Judge: Cynthia A Freeland, Case: 37-2022-00009833-CU-CO-NC, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 04, 2024

01/05/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Contract - Other Motion Hearing (Civil) 37-2022-00009833-CU-CO-NC NEUBERGER VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 10/27/2023

Plaintiff Erik Neuberger ('Plaintiff')'s motion for attorney's fees, costs, and expenses is granted.

California Civil Code ('CC') § 1794 entitles the prevailing buyer to recover as part of the judgment the total amount of costs and expenses, including attorneys' fees based upon the actual time expended, determined by the court to have been reasonably incurred in connection with the commencement and prosecution of the case. See Cal. Civ. Code § 1794(d). Where 'the prevailing buyer has a contingency fee arrangement, he or she is entitled to recover 'reasonable attorney fees for time reasonably expended.'' Warren v. Kia Motors America, Inc. (2018) 30 Cal. App. 5th 24, 35-36 (quoting Nightingale v. Hyundai Motor America (1994) 31 Cal. App. 4th 99, 105 n. 6). The prevailing buyer bears the burden of establishing that his or her requested attorneys' fees are allowable, reasonable, and reasonably necessary to the conduct of the litigation. See Goglin v. BMW of North America, LLC (2016) 4 Cal. App. 5th 462, 470. On June 20, 2023, Plaintiff accepted Defendant General Motors, LLC ('Defendant')'s Offer of Compromise under California Code of Civil Procedure ('CCP') § 998 in the total amount of $170,766.20. See Johnson Decl., Ex. 2. Under ¶ 2 of the Offer of Compromise, Defendant has stipulated that Plaintiff is the prevailing party under CC § 1794(d) for purposes of a motion for attorney's fees, costs, and expenses. Ibid. Defendant does not argue otherwise in its opposition. Accordingly, the court must determine the amount of attorney's fees Plaintiff reasonably and necessarily incurred in prosecuting this action.

The approach for determining reasonable attorneys' fees under CC § 1794(d) is the lodestar method, which is the number of hours reasonably expended multiplied by the reasonable hourly rate. See Warren, 30 Cal. App. 5th at 36. Once the lodestar figure is calculated, the court can adjust it based upon case-specific factors such as: '(1) the novelty and difficulty of the questions involved, (2) the skills displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.' Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1112. See also Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132. The case's procedural demands can also be considered. See Nightingale, 31 Cal. App. 4th at 104. The most critical factor in evaluating reasonableness, however, is the degree of success obtained. See Etcheson v. FCA US LLC (2018) 30 Cal. App. 5th 831, 847.

Plaintiff's Counsel's Reasonable Hourly Rates In determining a reasonable hourly rate, the court must consider the prevailing market rates in the relevant community, which typically means comparable attorneys' rates in the forum district. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009. The court should consider Calendar No.: Event ID:  TENTATIVE RULINGS

3038297 CASE NUMBER: CASE TITLE:  NEUBERGER VS GENERAL MOTORS LLC [IMAGED]  37-2022-00009833-CU-CO-NC the requesting attorney's experience, skill, and reputation, and may also rely upon its own knowledge and familiarity with the legal market. Ibid. In addition, the court can review attorney affidavits regarding prevailing fees in the community and rate determinations in other cases. Ibid. The litigation's difficulty or complexity is also relevant. See Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 700.

Defendant generally argues that Plaintiff failed to carry his burden or otherwise establish a reasonable rate upon which the court may calculate the lodestar. In so positing, Defendant attempts to distinguish the cases Plaintiff cites in support of his fee request on the ground that the cases cited included a request for a lodestar multiplier that was denied. See Defendant's Opposition, p. 3, l. 25 – p. 4, l. 1.

Defendant further suggests, without any evidentiary support, that Mr. Johnson's 2023 hourly rate should be reduced to $450.00. The court respectfully finds Defendant's arguments/suggestions unavailing, particularly given that no specific objection is raised to the hourly rates of Mr. Cline, Ms. Lam, Ms. Hirsh, Mr. Moses, Ms. Galanto, Mr. Evans, Ms. Sassa, Ms. Murrieta, and Ms. Petersen, and given that the undisputed evidence presented by Plaintiff demonstrates the reasonableness of Mr. Johnson's hourly rate of $510.00.

To put the court's conclusion in context, Plaintiff bears the initial burden 'to produce satisfactory evidence – in addition to the attorney's own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.' Kerkeles v. City of San Jose (2015) 243 Cal. App. 4th 88, 105. Affidavits of the applicant attorney and other attorneys are satisfactory evidence of the prevailing market rate. Ibid. 'If a fee applicant presents such evidence, the opposing party ' 'has a burden of rebuttal that requires submission of evidence ... challenging the accuracy and reasonableness of the ... facts asserted by the prevailing party in its submitted affidavits.' [Citation.]' Ibid. (quoting Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110-1111 (9th Cir. 2014)). In this case, Plaintiff's counsel has provided the court with substantial evidence that their hourly rates in other lemon law cases have been approved in multiple cases in various departments with the San Diego Superior Court, including this department. See Johnson Decl., ¶¶ 84-85, 88-95. The hourly rate charges are not out of line with what experienced counsel might charge in a similar case. See Goglin, 4 Cal. App. 5th at 474 (affirming an award of an hourly rate of $575.00 for counsel in a lemon law case in San Diego County). In addition, Mr. Johnson's declaration provides sufficient information for the court to conclude that the hourly rates charged in this matter were reasonable. The hourly rates are also consistent with the court's understanding of the prevailing market rate for similarly situated attorneys and paralegals in the San Diego legal community.

Moreover, while this case was not overly complex, it did occasion discovery disputes and law and motion practice relative to those disputes, fact discovery, and substantial communications between counsel. All of this led to an undeniably sizeable settlement, a fact that is not undermined by Defendant's suggestion that the outcome achieved was the product of a 'litigation-by-template strategy' (see Defendant's Opposition, p. 1, ll. 5-7) or by Defendant's suggestion that the hours claimed by Plaintiff were not actually performed but rather were the product of 'heavy dependence on templates.' Ibid., p. 4, l. 28 – p. 5, l. 2. Moreover, the court finds it ironic that Defendant attempts to undermine the reasonableness of Plaintiff's attorney's time by suggesting that '[c]ounsel followed its playbook for every case,' (Ibid., p. 2, ll. 20-21) when the motion work in this case revealed that Defendant's position, at least with regard to certain discovery, was consistent with positions Defendant has taken in other similar matters before this court. Moreover, Defendant's reference in its Opposition to 'the 'work' to pursue fraud claims' (Ibid., p. 1, l. 16) leaves the court to wonder whether Defendant has utilized templates for efficiency purposes given that Plaintiff has not levied any cause of action for fraud in this case.

Accordingly, the court approves Plaintiff's counsel's hourly rates as requested.

The Number of Hours Plaintiff's Counsel Reasonably Expended Defendant does not dispute that Plaintiff is entitled to attorney's fees as the prevailing party in this matter. However, Defendant argues that the number of hours expended in this matter was unreasonable in various respects, again asserting that Plaintiff's counsel's approach to this litigation was heavily Calendar No.: Event ID:  TENTATIVE RULINGS

3038297 CASE NUMBER: CASE TITLE:  NEUBERGER VS GENERAL MOTORS LLC [IMAGED]  37-2022-00009833-CU-CO-NC dependent on the use of templates created and utilized in other lemon law cases and suggesting that Plaintiff has padded the hours expended. Again, as the objecting party, Defendant bears the burden of referencing the specific items challenged, with a sufficient argument and citations to evidence. See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564. 'General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' Ibid. At the same time, Plaintiff's counsel's verified time statements are entitled to credence absent a clear indication that the records are erroneous. See City of Colton v. Singletary (2012) 206 Cal. App. 4th 751, 785. However, the billing statements merely form the basis for the hours reasonably expended and the court may reduce the number of hours if it concludes that Plaintiff's counsel's efforts were unnecessary, duplicative, or excessive in light of the issues fairly presented. See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 440.

In this case, Defendant provides no persuasive evidence or argument for how Plaintiff's counsel padded his bill or otherwise is seeking recovery of unreasonable/unnecessary fees, especially given the fact that Plaintiff's counsel was retained on a contingency basis. See Kerkeles, 243 Cal. App. 4th at 104 ('Lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee . . . .'). The court must also independently assess the reasonableness of the time spent and will not simply 'rubberstamp' Plaintiff's fee application. See, e.g., Donahue v. Donahue (2010) 182 Cal. 4th 259, 271. This includes the reasonableness of paralegal and other support services, which are compensable (see Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal. App. 3d 914, 951), but not clerical or secretarial tasks, which are not compensable (see Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal. App. 4th 1179, 1187). While Defendant asserts that the paralegals' time appears to be secretarial in nature and, therefore, not compensable, the court must concur with Plaintiff that most of the billing slips demonstrate that the work for which Plaintiff seeks recovery was paralegal work.

Additionally, Defendant takes issue with the time spent by Plaintiff's counsel on what Defendant refers to as 'pre-engagement work' on February 11, 12, and 21 and March 11 and 13, 2022. In support of its position, Defendant argues, without any legal or evidentiary support, that 'initial consultations and the considerations involved prior to engagement are business expenses routinely related to overhead.' See Defendant's Opposition, p. 5, ll. 22-28. The court respectfully finds Defendant's position unpersuasive.

CCP § 128.7(b) provides, in pertinent part, that: (b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

Cal. Code Civ. P. §§ 128.7(b)(1)-(3).

Plaintiff's counsel cannot comply with these prescriptions in the absence of thorough pre-engagement work, which work also allows counsel to commence and pursue litigation in an efficient manner. Indeed, to hold otherwise would sanction careless lawyering. See, Stokus v. Marsh (1990) 217 Cal. App. 3d 647, 655.

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3038297 CASE NUMBER: CASE TITLE:  NEUBERGER VS GENERAL MOTORS LLC [IMAGED]  37-2022-00009833-CU-CO-NC To the extent that Defendant suggests that Plaintiff's counsel's time for preparing template pleadings, motions, discovery, and correspondence is excessive, the court respectfully disagrees. Indeed, templates create efficiencies, but they do not eliminate the need to tailor documents to fit the unique contours of any individual case. Consequently, Defendant's challenges to any fees incurred for what Defendant characterizes as litigation-by-template are unpersuasive. This, however, does not end the court's analysis. As set forth above, the court may not simply rubberstamp Plaintiff's fee application. The court must consider the time spent against the backdrop of the specific and unique circumstances of the case, which it will proceed to do.

Before delving into the individual time entries, however, the court approves Plaintiff's request for $4,000.00 in attorney's fees incurred in litigating the present motion (which is rounded down from the actual $4,029.00 reflected in Mr. Johnson's Declaration in Support of Reply (see Johnson Reply Decl., ¶¶ 3-4), which includes drafting the moving papers, reviewing Defendant's opposition, preparing the reply papers, and preparing for and attending the hearing on this matter). See Serrano v. Unruh (1982) 32 Cal. 3d 621 (a prevailing party is entitled to fees for time spent preparing and litigating his or her fee motion). Indeed, to Plaintiff's counsel's credit, Mr. Johnson's Reply Declaration identifies the specific time dedicated to preparation of the reply and a more honed estimate of time spent in connection with the upcoming hearing such that the amount sought in connection with such activities is less than the $5,000.00 estimate set forth in the moving papers.

The court has carefully reviewed Mr. Johnson's declaration and the invoices attached as Exhibit 4 thereto and notes the following: - It appears that Ms. Petersen and Ms. Sassa performed and billed for the same tasks on March 16 and 17, 2022, respectively. As it appears Ms. Sassa's time was unnecessary, the court will subtract from the total fee award the $30.00 incurred for Ms. Sassa's time on March 17, 2022.

- Given that Mr. Johnson received and reviewed the file and evidence on October 4, 2022, it is unclear why Ms. Petersen would have needed to do the same on October 4, 2022. As a result, the court further reduces the amount of fees requested by $30.00.

- On November 7, 2022, there are two entries for Mr. Johnson, both of which entail, among other things, 'reviewing file.' The court therefore reduces the fees requested by $90.00 (the first 11/07/22 entry).

- To the extent that Plaintiff seeks recovery of time Ms. Sassa spent on December 30, 2022 to email and mail a letter to the client, the court finds that such work is non-compensable secretarial work. As a result, the court also reduces the requested fees by $30.00 (allowing recovery for updating file notes).

- On March 23, 2023, both Mr. Johnson and Ms. Sassa 'received and reviewed discovery requests' and updated the file/calendar. The court finds these entries somewhat duplicative and, therefore, further reduces the fees requested by $52.50.

- Ms. Sassa's time entries for April 27, 2023, April 28, 2023, May 5, 2023, May 8, 2023, May 26, 2023, June 15, 2023 (two entries) appear secretarial in nature and, as a result, the court reduces the fees requested by $122.50.

- Ms. Murrieta's time entries on June 12 and September 18, 2023 appear to be for secretarial tasks.

Therefore, the court reduces the fees requested by $30.00.

Based on the foregoing, the court awards Plaintiff attorney's fees in the base lodestar amount of $46,514.50 plus $4,000.00 for fees incurred in reviewing the opposition, drafting the reply, and attending the hearing on the pending motion, for a total of $50,514.50.

Plaintiff's Entitlement to a Fee Enhancement/Multiplier Calendar No.: Event ID:  TENTATIVE RULINGS

3038297 CASE NUMBER: CASE TITLE:  NEUBERGER VS GENERAL MOTORS LLC [IMAGED]  37-2022-00009833-CU-CO-NC The court is not persuaded that this case's circumstances merit an upward adjustment to the lodestar figure. The court has broad discretion in determining whether to award a fee enhancement. See Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal. App. 5th 240. The factors the court may consider in determining whether to apply a multiplier include: '(1) the novelty and difficulty of the questions involved, and the skill displayed in present 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, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.' Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 322, fn. 12. To start, the court already took the foregoing factors into account in its lodestar calculation and finds that the base lodestar amount reflects the reasonable value of Plaintiff's counsel's services in this matter. In addition, this was a relatively straightforward lemon law case, albeit one that was litigated over a somewhat protracted period of time, that did not involve heavy discovery or motion practice and resulted in settlement.

Though lemon law is a specialized area of the law, the expertise required to handle it appears to be accounted for in the relatively high billing rate. Plaintiff's counsel undoubtedly displayed skill in prosecuting this action and achieving a favorable outcome for his client. Finally, there is no evidence that Plaintiff's counsel's representation in this case precluded other employment.

Accordingly, Plaintiff's request for a fee enhancement/multiplier is denied.

Plaintiff's Requested Costs On September 15, 2023, Plaintiff filed and served a Memorandum of Costs under which he claimed $963.69 in costs. See ROA No. 51; Johnson Decl., Ex. 3. California Rules of Court, Rule 3.1700(b)(1) provides that '[a]ny notice of motion to strike or tax costs must be served and filed 15 days after service of the cost memorandum.' Cal. R. Ct. 3.1700(b)(1). 'The failure to file a motion to tax costs constitutes a waiver of the right to object.' Douglas v. Willis (1994) 27 Cal. App. 4th 287, 289. 'After the time has passed for a motion to strike or tax costs or for determination of that motion the clerk must immediately enter the costs on the judgment.' Cal. R. Ct. 3.1700(b)(4). Defendant did not file and serve a motion to strike or tax costs within 15 days of service of the Memorandum of Costs nor does Defendant challenge Plaintiff's claimed costs in its opposition to the present motion. Accordingly, the court awards Plaintiff $963.69 as reflected in the Memorandum of Costs plus the $205.85 in costs incurred in prosecuting the present motion.

In light of the foregoing, the court grants the motion and awards Plaintiff $50,514.50 in attorney's fees and $1,169.54 in costs, for a total award of $51,684.04.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 5, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 5, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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