Judge Bruce G. Iwasaki, Case Number: 21STCV26028, Date: 2023-08-10 Tentative Ruling

Tentative Ruling: The Motion for Attorney’s Fees is granted in part for a total of $22,364.50 in attorney fees. The request for costs is granted in the reduced amount of $1,145.51.

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

In 2015, Plaintiff purchased a new 2015 Chevrolet Silverado 1500 vehicle (Vehicle) manufactured and distributed by Defendant General Motors (GM), which provided an express written warranty. After experiencing numerous performance issues, multiple repair attempts, and seeking a vehicle buyback, Plaintiff filed this action for violations of the Song-Beverly Act. In February 2023, on the eve of trial, the parties entered into a Settlement Agreement for payment to Plaintiff of $120,000 upon surrender of the Vehicle.

Plaintiff Wilibaldo Alejandre argues that, as the prevailing party, he is entitled to fees and costs under Civil Code section 1794, subdivision (d). He seeks lodestar attorneys’ fees of $35,444.50, plus a 1.35 multiplier -- in the amount of $12,405.58 -- and costs of $1,731.95. Additionally, Plaintiff anticipates incurring an additional $3,500 for reviewing Defendant’s opposition to this motion, drafting a reply, and attending the fee motion hearing. The total requested in attorney fees and costs is $53,082.02.

Defendant GM filed an opposition arguing the amounts requested in fees and costs are unreasonable and excessive.[1]

The Court grants the motion for attorneys’ fees in part. The request for costs is also granted in a reduced amount.

Plaintiff’s objection numbers 1-7, 9-10 are sustained, and objection numbers 8, 11-13 are overruled.

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 $35,444.50 in attorneys’ fees for Strategic Legal Practices, APC (SLP), plus a 1.35 multiplier enhancement, costs of $1,731.94 and estimated additional fees of $3,500 for a total $53,082.02.

GM does not dispute that Plaintiff is the prevailing party. Instead, Defendant argues the that hours incurred to litigate this routine, non-complex case that settled before trial is unreasonable. Defendant argues that fees should be reduced to $18,137, which represents a reasonable number of hours incurred based on the purported experience level of Plaintiff’s attorneys. Defendant also argues costs should be limited to $427.80.

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.)

Defendant GM first contends that Plaintiff’s attorneys’ hourly rates are unreasonable.

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, Defendant only specifically challenges the hourly rates of Attorney Dolin, whose rate increased during the litigation from $450 to $570, and the hourly rate of Attorney McCallister, who charged an hourly rate of $595. Defendant argues the evidence does not support awarding an hourly rate in the amount requested for these attorneys.

The Court disagrees. Plaintiff’s evidence indicates that Attorney Dolin’s rate increased to $570 after she became a partner at the firm; such an increase under the circumstances is reasonable. (Shahian Decl., ¶ 42.) Further, Plaintiff submits evidence of Attorney McCallister’s legal education and work experience, which are adequate to support the hourly rate requested. (Shahian Decl., ¶¶ 51-52.)

Based on the foregoing, the Court disagrees with Defendant’s contention that the rates are unreasonable. A review of the Shahian Declaration in support of the motion for attorney’s fees, which contains summary descriptions of each attorney’s education and experience, supports finding Plaintiff’s attorneys’ hourly rate were reasonable.

Defendant GM also challenges the hours incurred, arguing that the amounts are excessive and padded given Plaintiffs’ counsel’s heavy reliance on templates at every phase of litigation.

As noted above, the Court sustained many of Plaintiff’s objections to Defendant’s evidence based on the lack of personal knowledge and foundation for the assertion that Plaintiffs’ counsel relied on “templates.” Nonetheless, the reply concedes Plaintiff’s counsel used exemplar documents. However, the use of such time saving templates is not discouraged as it generally reduces the amount of attorney fees in litigation.

Here, the hours incurred do not reflect the time saved by using a template. A review of the discovery requests, discovery responses, and motions all suggest work product not necessarily unique to this litigation and which should have benefited from use of such templates. Nonetheless, the hours reflected for these tasks appear inordinately high. Further, given Plaintiffs’ counsel’s own evidence of their attorneys’ education and experience, the hours expended appear excessive.

Responding to GM Discovery Requests: Attorney Carroll billed 5.4 hours at $595 an hour ($3,213.00) to draft Plaintiff’s discovery responses; Attorney Rabiein billed an additional 0.6 hours at $410 to review these responses. (Shahian Decl., Ex. 16, p. 1.) The Court will reduce Attorney Carrol hours incurred by 3.4 hours for a reduction of $2,023.

Preparing Discovery Requests to GM: Plaintiff also requested $2,835.50, or 4.9 hours, for preparing his discovery requests to GM. Specifically, Attorney Avelino billed 4.5 hours at an hourly rate of $595 ($2,677.50) to draft Plaintiff’s discovery requests, deposition notice, and ESI letter; Attorney Rabiein billed another 0.4 hours ($158.00) to “[r]eview and finalize” these documents. (Shahian Decl., Ex. 16, p. 1.) The Court will reduce Attorney Avelino hours incurred by 3.5 hours for a reduction of $2,082.50.

Plaintiff’s Motion to Compel: Plaintiff requests a total of $4,850.50 for 12.3 hours for drafting motions – the motion to compel further discovery responses and reply. The motion—which was granted in part—was necessitated by GM’s boilerplate objections. Therefore, while Defendant’s objection to the time incurred on this motion is not without some merit, the Court will only reduce the Attorney Rabiein’s hours by 6 hours for a reduction of $2,583.

Plaintiff’s Motions in Limine and Oppositions: Plaintiff seeks $4,661.50 for a total of 8.2 hours for drafting motions in limine (MIL) and oppositions to GM’s MILs. Defendant’s challenge to these hours is well-taken. Plaintiff’s MIL and opposition to GM’s MIL appear “standard.” Plaintiff’s request of 3.9 hours by Attorney McCallister to draft the MILs ($2,320.50), Attorney Scott’s 1.5 hours to “[r]evise and finalize”(($675.00), and Attorney McCallister’s 2.8 hours to oppose Defendant GM’s MILs ($1,666) are excessive. Accordingly, the Court will reduce all of Attorney Scott’s time ($675.00) and reduce Attorney McCallister’s hours from 6.7 hours (total) to a total of 4 hours. Thus, the Court will reduce these fees by $3,174. ($675+$2499).

Block Billing: Defendant GM argues that on June 7, September 13, and November 16, 2022, and January 6, 2023, Plaintiff’s attorneys billed “5.0” for preparing and attending final status conferences and for “draft[ing] hearing outcome memo[s].” While Defendant characterizes these a “block billing” this characterization is inapt. The billing entries show discrete entries for specific tasks. Defendant’s objection is not well-taken and the Court will not reduces these fees.

The Fee Motion and Attending Fee Hearing: Plaintiff seeks a total of 7.8 hours ($3,861) for drafting and revising his fee motion; Plaintiff’s counsel also seeks an additional $3,500 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply, and attend the hearing on this Motion. In reply, Plaintiff submits evidence that Attorney Patel spent 8.5 preparing the reply at $335 an hour and Attorney Linnell spent another 1.5 hour reviewing the reply at $525. These amounts are excessive for a simple fee motion where the prevailing party is not at issue and the law is clear and straightforward. The Court reduces the fees for drafting the motion by 4 hours and limit the fees incurred for preparing the reply and attending the hearing to 2.5 hours. Thus, the time incurred on this motion should be reduced by $3,217.50 ($1,980+1,237.50).

Finally, Plaintiff seeks a 1.35 lodestar multiplier based on excellent result, the risk of taking on the case on contingency, and the complexity of the case.

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.)

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¿Plaintiff’s attorneys¿assert are absorbed by¿their¿hourly rates. (See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.)

Finally, Defendant challenges Plaintiff’s costs. Defendant first argues that the billing records appear to have been generated specifically for this fee motion. This does not render these costs unrecoverable. Plaintiff submits evidence that these costs were incurred and reasonably necessary to litigation. (Shahian Decl., ¶¶ 70, 73, Ex. 16.) Plaintiff’s evidence is sufficient to meet his prima facie burden. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Further, Defendant argues that without a more detailed description of the claimed costs and backup documentation to show that Plaintiff’s counsel’s firm billed these costs to the correct case, it is impossible for GM or this Court to determine whether these costs were actually incurred.

“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 were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; accord, Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486–1487.) “If the items are properly objected to, they are put in issue” (Ladas, supra, at p. 774), and “the burden shift[s] to” the party claiming costs to provide the necessary documentation to prove those costs (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265; accord, Rappenecker v. Sea–Land Service, Inc. (1979) 93 Cal.App.3d 256, 266). A proper objection to the memorandum of costs, however, requires more than counsel's statement that the costs were not incurred; it must be sufficient to rebut the prima facie showing in the memorandum of costs. (Id. at p. 265.)

Based on the foregoing legal authority, Defendant’s speculative assertion that the costs may not have been incurred is unsupported.

In addition to Defendant’s general challenge to the adequacy of the evidence of all the costs, Defendant also challenges two specific costs. First, Defendant argues the Court should strike the cost of $471.20 for the cryptically described “file/conform/return advance fees” incurred on July 15, 2021. Defendant also challenges the $115.24 incurred on February 14, 2023 – the day of settlement – for trial binder preparation.

In response, Plaintiff argues these costs are reasonable and recoverable under Civil Code section 1794, subdivision (d). The Court disagrees; Plaintiff does not submit evidence showing these costs are reasonably necessary to the litigation.

These specific costs appear to be costs incurred by an attorney legal support service to file certain court documents. “Allowable costs must be ‘reasonably necessary to the conduct of the litigation’ and ‘reasonable in amount’ ” and not “ ‘merely convenient or beneficial to its preparation.’ ” (Doe v. Los Angeles County Dept. of Children & Family Service (2019) 37 Cal.App.5th 675, 693; see Code Civ. Proc. § 1033.5, subd. (c)(2).) These costs were perhaps convenient but Plaintiff has not established that they were necessary. They are not recoverable.

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 $22,364.50, which is a reduction of the lodestar amount by $13,080 ($2,023+$2,082.50+$2,583+$3,174+$3,217.50). The request for costs is granted in the reduced amount of $1,145.51.

Defendant is ordered to pay to Plaintiff’s counsel the sum of $23,510.01 ($22,364.50 + 1,145.51) as and for attorneys’ fees and costs. This amount shall be paid on or before September 11, 2023.

[1] The opposition also notes that – due to mistake, surprise, and excusable neglect of its counsel – the opposition was untimely filed and served; Defendant GM nonetheless requests the court overlook this defect and consider the opposition. In reply, Plaintiff argues he did suffer prejudice from this untimely opposition as his counsel had three fewer court days to review and respond to GM’s Opposition. The Court will consider both GM’s late opposition and Plaintiff’s reply.

Department 58