no rate for Dr. Luna’s fees (or
21 supporting documentation) to allow the Court, or Ford, to ascertain whether the hours expended
22 are reasonable or necessary. The fee rate simply says “varies.” (MOC, p. 4, 8.b., lines (2) and
23 (3).) This is insufficient.
24 Second, Dr. Luna hours show that she charged for 39.25 hours in one day (3.30.17), for a
25 total of $11,208.75, which is an impossibility. (MOC, p. 4, 8.b., line (2).) Surely, this sloppy
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In the Larson action, fraud-based causes of action have been asserted, but the parties have been ordered to
arbitrate these causes of action.As such, the parties are going to trial on the Song-Beverly causes of action alone,
28 and accordingly Plaintiffs have not designated Dr. Luna, or any other fraud expert, for this trial.
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 and vague accounting cannot be the standard by which costs are awarded. Again, Plaintiffs
2 should have to provide support for these figures to recuperate these costs.
3 Third, Dr. Luna hours reflect 5.5 hours she spent to attend her April 3, 2017 deposition in
4 this case ($3,638.72). (MOC, p. 4, 8.b., line (3).) However, her deposition lasted less than 2
5 hours (11:05 a.m. to 12:56 p.m.), and Ford already paid her invoice for attending the deposition
6 in the amount of $1,485.00. (Vilchez Decl., ¶10, Exh. D.) As such, an inquiry should be made
7 as to the reason for these charges, and whether the charges include fees that have already been
8 paid.
9 Fourth, Dr. Luna’s alleged preparation for her deposition is extremely excessive in this
10 case. Here is the comparison of the costs for Dr. Luna’s preparation in four other DPS6 cases
11 with the same Fraud-Based Causes of Action alleged, and essentially the same fraud-related
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 facts asserted, as is in this matter (Vilchez Decl., ¶11.):
San Francisco, CA 94111
13 Case Date Hours Amount
TAGGART 3/17/2017 39.25 $11,208.75
14 ARROYO 2/17/2019 35.5 $6,831.70
LYTLE 4/11/2018 38.5 $5,459.25
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BARTLETT 11/21/2017 4.5 $2,227.50
16 MURPHY 10/30/2017 12.5 $2,497.50
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Looking at the above sums as exemplars, Dr. Luna costs in this matter equal between
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164% and 503% of what she has billed in the past. Such an outlier amount should not be
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awarded without further questioning the basis for such an increase.
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G. The Costs Attributed to Thomas Lepper Should Be Reduced.
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On February 21, 2017, Plaintiffs designated their expert, Thomas Lepper, as follows:
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Mr. Lepper is expected to testify at trial as to matters including, but not limited to
23 the subject vehicle and its warranty and repair history, testing procedures,
interpretation of results and further diagnostic repair procedures, both generally and
24 as regards the subject vehicle, reasonableness of repair attempts regarding the
subject vehicle, his inspection of the subject vehicle, and warranty repair
25 procedures. (Vilchez Decl., Exh. E.)
26 On March 28, 2017, Mr. Lepper conducted a Vehicle Inspection, for which Plaintiffs are
27 alleging costs of $1,166.09 for 6.7 hours. (Vilchez Decl., ¶13 and MOC, p. 4, 8.b., line (1).)
28 On April 4, 2017, his deposition was taken, for which Plaintiffs are alleging costs of $977.89
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DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS
1 for 9 hours. (Id., and MOC, p. 4, 8.b., line (4).) It should be noted that Mr. Lepper’s hours
2 reflect 9 hours he spent to attend his April 4, 2017 deposition in this case ($977.89). (MOC, p.
3 4, 8.b., line (4).) However, his deposition lasted only 2 hours and 14 minutes (10:00 a.m. to
4 12:14 p.m.), and Ford already paid his invoice for attending the deposition in the amount of
5 $825.00. (Vilchez Decl., ¶14, Exh. F.) As such, an inquiry should be made as to the reason for
6 these charges, and whether the charges include fees that have already been paid, especially since
7 he lives in Benicia, California, 36 miles from where the deposition was taken.5 (Id.)
8 H. Plaintiffs’ Counsel Cannot Recuperate Travel Costs For Local Appearances.
9 Plaintiffs are requesting $13,884.25 in travel costs.1 This case was filed in San Mateo
10 Superior Court, and every deposition was taken locally (within 75 miles of the Court).
11 Specifically, the Plaintiffs’ and expert’s depositions were taken in San Francisco at the offices
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275 Battery Street, Suite 2000
12 of Gordon & Rees. (Vilchez Decl., ¶15.) And, the dealership witness depositions were taken
San Francisco, CA 94111
13 in Redwood City. (Id.) As such, this exorbitant request for $13,884.25 in travel costs, which
14 is apparently for attendance of local depositions, and possibly appearances at hearings, should
15 be excluded. Moreover, if any of these travel costs are to be considered, Plaintiffs should be
16 required to itemize the travel so that the Court, and Ford, can ascertain if they are reasonable
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1/7/2021 1 SPENCER P. HUGRET (SBN 240424) shugret@grsm.com 2 AMY MACLEAR (SBN 215638) amaclear@grsm.com 3 KATHERINE P. VILCHEZ (SBN 212179) kvilchez@grsm.com 4 HAILEY M. ROGERSON (SBN 311918) hrogerson@grsm.com 5 GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 6 San Francisco, CA 94111 Telephone: (415) 986-5900 7 Facsimile: (415) 986-8054 8 Attorneys for Defendant FORD MOTOR COMPANY 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN MATEO 11 Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 DAVID FERGUS TAGGART, and MICHELE ) Case No. CIV538275 San Francisco, CA 94111 TAGGART, ) Unlimited Jurisdiction 13 ) Plaintiff, ) DEFENDANT FORD MOTOR 14 ) COMPANY’S MEMORANDUM OF vs. ) POINTS AND AUTHORITIES IN 15 ) SUPPORT OF ITS MOTION TO FORD MOTOR COMPANY, et al., a Delaware ) STRIKE/TAX PLAINTIFFS’ 16 Corporation, and DOES 1 through 10, inclusive, ) MEMORANDUM OF COSTS ) 17 Defendant. ) [Served concurrently with Notice of ) Motion and Motion to Strike/Tax Costs; 18 ) Declarations of Katherine P. Vilchez ) and John Shea Pierce; and [Proposed] 19 ) Order] ) 20 ) Date: February 9, 2021 ) Time: 2:00 p.m. 21 ) Dept.: 4 ) 22 Complaint Filed: April 20, 2016 23 24 25 26 27 28 -1- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION............................................................................................................6 4 II. STATEMENT OF FACTS ..............................................................................................6 5 A. Any Costs Associated with Plaintiffs’ Motion To Reset Trial (and Related Ex PArte) Should Be Stricken. ............................................................................7 6 B. Any Costs Associated with Ford’s Motion to Coordinate the Taggart Action 7 Into JCCP 4924 Should Be Stricken. .................................................................8 8 C. Any Costs Associated with Ford’s Motion for Leave to Amend the Answer Should Not Be Recoverable. ................................................................................9 9 D. Any Costs Associated with the Filing, and Appearance at the Hearing, of the 10 Multiple Fee Motions Should Not Be Recoverable. ..........................................9 11 E. The Costs Attributed to the Witness Fees Are Improperly Calculated Gordon Rees Scully Mansukhani, LLP ..............................................................................................................................10 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 F. Any Costs And Expert Fees Associated Plaintiffs’ Expert, Barbara Luna, 13 Should Be Excluded As They Are Not Recoverable. ......................................10 14 1. Dr. Luna’s Fees, And Costs Related Thereto, Are Not Recoverable As She Was Not Disclosed To Opine On The Song-Beverly Causes Of 15 Action. ......................................................................................................10 16 2. Dr. Luna’s Fees Are Improbable and Largely Unnecessary. ...................11 17 G. The Costs Attributed to Thomas Lepper Should Be Reduced. .....................12 18 H. Plaintiffs’ Counsel Cannot Recuperate Travel Costs For Local Appearances. ......................................................................................................13 19 III. LEGAL ARGUMENT AND AUTHORITIES ............................................................13 20 A. Plaintiffs Have the Burden of Establishing Their Costs Were Reasonable 21 and Necessary. ....................................................................................................13 22 B. The Costs Relating To Several Motions Should Be Excluded. ......................15 23 C. The Costs Relating To Plaintiff’s Expert, Dr. Luna, Should Be Excluded ..............................................................................................................................16 24 D. The Costs Relating To Plaintiff’s Expert, Mr. Lepper, Should Be Reduced 25 or Omitted...........................................................................................................18 26 E. The Costs for Local Appearances Should Be Stricken. ..................................18 27 F. Plaintiffs’ Memorandum Of Costs Is Not Supported By Evidence And Lacks The Requisite Detail. ..............................................................................19 28 -2- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 IV. CONCLUSION ..............................................................................................................20 2 3 4 5 6 7 8 9 10 11 Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 TABLE OF AUTHORITIES Page(s) 2 Cases 3 Bach v. County of Butte (1989) 215 Cal.App.3d 294 .....................................................................................................14 4 Baker v. Mulholland & Security Patrol, Inc. 5 (2012) 204Cal.App.4th 776 .....................................................................................................16 6 Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436 ..............................................................................................................14 7 Garcia v. Hyster Co. 8 (1994) 28 Cal.App.4th 724 ......................................................................................................14 9 Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44 ......................................................................................................18 10 Hensley v. Eckerhart 11 (1983) 461 U.S. 424 .................................................................................................................19 Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 Jones v. Dumrichob San Francisco, CA 94111 (1998) 63 Cal.App.4th 1258 ....................................................................................................14 13 Ladas v. California State Automobile Association 14 (1993) 19 Cal.App.4th 761 ......................................................................................................18 15 Levy v Toyota Motor Sales, U S A, Inc. (1992) 4 Cal App 4th 807 ........................................................................................................19 16 Melnyk v Robeldo 17 (1976) 64 Cal App 3d 618 .......................................................................................................19 18 Nusser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571 ....................................................................................................14 19 Perkos v. RRNS Enterprises 20 (1992) 4 Cal.App.4th 238 ........................................................................................................14 21 Posey v. State of California (1986) 180 Cal.App.3d 836 .....................................................................................................14 22 Stockton Theatres, Inc. v. Palermo 23 (1956) 47 Cal.2d 469 ...............................................................................................................13 24 Statutes 25 Civil Code Section 1790 ............................................................................................................................14 26 Civil Code 27 Section 1794 ................................................................................................................10, 14, 17 28 -4- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 Code of Civil Procedure Section 1032 ............................................................................................................................13 2 Code of Civil Procedure 3 Section 1033.5 .......................................................................................................13, 14, 17, 18 4 Rules 5 California Rules of Court Rule 3.1335 ................................................................................................................................7 6 7 8 9 10 11 Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 I. INTRODUCTION 2 Plaintiffs David Fergus Taggart and Michelle Taggart (“Plaintiffs”) have again filed a 3 Memorandum of Costs (for a third time), in the amount of $52,143.63, in support of their Motion 4 for Attorney’s Fees, Costs and Expenses. Defendant Ford Motor Company’s (“Ford”) Motion 5 to Strike/Tax Plaintiffs’ Memorandum of Costs seeks to strike the costs, as detailed below, that 6 are excessive, unnecessary and impermissible. And, despite this being their third time to submit 7 a Memorandum of Costs, Plaintiffs’ counsel has again failed to offer any evidence, including 8 receipts, to support the costs requested. Initially, Plaintiffs have incorrectly added their costs 9 related to witnesses to total $27,031.59. When added correctly, the total is $16,991.45, a 10 difference of $10,040.41, which should be subtracted. Moreover, based on the prior receipts 11 submitted in Plaintiffs’ prior Opposition to Ford’s original Motion to Tax Costs, Ford expects Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 to request reductions in costs (at a minimum), as follows, related to: (1) Motions that were San Francisco, CA 94111 13 deemed unnecessary or improper (-$3,092.78); (2) expert fees and costs that are not allowed by 14 statute (Dr. Barbara Luna -$15,149.00); (3) expert fees/costs that are unreasonable; (4) 15 unnecessary travel expenses totaling $13,884.25, which are largely not described or itemized; 16 and, (5) other vague entries that are unsupported by evidence (-$10,519.47). 17 II. STATEMENT OF FACTS 18 On September 4, 2018, Plaintiffs filed this action against Ford, asserting causes of action 19 for Breach of Express and Implied Warranties-Violations of the Song-Beverly Consumer 20 Warranty Act for alleged defects in their vehicle (collectively, the “Song-Beverly causes of 21 action”), as well as, causes of action for Fraudulent Inducement-Concealment, Fraudulent 22 Inducement-Intentional Misrepresentation, and Fraudulent Inducement-Negligent 23 Misrepresentation causes of action (collectively, the “Fraud-Based causes of Action”). (See, 24 Declaration of Katherine P. Vilchez (“Vilchez Decl.”), ¶2.) In March of 2019, the matter settled 25 for $170,000 at the Mandatory Settlement Conference. (Vilchez Decl., ¶3, Exh. A.) By August 26 5, 2019, the settlement agreement and release (“SAR”) had been fully executed. (Id.) Now, 27 sixteen months later, Plaintiff’s counsel has filed a third Motion for Fees and Costs (“Fee 28 Motion”), totaling $356,417.88, which includes a 1.5 loadstar multiplier. The underlying -6- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 2 3 Memorandum of Costs totals $52,143.63. (Vilchez Decl., Exh. I.) Below, Ford has detailed 4 the costs requested by Plaintiffs that should be stricken from Plaintiffs’ Memorandum of Costs.1 5 A. Any Costs Associated with Plaintiffs’ Motion To Reset Trial (and Related Ex PArte) Should Be Stricken. 6 At page 5:3-9 of their Fee Motion, Plaintiff discusses its Motion to Reset the Trial Date, 7 which was heard on February 16, 2018. (Moving Papers, p. 5:3-9.) What Plaintiffs fail to 8 explain is that, in its ruling of the Motion, the Court found that this Motion not only lacked 9 “good cause,” but was deceptive in nature and frivolous, stating: 10 Plaintiffs have not demonstrated good cause to reset the trial date given the status of 11 the coordination action. (Cal. Rules of Court, rule 3.1335(b).) . . . Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 The grounds for Plaintiffs bringing this motion are not well taken. (Notice of Motion, San Francisco, CA 94111 p. 2:9-14.) . . . 13 The declaration of Jessica R. Underwood in support of this motion is artfully worded 14 to limit this lack of knowledge to only herself and her firm Wirtz Law, and not co- counsel Mr. Mikhov and Knight Law Group. (Underwood Dec. ISO Motion, para. 12.) 15 ... 16 It is disingenuous for Plaintiffs to now argue that “Ford’s counsel allowed Plaintiffs’ counsel to operate on the mistaken belief that the case was included in the coordination, 17 and that some action was required to attempt to remove itfrom the coordination to allow it to proceed individually” when co-counsel Knight Law already knew this. 18 (Memo. Pts. & Auth ISO Motion, p. 7:16-21.) . . . . 19 [ ] Ms. Underwood's statement that “Wirtz Law APC, did not learn of this case’s exemption from the coordination until [on or around December 2017], when my 20 colleague Amy Smith was speaking to an attorney at Knight Law Group, LLP” is not well taken. (Underwood Dec., para. 15.) As the two firms are co-counsel in the instant 21 action, no sufficient explanation is given for co-counsel's failure to communicate with each other in the diligent prosecution of this action on behalf of Plaintiffs prior to the 22 October 2 status conference. . . . 23 The Court admonishes both Wirtz Law and Knight Law for bringing this frivolous motion. Had Ford sought monetary sanctions in opposition, the Court would have 24 strongly considered granting them against Plaintiffs and their co-counsel. (Vilchez Decl., Exh. B, (emphasis added).) 25 26 1 In their Motion for Fees and Costs, Plaintiffs offered a skewed recitation of the underlying facts of this case in 27 its Motion to apparently attempt re-litigate the case, and sway this Court. However, Ford will not pepper this Motion, or its Opposition to Plaintiffs’ Motion for Fees, with unnecessary facts, and will only address pertinent 28 facts that would affect the amount of fees and costs which should be awarded. -7- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 From the Memorandum of Costs that has been submitted for the third time, Ford cannot 2 ascertain what costs are actually associated with Plaintiffs’ counsel filing this Motion, and 3 appearing at the hearing thereon (including costs for travel). However, itis clear from the 4 Court’s response to the Motion that Plaintiffs should have to identify said costs (including travel 5 costs), so that the Court can strike said costs as unreasonable. 6 Prior to the above Motion being heard, on December 14, 2017, Plaintiffs filed an Ex 7 Parte Application to reset the trial date which attached the Memorandum of Points and 8 Authorities found in above Motion to Reset the Trial Date, as their substantive argument in 9 support of the Ex Parte Application. (Moving Papers, p. 5:3-9 and Vilchez Decl., ¶5.) The 10 Court denied the Ex Parte Application outright as there were no exigent circumstances for the 11 Motion to be heard on shortened time. (Id.) However, the substantive argument for the Ex Parte Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 Application was the same as the Motion that was ultimately found to be deceptive and San Francisco, CA 94111 13 potentially sanctionable, supra. (Id.) Thus, the costs associated with this Application should be 14 stricken as unreasonable. As Plaintiffs again fail to identify which costs are associated with the 15 filing and serving of said Application, as well as the costs for attending the hearing, Plaintiffs 16 should have to identify said costs (including travel costs), so that the Court can strike said costs 17 as unreasonable. 18 B. Any Costs Associated with Ford’s Motion to Coordinate the Taggart Action Into JCCP 4924 Should Be Stricken. 19 20 At page 5:13-15, Plaintiff’s Fee Motion also improperly addresses a Motion filed by Ford 21 in Judicial Council Coordination Proceeding No. 4924-Ford Motor Transmission cases (“JCCP 22 4924”), which is housed in Sacramento Superior Court. JCCP 4924 is a group of Northern 23 California coordinated cases that address essentially the same causes of action and facts (relating 24 to the purported defects in the DPS6 transmission) that are asserted in the Taggart action. 25 (Vilchez Decl., ¶6.) However, the costs relating to this Motion should not be considered as 26 recoverable in this action as the Motion was not filed in this case. (Id.) The Motion was filed 27 in JCCP 4924, and heard before the Coordination Judge who presides over those cases. (Id.) 28 As such, any recouping of costs related thereto should be addressed before the JCCP 4924 Court, -8- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 and not this Court, as the JCCP 4924 Motion was not filed or heard in this action. Plaintiffs 2 again fail to identify which costs are associated with the filing and serving of said Opposition to 3 the JCCP 4924 Motion, as well as the costs for attending the hearing. Thus, Plaintiffs should 4 have to identify said costs (including travel costs) relating to opposing, and attending the hearing 5 on, the JCCP 4924 Motion, so that the Court can strike said costs as unreasonable.2 6 C. Any Costs Associated with Ford’s Motion for Leave to Amend the Answer Should Not Be Recoverable. 7 At page 5:17-20 of their Fee Motion, Plaintiff discusses Ford’s Motion for Leave to 8 Amend its Answer. With this Motion, Ford was seeking to amend its answer to admit liability 9 as to the Song-Beverly causes of action. (Vilchez Decl., ¶16, Exh. G.) And, despite this 10 significantly advancing Plaintiffs’ successful prosecution of their Song-Beverly Claims, 11 Gordon Rees Scully Mansukhani, LLP Plaintiffs opposed this Motion. (Id.) Whatever Plaintiffs’ counsels’ motive was, their 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 opposing a Motion that would result in Ford admitting liability under the Song-Beverly Act, 13 cannot be seen as “reasonable” costs associated to the prosecution of Plaintiffs’ Song-Beverly 14 claims.3 As Plaintiffs again fail to identify which costs are associated with the serving of the 15 Opposition, as well as the costs for attending the hearing, Plaintiffs should have to identify 16 said costs (including travel costs), so that the Court can strike said costs as unreasonable. 17 D. Any Costs Associated with the Filing, and Appearance at the Hearing, of the 18 Multiple Fee Motions Should Not Be Recoverable. 19 Steve Mikhov, of Knight Law, states, in Paragraph 21 of his Declaration in support of 20 Plaintiffs’ Fee Motion, that 21 During negotiation of the settlement and release agreement, the issue of attorney’s fees and costs was discussed and Ford stated clearly that it would be opposing any motion for 22 attorney’s fees and arguing that fees should be apportioned between Plaintiffs’ Song Beverly Act and fraud claims. There was no chance of the parties resolving the issue of 23 attorney’s fees, costs, and expenses on their own without Plaintiffs simply agreeing to massive reductions to purportedly account for time spent on the fraud claim. 24 This is simply untrue, Plaintiffs’ counsel has not contacted Ford’s counsel once to discuss 25 settling the fees and costs in this matter, much less, made any “reasonable effort” to do so. 26 2 Moreover, if this Court was to consider the JCCP 4924 Motion as somehow recoverable, the Court should be 27 aware that the Taggart case, was only one of four cases that the JCCP 4924 Motion addressed, and as such, any costs related thereto should be divided by four. (Vilchez Decl., ¶6.) 28 3 Although the Court granted the Motion, Ford did not ultimately file an Amended Answer in this action. -9- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 (Vilchez Decl., ¶7.) As such, Plaintiffs’ counsel should not be rewarded for misleading this 2 Court and failing to put forth any effort to resolve, or narrow the issues relating to, this matter 3 absent Court intervention. Thus, Plaintiffs should have to identify said costs (including travel 4 costs) relating to the filing and appearance on this Motion, and eliminate them from the 5 Memorandum of Costs, as they are clearly unreasonable and not in “good faith.” 6 E. The Costs Attributed to the Witness Fees Are Improperly Calculated 7 Plaintiffs request $27,031.59 for “Witness Fees” which are solely comprised of Expert 8 Fees. However, when the amount properly added, it only totals $16,991.45. (Vilchez Decl., 9 Exh. I, (Memorandum of Costs) (“MOC”) at page 3-4, Section 8.) Thus, $10,040.41 must be 10 subtracted from the total requested by Plaintiffs. 11 F. Any Costs And Expert Fees Associated Plaintiffs’ Expert, Barbara Luna, Should Gordon Rees Scully Mansukhani, LLP Be Excluded As They Are Not Recoverable. 275 Battery Street, Suite 2000 12 1. Dr. Luna’s Fees, And Costs Related Thereto, Are Not Recoverable As She Was San Francisco, CA 94111 13 Not Disclosed To Opine On The Song-Beverly Causes Of Action. As will be shown below, expert fees, are distinctly different from other litigation costs, as 14 they are not generally recoverable except as authorized by statute. Here, the only specific 15 statutory provision that allows Plaintiffs’ to move to recover costs (and attorney’s fees) is Civil 16 Code section 1794(d), found under the Song-Beverly Act, commonly known as the California’s 17 Lemon Law. However, unlike Plaintiffs’ other experts, Messrs. Micale and Lepper, who were 18 disclosed to opine as to Plaintiffs’ Song-Beverly Causes of Action, Dr. Luna was disclosed to 19 only offer opinions on Plaintiffs’ Fraud-Based Causes of Action. As such, Plaintiffs cannot 20 avail themselves of the statutory fee and cost-shifting provisions found in the Song-Beverly Act 21 to recoup Dr. Luna’s fees, and related costs. Thus, the $14,847.47 attributed to Dr. Luna’s 22 expert fees, and related costs, in the Memorandum of Costs should not be deemed recoverable 23 costs for Plaintiffs. 24 Initially, the scope of expert Dr. Luna’s expert disclosure clearly indicates that she was 25 designated to address Plaintiff’s Fraud-Based Causes of Action: 26 // 27 // 28 -10- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 2. [ ] Dr. Luna has at least thirteen certifications and accreditations, including Certified Fraud Examiner. [ ] 2 3. Dr. Luna is expected to testify in Plaintiffs’ case in chief as to matters including, but not 3 limited to, indicia of fraud, corporate business culture, customs and practices, industry standards of concealing or omitting material information, the materiality of such 4 information, repeated intentional omissions, and corporate philosophy and risk management strategy. 5 4. Dr. Luna is also expected to testify as to the valuation of damages based on the financial 6 impact of omissions, the quantification of culpability of the defendant, the quantification of the reprehensibility of Ford's conduct including, but not limited to, the repeated 7 wrongdoing, and profitability of the scheme. (Vilchez Decl., Exh. C, (emphasis added.) 8 Moreover, as is apparent from other DPS6 transmission cases filed by Plaintiff’s counsel, 9 Plaintiff’s counsel discloses Dr. Luna as an expert when Plaintiffs allege Fraud-Based Causes 10 of Action in other Knight Law cases (e.g., the Buck, Lytle, Belmore, Murphy, Bartlett and 11 Matthews cases). (Vilchez Decl., ¶9.) And, Plaintiff’s counsel does not disclose Dr. Luna as Gordon Rees Scully Mansukhani, LLP an expert when Plaintiffs do not allege Fraud-Based Causes of Action in other DPS6 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 13 transmission cases (e.g., the Vanvleet and Larson4 cases). (Id.) 14 As such, it is clear that Dr. Luna is disclosed in DPS6 transmission cases (including this 15 case) to opine solely as to Plaintiffs’ Fraud-Based Causes of Action. Thus, as will be shown 16 below, because Dr. Luna was not disclosed to support Plaintiff’s Song-Beverly Causes of 17 Action, her expert fees, and related costs, should not be recoverable. 18 2. Dr. Luna’s Fees Are Improbable and Largely Unnecessary. 19 Assuming arguendo that the Court were to consider Dr. Luna’s fees as recoverable, there 20 are notable irregularities with their computation. First, there is no rate for Dr. Luna’s fees (or 21 supporting documentation) to allow the Court, or Ford, to ascertain whether the hours expended 22 are reasonable or necessary. The fee rate simply says “varies.” (MOC, p. 4, 8.b., lines (2) and 23 (3).) This is insufficient. 24 Second, Dr. Luna hours show that she charged for 39.25 hours in one day (3.30.17), for a 25 total of $11,208.75, which is an impossibility. (MOC, p. 4, 8.b., line (2).) Surely, this sloppy 26 27 4 In the Larson action, fraud-based causes of action have been asserted, but the parties have been ordered to arbitrate these causes of action.As such, the parties are going to trial on the Song-Beverly causes of action alone, 28 and accordingly Plaintiffs have not designated Dr. Luna, or any other fraud expert, for this trial. -11- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 and vague accounting cannot be the standard by which costs are awarded. Again, Plaintiffs 2 should have to provide support for these figures to recuperate these costs. 3 Third, Dr. Luna hours reflect 5.5 hours she spent to attend her April 3, 2017 deposition in 4 this case ($3,638.72). (MOC, p. 4, 8.b., line (3).) However, her deposition lasted less than 2 5 hours (11:05 a.m. to 12:56 p.m.), and Ford already paid her invoice for attending the deposition 6 in the amount of $1,485.00. (Vilchez Decl., ¶10, Exh. D.) As such, an inquiry should be made 7 as to the reason for these charges, and whether the charges include fees that have already been 8 paid. 9 Fourth, Dr. Luna’s alleged preparation for her deposition is extremely excessive in this 10 case. Here is the comparison of the costs for Dr. Luna’s preparation in four other DPS6 cases 11 with the same Fraud-Based Causes of Action alleged, and essentially the same fraud-related Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 facts asserted, as is in this matter (Vilchez Decl., ¶11.): San Francisco, CA 94111 13 Case Date Hours Amount TAGGART 3/17/2017 39.25 $11,208.75 14 ARROYO 2/17/2019 35.5 $6,831.70 LYTLE 4/11/2018 38.5 $5,459.25 15 BARTLETT 11/21/2017 4.5 $2,227.50 16 MURPHY 10/30/2017 12.5 $2,497.50 17 Looking at the above sums as exemplars, Dr. Luna costs in this matter equal between 18 164% and 503% of what she has billed in the past. Such an outlier amount should not be 19 awarded without further questioning the basis for such an increase. 20 G. The Costs Attributed to Thomas Lepper Should Be Reduced. 21 On February 21, 2017, Plaintiffs designated their expert, Thomas Lepper, as follows: 22 Mr. Lepper is expected to testify at trial as to matters including, but not limited to 23 the subject vehicle and its warranty and repair history, testing procedures, interpretation of results and further diagnostic repair procedures, both generally and 24 as regards the subject vehicle, reasonableness of repair attempts regarding the subject vehicle, his inspection of the subject vehicle, and warranty repair 25 procedures. (Vilchez Decl., Exh. E.) 26 On March 28, 2017, Mr. Lepper conducted a Vehicle Inspection, for which Plaintiffs are 27 alleging costs of $1,166.09 for 6.7 hours. (Vilchez Decl., ¶13 and MOC, p. 4, 8.b., line (1).) 28 On April 4, 2017, his deposition was taken, for which Plaintiffs are alleging costs of $977.89 -12- DEFENDANT FORD MOTOR COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE/TAX PLAINTIFFS’ MEMORANDUM OF COSTS 1 for 9 hours. (Id., and MOC, p. 4, 8.b., line (4).) It should be noted that Mr. Lepper’s hours 2 reflect 9 hours he spent to attend his April 4, 2017 deposition in this case ($977.89). (MOC, p. 3 4, 8.b., line (4).) However, his deposition lasted only 2 hours and 14 minutes (10:00 a.m. to 4 12:14 p.m.), and Ford already paid his invoice for attending the deposition in the amount of 5 $825.00. (Vilchez Decl., ¶14, Exh. F.) As such, an inquiry should be made as to the reason for 6 these charges, and whether the charges include fees that have already been paid, especially since 7 he lives in Benicia, California, 36 miles from where the deposition was taken.5 (Id.) 8 H. Plaintiffs’ Counsel Cannot Recuperate Travel Costs For Local Appearances. 9 Plaintiffs are requesting $13,884.25 in travel costs.1 This case was filed in San Mateo 10 Superior Court, and every deposition was taken locally (within 75 miles of the Court). 11 Specifically, the Plaintiffs’ and expert’s depositions were taken in San Francisco at the offices Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 of Gordon & Rees. (Vilchez Decl., ¶15.) And, the dealership witness depositions were taken San Francisco, CA 94111 13 in Redwood City. (Id.) As such, this exorbitant request for $13,884.25 in travel costs, which 14 is apparently for attendance of local depositions, and possibly appearances at hearings, should 15 be excluded. Moreover, if any of these travel costs are to be considered, Plaintiffs should be 16 required to itemize the travel so that the Court, and Ford, can ascertain if they are reasonable 17