Prado vs. General Motors LLC

with reply]; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn.8 [court may consider new evidence presented in reply only in exceptional cases and only if opposing party is given opportunity to respond to new evidence].)

Here, Plaintiff has not shown any extraordinary circumstances that would support the court considering these exhibits where Defendant has not had an opportunity to respond to them.

Pending Motion

Plaintiff Hermelinda Prado moves for an award of attorney’s fees in the amount of $23,546.50 with a multiplier of 1.3 and costs in the amount of $766.59 from Defendant General Motors, LLC, pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790, et seq.

Timeliness of Motion

As an initial matter, Defendant argues that this motion is untimely because it was brought 209 days after settlement.

However, as Defendant concedes, the deadline to file a motion for attorney’s fees is not based on the date of settlement, but rather the date for filing a notice of appeal.

Pursuant California Rules of Court rule 3.1702:

A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court – including attorney's fees on an appeal before the rendition of judgment in the trial court – must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . . .

(Cal. Rules of Court, rule 3.1702, subd. (b)(1).)

Defendant also admits that Rule 8.104 states that:

[A] notice of appeal must be filed on or before the earliest of:

(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice

of Entry" of judgment or a filed- endorsed copy of the judgment, showing the date either was served;

(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

(C) 180 days after entry of judgment.

(Cal. Rules of Court, rule 8.104, subd. (a)(1).)

Here, no judgment has been issued. Thus, the time to file a notice of appeal or a notice of motion for attorney’s fees has not begun to run. (fn.1)

(fn.1) Further, California Rules of Court rule 8.108 “operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.” (Cal. Rules of Court, rule 8.108, subd. (a).) Thus, Rule 8.108 cannot act to make this motion untimely if the motion is otherwise timely under Rule 8.104.

Defendant does not dispute that the motion is timely under Rules 3.1702, 8.104, and 8.108.

However, Defendant contends that because the settlement in this case calls for the Plaintiff to dismiss the case rather than enter judgment, Defendant is caught in a “catch-22.”

Defendant argues that the court should treat the settlement date as the judgment date for purposes of the motion.

While Defendant points to some case law that a settlement date may be viewed as the judgment date for the purposes of enforcing settlement agreements, it cites to no authority for the proposition that the settlement date should be treated as the judgment date in order to deprive Plaintiff of her right to seek attorney’s fees – a right that Defendant specifically agreed in the settlement agreement that Plaintiff had.

Nor does Defendant state any good reason to treat the settlement date as the judgment date for purposes of bringing a motion for attorney’s fees.

Here, the “catch-22” to which Defendant points does not prejudice Defendant. Defendant is not deprived of any right and may freely oppose the motion for attorney’s fees in any way allowed by law.

On the other hand, Defendant’s request would unduly prejudice Plaintiff by depriving her of the right to seek attorney’s fees, even where Defendant agreed that Plaintiff has a right to attorney’s fees.

The prejudice is made worse by the fact that Plaintiff would be deprived of her right without any notice as Defendant has not cited to any statute or case law that imposes a deadline for filing a motion for attorney’s fees based on the date of settlement.

Finally, Defendant could easily avoid this “catch-22” by including in the settlement agreement a provision that sets a deadline, not based on the date judgment issues, by which Plaintiff must file a motion for attorney’s fees.

In sum, Defendant’s argument of untimeliness is supported neither by the law nor by equity. The court will reject this argument.

Standard for Motion for Attorney’s Fees

Generally, attorney’s fees are borne by the party that incurred them. (See Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 978-79).

Therefore, a party may recover attorney’s fees only if provided for by contract or statute. (See Code Civ. Proc., § 1033.5, subd. (a)(10); see also LNSU # 1, LLC v. Alta Del Mar Coastal Collection Community Association (2023) 94 Cal.App.5th 1050, 1081 [“Each party to an action must pay its own attorney fees unless a statute or contract requires the opposing party to pay them.”].)

For example, the Song-Beverly Act states that:

If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees

based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.

(Civ. Code, § 1794, subd. (d).)

The legislature understood that “the prospect of having to pay attorney fees even if one wins a lawsuit can serve as a powerful disincentive to the unfortunate purchaser of a malfunctioning automobile.” (Murillo v. Fleetwood Enter., Inc. (1998) 17 Cal.4th 985, 994.)

Thus, by allowing an award of attorney’s fees to the prevailing plaintiff in a Song-Beverly Act case, “our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Ibid.)

On a motion for attorney’s fees, the moving party has the burden of establishing entitlement to an award. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

Prevailing Party

The Song-Beverly Act does not define the term “prevailing buyer”.

As explained by the Court of Appeal in Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, “the courts have split regarding how to define this term when it comes to the award of attorney fees.” (Id. at p. 501.)

However, the settlement agreement in this case provides that “GMC LLC shall pay to Plaintiff Counsel, (select one option below): (i) a check in the amount of Attorney’s Fees and Costs payable to Plaintiff Counsel . . . OR (ii) Reasonable attorney’s fees, costs, and expenses pursuant to subdivision (d) of Section 1794 of the Civil Code shall be determined by the court by way of a noticed motion. Defendant agrees Plaintiff is the prevailing party for purposes of said fee motion.” (Decl. of Logan Hensley in Supp. of Pltf.’s Mot. for Att’ys’ Fees, Costs, and Expenses (Hensley Decl.), ¶ 11, Exh. B at p. 1.)

Thus, there is not dispute that Plaintiff is the

“prevailing buyer” who is entitled to attorney’s fees.

Lodestar Calculation of Attorney’s Fees

The calculation of attorney’s fees under the Song- Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817- 819.)

When using this method, the court begins by determining the reasonable hours the prevailing party’s attorney spent on the case and multiplying that number by the reasonable hourly rate. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131- 1134; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

However, the prevailing party should not receive a “windfall” through an award of reasonable attorney’s fees. (Ketchum vs. Moses, supra, 24 Cal.4th at p. 1132.)

Thus, a prevailing buyer under the Song-Beverly Act has the burden of “showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.)

“To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’ The court also may properly reduce compensation on account of any failure to maintain appropriate time records.” (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437, fn.12.)

However, once an attorney has presented evidence of her or his actual time spent and hourly rate charged, the time and hourly rate are presumed to be reasonable. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761; see Horsford v Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous."];

Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel are "sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements”].)

“As the trial court ‘is in the best position to value the services rendered by the attorneys in his or her courtroom,’ we leave it in the trial court's discretion to determine the amount of reasonable attorney fees and costs to award . . . under the lodestar method.” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 622, quoting 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437; see also Ketchum v. Moses, supra, 24 Cal.4th at p. 1132 [“The trial judge is ‘the best judge of the value of professional services rendered in his court.’”].)

Reasonable Hourly Rate

The reasonable hourly rate is based on the reasonable market value of the attorney’s services. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095 or PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1094-1095.)

This standard applies regardless of how much the attorney actually charged the client. (See ibid.) Thus, the same reasonable hourly rate will apply whether the attorney charged nothing for their services, charged below-market or discounted rates, represented the client on a contingent fee basis, or are in-house counsel paid a fixed salary.

To determine the reasonable market value of the legal services provided, the court must look to the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783; see also PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095 [“[The] reasonable hourly rate is that prevailing in the community for similar work.”].)

The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.)

If the moving party meets its burden, the burden

shifts to the opposing party to produce admissible evidence sufficient to show that the rates requested are not reasonable. (See Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 155 [finding court erred in reducing rates where evidence of reasonableness of rate requested was undisputed].)

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, citations omitted; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The value of legal services performed in a case is a matter of which the trial court has its own expertise. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)

Here, Plaintiff requests the following hourly rates for her counsel: attorney Logan Hensley at $500 per hour; attorney Laura Goolsby at $600 per hour; attorney Oliver Tomas at $550 per hour; (4) paralegal Virginia Walls at $250 per hour; paralegal Clarence Serrano at $200-$270 per hour; case manager Jennifer Romo at $200-$225 per hour; case manager Caleth Ibarra at $200 per hour; case manager Nikolas Mancera at $150 per hour; and a repair chronology drafter at $150 per hour.

Plaintiff provides support these requested hourly rates. (See Hensley Decl., ¶ 9.)

Plaintiff also requested that the court take judicial of a minute order issued in a Song-Beverly Act matter in the Los Angeles Superior Court, wherein the court found the rates of up to $500 per hour reasonable. (See Pltf.s Request for Judicial Notice in Supp. of Pltf.’s Mot. for Atty’s’ Fees, Exh. A.)

Here, Plaintiff has met her burden to support the reasonableness of the hourly rates she is requesting and the burden shifts to Defendant.

Defendant, however, does not argue or present evidence to show that that the hourly rates requested by Plaintiff are unreasonable.

Based on the evidence presented and its own knowledge and familiarity with the relevant legal market, the court finds the rates requested by Plaintiff to be reasonable.

Hours Reasonably Expended

“An award of attorney fees ‘should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.’” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 619, quoting Ketchum v. Moses, supra, 24 Cal.4th at p. 1131; see also id. at p. 1141 [award of attorney’s fees “may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees.”].)

The prevailing party has the burden to present verified time records showing the hours spent on the case.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.)

However, once they are properly admitted, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Ibid.)

In addition, the declarations of counsel are “sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements." (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367.)

Nonetheless “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.)

Therefore, prevailing parties should be compensated only for hours reasonably spent on

fee-related issues. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

As the Court of Appeal has explained:

Although [] billing statements in support of a fee request form the “’starting point’” for determining the “‘hours reasonably expended’” in a lodestar calculation, the trial court is not bound to accept these hours and may reduce them if it concludes the attorneys performed work unrelated to the [matter], or represented work that was unnecessary or duplicative or excessive in light of the issues fairly presented.

(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th at p. 441, quoting Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1324, 1326; see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580 [court need not include inefficient or duplicative efforts when awarding attorney’s fees].)

In addition:

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. “If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . ."

(Ibid., quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1069.)

For example, the court may reduce the number of hours based on considerations of “whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)

In challenges to the reasonableness of the number of hours billed, “it is the burden of the challenging

party to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Ibid.; see Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [party seeking attorney fees has “the burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’”].)

In this case, Plaintiff presented billing records that Plaintiff’s Counsel or their staff spent 61.10 hours on this matter, representing attorney’s fees of $21,796.50. (See Hensley Decl., ¶ 12, Exh. C.)

Plaintiff also estimates that her counsel will expend 3.5 hours of attorney time to review the opposition to the motion and to draft a reply to the opposition.

Defendant challenged specific time entries of Plaintiff’s Counsel on the basis that they included block-billed clerical and administrative time, excessive time spent on tasks, administrative time by attorneys, and time for duplicative tasks.

Block-Billed Clerical and Administrative Time

“Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” (Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288, fn.10.)

Furthermore, “[t]rial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010).

Here, the court will deduct the following time, which was for administrative work only or administrative work that was not properly segregated from legal work:

• 03/24/2026 – Review File: calendared and tasked deadlines re MAF, and updates case status. (Virgina Walls, 0.30h, $75.00)

• 08/07/2025 – Review file and case events

on the clio calendar confirmed upcoming hearing and status of case. (Virgina Walls, 0.10h, $25.00)

• 07/31/2025 – Team huddle/calendar review: mediation. (Virgina Walls, 0.10h, $25.00)

• 07/24/2025 – Confirmed receipt of caption and mediation date. Updated calendar. (Virgina Walls, 0.20h, $50.00)

• 07/16/2025 – CMS & NPJF; filed with the court; served and saved. updated calendar. (Virgina Walls, 0.60h, $150.00)

• 04/15/2025 – Receipt of Def's Answer; NOD Plaintiff; SPO; MC Letter. Calendared dates and deadlines; (Virgina Walls, 1.00h, $250.00)

• 02/21/2025 – Receipt and review of email re Conformed POS; calendared Service date. (Virgina Walls, 0.20h, $50.00)

• 02/13/2025 – Receipt/review of Court's Notice of CMC; reviewed ROA; calendared S&C filing; CMC date; and associated deadlines. update matter dashboard re case number, judge name, courthouse and dept. (Virgina Walls, 0.30h, $75.00)

• 12/10/2024 – Review File: DL sent via certified (Nikolas Mancera, 0.20h, $30.00)

• 12/09/2024– Review File: DL sent for review. (Nikolas Mancera, 0.20h, $30.00)

• 11/18/2024 – Review File: Reviewed documents, created folders, assigned tasks to case manager, updated case details. (Jennifer Romo, 0.50h, $112.50)

• 11/19/2024 – Review File: Welcome email and Welcome call. (Nikolas Mancera, 0.20h, $30.00)

Excessive Time

Defendant contends Plaintiff’s Counsel and their staff spent an excessive amount of time completing some tasks.

However, the court has reviewed the billing entries

to which Defendant points and finds that the amount of time spent was reasonable given the work that was done.

Administrative Tasks by Attorneys

Defendant also argues that attorneys billed time for administrative tasks, which are not recoverable as attorney’s fees.

However, the court has reviewed the billing entries to which Defendant points and finds that the work done by attorneys was legal and not administrative, and was reasonable under the circumstances.

Duplicative Tasks

Defendant next asserts that some of the time billed by Plaintiff’s Counsel duplicated efforts by other Plaintiff’s Counsel or their staff, or was otherwise duplicative.

The court has reviewed the billing entries and finds that, to the extent Plaintiff’s Counsel and their staff did the same work, such work was reasonable in light of Plaintiff’s Counsel’s obligation to review the work done by their staff.

Further, the other billing entries to which Defendant refers were reasonable and not duplicative except that the court will deduct 1.2 hours of Attorney Hensley’s time spent communicating with counsel on the same day that Attorney Hensley billed 1.8 hours to attend mediation.

Attorney Hensley could have communicated with his client at the mediation and there was no need to spend additional time communicating with the client outside of the mediation.

Multiplier

The court also has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure. (Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, supra, 144 Cal.App.4th at p. 154.)

As the Court of Appeal has explained:

The lodestar . . . may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.

(Id. at p. 154, quoting Ketchum v. Moses, supra, 24 Cal. 4th at p. 1132.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses, supra, 24 Cal. 4th at p. 1132.)

Nonetheless, the court is not required to impose a multiplier; the decision is discretionary. (See Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

Plaintiff requests a lodestar multiplier of 1.3 on the basis that Plaintiff’s counsel undertook the representation on a purely contingent basis, advanced substantial time and expenses without guarantee of payment, and endured extended delay before recovery.

While Plaintiff’s Counsel took the case on a contingency basis, Plaintiff has not shown that the risk of not prevailing were substantial or out of the ordinary.

In addition, the case settled less than seven months after the Complaint was filed.

Further, this appears to be a routine lemon law case that was not so novel or difficult, nor the skill displayed by counsel so outstanding as to warrant a multiplier, in addition to the substantial hourly rates already approved. (See Rahman v. FCA US LLC (C.D. Cal. 2022) 594 F.Supp.3d 1199, 1207 [ruling that no multiplier warranted for a “largely routine lemon law case”].)

The court will exercise its discretion and decline to apply a multiplier in this case.

Costs

Generally, the prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (See Code Civ. Proc., § 1032, subd. (b); Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

In addition, the Song-Beverly Act specifically states that “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).)

Civil Procedure Code section 1033.5 enumerates the specific costs that are recoverable by the prevailing party in a civil action. (See Code Civ. Proc, §§ 1032, subd. (b), 1033.5.)

Section 1033.5 also provides that the court may award costs not expressly described in the statute for expenses that are “reasonably necessary to the conduct of the litigation” and are “reasonable in amount.” (Code Civ. Proc, § 1033.5, subd. (c)(2)- (4).)

While the trial court has discretion to decide whether a cost item was reasonably necessary, the trial court does not have discretion to award a cost item that is not statutorily authorized. (See Ladas v. California State Auto. Ass’n (1993) 19 Cal.App.4th 761, 774.)

To recover costs, the prevailing party must file and serve a memorandum of costs “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).)

The nonprevailing party then has 15 days after service of the memorandum of costs to file a motion to strike a cost altogether, or to tax the cost

and reduce it. (Cal. Rules of Court, rule 3.1700, subd. (b).)

If the items on a memorandum of costs appear to be proper on their face, the verified memorandum of costs is prima facie evidence of their validity and the burden is on the party seeking to strike or tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass’n, supra, 19 Cal.App.4th at p. 774.; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [“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 are not reasonable or necessary.”].)

Here, Plaintiff seeks $766.59 in costs and provides evidence to support these costs, which primarily consist of filing and service fees, which are recoverable. (See Hensley Decl., Exh. C.)

Plaintiff also filed a memorandum of costs that included these costs. (See ROA #58, ¶¶ 1, 5, 14, 15.) (fn.2)

(fn.2) Here, Plaintiff’s motion for costs appears to be premature as it was filed before entry of judgment or dismissal of the action. However, “a request for fees incurred before the rendition of the judgment in the trial court may be timely even if it is filed prematurely prior to the entry of judgment.” (Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086.) “Such a premature [motion] is to be liberally construed in favor of its sufficiency and treated as filed in accordance with [the rule], particularly where the opposing party is neither misled nor prejudiced by the premature filing.” (Ibid.)

The memorandum of costs constitutes prima facie evidence of the validity of the costs and the burden shifts to Defendant to show that the costs are not recoverable, that they were not reasonably necessary to the conduct of the litigation, or that they were not reasonable in amount.

Defendant failed to present any argument or evidence on the issue of costs.

Therefore, the court will award Plaintiff her requested costs.

Plaintiff shall give notice of this ruling.