Judge: Blaine K. Bowman, Case: 37-2022-00015729-CU-CO-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Contract - Other Motion Hearing (Civil) 37-2022-00015729-CU-CO-NC MCMULLEN VS. GENERAL MOTORS, LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/27/2023

The Motion for Attorney Fees, Costs, and Expenses brought by plaintiff Jonathan McMullen (Plaintiff) is GRANTED in the reduced amount of $52,558.75. This number is reached by the following: --allowing all lodestar fees as set forth in the notice of motion ($43,813.50) --DENYING the requested multiplier of 1.3 --adding in fees of $3,500.00 for the time to reply and appear at the hearing on the instant motion --adding in costs and expenses of $2,245.52 The parties have stipulated that Plaintiff is the 'prevailing party' for purposes of attorney fees.

Attorney fee motions in the context of lemon law are fairly common. The Court notes a couple of touchpoints. First, the California Legislature has seen fit to award attorney fees in lemon law actions to promote consumer protection. Thus, while attorney fee awards must still be reasonable, the incentive structure appears to be that manufacturer defendants in consumer protection cases may wish to settle their cases quicker in order to avoid hefty attorney fees. To the extent that the manufacturer argues here that Plaintiff's approach to the litigation was inefficient, the Court largely views such arguments with suspicion, as it is the defendant-manufacturer who has the power to informally resolve the consumer protection matter quicker if efficiency is desired. Stokus v. Marsh (1990) 217 Cal.App.3d 647, 654 ('Parties who litigate with no holds barred in cases such as this, in which the prevailing party is entitled to a fee award, assume the risk they will have to reimburse the excessive expenses they force upon their adversaries.'); Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114 ('A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.'). On the other hand, the Court is mindful that too much indulgence of that view can leave attorneys for plaintiff-consumers incentivized to 'overbill' or 'churn' a case unnecessarily. With those two general principles in mind, the Court turns to the arguments made by the parties.

Just as the plaintiff-consumer side can be incentivized to overbill, the defendant-manufacturer side can be incentivized to waste time opposing attorney fee motions on a micro level: focusing on deducting 0.5 hours here and 0.2 hours there. Unless there is a common theme established showing significant padding of the vast majority of billing entries, or a particular billing entry that is both egregious and would result in a substantial alteration to the bottom-line award, the Court declines to review the billing at this granular level. Such a fine-toothed approach not only encourages expenditure of more time by the parties arguing about trivial amounts, but also begins to consume significant taxpayer money with the judicially-inefficient task of reviewing attorney fee bills line-by-line. Moreover, such tasks often involve a form of 'Monday morning quarterbacking' in that, while it might seem that a run-of-the-mill task can be Calendar No.: Event ID:  TENTATIVE RULINGS

2989713 CASE NUMBER: CASE TITLE:  MCMULLEN VS. GENERAL MOTORS, LLC [IMAGED]  37-2022-00015729-CU-CO-NC handled in a certain efficient way, the realities on the ground sometimes render even simple litigation tasks more time-consuming. With those touchpoints in mind, the Court turns to the specific arguments of the parties.

The Court rejects the arguments of defendant General Motors LLC (General Motors) that the deposition work could have been avoided. The Court's own analysis previously rejected General Motors' characterization of the 'unilateral' noticing of a deposition as somehow wasteful and indicated that attorney fees for that work would have been appropriate if an estimate had been provided. (See ROA 35.) The Court also rejects argument regarding the attorney rates being unreasonable or the use of 'templates' warranting a reduction. The use of 'templates' along with the skill of an attorney to ensure those 'templates' fit the particulars of a case appears to be an efficient approach, and it seems here that the attorney fee bills would have been appropriately higher if not for Plaintiff's economical use of 'templates' to litigate this matter.

The Court rejects Plaintiff's request for a multiplier on a theory that taking a plaintiff's lemon law case involves a serious risk of not being paid. Unlike other cases where the level of risk might be unpredictable (such as an employment law case where one of any number of defenses might derail the case), lemon law cases are a bit more straightforward, and good intake procedures to review the merits of the underlying case at the outset can significantly reduce the risk of losing a lemon law case.

Moreover, attorney fees are built into the statute upon prevailing – there is no requirement for a heightened finding like that the lemon law violation was done willfully or maliciously (as exists in trade secret law). Lemon law more simply awards attorney fees to a prevailing plaintiff, and, as such, an attorney who screens cases effectively at the outset faces significantly reduced risks of loss.

However, the Court does note the argument by General Motors that Plaintiff is seeking attorney fees for 'pre-engagement work.' That 'pre-engagement work' is precisely the kind of work that takes significant risk out of a lemon law case. Thus, the Court concludes that it is appropriate to compensate the time spent screening this particular case at the outset. Were the Court to take a different approach, the appropriateness of an upward multiplier (albeit a small one) might be more appropriate, as the concept of 'risk' for which a multiplier is often applied to an attorney fee assessment (i.e. the risk that a plaintiff's lawyer takes multiple cases but only some of them result in favorable winning verdicts) is embedded within that process – i.e. the process of screening cases, some of which will never proceed because they lack merit. Rather than utilizing the relatively blunt tool of a multiplier to attempt to account for the 'risk' inherent in spending time assessing a case, this Court takes the view that simply awarding the lodestar value of the time spent 'pre-engagement' on assessing the case is compensable.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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