Judge: Barbara M. Scheper, Case: 22STCV11876, Date: 2024-05-03 Tentative Ruling

Case Number: 22STCV11876    Hearing Date: May 3, 2024    Dept: 30

Dept. 30

Calendar No.

Bryant v. General Motors, LLC, et. al., Case No. 22STCV11876

Tentative Ruling re:  Plaintiff’s Motion for Attorney’s Fees

            Plaintiff Jamar Bryant moves for an award of attorney’s fees and costs against Defendant GM. The motion is granted. Attorney’s fees and costs are awarded to Plaintiff in the amount of $23,631.93.

“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) 

In a lemon law action, costs, and expenses, including attorney fees, may be recovered by a prevailing buyer under the Song-Beverly Act. (See Civ. Code, §§ 1790, et seq.) Civ. Code § 1794, subd. (d) provides,

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.

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Ibid.) 

A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

            In determining whether the requested attorney’s fees are “reasonable,” the Court’s “first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].) In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

“‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’”

(Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

            Plaintiff moves for an award of costs and expenses, including attorney’s fees, as the prevailing party pursuant to GM’s Offer of Compromise. (Ex. 6, ¶1.) Plaintiff requests fees in the amount of $31,027.50, litigation expenses in the amount of $1,830.14, for a total award of $32,857.64. The fees are broken down as follows:

(Plaintiff’s Motion for Attorneys’ fees and costs, p. 15.)

Timeliness of Motion

“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 or under rules 8.822 and 8.823 in a limited civil case.” (Cal. Rules of Court, rule 3.1702, subd. (b).)

Pursuant to CRC rule 3.104, (a)(1) “Unless a statute or rules 8.108, 8.702, or 8.712 provide 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.”

Defendant GM states that Plaintiff’s motion for attorney’s fees is untimely because Plaintiff filed this motion on February 14, 2024, which is 323 days after the parties signed the settlement agreement. (Opposition, p. 4.) Defendant GM cites Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 8, which states that the “deadline ordinarily falls 60 days after notice of entry of judgment, or 180 days after entry of judgment, whichever is first.” (Opposition, p. 4.) Plaintiff responds by stating that the Offer to Compromise was not filed with this Court, the matter has not been dismissed and judgment has not been entered. (Plaintiff’s Reply, Line 11-16, p.3.)

The Court agrees with the Plaintiff and finds that the motion is timely.

Reasonableness of Hours and Rates

Requested rates are reasonable if they are “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783.) In calculating the lodestar 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 [Citation], the difficulty or complexity of the litigation to which that skill was applied [Citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. [Citation.]” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)

The Court finds Plaintiff’s counsels’ rates reasonable.

Defendant GM contends that the Plaintiff is seeking compensation for unsubstantiated or unreasonable hours and fees. (GM’s Opposition, p. 6.) GM has challenged the following hours submitted by the Plaintiff. (Id., pp. 6-9.) The Court discusses each contention as follows.

1.      Pre-Engagement Research—March 16, 2022: Defendant contends that Plaintiff’s counsel cannot be awarded fees for work done before counsel was retained. Plaintiff responds by stating that time that an attorney spends on a case before the action is filed may be compensable as per the holding in Webb v. Board of Educ. (1985) 4 71 US 234. The Court agrees with the Plaintiff and finds the fee charged reasonable. 

2.      Communications with Plaintiff Regarding “Case Status” Before Case Filed—April 4, 2022: Defendant contends that Plaintiff’s counsel should not be compensated for communicating with the Plaintiff before Counsel drafted a complaint. The Court disagrees and finds the fee charged reasonable. 

3.      TPUSA Claim—June 3, 2022: Defendant GM contends that Plaintiff’s counsel should not be compensated for time spent reviewing co-defendant TPUSA’s counsel’s response to Plaintiff’s complaint. Defendant GM cites  the Barry Declaration to support their position. However, this declaration does not support their claim, nor does it mention reviewing the response of GM’s co-defendant. However, the Activities Export, Ex. 6. p.2, does support their assertion because it states that Plaintiff billed to “Review Declaration of R. Salaam in Response to Plaintiffs Complaint”. Therefore, the Court agrees with Defendant’s finding that Defendant GM cannot be billed for this activity and reduces attorney’s fees by $125 (0.2 hours).    

4.      Templated Discovery Requests to GM—August 2, 3 & 4, 2022: Defendant GM argues that Plaintiff used templates to draft discovery requests and that drafting the discovery requests did not take as long as Defendant GM stated. Plaintiff responds by stating that templates allow them to take less time overall, but templates still have to be tailored to fit the current case therefore their costs are reasonable. The Court agrees with the Plaintiff and finds the fees reasonable.

5.      Reviewing GM’s Discovery Responses and Objections to Deposition Notices— September 23, 28, & 29 and October 10, 2022: Defendant GM states that none of the responses were novel and it should not have taken 4 hours to review the discovery responses. Instead, it should have only taken an hour. Plaintiffs respond by stating that a tailored review of discovery requests was conducted because the discovery is unique to each case. The Court agrees with the Plaintiff and find the fees reasonable.

6.      Excessive Time Drafting Canned Meet-and-Confer Correspondence, Review of GM’s Meet-and-Confer Emails and related File Review—September 30, October 10, 14, 21 & 26, November 1, 2022: Defendant GM states that Plaintiff’s hours should be reduced because Plaintiff used recycled meet and confer letters and emails. Plaintiff only needed to change the case name and number. Plaintiff responds by stating that time was spent preparing for litigation thus it is compensable (See Serrano v Unruh (1982) 32 Cal.App 3d 621.) The Court agrees with the Plaintiff and finds the fees reasonable.

7.      Redundant and Excessive Communication with Plaintiff – June 3, 7, September 16, November 23 & 28, 2022; February 2, March 10 & 19, June 2, 5 & 7, 2023: Defendant states that Plaintiff’s counsel had redundant and excessive communication with Plaintiff. Communication in preparation for litigation is compensable. The Court agrees with the Plaintiff and finds the fees reasonable.

8.      Recycled Discovery Motions– January 4, 6, & 9, February 6 & 8, March 3, 6, 7, 8 & 13, 2023: Defendant GM states that Plaintiff spent “a staggering 16.5 hours” preparing and reviewing briefs that are based on templates. Plaintiffs respond by stating billable work must be performed to tailor the discovery to the specific facts of each case. Therefore, the time billed is not excessive merely because templates were used. The Court finds that these fees are reasonable.

9.      Reviewing (and only reviewing) GM’s Discovery Requests—March 9-10, 2023: Defendant GM contends that it is unreasonable for Plaintiff to spend 1.5 hours reading a discovery request because this time does not include answering the request. Defendant GM states that the firm representing Plaintiff currently has 200 pending cases against GM. These cases are not novel and do not significantly vary. The Court agrees and grants a reduction for 1 hour ($445).

10.  General Case Management & Memo to and Reviews of File – April 14, June 13, September 12, October 20, November 13 & 14, 2022; March 14, August 31, November 1, 2023. Defendant GM contends that they should not be billed for clerical tasks that pertain to the management of case files. The Court agrees and grants a reduction for 2.6 hours ($1,076.50).

11.  Travel Time – September 13 and November 14, 2022; August 31, November 1, 2023; February 1, 2024, and May 3, 2024. Defendant GM states that GM should not have to pay for travel time to hearings because the cost could have been avoided if the Plaintiff had exercised due diligence. As a result of lack of diligence, multiple hearing to show cause were held. Except as set forth below, the Court disagrees as time spent traveling to hearings is a cost incurred during the course of litigation.

12.  Order to Show Cause Hearings and related declarations – August 18 & 31, October 25, November 1, 2023; January 31, February 1 & 5, 2024.  Plaintiff accepted Defendant’s 998 offer, with the exception of the offer of $10,000 in attorney’s fees, on March 28, 2023.  Thereafter, no activity was recorded on the file until June 2, 2023.  Plaintiff filed a notice of settlement on June 21, 2023.  The Court set an order to show cause regarding dismissal for August 31, 2023.  Plaintiff’s counsel filed a declaration prior to the hearing explaining that more time was needed to negotiate the attorney’s fees issue before the dismissal could be filed.  An order to show cause regarding dismissal was set for November 1, 2023 and again for February 1, 2024.  Notably, the billing records do not reflect any entry for meeting and conferring with Defendant’s counsel regarding the fees and Defendant’s counsel declares that there was no meet and confer.  Between June 2, 2023 and February 1, 2024, Plaintiff’s counsel billed over $4,000 to attend the orders to show cause, in person, before finally filing the instant fee motion.  This time was not reasonably and necessarily incurred and seems to have been designed simply to increase the fee award.  The Court will disallow fees in the amount of $4,315 for these activities.

13.  Attorneys’ Fees Demand—January 22, 23, & 31, May 2-3, 2024, and TBD: Defendant GM contends that Plaintiff should not be compensated for reviewing and revising their personal declarations because these are not fact specific and do not change from case to case, except for the caption. Additionally, their fee motion is virtually identical to a fee motion that Plaintiff’s Counsel recently filed against GM in another case. Lastly, this one activity accounts for over 15% of all of Counsel’s billed fees. Defendant GM is asking for a reduction from 10 hours to 4 hours. The Court agrees that the time claimed for this straightforward motion is excessive and will deduct $2,935

Accordingly, the Court awards attorney’s fees in the amount of $22,131.

Costs

Plaintiff also seeks reimbursement for $1,830.14 in costs and expenses. The Song-Beverly Act allows a prevailing buyer to recover reasonably incurred costs and expenses. (See Civ. Code, § 1794, subd. (d).)

Defendant argues that the requested costs should be taxed in the amount of  $44.95 for delivery of courtesy copies.  “Costs for courier or messenger fees are not specifically enumerated as allowable costs in Code of Civil Procedure section 1033.5, subdivision (a), neither are they prohibited in subdivision (b). Thus, messenger fees may be recoverable in the trial court's discretion if ‘reasonably necessary to the conduct of the litigation.’ ” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)

This Court does not require courtesy copies and therefore $44.95 will be disallowed.

Defendant objects to parking and mileage fees for in person appearances at certain hearings, including the three hearings re the order to show cause regarding dismissal after settlement.  None of these hearings involved motions or other complicated issues so Plaintiff could easily have attended remotely.  Certainly, as the Court has indicated, the hearings regarding the long awaited dismissal were entirely unnecessary.  The Court will disallow $184.26

The Court awards Plaintiff costs in the amount of $1,600.93.