Judge Christian R. Gullon, Case Number: 23PSCV01413, Date: 2025-04-09 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01413, Date: 2025-04-09 Tentative Ruling

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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 in the reduced amount of $21,241.45, which includes costs.

This is a lemon law case arising from Plaintiff MARIANNA ZIMECKI’s 2022 purchase of a 2023 Hyundai Elantra.

On May 10, 2023, Plaintiff filed suit against HYUNDAI MOTOR AMERICA (“Defendant”) and CARDINALEWAY HYUNDAI OF GLENDORA (the “dealership”) for SBA violations and a cause of action or negligent repair.

On August 18, 2023 default was entered against the dealership. That same day, about an hour later, the dealership (Defendant Bay Area AG Inc. dba CardinaleWay Hyundai of Glendora) filed its answer.

On April 2, 2025, Plaintiff filed her reply (along with evidentiary objections, which are OVERRULED to the extent it disputes an oversized opposition).

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.

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 [“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.”].)

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.)

Plaintiff moves for an award of attorney fees under the “lodestar” method in the amount of $36,171.00. Plaintiff also requests a modest “lodestar” multiplier/enhancement of 1.5x, in the amount of $18,085.50, for a total of $54,256.50 in attorney fees, plus $3,741.45 in court costs.

Defendant takes issue with the number of hours Plaintiff’s attorneys devoted to the litigation, the reasonableness of the hourly fee, and the justification of a multiplier.[1]

For all the reasons to be more specifically discussed below, the court agrees with Defendant on all points.

According to the appellate court in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, as cited in Plaintiff’s Motion, attorney fees are meant to “fully compensate counsel for . . . services reasonably provided to his or her client.” (Id. at p. 395.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case.” (Ibid, emphasis added.) In assessing the actual hours spent, when counsel presents verified time records, there is a “presumption of credibility” such that the time records are “entitled to credence in the absence of a clear indication the records are erroneous.” (Id. at p. 396.) That said, while a trial court abuses its discretion in “rejecting wholesale counsels’ verified time records,” (ibid) it may deny compensation for “inefficient or duplicative” work. (Id. at p. 394, quoting Ketchum, supra, 24 Cal.4th at p. 1132, emphasis added.)

Plaintiff’s fee recovery is based on 85.9 hours spent by the two firms, Norman Taylor & Associates (“NTA”) and Wirtz Law (“WL”), litigating this case.

NTA avers it has expended 21.3 hours on the following: Commencement for 5.7 hours ; Proprietary Documents for 2.4 hours; Written Discovery – Plaintiff’s Requests for 5.4 hours; Client Communication for 4.8 hours; Pleadings .6 hours; Motion to Compel Arbitration for 1 hour; Association of WL for 1.4 hours.

WL seeks compensation for the following: Proprietary Documents for 2.5 hours; pleads for 1.2 hours; Hearing (CMC) for 2 hours; Motion to Compel Arbitration for 4.6 hours; Deposition – HMA’s PMQ for 0.3 hours; HMA’s Ex Parte to Stay Case for 4.4 hours; Settlement/Mediation for 6.4 hours; Client Communication for 17.8 hours; Co-Counsel Communication for 2.1 hours; Internal Communication for 5.2 hours; Post-Settlement for 1.2 hours; Surrender for 1.2 hours; Audit Fees and Costs for 1.6 hours; motion for attorney fees for 11.9 hours; and dismissal for .2 hours.

Here, despite Plaintiff’s contention that the litigation did not involve routine lemon law work and/or that lemon law involves complex law, not so. For one, lemon law cases have inundated courts. Thus, Plaintiff’s citation to a 1993 law review article involving the complexities of lemon law cases (Motion p. 9) or other cases prior to the enactment of the SBA and recent legislative changes do not reflect the boilerplate nature of these cases. The breadth of lemon law cases and firms using recycled materials serves as sufficient evidence that hours are exaggerated. Second, as note Plaintiff’s counsel Wirtz, “Plaintiff’s attorneys have acquired expertise about these over the course of years of litigation.” (Motion p. 10:4-6.) This should result in reduced hours expended on matters, not 90+ hours of work.

Instead, the records illustrate inefficient work, duplicative work, and “vague” entries as they are largely dedicated to routine tasks, excessive interoffice communications, and administrative tasks. For example, see the following entries:

- Seemingly duplicative entries client communication (See e.g., Wirtz Decl., p. 20 of 203 of PDF; see also p. 21.)

- Duplicative, vague, and inefficient entries for internal communications (see e.g., p. 20 of 203)

- Duplicative entries for emailing Defense Counsel re: vehicle surrender (pp. 23-25 of PDF)

- Calendaring, preparing proofs of service, internal filing, preparing binders for a hearing, and scanning are examples of tasks that have been found to be purely clerical and thus non-compensable or compensable at a reduced billing rate: see 3/29/23 (receiving documents and adding to the file; 5/3/23 (contacting vendor to file and serve Complaint); 5/10/23 (adding documents to the file and organization); 5/15/23 (receiving document calendaring dates; 5/26/23 (receive proof of service and add to file; 8/03/23 (e-serve discovery.

In sum, there are many emails, calls, and reviews of the same things, about the same things, and to the same people, impressing upon the court that the entries are grossly exaggerated. Therefore, Plaintiff’s Counsel's billing entries demonstrate a lack of efficiency in litigating the case and a lack of clarity in tasks performed.

Plaintiff’s counsel’s claimed rates range from $450.00/hour to $645.00/hour for attorneys and $250/hour to $300/hour for paralegals.

However, the inquiry is not whether other attorneys are doing identical work but “comparable legal services in the community.” (Ketchum, supra, 24 Cal.4th at p. 1132, italics added.) Accordingly, the work could be done with someone versed in contract law (i.e., as issues involve breaches of warranties). Additionally, the mere fact that other Judges have found these hourly rates reasonable is inapposite as the issue rests in the sound discretion of this court. And even taking Plaintiff’s citation to Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1110 (Reply p. 8), that supports a court’s decision to grant hourly rate of $250/hour, notably when the work can be performed by an associate.

2. discovery was conducted informally due to the routine nature of these cases,

To the extent that Plaintiff argues a multiplier is warranted because of “risk and delay,” it is unclear how this case is different than most of other lemon law cases that end with the same result: settlement.

Therefore, absent extraordinary advocacy or circumstances, a multiplier is not warranted under this factor.

No opposition has been filed to the memorandum of costs such that the award is granted.

In sum, this is a garden variety lemon law case that did not present any complex or novel issues, involved no law and motion, settled early in litigation, and required no extraordinary legal skill justifying augmentation of the lodestar. With that, the hourly rate is reduced, the billable hours are reduced, and no multiplier is awarded yielding total recovery for attorney’s fees of $17,500 ($350/hour x 50 hours) plus $3,741.45=$21,241.45

[1] In opposition, Defendant states that in Serrano v. Unruh, the California’s Supreme Court held that courts have discretion to deny fees altogether if faced with an unreasonable fee request. (Opp. p. 5, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Though not address in reply by Plaintiff, Defendant’s do not accurately cite the finding(s) of Serrano. There, the “principal question [on] appeal [] is whether a fee award under a private-attorney-general theory properly compensates counsel for fee-related services” i.e., whether a party may be denied compensation for services on the fee motions. (Id. at pp. 623-624.) The case did not state that attorney fees may altogether be denied.

[2] It is unclear why Plaintiff has provided hundreds of pages on national data regarded to consumer law when the inquiry is community-based (i.e., local). To the extent that Plaintiff relies upon numerous jurisdictions outside of Los Angeles County, they will be disregarded. (See Wirtz Decl., Ex. 2) Additionally, to the extent that Plaintiff heavily relies upon unpublished (thus non-citable) opinions, those too will be disregarded.