Judge: Andrew E. Cooper, Case: 21CHCV00354, Date: 2024-02-09 Tentative Ruling

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Case Number: 21CHCV00354    Hearing Date: February 27, 2024    Dept: F51

MOTION FOR ATTORNEY FEES

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Motion Filed: 10/30/23

MOVING PARTY: Plaintiffs Miguel Gonzalez Lopez and JuanJose Gonzalez (collectively, “Plaintiffs”) 

RESPONDING PARTY: Defendant General Motors LLC (“Defendant”) 

NOTICE: OK

RELIEF REQUESTED: An order awarding Plaintiffs their attorney fees and costs in the amount of $50,800.87.

TENTATIVE RULING: The motion is granted in part. Plaintiffs are awarded $33,109.00 in attorney fees and costs.

EVIDENTIARY OBJECTIONS: Plaintiffs’ evidentiary objections Nos. 1–9 are overruled.

BACKGROUND

Plaintiffs bring this action under the Song-Beverly Consumer Warranty Act (Civil Code § 1790 et seq.) for a vehicle they purchased on or around 9/10/19, for which Defendant issued the manufacturer’s express warranty. (Compl. ¶¶ 4, 6.)

On 5/4/21, Plaintiffs filed their complaint, alleging against Defendant the following causes of action: (1) Violation of Civil Code section 1793.2, subdivision (d); (2) Violation of Civil Code section 1793.2, subdivision (b); (3) Violation of Civil Code section 1793.2, subdivision (a)(3); (4) Breach of Express Written Warranty; and (5) Breach of the Implied Warranty of Merchantability. On 6/4/21, Defendant filed its answer.

On 8/24/22, Defendant sent Plaintiffs a settlement offer pursuant to Code of Civil Procedure section 998, proposing to settle this entire lawsuit by paying Plaintiffs $65,675.00, plus $10,000.00 for attorney fees and costs (or fees by Motion). (Ex. 2 to Decl. Of Diana Rivero.) On 9/27/22, Plaintiffs accepted the offer and executed the settlement agreement. (Ex. 3 to Rivero Decl.) On 4/28/23, Plaintiffs filed a Notice of Conditional Settlement of the entire case. 

On 10/5/23, Plaintiffs filed and served their Memorandum of Costs. On 10/30/23, Plaintiffs filed the instant motion. On 2/7/24, Defendant filed its opposition. On 2/13/24, Plaintiffs filed their reply.

ANALYSIS

A.    Timeliness

“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.” (Cal. Rules of Ct., rule 3.1702(b)(1).) This deadline falls 60 days after notice of entry of judgment is given, or 180 days after entry of judgment, whichever comes first. (Cal. Rules of Ct., rule 8.104(a)(1).)

Here, as a preliminary matter, Defendant argues that the Court should deny the instant motion as untimely pursuant to rule 3.1702 of the California Rules of Court. Defendant contends that the time limit under rule 3.1702 began to run on 9/27/22, when Plaintiffs agreed to accept Defendant’s settlement offer. (Def.’s Opp. 6:1–3.)

The Court reiterates its previous finding that because no judgment has been entered in the instant action, the time limits under rules 3.1700 and 3.1702 of the California Rules of Court have not been triggered. (2/9/24 Min. Order, p. 3.) Based on the foregoing, the Court finds that the instant motion is not time-barred by rule 3.1702 of the California Rules of Court.

B.     Right to Recovery

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, the Song-Beverly Act authorizes a buyer “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).)

Additionally, here, the parties stipulated that “at Plaintiffs’ election, Plaintiffs’ attorney’s fees, expenses and costs that have been reasonably incurred pursuant to California Civil Code § 1794(d) may be determined by the Court via noticed motion. For purposes of any such motion, GM will agree that Plaintiffs are the prevailing party.” (Ex. 3 to Rivero Decl., ¶ 3.) Accordingly, the Court finds that Plaintiffs are entitled to recover reasonable attorney fees, costs, and expenses as authorized by both statute and contract.

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C.    Attorney Fees Incurred

A buyer prevailing under the Song-Beverly Act may recover “reasonable” attorney fees and costs as determined by the Court. (Civ. Code § 1794, subd. (d).) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.¿(Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.)

Here, Plaintiffs seek to recover $40,517.50 in attorney fees, encompassing 95.6 hours of their attorneys’ time, billed at the following rates:

(Rivero Decl. ¶ 85.)

1.      Counsel’s Hourly Rate

When determining a reasonable hourly rate, courts consider whether the stated rates “are within the range of reasonable rates charged by and judicially awarded [to] comparable attorneys for comparable work.” (Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 783.)

Here, Plaintiffs assert that counsel’s “hourly rates are appropriate given each attorney’s experience and qualifications. … They are similar to the median attorney rate of $569.00 per hour for vehicle cases in the Los Angeles / Long Beach / Anaheim area.” (Pl.’s Mot. 8:8–11, citing Rivero Decl. ¶¶ 49–57.) In support of their argument, Plaintiffs attach excerpts of the 2017–2018 United States Consumer Law Attorney Fee Survey Report and a number of trial court rulings awarding similar attorney fees in similar cases. (Exs. 4–25 to Rivero Decl.)

Plaintiffs also seek to recover attorney fees at their current prevailing rates, which have increased over the course of the litigation of this case. Plaintiffs contend that “it is within this Court’s discretion to award attorney fees based on the current prevailing rate.” (Rivero Decl. ¶ 84, citing Robles v. Employment Development Dept. (2019) 38 Cal.App.5th 191, 205.) In Robles, the Court of Appeal held the following: “To account for the lengthy delay in obtaining a fee award for the work associated with Robles I, the court on remand should use current prevailing hourly rates (or, alternatively, should use lower hourly rates but award interest thereon from the date those services were rendered).” (38 Cal.App.5th at 205.)

In opposition, Defendant argues that Plaintiffs’ counsel should not be permitted to recover attorney fees based on the current prevailing rates, because unlike in Robles, here, “it was [Plaintiffs’] Counsel who waited more than one year to file the instant Motion.” (Def.’s Opp. 12:12–13.) The Court agrees, and finds that Robles does not require this Court to award Plaintiffs attorney fees based on the current prevailing rates, particularly where Plaintiffs waited over one year after accepting Defendant’s settlement offer to bring the instant motion.

Based on the foregoing, the Court finds that Plaintiffs have sufficiently shown that their attorneys’ hourly billing rates are commensurate with their experience, and fall within the range of reasonable rates charged by attorneys and judicially awarded in similar cases. However, the Court declines to award Plaintiffs attorney fees based on the current prevailing rates, and reduces the total award commensurate with counsel’s previous rates, represented as follows:

(Rivero Decl. ¶ 83.)

2.      Hours Expended

Plaintiffs seek to recover attorney fees for the 95.6 hours expended by their attorneys on this matter, and proffer an itemized list of time entries detailing their attorneys’ work on this matter. (Exs. 26–27 to Rivero Decl.)

In addition to the attorney hourly billing rate, Defendant challenges the following specific entries in Plaintiffs’ attorneys’ proffered time log: (1) all paralegal work; (2) time entries relating to discovery requests, responses, and motion work; (3) analysis of Defendant’s section 998 offer; and (4) time entries relating to the instant fee motion. (Def.’s Opp.7:24–11:3.)

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a.                  Paralegal Work

Plaintiffs seek to recover a total of $3,602.50 in attorney fees incurred by their paralegals, spanning 18.8 hours of work. Defendant argues in opposition that these fees must be stricken because “clerical tasks, such as preparing proofs of service and filing documents, are non-compensable even at a paralegal’s hourly rate— which is $175 per hour here.” (Def.’s Opp. 7:25–27, citing Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288.)

As a preliminary matter, the Court notes that this federal case is not binding on this Court. Moreover, the portion of Missouri cited by Defendant stands for the proposition that ministerial tasks must be billed at a lesser rate than the attorney’s regular hourly billing rate, regardless of who performs them. (491 U.S. at 288, fn. 10.) Here, Plaintiffs’ paralegal rates range between $175.00 and $200.00 per hour, whereas the attorneys’ hourly billing rates are significantly higher, ranging between $400.00 to $510.00 per hour. (Rivero Decl. ¶ 83.)

Based on the foregoing, the Court finds no basis to conclude that Plaintiffs are barred from recovering paralegal fees for “non-attorney, clerical work.” (Def.’s Opp. 7:24.) Therefore, the Court declines to grant Defendant’s request to reduce the fee demand for these tasks by $3,602.50.

b.                  Discovery

Defendant further argues that Plaintiffs seek to recover excessive attorney fees for propounding discovery requests, drafting discovery responses, reviewing Defendant’s discovery responses, drafting meet and confer correspondence, filing motions to compel, and propounding supplemental discovery requests. (Def.’s Opp. 8:2–10:19.) Defendant argues that the time billed by Plaintiffs’ counsel “is unreasonably excessive because Counsel has used the exact same templated discovery requests[, responses, and motions] in other cases against GM.” (Id. at 8:5.)

On reply, Plaintiffs argue that Defendant has failed to meet its evidentiary burden to show that the requested fees are unreasonable. “Instead of citing to factual evidence as to the reasonable amount of time for any particular task, Defendant relies on conjecture and the opinion of counsel instead.” (Pls.’ Reply 8:1–3.) “Defendant’s Opposition presents nothing more than conclusory statements that the time Plaintiffs’ counsel spent on various tasks is unreasonable, without any legal authority supporting its position on the amount of time a particular task should take.” (Id. at 8:8–11.)

Contrary to Plaintiffs’ assertion, the Court observes that here, Defendant proffers evidence that Plaintiffs’ discovery requests, deposition notice, discovery responses, meet and confer correspondence, motions to compel, and supplemental discovery requests are identical or substantially similar to those drafted by Plaintiffs’ counsel in similar cases against Defendant. (Decl. of Xylon Quezada ¶¶ 4–12; Exs. A–P to Quezada Decl.)

Based on the foregoing, the Court finds that the above fees were not reasonably incurred, and reduces the fee demand as follows:

c.                   Section 998 Offer

Defendant seeks to strike Plaintiffs’ counsel’s time billed by attorney Jordan Cohen in reviewing and analyzing Defendant’s Section 998 Offer of Compromise to Plaintiffs because Mr. Cohen was a new timekeeper whose only task in the instant litigation was the subject analysis. (Def.’s Opp. 10:20–23.) The Court finds this argument without merit or evidentiary support, and therefore declines to reduce the fee award by the requested $459.00.

d.                  Fee Motion

Here, Plaintiffs seek to recover a reduced $3,750.00 in connection with drafting the instant motion, in addition to an anticipated $5,000.00 for reviewing Defendant’s opposition, drafting a reply, and preparing for and attending the instant hearing. (Rivero Decl. ¶¶ 86–87.)

Defendant argues in opposition that the attorney fees incurred by Plaintiffs in preparing the instant fee motion are excessive and unreasonable. (Def.’s Opp. 10:24–11:3.) “In particular, auditing fee and cost records is not properly billed to one’s clients and thus not properly shifted to an adversary. (Id. at 10:27–28, citing Hensley v. Eckerhart (1983) 461 U.S. 424, 434.) Defendant further argues that the time incurred is excessive because “Counsel’s fee motion in this case is substantially similar to fee motions that Counsel filed in other Song-Beverly cases against GM.” (Id. at 11:1–2, citing Quezada Decl. ¶ 16.)

The Court finds Defendant’s reliance on Hensley inapposite here, as the Hensley decision does not stand for the proposition that attorney fees incurred in auditing fee and costs records are not recoverable. Based on the foregoing, the Court finds it reasonable to award Plaintiffs a total sum of $4,700.00 in attorney fees relating to the instant fee motion.

D.    Costs Incurred

The Court has previously ruled on and denied Defendant’s Motion to Strike Plaintiffs’ Memorandum of Costs, and therefore incorporates by reference its analysis thereof. (2/9/24 Min. Order.) As previously stated, the Court declines to reduce Plaintiffs’ recoverable costs. (Ibid.)

Based on the foregoing, the Court finds it reasonable to award Plaintiffs $33,109.00 in attorney fees and costs.

CONCLUSION

The motion is granted in part. Plaintiffs are awarded $33,109.00 in attorney fees and costs.