Judge Bruce G. Iwasaki, Case Number: 20STCV06478, Date: 2024-03-29 Tentative Ruling

Tentative Ruling: Plaintiff’s motion for attorney fees is granted in the reduced amount of $111,490.50 and costs are granted in the reduced amount of $7,277.71.

On October 5, 2020, Plaintiff Cristobal Lopez (FAC) filed the operative First Amended Complaint (FAC) against Defendant General Motors (Defendant) for (1) breach of implied warranty under Song-Beverly Act, (2) breach of express warranty under Song-Beverly Act, and (3) concealment.

The parties settled this Song-Beverly matter except as to the issues of attorney fees and costs. Plaintiff now moves for an award of attorneys’ fees.

Defendants filed an opposition, arguing the amounts requested in fees and costs are excessive and unreasonable.

A prevailing buyer in an action under Song-Beverly “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,¿subd. (d).)

The prevailing party has the burden of showing that the requested attorney fees were “reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].’ ” (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the “time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿

A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”¿¿(Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.)

Plaintiff seeks $143,692 in attorneys’ fees for the Barry Law Firm, plus a 1.25 multiplier enhancement, and costs of $8,089.87, for a total of $187,704.87.

In opposition, Defendant GM argues that the Court should limit the attorney fee award to $68,223.50 in fees and $6,587.71 in costs, for a total of no more than $74,811.21.

A calculation of attorneys’ fees for a Song-Beverly action¿begins with the “lodestar” approach, under which the Court fixes the lodestar¿at¿“the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com.¿(1982) 134 Cal.App.3d 999, 1004-1005.) “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Ibid.)¿ “ ‘The reasonable hourly rate is that prevailing in the community for similar work.’ ” (Id.¿at p. 1004.) The lodestar figure may then be adjusted, 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.¿(Serrano v. Priest¿(1977) 20 Cal.3d 25, 49;¿PLCM Group, Inc. v. Drexler¿(2000) 22 Cal.4th 1084, 1095.)

“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

In assessing the reasonableness of hourly billing rates,¿“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.”¿(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿

Here, Plaintiff’s counsel seeks Court approval of hourly rates ranging from $250 to $625. (Mot., 16:2-19.) Defendant does not specifically challenge Plaintiff’s hourly rates.

A review of the declaration submitted in support of the motion for attorney’s fees – which contains a description of each attorneys’ education and experience – supports finding Plaintiff’s attorneys’ hourly rates ranging from $250 to $650 were reasonable; the rates are supported by substantial evidence under the present circumstances. (Barry Decl., ¶¶ 32-33, 38-41; Quinn Decl., ¶¶ 1-11; Galaviz Decl., ¶¶ 1-7; Hayes Decl., ¶¶ 1-5; Norris Decl., ¶¶ 1-6; Rabieian Decl., ¶¶ 1-5; Matera Decl., ¶¶ 1-7; Pascal Decl., ¶¶ 1-5; Kim Decl., ¶¶ 1-9; Rosner Decl., ¶¶ 1-11 [expert declaration].)

Based on the Court's familiarity with the current local market, and Plaintiff’s evidence of the experience and skills of the various attorneys – the Court finds that Plaintiff's requested rates per hour – although high – are reasonable. These high hourly rates, however, bear on the reasonableness of the hours incurred given the purported skill and expertise of these attorneys.

Defendant GM challenges the reasonableness of the number of hours incurred for various tasks during this litigation.

Fraud-Related Work: Defendant moves to strike the fee related to Plaintiff’s unsuccessful fraud claim. In addition to being unsuccessful, Defendant notes that it is well established that “[w]hen a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action,” unless “the issues are common or the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate [them].” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349 [quoting Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133].) Here, the fraud-related fees are easily apportioned where the fees are exclusively related to demurrer and motion to strike on the fraud claim in the Complaint. (Opp. 7:23-19.) Defendant notes that Plaintiff seek 7.8 for these tasks for a total of $3,010. The Court agrees that this amount should be completely struck under the circumstances. Fees will be reduced by $3,010.

Pre-Engagement Work: Defendant also challenges the fees Plaintiff’s counsel incurred prior to the time Plaintiff was retained as a client, which Attorney Barry spent “[r]eview[ing] repair orders and research[ing] technical service bulletins and recalls[.]” GM is challenge is well-taken; although pre-litigation fees (fees incurred prior to filing a complaint) are recoverable, this cost represents time incurred before Plaintiff was even a client and thus is more akin to a business overhead costs in vetting potential clients than a litigation cost. Plaintiff’s request for .8 hours ($500) must be eliminated.

Discovery Requests to GM: Plaintiff’s counsel billed 2.4 hours ($960.00) to draft Plaintiff’s discovery requests and deposition notices. Defendant seeks to reduce the hours attributable to serving discovery on GM, arguing the hours incurred are excessive given Plaintiff’s use of templates. This argument is well taken, especially given Plaintiff’s counsel purported expertise in this area of litigation. The Court will reduce the time incurred on this task by 1.9 hours for a reduction of $760.

“Review” Court Notices: Defendant challenges multiple entries for fees incurred to “review” Court notices. The Court notes that some of these fees were billed at the highest hourly rate, as well. The Court finds the fees for this largely administrative task at this rate is excessive and could have been completed by non-attorneys. The Court will strike the 2.1 for a total reduction of $1,065.50.

Travel Time: Defendant challenges the 20.8 hours Plaintiff’s counsel incurred on traveling to and from various hearings.[1] Defendant contends that fees for travel time are not recoverable, but cites no legal authority. The law provides otherwise. (Roe v. Halbig (2018) 29 Cal.App.5th 286, 312 [“attorney's fees for travel hours may be awarded if the court determines they were reasonably incurred.”].) Thus, the Court rejects the request to deny these fees.

Reviewing GM’s Discovery Responses: Plaintiff requests 3.4 hours for this task for a total of $1,360. Defendants seeks a 3-hour reduction. A reduction is warranted here for the same reasons as identified in the Court’s reduction to Plaintiff’s other discovery related fees. However, Defendant’s reduction is too aggressive. The Court will reduce the fees by $460 – as opposed to the $1,200 Defendant requests.

Reading GM’s Discovery Requests: Plaintiff requests 1.8 hours for this task for a total of $720. Defendants seeks a 1.3 hour reduction. A reduction is warranted here for the same reasons as identified in the Court’s reduction to Plaintiff’s other discovery-related fees. The Court will reduce the fees by $300.

Discovery Responses: Plaintiff requests 3.2 hours for this task for a total of $1,280. Defendant seeks a 2.7 hour reduction. A reduction is warranted here for the same reasons as identified in the Court’s reduction to the other discovery related fees. However, Defendant’s reduction is too aggressive. The Court will reduce the fees by $880 (2.2 hours).

Responding to One Email: Defendant argues that Plaintiff’s request for fees of .9 to respond to a single email regarding GM’s PMK availability is unreasonable. The Court agrees but declines to strike the fee entirely and instead will reduce the fee incurred by $160 (.4 hours).

Meet-and Confer Letters: Plaintiff requests 11 hours for drafting various meet-and-confer letters and reviewing GM’s responses to these letters. As noted by Defendant GM, these letters appear to be “templated” meet and confer letters with very little variations. (Quezada Decl., ¶¶ 11, compare Exs. I with J; see also Quezada Decl., ¶¶ 15, compare Exs. O with P.) Thus, the hours claimed for these tasks appear excessive. However, Defendant requested reduction of 10 hours is excessive. The Court will reduce these fees by $2,800 (7 hours reduction).

Motions to Compel: Plaintiff requests 37.3 hours for drafting motions to compel depositions and motion to compel further responses. Defendant GM again argues these fees are unreasonable given Plaintiff’s use of templates. The Court agrees, especially given counsel’s own admitted expertise with these types of cases. The Court will reduce these fees by $8,000 (20 hour reduction).

Stipulated Protective Order: Defendant argues that Plaintiff’ counsel cannot recover .2 hours to review and execute a Proposed Stipulation and Protective Order, which GM asserts it offers in all its cases. However, Plaintiff’s counsel has a duty to review and confirm the terms of the protective order even if GM always provides the “same” one. The request to strike these fees is denied.

Review of File in Preparation for PMK’s Deposition: Plaintiff seeks 2.5 hours for Attorney Matera’s review of the case file in preparation for GM’s PMK deposition. The hours incurred are excessive given Matera’s extensive involvement in this litigation. The Court will reduce fees by $400 (1 hour reduction).

“Memo to File:” Plaintiff seeks 7.2 hours ($2,725.00) to “draft memo to file.” The description for these tasks is too vague such that the Court cannot adequately assess the reasonableness of the fees incurred for these tasks. The Court will reduce the fees by $2,725.

Motions In-Limine: Plaintiff seeks fees for 8.1 hours for drafting and reviewing the motions in limine. As Defendant points out, Plaintiff’s motions in limine are templated motions such that the requested fees are excessive. The Court agrees the fees are excessive and will reduce the fees by $2,440 (6.1 hours).

Trial Documents: Plaintiff seeks 15.1 hours ($6,568.50) to prepare proposed jury instructions, a joint pretrial statement, exhibit and witness lists, preparing notices, and reviewing the exhibits. Defendant argues that these fees are excessive where such papers are standard in this type of case and could have been performed by a paralegal. The Court agrees the fees are excessive under the circumstances; the fees will be reduced by $4,040 (10.1 hour reduction).

Communication with Plaintiff: Plaintiff seeks 18.2 hours for the time incurred (primarily) by Attorney Barry in telephonically conferencing with Plaintiff. Defendant argues these communications for redundant and excessive. Although the Court recognizes the protracted nature of this case of four years, the Court agrees the fees are excessive and will reduce fees by $2,500.

Mediation & Settlement Efforts: Plaintiff seeks 27.1 hours ($15,752) for time incurred in settling this case. Defendant argues these fees are excessive because Plaintiff insisted on “dragging” the case out and “creating a perverse incentive and militating against resolution.” The fee incurred to resolve this case are not excessive. The Court declines to reduce these fees.

Order to Show Cause Hearing: Defendant argues it should not be “forced to pay” 3.7 hours relating to the post-settlement OSC hearing, which Plaintiff only incurred because of its own delay in filing the fee petition. In the absence of any response by Plaintiff to this specific challenge, the Court will reduce the fee requested by $2,161 (3.7 hours).

Attorneys’ Fees Demand: Plaintiff seeks 12.5 hours for this fee motion for a total of $6,910. Defendant’s challenge to these fees are not well taken in light of the multiple oppositions that were initially filed, which forced Plaintiff to file multiple replies. The fees incurred on this motion for attorney fees are reasonable; the Court declines to reduce these fees.

Finally, Plaintiff seeks a 1.25 lodestar multiplier based on the risk of taking this case on contingency, the delay in payment and based on the public interests at issue in this matter.

Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Although this matter was taken on contingency (Barry Decl., ¶ 3), none of the other factors support the application of a multiplier. This was a garden variety Song-Beverly case; there were no novel or difficult questions presented. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.) Further, the¿contingent risks, skill, and difficulty¿that Plaintiff’s attorneys¿assert are absorbed by¿their¿already high (albeit reasonable) hourly rates. (See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.)

Reduction Category	Reductions Amount	Total
		$143,692
Fraud-Related Work	$3,010
Pre-Engagement Work	$500
Discovery Requests to GM	$760
“Review” Court Notices	$1,065.50
Reviewing GM’s Discovery Responses	$460
Reading GM’s Discovery Requests	$300
Discovery Responses	$880
Responding to One Email	$160
Meet-and Confer Letters	$2,800
Motions to Compel	$8,000
Review of File in Preparation for PMK’s Deposition	$400
“Memo to File:”	$2,725
Motions In-Limine	$2,440
Trial Documents	$4,040
Communication with Plaintiff	$2,500
Order to Show Cause Hearing	$2,161
Reduced Lodestar Amount	$32,201.50	$111,490.50

The Court grants Plaintiff’s motion for attorneys’ fees in the sum of $111,490.50.

Finally, Defendant challenges Plaintiff’s request for costs seeking a reduction of $1,512.16.

Item No. 2 – jury fees: Defendant argues that it should not have to cover Plaintiff’s jury fee when the case never went to trial. This cost was reasonably necessary to the litigation even if the case did not go to trial. The request to strike this cost is denied.

Item No. 2 – court reporter: Plaintiff seeks $550 in court reporter fees for the hearing on the fee motion. Defendant argues that these fees are not recoverable because they have not yet been “actually incurred.” These costs can be assessed at the time of the hearing when they will arguably be incurred.

Item No. 14—Fees for electronic filing or service: Plaintiff seeks $368.92 in “[f]ees for electronic filing and service.” Defendant argues that Plaintiff’s counsel provides no explanation for these alleged costs. Although these costs may be recoverable, the reply does not further substantiate these costs and, therefore, Plaintiff has not met its burden for this cost. Accordingly, these costs will be stricken in their entirety.

Item No. 16—Other (mileage and parking fees): Plaintiff’s counsel seeks $443.24 in parking, mileage, and Lyft fare. Defendant argues that these costs are the “cost of doing business.” However, the cost of doing business may still recoverable costs to the extent that they are reasonably necessary to litigation. However, in this case, the Court finds that these costs were not reasonably necessary to litigation. The Court will strike these costs.

In reply, Plaintiff suggests Defendant waived its right to challenge the costs incurred by failing to file a motion to tax the costs pursuant to California Rule of Court 3.1700. However, where attorney’s fees are allowable as costs, costs may be recovered by noticed motion or under the cost bill procedure. (See [§ 318] In General., 7 Witkin, Cal. Proc. 6th Judgm § 318 (2023).) Thus, Plaintiff’s inclusion of the request for costs in motion for attorney fees allows Defendant to properly challenge these cost by way of opposition – as opposed to a separate motion to strike.

Accordingly, the Court will grant costs in the reduced amount of $7,277.71 (a reduction of $812.16).

The motion for attorneys’ fees and costs is granted in part. In sum, the Court grants Plaintiff’s request for attorneys’ fees in the total amount of $111,490.50, which is a reduction of the lodestar amount by $32,201.50. The request for costs is granted in the amount of $7,277.71.

Defendant GM is ordered to pay to Plaintiff’s counsel the sum of $118,768.21 ($111,490.50+ $7,277.71) for attorneys’ fees and costs.

[1] $315 of these fees have already been struck based on the court’s ruling on the fees related to the fraud claim. (9/4/2020)

Judge Bruce G. Iwasaki

Department 58