Judge: Ashfaq G. Chowdhury, Case: 23GDCV02120, Date: 2024-11-15 Tentative Ruling

Case Number: 23GDCV02120    Hearing Date: November 15, 2024    Dept: E

Hearing Date: 11/15/2024-8:30am
Case No. 23GDCV02120
Trial Date: N/A
Case Name: ROBERT FELIX II, an individual; v. GENERAL MOTORS, LLC; and DOES 1-10 inclusive

[MOTION FOR ATTORNEY FEES]

RELIEF REQUESTED¿ 
“Robert Felix II (“Plaintiff”) will move this Court for the following:

1. An Order for attorneys’ fees, costs, and pre-judgment interest pursuant to the Judgment and as the prevailing party.

This Motion is made pursuant to Civil Code § 1794(d), and other applicable statutes. This Motion is further based upon the Notice of Acceptance, the Judgment, this Notice, the forthcoming Memorandum of Points and Authorities in support thereof, the previously filed Memorandum of Costs, the Declaration of Joseph A. Kaufman, the Declaration of Christopher R. Hunt, and all pleadings, records, and papers to be filed or on file, as well as such other oral arguments as may be presented at the hearing on this Motion.”

(Pl. Notice, p. 1-2.)

Procedural
Moving Party: Plaintiff, Robert Felix II 
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, § 1013b): Ok

Moving Papers: Notice; Memorandum; Joseph A. Kaufman Declaration; Christopher R. Hunt Declaration; Proposed Order

Opposition Papers: Opposition; Cameron Major Declaration;

Reply Papers: Reply; Plaintiff’s Evidentiary Objections to Cameron Major 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.

ANALYSIS
Civil Code § 1794(d)
Under Civil Code § 1794 (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.

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 seeks attorneys’ fees in the amount of $75,891.75. This amount is based on a lodestar fee of $50,594.50 with a 1.5 multiplier, resulting in a total of $75,891.75.

Plaintiff’s counsel bases the request of $50,594.50 on 127.1 total hours of time billed.

Plaintiff states that attorney Joseph Kaufman billed 15.1 hours at $595 per hour, attorney Christopher Hunt billed 87.7 hours at $375 per hour, attorney J. Brian Lynn billed 14.9 hours at $475 per hour, paralegal Lopez billed 7.9 hours at $175 per hour, and legal assistant Masri billed 1.5 hours at $175 per hour.

Plaintiff also attached the declarations of Joseph Kaufman and Christopher Hunt to the motion for attorney’s fees. In addition to the declarations, Plaintiff explains its counsel’s legal experience on pages 8 and 10-11 of the memorandum (“motion”).

Plaintiff argues that it had to spend the amount of hours it did litigating this case because Defendant refused reasonable settlement offers. Plaintiff also argues that Defendant chose time-consuming litigation and abused the discovery process by baselessly opposing a motion to compel the deposition of the PMQ.

Plaintiff argues that this total of 127.1 hours billed amounts to 14.12 hours per month, which is a modest amount of time.

In Opposition, Defendant argues that no more than $17,423.50 should be awarded in attorney’s fees.

Defendant argues Plaintiff’s request for attorney’s fees is unreasonable because the record shows vague and duplicative entries, overly general billing entries, and overbilling for routine tasks where partners billed for work better suited for paralegals/junior associates.

Defendant also argues the discovery requests were heavily templated and similar to every other Song-Beverly case against Defendant. Defendant also argues that Plaintiff’s counsel unilaterally set the deposition date for the PMQ then served four amended notices of the deposition of the PMQ that were substantially identical with the major change being the date and time of the deposition.

Defendant attacks Plaintiff’s billing entries on pages 5-9 of the Opposition. Defendant also attaches a chart of the summary of reductions on page 12 of the Opposition, which indicates a proposed 82.2 hour reduction.

In Reply, Plaintiff argues the Opposition is unreasonable considering Defendant seeks to preclude Plaintiff from recovering all but a total of approximately 3.5 hours per month of his attorneys’ fees.

The plaintiff apparently served 145 discovery requests, including 41 RFPs, 30 Form Rogs, 44 Special Rogs, 19 RFAs, and 11 RFPs in their PMQ deposition notice.  The Court will hear from Plaintiff as to why these extensive discovery requests were necessary in this matter. The amount of requests here seem to outstrip discovery requests in much more complex matters.

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 seeks a multiplier of 1.5 because Plaintiff argues that it obtained an excellent result; Defendant refused to resolve the case early; there was a highly contingent risk; and inflation.

Plaintiff does not explicitly state how much the multiplier amounts to. Plaintiff simply argues the total for attorney’s fees is $75,891.75 based on lodestar fees of $50,594.50 with a 1.5x multiplier.

In Opposition, Defendant argues that a multiplier is unjustified because nothing about this case was novel or complex. Defendant also argues that Plaintiff did not present evidence that it avoided taking on new clients and thus did not show the nature of litigation precluded other employment by the attorneys.

Here, a multiplier is not appropriate considering this case did not present novel or difficult questions and Plaintiff’s counsel did not display skill in presenting the issues in this case.

Post-Judgment Interest
Plaintiff also seeks $1,174.80 in post-judgment interest. Plaintiff argues that $1,174.80 is based on 10% interest on the $67,000 judgment being equal to $18.3562 in interest per day. Plaintiff argues 64 days of interest at $18.3562 equates to $1,174.80.

In Opposition, Defendant argues $1,174.80 in post judgment interest is unjustified because Plaintiff experienced no undue delay in receiving settlement funds.

In Reply, Plaintiff cites to CCP § 685.010(a)(1), “ Except as provided in paragraph (2), interest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied.” (Ibid.)

Further in Reply, Plaintiff argues that Defendant failed to cite to any legal authority to refute Plaintiff’s entitlement to post-judgment interest on the judgment and the attorney fee award.

TENTATIVE RULING MOTION FOR ATTORNEY’S FEES
The Court will hear argument.

Plaintiff also requested $3,065.04 in costs in its motion for attorney fees; however, Plaintiff’s request for costs will be addressed in Defendant’s motion to tax costs.

MOTION TO TAX COSTS

RELIEF REQUESTED¿ 
“General Motors LLC (“GM”) will and hereby does move to strike/tax costs from Plaintiff’s Memorandum of Costs. This motion is based on this Notice, the Declaration of Cameron Major, the attached Memorandum of Points and Authorities, and the pleading and records on file herein.”

(Def. Mot. p. 2.)

Procedural
Moving Party: Defendant, General Motors LLC (GM or Defendant)
Responding Party: Plaintiff, Robert Felix II

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, § 1013b): Ok

Moving Papers: Notice/Motion; Cameron Major Declaration

Opposition Papers: Opposition; Christopher R. Hunt Declaration; Evidentiary Objections to Cameron Major Declaration;

Reply Papers: Reply

ANALYSIS
Plaintiff filed a memorandum of costs on 9/3/2024 seeking $3,026.70 in total costs.

Confusingly, in Plaintiff’s motion for attorney’s fees, Plaintiff argues it is seeking $3,065.04 in costs despite the fact that the memorandum of costs only seeks $3,026.70. Plaintiff should be prepared to address this at the hearing.

Further, in Defendant’s motion to strike/tax costs, Defendant argues that Plaintiff is seeking $4,088.70 in costs (Def. Mot. p. 3.) and $6,697.68 in costs (Def. Mot. p. 4.). The Court notes that it does not appear that Plaintiff is seeking either $4,088.70 or $6,697.68 in costs as Defendant’s motion alleges.

Defendant’s motion to tax costs seeks a reduction of $2,033.98 in costs.

Untimely
Defendant argues that Plaintiff did not timely file its memorandum of costs.

Defendant’s argument is unavailing. Defendant provides no explanation or argument as to how the memorandum of costs was untimely filed.

Further, “A prevailing party who claims costs must serve and file 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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, Rule 3.1700(a)(1).)

Here, Plaintiff served the notice of entry of judgment on September 3, 2024, and Plaintiff also served and filed the memorandum of costs on 9/3/2024. Therefore, the prevailing party (Plaintiff) claiming costs served and filed the memorandum of costs within 15 days after the date of service of the notice of entry of judgment.

CRC, Rule 3.1700(b)(2)
“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, Rule 3.1700(b)(2).)

Here, Defendant did not comply with CRC, Rule 3.1700(b)(2).

Defendant seeks to strike $28.00 in photocopying costs, $1,763.00 in deposition costs, and $242.98 in service-of-process and deposition costs related to dealership depositions.

Defendant does not refer to each item objected to by the same number as the corresponding cost item claimed in the memorandum of costs. In fact, the Defendant does not refer to any of the items it objects to by any number.

Further, Defendant did not refer to each item objected to in the same order as the items claimed in the memorandum of costs. For example, Defendant objects to $28.00 in photocopying; however, this cost that Defendant seeks to strike appears to be from the $54.68 in costs in Item 16 “Other” in the memorandum of costs. Defendants lists this as the first item it seeks to strike despite being the 16^th item in the memorandum of costs.

Legal Standard
“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 were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 citing Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.)

Further, the case of Nelson v. Anderson helps explain the parties’ burdens:

We agree the mere filing of a motion to tax costs may be a “proper objection” to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. (See Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698–699, 32 Cal.Rptr. 288.) However, “[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Id., at p. 699, 32 Cal.Rptr. 288; see also, Miller v. Highland Ditch Co. (1891) 91 Cal. 103, 105–106, 27 P. 536.)

The court's first determination, therefore, is whether the statute expressly allows the particular item, and whether it appears proper on its face. (Cf., Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at pp. 774–776, 23 Cal.Rptr.2d 810.) If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. (Decoto School Dist. v. M. & S. Tile Co. (1964) 225 Cal.App.2d 310, 317, 37 Cal.Rptr. 225.)

(Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Deposition Costs
Defendant objects to Plaintiff seeking $1,763.00 for deposition costs. Defendant argues:

Counsel simply inserted the name of a deponent and failed to establish what the deposition costs were incurred for. Counsel failed to establish whether these costs were related to taking the deposition, travel expenses, videotaping, transcribing or something else. (Id.) As such, Counsel has failed to establish what the nature, necessity or reasonableness of this cost.

(Def. Mot. p. 5.)

Here, taking depositions appears to be an allowable cost under CCP § 1033.5(a)(3).

To the extent that Defendant argues that this cost is not necessary or reasonable, the Court does not find Defendant’s argument availing.

Defendant argues that the memorandum does not state whether the cost is related to taking the deposition, travel expenses, videotaping, or transcribing, or something else.

Defendant’s argument is unavailing because in Opposition, Plaintiff  states that the $1763.00 was for costs incurred for the deposition of Michael Leffler, the PMQ witness who testified for the dealership. Plaintiff attaches as Exhibit 3 to the Hunt declaration the court reporter invoice for the deposition of Michael Leffler, and the invoice is for $1,763.99.

Service of Process
Defendant moves to strike $242.98 in service of process costs and deposition costs related to the dealership depositions.

Defendant argues, “These dealerships are non-parties with their own counsel and are not controlled by GM. None of this work by Counsel advanced Plaintiff’s case, as the depositions covered the same general topics (repairs the dealership made to the Subject Vehicle) as past discovery. Counsel should recover none of these costs.” (Def. Mot. p. 5.)

Here, the Court does not find Defendant’s argument availing.

These costs appear to be allowable under CCP § 1033.5(a)(4).

Therefore, Defendant appears to be disputing the reasonableness.

The Court does not find Defendant’s argument availing because Plaintiff explained in Opposition that it was Plaintiff’s burden to depose and obtain records from the dealership that tried to repair Plaintiff’s vehicle.

Photocopying
Defendant moves to strike $28.00 in photocopying costs associated with discovery responses.

Here, Defendant appears to be correct that under CCP § 1033.5(b)(3) photocopying is not allowable as a cost except when expressly authorized by law.

In Opposition, Plaintiff cites to Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-38 to argue that even if a certain cost is excluded under CCP § 1033.5, that cost can still potentially be recovered under CCP § 1794(d) because 1794(d) permits the prevailing buyer to recover both costs and expenses.

Here Plaintiff’s citation to Jensen is persuasive in that Plaintiff can recover expenses under CCP § 1794(d) because Jensen stated, “ it is clear the Legislature intended the word “expenses” to cover items not included in the detailed statutory definition of “costs.”” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.)

However, as further stated in Jensen, the court must still determine whether the amount sought is reasonably incurred by the buyer in connection with the commencement and prosecution of this case. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138.)

Here, item 16 in the costs memorandum sought $28.00 for photocopies of discovery responses.

In Opposition, Plaintiff does not even attempt to explain what the $28.00 in photocopying was for with respect to this case.

Defendant’s motion to strike costs at to the $28.00 in “Item 16 – Other” is granted.

TENTATIVE RULING MOTION TO STRIKE/TAX COSTS
Defendant’s motion to strike/tax costs is granted in part.

The Court GRANTS Defendant’s motion as to striking $28.00 in costs from Item 16, Other, which included $28.00 in photocopying of discovery responses. Defendant showed that this item was not explicitly allowable as a cost under CCP § 1033.5. To the extent that Plaintiff showed that this cost could be recovered as an expense under CCP § 1794(d), Plaintiff failed to show how the expense was reasonably incurred because Plaintiff made no attempt to explain the $28.00 in costs.

Defendant’s motion to strike costs with respect to all other costs that Defendant sought to strike is DENIED.

Plaintiff is awarded $2,998.7 in costs based on the memorandum seeking costs of $3,026.70 and the Court striking $28.00 from the $3,026.70.