Judge: Ashfaq G. Chowdhury, Case: 22AHCV00644, Date: 2024-06-28 Tentative Ruling

Case Number: 22AHCV00644    Hearing Date: June 28, 2024    Dept: E

Hearing Date: 06/28/2024 – 8:30am
Case No. 22AHCV00644
Trial Date: N/A
Case Name: SANDRA J JUAREZ ESPINOZA, an individual; v. GENERAL MOTORS, LLC; and DOES 1-50, inclusive

[TENTATIVE RULING– MOTION FOR ATTORNEYS’ FEES]

RELIEF REQUESTED¿ 
“Plaintiff Sandra J Juarez Espinoza (“Plaintiff”) will, and hereby does, move for the Court, pursuant to the Song-Beverly Consumer Warranty Act, Civ. Code §1794(d), to issue an Order awarding her attorneys’ fees in the amount of (1) $38,621.50 and (2) $5,000 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this Motion.

This Motion is made on the grounds that Plaintiff is the prevailing party on the Song-Beverly Consumer Warranty Act claim at issue in this lawsuit, and under said Act is entitled, by statute, to such a fee, cost, and expense award. This Motion is based on this Notice; the attached Memorandum of Points and Authorities; the supporting Declaration of Corinna Jiang; the pleadings and papers on file herein; and on any other matter that may be presented to the Court at or before the hearing of this matter.”

(Pl. Mot. p. i.)

Procedural
Moving Party: Plaintiff, Sandra J Juarez Espinoza
Responding Party: Defendant, General Motors LLC

16/21 Day Lapse (CCP §12c and § 1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP § 1013, § 1013a): Ok

Moving Papers: Notice/Motion; Memorandum of Costs; Proposed Order; Jiang Declaration
Opposition Papers: Opposition; Pappas Declaration
Reply Papers: Reply; Supplemental Declaration

BACKGROUND
The instant motion pertains to the Plaintiff’s request for attorneys’ fees based on being the prevailing party in a Song-Beverly action after settling the dispute with Defendant.

DISCUSSION
Civil Code 1794(d)
Under Civil Code § 1794, subdivision (d) the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred:  “If the buyer prevails 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(d).)  

Here, there was no dispute as to Plaintiff being the prevailing party due to the settlement of the case.

Timeliness of Motion
The Opposition argues that Plaintiff presented the instant fee motion 205 days after the settlement of the case. Opposition argues that this motion is untimely under CRC, 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[.]” (CRC, Rule 3.1702(b)(1).)

Further, “Unless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, 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.” (CRC, rule 8.104(a)(1).)

Defendant asserts that there is a “catch-22” here because for matters where the dismissal of the complaint with prejudice would only be filed after an award of attorney fees, there can be no untimely fee motion because the fee motion itself is a condition precedent to the trigger point of any deadline.

Defendant argues that the drafters of rule 3.1702 could not have intended that one class of matters would have a time limit to file fee motions simply due to their status of possessing a “final judgment,” while other classes of matters could linger on a docket in perpetuity.

Defendant thus argues that when the parties settled the case at mediation on October 17, 2023, this settlement thus acted as a “judgment” under 3.1702, and the time limits to file this motion started to run on October 17, 2023.

Defendant argues the filing of this motion on 5/9/2024, which is allegedly 205 days after the mediation, is nowhere close to meeting the 180-day deadline.

The Reply points out that the plain language of Rule 3.1702(b)(1) and 8.104(a) explicitly refers to “judgment,” and that no judgment was ever entered here for any deadline to take effect.

The Court will hear argument.

The Court is inclined to reject Defendant’s argument. As the Reply pointed out, all the cases cited by Opposition to support its argument are either inapposite or not on-point.

Further, the supplemental declaration in Reply points to Exhibit 7 which is the settlement agreement. Plaintiff points to the language on page 3 in Exhibit 7  of the Supplemental Jiang Declaration that states, “Once the issue of outstanding attorneys’ fees and costs is resolved by way of settlement or court order, plaintiffs shall file a Request for Dismissal with prejudice of the entire lawsuit as against all defendant forthwith.” Plaintiff argues that denying this motion as untimely would be reneging from the obligations of the settlement agreement.

Since Defendant did not provide legal authority that is directly on-point to support the assertion that this motion should be denied on grounds of untimeliness, the Court is inclined to find this motion timely.

General Legal Standard - Lodestar and Multiplier
The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it 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….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

The Court has broad discretion in determining 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, 1393-94.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

ANALYSIS
Reasonableness of Hourly Rate and Time Expended
Plaintiff requests $38,621.50 in attorney’s fees plus an additional $5,000 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this Motion.

Plaintiff’s counsel states its hourly rates as follows:

The hourly rates for the attorneys who worked on this case is Nancy Zhang ($500- $510/hour) and Corinna Jiang ($415-430/hour). These rates are appropriate given the attorneys’ relative experience and qualifications. (See Jiang Decl., ¶¶ 32-35.) The rates are similar to the rates of Los Angeles County awarded to attorneys in other Song-Beverly cases. (Id., ¶¶ 27-30, Exhs. 1- 4.)

(Pl. Mot. p.8.)

Plaintiff also argues that its request for 97.85 hours spent is reasonable.

To support Plaintiff’s reasonableness of its request, Plaintiff submitted the Jiang Declaration.

Defendant argues that 97.85 hours of work is excessive and unsubstantiated and that 83.25 hours should be subtracted. Defendant also argues that Plaintiff should recover no more than $11,002.50 in fees. Defendant attacks several of Plaintiff’s time entries on pages 7-10 of the Opposition. Defendant also argues that the rate of Plaintiff’s counsel is not reasonable.

The Court will hear argument.

Multiplier
The lodestar amount “may be adjusted by the court based on factors including (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.”¿ (Bernardi¿v. County of Monterey¿(2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132].)¿ The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary.¿ (Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker & McKenzie¿(1998) 63 Cal.App.4th 1128, 1171-72.)

“The trial court is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 citing Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297.)

Here, Plaintiff does not request a multiplier.

The Court will not apply a multiplier.

Costs
Plaintiff also filed and served a memorandum of costs on Defendant on 5/9/2024, which is the same date that Plaintiff filed its motion for attorneys’ fees.

The Court notes that Plaintiff’s motion for attorneys’ fees does not request costs.

While the Court has some notice concerns about granting costs because the motion for attorneys’ fees didn’t reference costs, the Opposition does not address this issue. In fact, the Opposition argues that the $2,321.72 that the memorandum of costs seeks should be reduced by $1,471.24.

Opposition argues that :

• GM should not be required to reimburse Counsel for $623.67 for costs associated with Plaintiff’s motions to compel. (See Memorandum of Costs; Worksheet, p. 1 and Attachments 14 & 16). These were optional costs that Counsel elected, where the motions practice was entirely one-sided. These unnecessary costs should be stricken in their entirety.

• GM should not be forced to reimburse Counsel $150.00 for “Jury Fees” (jury deposit). (See Memorandum of Costs, Worksheet, p. 1.) This case never went to trial and GM should therefore not be billed for the $150 jury deposit. The Court should strike this cost.

• GM should not be required to pay $697.57 in “TBD” costs related to Plaintiff’s Motion for Attorney Fees. (Id., Worksheet, p. 1 and Attachments 14 and 16.) The Court should strike these costs. Costs are only allowed if actually incurred; Counsel has not spent anything for future services. Moreover, $697.57 appears to be an estimate, not an actual charge incurred.

(Def. Oppo. p. 12-13.)

Plaintiff’s Reply cites to CRC, Rule 3.1700.

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (CRC, Rule 3.1700(b)(1).)

Plaintiff points out how Defendant did not file a motion to tax costs. Plaintiff argues that any argument submitted about costs should be disregarded because a motion to tax costs was not filed.

The Court agrees that there was no motion to tax costs submitted. Further, the Court notes that even if it construes Defendant’s Opposition to the motion for attorneys’ fees as a motion to tax costs, the Opposition was not served and filed within 15 days after service of the cost memorandum. The Opposition was filed/served on 6/14/2024, and the memorandum of costs was filed/served on 5/9/2024.

The Court will hear argument.

TENTATIVE RULING
The Court is inclined to grant the motion, but will hear from the parties regarding the appropriate amount to be awarded in fees and costs.