Judge: Anne Richardson, Case: 19STCV19545, Date: 2023-09-11 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV19545    Hearing Date: September 11, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Angel M. Vertiel-Sandoval brought this action on June 4, 2019, alleging five claims under the Song-Beverly Consumer Warranty Act (SBA, also known as the lemon law) against Defendant FCA US LLC (FCA) and Does 1 through 50.

The claims arose from allegations that Plaintiff purchased a 2015 Dodge Journey truck (Vehicle) pursuant to SBA warranties from FCA, in which defects arose during the warranty period—e.g., a defective engine, defective electrical system, and a defective transmission system—which FCA and its representatives were not able to service or repair within a reasonable number of attempts.

On August 18, 2022, Plaintiff filed a notice of conditional settlement of the entire case. According to the briefing before the Court, pursuant to the settlement, Plaintiff received a full statutory repurchase of the Vehicle ($30,718.29) and civil penalty damages ($3,940).

On April 27, 2023, Plaintiff moved for $77,868.75 in attorney’s fees as the prevailing buyer in this action. The hearing on the motion was set for September 11, 2023.

On August 28, 2023, FCA opposed the motion.

On September 1, 2023, Plaintiff replied to the opposition, revising the requested amount to $74,708.75.

Plaintiff’s motion for attorney’s fees is now before the Court.

Request for Judicial Notice

The Court DECLINES to take judicial notice of the thirteen orders from other Courts relating to fees in lemon law cases because the orders are not dispositive of the Court’s determination in this action.

Motion for Attorney’s Fees

Legal Standard 

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) A prevailing buyer in a Song-Beverly Act action is entitled to recover their attorney’s fees and costs under the Act’s express terms. (Civ. Code, § 1794, subd. (d); see Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 464, 471.)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

Order Granting Attorney’s Fees: GRANTED, in Part.

As the prevailing buyer in this action, Plaintiff seeks $74,708.75 in attorney’s fees, comprised of (1) $29,147.50 in attorney’s fees for work expended by Plaintiff’s counsel through the filing of this motion, (2) a 1.50 multiplier enhancement (or $43,721.25) on the total attorneys’ fees, and (3) an additional $1,840 for Plaintiff’s counsel to review FCA’s opposition, draft a reply brief, and attend the hearing on this motion. (See Reply, Fennell Decl., ¶ 4.)

I. Reasonable Fee Rate

Plaintiff seeks a fee rate of $460 per hour for Plaintiff’s counsel—specifically, Mr. Joshua D. Fennell, Esq—and a fee rate of $200 per hour for work performed by paralegal Elaine Astorga. Plaintiff supports these rates through the declaration of Mr. Fennell, which details counsel’s academic background and five-year professional experience. Plaintiff also attaches a number of orders from other courts approving fee rates similar to that requested by Plaintiff for Mr. Fennell. Last, Mr. Fennell spends one paragraph supporting the fee rate for Elaine Astorga. (Mot., p. 7, 10; Mot., Fennell Decl., ¶¶ 127-140, 145, Exs. 3-15.)

The verified time records attached to the motion show that Mr. Fennell billed at rates of $325 per hour as of June 2019, $350 per hour as of September 2019, $370 per hour as of March 2020, $385 per hour as of January 2022, $415 per hour as of June 2022, and $460 per hour as of July 2022. The verified time records also show that rates of $175 and $200 per hour were billed by Elaine Astorga. (See Mot., Fennell Decl., Ex. 16.)

In opposition, FCA argues that $250 per hour is a more reasonable fee rate for Mr. Fennell. The opposition does not contest the $200 per hour fee rate for paralegal Elaine Astorga. (Opp’n, pp. 4-5.)

In reply, Plaintiff cites to a number of trial court orders—of which the Court declined to take judicial notice—to support the rates requested. (Reply, pp. 3-4.)

The Court finds that the requested fee rates are not reasonable as to Mr. Fennell at least as it relates to a fairly ordinary SBA case.

Based on its experience in the Los Angeles market, as well as the description of counsel’s experience and qualifications and work performed in this case, the Court calculates reasonable fee rates for Mr. Fennell to be $300 per hour through the end of 2019, $325 per hour through the end of 2020, $350 per hour through the end of 2021, $395 per hour through the end of 2022, and $440 per hour for 2023.

The Court otherwise finds that the fee rates for paralegal Elaine Astorga are reasonable, particularly where they are not disputed.

II. Reasonable Hours Expended

Plaintiff argues that he is entitled to recovery for 78.2 hours of work expended by counsel Fennell and paralegal Astorga through the drafting of this motion, as well as four hours expended or to be expended by Mr. Fennell on the reply and appearing at this hearing. (See Mot., pp. 9-10; Mot., Fennell Decl., Ex. 16; Reply, Fennell Decl., ¶ 3.)

In opposition, FCA does not suggest a number of hours that were reasonably expended by Plaintiff’s counsel on this matter, instead arguing that the billing records show that the time spent on this action by counsel was excessive. FCA supports this argument by pointing to entries in the billing records showing tasks taking small amounts of time—for example, 0.1 hours spent on a variety of tasks. FCA also argues that the number of hours expended on this action by Plaintiff’s counsel are unreasonable where the case did not go to trial, was not ready for trial, no depositions were taken, and involved routine lemon law claims. FCA last argues that the hours spent drafting this motion were excessive. (Opp’n, pp. 2-4.)

The Court finds that the hours expended by counsel were reasonably incurred, and that four hours expended on a reply and appearing at this hearing are reasonable.

The Court relies on the time that the litigation was pending before settling and based on the tasks described in the verified time records, which are entitled to some deference. (See Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 397 [“[T]rial court abused its discretion in rejecting wholesale counsels’ verified time records” where “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”].) Even the hours expended on this motion were reasonable based on the detail in Mr. Fennell’s motion, although the Court recognizes that some of the exhibits to the motion need not have been attached.

III. Multiplier Enhancement

The parties dispute whether a multiplier enhancement award is justified here. (Compare Mot., pp. 12-13 & Reply, p. 7, with Opp’n, pp. 5-6.)

The Court finds insufficient reasons to award a multiplier enhancement award in this action.

The Court notes that the presiding judicial officer was not the officer that oversaw litigation through settlement. As a result, the Court is not as familiar with this case as was the previous judicial officer.

From the papers presented by the parties, it does not appear that this action involved novel or complex legal questions. Though Plaintiff’s counsel had to educate itself on Plaintiff’s Vehicle and obtain internal analysis documents, such work alone does not connote a novel or complex legal question. Moreover, it is not clear to what degree Plaintiff’s counsel was precluded from performing other work while working on this action. While the Court recognizes that the fee here was contingent, the Court is not satisfied that that this factor alone supports an enhancement award. The Court makes no finding as to skill displayed by Plaintiff’s counsel given its lack of familiarity with this action, as well as the conclusion that the briefs simply do not show an amount of skill that merits an award beyond the hours already billed.

A multiplier enhancement is thus denied.

IV. Costs

Because this motion does not involve costs, the Court need not further discuss this topic.

V. Conclusion of Discussion

This motion is GRANTED in the amount of $28,494, comprised of 82.2 hours expended by counsel and a paralegal at variable rates discussed above. 

Conclusion

Plaintiff Angel M. Vertiel-Sandoval’s Motion for Attorney’s Fees is GRANTED, in Part.

Defendant FCA US LLC is ORDERED to remit payment of $28,494 to Plaintiff Angel M. Vertiel-Sandoval within 30 days of this ruling.