Judge Christian R. Gullon, Case Number: 22PSCV00872, Date: 2024-06-28 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV00872, Date: 2024-06-28 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS is GRANTED, but fees are reduced to $10,318 (26.8 hours x $385; no multiplier awarded).

Plaintiff brings forth the motion pursuant to Civil Code section 1794 subdivision (d).

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. (Civ. Code §1794(d) (emphasis added).)

As for determining the “reasonableness” of attorney costs incurred in fee shifting cases, the inquiry in California ordinarily begins with the “lodestar” method which embraces a two-step method. (See also Motion p. 7.)

The first step requires a trial court to multiply the time reasonably spent by Plaintiff counsel on the case by a reasonable hourly rate. 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.

The second step allows a trial court to adjust or enhance the lodestar by applying a multiplier to consider the contingent nature and risk associated with the action, as well as other factors, such as degree of skill required, ultimate success achieved, and “extraordinary legal skill.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130, 1132, 1137; see also Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III) [identifies seven factors that a trial court properly considers in its decision to augment the lodestar calculation].) The factors considered in determining the modification of the lodestar include 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 Family Trust (2008) 162 Cal. App. 4th 770, 774, emphasis added and underline added).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.) The amount of the multiplier lies within the court’s sound discretion. (Ketchum, supra, 24 Cal.4th 1122, 1138, emphasis added [“To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.”], see also Motion p. 8:11-12.)

After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.)

Per Evidence Code section 453 subdivision (b), the requesting party must “[f]urnish[] the court with sufficient information to enable it to take judicial notice of the matter.

Here, Plaintiff seeks judicial notice of thirteen (13) court orders (from various counties (e.g, trial courts of Riverside, San Diego) and federal district courts). However, “a written trial court ruling has no precedential value” (Bolanos v. Superior Court (2008) 169 Cal.App.4^th 744, 761; Drummond v. Desmarais (2009) 176 Cal.App.4^th 439, 448, fn. 4 [“(I)n the absence of some additional showing—such as the conditions for claim or issue preclusion—the actions of other judges are simply irrelevant”].

Therefore, absent a showing of the relevance of the trial court orders, notably when a motion for attorney fees turns on the sound discretion of the trial court making the order, Plaintiff has not met its burden.

Plaintiff’s fee recovery is based on 34 hours spent for a total of $42,571.25 in fees ($15,028.50 in fees and $5,000 in “anticipated” fees,” along with a $22,542.75 multiplier.) Defendant argues the hours reflect inefficient and duplicative efforts such that no more than $8,661.00 in fees against GM should be awarded. While a verified fee bill is prima facie evidence that the costs, expenses, and services listed were reasonable (Motion p. 9, citing Hadley v. Krepel, 167 Cal. App. 3d 677, 682 (1985), fees must also be actually and reasonably incurred. (Opp. p. 6, citing Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 817-818.)

Here, for reasons to be discussed below, the court determines that 34 hours expended on a seemingly generic case is unreasonable as is the hourly rate.[1]

The court turns to the billing entries that Defendant disputes. (Fennel Decl., Ex. 15, pp. 134-149 of 149 of PDF.)

Defendant argues that the 3.6 hours ($723.00) billed by paralegal Elaine Astorga (at the rate of $200-210 per hour) is for clerical work is not recoverable as attorney fees. (See Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288 fn. 10 [“Purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”].)[2]

Plaintiff argues that “[a] review of the billing records shows that Mrs. Astorga performed litigation tasks.” (Reply p. 5:15-16.)

But a review of the billing supports Defendant’s characterization of the paralegal’s work. While not all of Astorga’s billing was clerical, most was clerical. Her billings are most dedicated to confirming LACC for hearings; filing docs with the court; or prepping for service. To the extent she may have partaken in some legal work, as observed by Defendant, block billing makes it difficult for GM and the court to assess the tasks performed or the reasonableness of the time incurred.

Accordingly, GM’s requests that this time be stricken in its entirety, for a reduction of 3.6 hours ($723.00) is GRANTED.

Defendant Counsel Fennell regularly billed for clerical or administrative tasks such as “calculated due date,” “sent [] hearing results to paralegal,” “review [] Defendant’s Notice of Change of Address,” “review… request for contact information,” and “send[ing] out” (i.e., emailing) various documents to GM or the mediator. (See generally Fennell Decl., Ex. 15.)

Purely clerical tasks, such as those performed by Mr. Fennell, are not recoverable as attorney fees. (See Missouri, supra.)

The opposition doesn’t squarely address the argument(s) but instead conclusively argues that he “disagrees with this contention.” (Reply p. 6.) It is unclear how Counsel communicating with a paralegal to calendar and set reminders or sending emails are not clerical in nature.

Given that Plaintiff’s initial document production contained only four repair orders, it could not have reasonably taken half a day to perform these tasks. GM requests Counsel’s time be reduced.

However, in reply, Plaintiff explains that there were 7 (seven) different repair orders that were summarized by Plaintiff’s counsel. After initially drafting the summary, Defendant and Plaintiff produced additional repair orders, which led to Plaintiff’s counsel updating the repair order summary. (Reply p. 7.)

Defendant argues that Counsel “billed” 0.5 hours ($460.00) for “review and analysis” of the 8-page answer filed by GM, which is virtually identical to the answer GM has filed in almost every other matter involving Counsel. (Fennell Decl. Ex. 15, p. 1; Kay Decl. ¶ 4.)

Here, the court declines to strike this as it more of a subjective opinion of how much time should have reasonably been spent and the extra half an hour is not necessarily unreasonable. (See also Motion p. 8, Reply p. 8, citing Horsford v. Board of Trustees of Ca. State Univ. (2005), 132 Cal.App.4th 359, 396 [if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.].) Even if it is the exact same answer, Plaintiff’s Counsel is required to review the answer in detail and Defendant provides no evidence regarding how much time it spent drafting its Opposition to Plaintiff’s fee motion.

Defendant argues for a 3-hour reduction because “It should not have taken Mr. Fennell more than an hour to review GM’s requests and draft Plaintiff’s recycled responses, which were almost exclusively templated objections Counsel always deploys against GM.” (Opp. p. 7.)

Here, for one, there were 119 written discovery requests, which may be more than other cases handled between the two firms. Moreover, for similar reasons stated above, billing 4 hours instead of Defendant’s suggested 3 hours does not render the entries patently unreasonable.

Finally, Defendant argues that Counsel should not get full credit for the 4 hours ($1,900.00) that Counsel claims it spent on the fee demand, or the additional $5,000 in “anticipated” fees—roughly 10.5 hours at Mr. Fennell’s claimed rate of $475 per hour—to review GM’s opposition, prepare a reply brief, and attend the hearing.

In opposition, Plaintiff explains that counsel spent a total of 3.9 hours reviewing Defendant’s Opposition and drafting this Reply. (Supp. Fennell Decl. ¶ 3.) Further, Plaintiff predicts at least another 1.5 hours of time will be expended preparing for and appearing at the Motion hearing. Therefore, Plaintiff adjusts her requested “anticipated” time from $5,000.00 to $2,565.00. (Reply p. 8.)

For reasons similar to above, the court denies the request to cap the demand to 2.5 hours, but the court GRANTS reduction of 1 hour as 1.5 hours preparing for the hearing and attending the hearing is unsupported.

Thus, in total, 34 hours is reduced by 7.2 hours (3.6+2.6+1 hour) for a TOTAL of 26.8 hours expended on the case.

The court agrees with Defendant that Plaintiff failed to establish the reasonableness of its hourly rate. (See Opp. p. 6, citing Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [explaining the reasonable hourly rate is that prevailing in the community for similar work].)

“The relevant ‘community’ is that where the court is located.” (Altavion, Inc. v. Konica Minolta Sys. Lab., Inc. (2014) 226 Cal.App.4th 26, 71.)

As explained in the RJN above, what, for example, the hourly rate of what a court in San Diego allows is irrelevant to Los Angeles. Counsel did not satisfy its burden to show that Mr. Fennell’s declared rate ($460 in 2023 and $475 in 2024) is reasonable for Los Angeles County.

Though this court generally finds $300-$350 reasonable for work that is not complex, Defendant proposes an hourly rate of $385. (Opp. p. 6).

There are three elements to support any enhancement under California law: (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award. (Opp. p. 4, citing Robertson, supra, at 819.)

Here, the case fails to satisfy the first element such court need not address the remaining two. While the court does not dispute that Counsel tenaciously litigated this case, ultimately, there were no expert reports, no dispositive motions, no trial preparation, nor, most importantly, any filing that did not rely upon filings from other cases. As this case is similar to nearly all the other actions filed by the firm, a multiplier is unwarranted.

In sum, the court awards an hourly rate of $385 yielding a total recovery of $10,318.

[1] Which appears to be a point conceded by Plaintiff. (See Reply p. 8:10-14 [“[T]he limited number of billable hours was only made possible by use of forms and templates. In other words, the use of exemplars resulted in time saving. Surely, Plaintiff’s counsel is not the only firm that creates efficiencies by using files prepared in other cases.”]; see also Reply p. 1:22-23 [“In fact, Plaintiff’s counsel has already reduced the billing by over $10,000.00.”].)

[2] Plaintiff’s reply does not dispute the holding of Missouri.