Judge Daniel M. Crowley, Case Number: 21STCV00696, Date: 2023-09-26 Tentative Ruling

Plaintiff Wilber Gomez Diaz’s motion for attorneys’ fees against Defendant Tricolor California Auto Group LLC is granted in the reduced total amount of $74,026.93, comprised of attorney fees in the reduced amount of $70,021.50, and costs in the reduced amount of $4,005.40.

Plaintiff Wilber Gomez Diaz (“Gomez Diaz”) (“Plaintiff”) moves for an order awarding him attorneys’ fees in the amount of $87,846.50, and costs in the amount of $8,797.80, against Defendant Tricolor California Auto Group, LLC, dba Ganas Auto (“Ganas”) (“Defendant”) for a total amount of $96,644.30. (Notice of Motion, pg. 1; Civ. Code §§1780(e), 1794(d).)

Plaintiff Gomez Diaz and Ashley Marie Gomez initially filed their claim against Ganas and Travelers Casualty Insurance Company of America (collectively, “Defendants”) with JAMS on July 23, 2020, pursuant to the arbitration provision in their vehicle purchase contract. Ganas failed to pay JAMS the initial arbitration fees due in December 2020, so Plaintiff and Ashley Marie Gomez pursued the instant case.

On January 8, 2021, Plaintiff Gomez Diaz and Ashley Marie Gomez filed the operative Complaint against Defendants for ten causes of action: (1) violation of the Consumers Legal Remedies Act, Civil Code §§1750 et seq.; (2) breach of express warranty in violation of Song-Beverly Consumer Warranty Act, Civil Code §§1794, et seq.; (3) breach of implied warranty in violation of Song-Beverly Consumer Warranty Act, Civil Code §§1790, et seq.; (4) failure to promptly repurchase product, Civil Code §1793.2(D); (5) failure to complete repairs within 30 days, Civil Code §1792.2(b); (6) failure to comply with Civil Code §1795.51; (7) violation of Business and Professions Code §§17200, et seq.; (8) fraud and deceit; (9) negligent misrepresentation; and (10) violation of Vehicles Code §11711. While the lawsuit was pending, Ashley Marie Gomez passed away.

On April 19, 2022, parties attended a mediation before the Honorable Gerald Rosenberg (Ret.). (Decl. of Barry ¶5.) Although parties were unable to reach a settlement at mediation, a settlement was reached shortly thereafter. (Decl. of Barry ¶6.)

On February 17, 2023, parties signed a settlement agreement (“Settlement Agreement”) dismissing the instant case with prejudice. (Decl. of Barry ¶3, P-COE, Exh. 1.)

On April 11, 2023, Plaintiff filed the instant motion. On September 12, 2023, Ganas filed its opposition. On September 19, 2023, Plaintiff filed his reply.

Civil Code §1794(d) provides, as follows: “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.”

The calculation of attorneys’ fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.) “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.” (Graciano, 144 Cal.App.4th at pg. 154.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Id.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Id.) An attorney’s time spent and hourly rate are presumed to be reasonable. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.) ¿Reasonable hourly compensation does not include inefficient or duplicative efforts, aka “padding.” ¿(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580) ¿

Further, prevailing parties are compensated for hours reasonably spent on fee-related issues. ¿(Serrano v. Unruh (1982) 32 Cal.3d 621, 635). ¿A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ¿(Id.) ¿The Supreme Court stated:

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. “If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . ..” [Citation.]

Here, Plaintiff is the prevailing party because he obtained his litigation goals to be compensated for his causes of action under the Consumers Legal Remedies Act and the Song-Beverly Consumer Warranty Act. Ganas does not dispute Plaintiff is the prevailing party in its opposition.

In terms of the hourly rates of Plaintiff’s counsel, the Court finds them reasonable. Plaintiff’s counsel declares the following hourly rates: (1) Christopher Barry with an hourly rate of $670.00; (2) Gregory T. Babbitt with an hourly rate of $585.00; (3) Leonard M. Kolakowski with an hourly rate of $490.00; (4) Michelle A. Cook with an hourly rate of $335.00; and (5) Lilia F. Guizar with an hourly rate of $210.00. (Decl. of Barry ¶5; P-COE Exh. 2; Decl. of Kolakowski ¶11; Decl. of Babbitt ¶7; Decl. of Cook ¶3.) Defendant does not challenge Plaintiff’s counsel’s hourly rates as unreasonable. Based on the Court’s experience, Plaintiff’s counsels’ rates are reasonable.

Although detailed time records are not required, California Courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney’s testimony must be based on the attorney’s personal knowledge of the time spent and fees incurred. (Evid. Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.)

Here, Plaintiff submitted documentation supporting 223.5 hours performed by Babbitt, Barry, Kolakowski, Cook, and Guizar. (See Decl. of Barry ¶5; P-COE Exh. 2.)

Ganas argues Plaintiff’s fees are excessive for an action that was not complex, did not go to trial, and was over-litigated based on the minimal recovery for Plaintiff in the amount of $6,000. (Opposition, pg. 6.) First, Ganas argues Plaintiff is entitled to attorneys’ fees on just three of their ten claims, which are brough under the CLRA (1st COA) and the Song-Beverly Act (2nd and 3rd COAs), and the remaining seven claims are legally distinct from Plaintiff’s lemon law claims and should be excluded from their attorneys’ fees. (Opposition, pg. 9.) Ganas argues the Court should apply a negative multiplier of .4 to reduce Plaintiff’s fee award. (Opposition, pg. 9; Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24; Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240.) Second, Ganas argues Plaintiffs are seeking excessive fees on a straightforward lemon law case. (Opposition, pg. 9.) Ganas does not provide details for its calculation of a .4 negative multiplier and the specific billing entries to which it objects and therefore fails to meet its burden. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564 [“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”].)

Further, in Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, a case involving a successful Song-Beverly Act cause of action and a common-law fraud claim that was reversed on appeal, the Fourth Appellate District agreed that apportionment was inappropriate because the two causes of action—fraud and Song-Beverly Act—encompassed “one set of facts.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) Further, the court of appeal found that the defendant’s proposed apportionment of fees (proposing either a 50 percent or 92 percent reduction of fees for the work done on the fraud causes of action), was not supported by any authority and was “completely out of keeping with the principle of ensuring the prevailing party receives a full recovery of attorney fees on the fee-shifting cause of action.” (Id. at pg. 350, citing Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.)

Here, like in Santana, with respect to Plaintiff’s non-fee shifting causes of action for fraud and deceit and negligent misrepresentation, the information needed to prove all Plaintiff’s claims in the Complaint were the same. Plaintiff needed to demonstrate (1) Ganas did not comply with the laws pertaining to certifying the vehicle; (2) Ganas did not comply with the BHPH dealer laws; and (3) Ganas sold Plaintiff a defective vehicle and failed to repair it under warranty or take it back. (Id. at pg. 349.)

Ganas argues Plaintiff’s counsels’ requested fees should be further reduced to account for inflated and unnecessary billing in five areas in the amount of $19,529.50, that the Court should eliminate: (1) $3,869 that the Court previously rejected in ruling on Plaintiffs’ §1281.97 motion; (2) $4,113.5 billed in connection with the death of Ashley Gomez Diaz, including consultations with Plaintiffs’ probate and custody counsel; (3) $9,875.00 for taking four duplicative depositions of Ganas employees; (4) $5,850.50 for other unnecessary discovery, including deposition subpoenas directed at non-parties Fox Rent-a-Car (“Fox”) and Guaranty Chevrolet (“Guaranty”); and (5) $2,099.50 for vague entries such as “email client.” (Opposition, pg. 10; see Decl. of Lawrence ¶¶2-3, Exhs. A-B.)

Plaintiff is entitled to its request for $3,869.00 in attorneys’ fees and costs, which Ganas claims this Court rejected in Plaintiffs’ request for attorneys’ fees and costs under C.C.P. §1281.97. This Court did not reject these fees and costs in a manner which would not allow Plaintiffs to recover them in the instant motion; rather, Plaintiff’s motion under §1281.97(b)(2) sought all their fees and costs incurred in the case from retaining the case through the arbitration due to Ganas’ failure to pay the arbitration fees. This Court denied Plaintiff’s fees and costs requested from the inception of the case through the motion because it interpreted the phrase “related to the arbitration” in §1281.97(b)(2) to mean Plaintiffs could only obtain their attorneys’ fees and costs related to the drafting of the arbitration demand and up until the time of the withdrawing from the arbitration. (6/8/21 Minute Order, pg. 3.) Thus, this Court never ruled Plaintiffs would not be entitled to these fees and costs.

Plaintiff’s counsel’s time spent dealing with the issues related to Ashley Marie Gomez’s death was reasonably spent in light of the circumstances. Ms. Gomez was a named Plaintiff and her counsel exercised its due diligence to navigate the execution of the settlement agreement in the aftermath of her untimely death.

Plaintiff fails to justify attorneys’ fees incurred on the four challenged depositions of Ganas employees; deposition subpoenas directed at non-parties Fox and Guaranty; and vague entries such as “email client.” Accordingly, the Court reduces Plaintiff’s fees requested by $9,875.00 for taking four duplicative depositions of Ganas employees; $5,850.50 for other unnecessary discovery, including deposition subpoenas directed at non-parties Fox and Guaranty; and $2,099.50 for vague entries such as “email client.”

Accordingly, Plaintiff’s request for attorneys’ fees is reduced by $17,825.00, for a reduced total of $70,021.50.

Plaintiff argues pursuant to Civil Code §1794(d), he is entitled to costs and expenses necessarily incurred and included in the submitted Memorandum of Costs, and as part of the settlement, the parties agreed to have the Court determine Plaintiff’s costs and expenses in the instant motion rather than through a memorandum of costs and a motion to tax costs. (Motion, pg. 9; P-COE Exh. 1 §2.2.1.)

Under C.C.P. §1033.5, some expenses are expressly allowed as costs, some are expressly disallowed as costs, and unmentioned expenses may be allowed or denied in the trial court’s discretion. (See C.C.P. §§1033.5(a), (b), (c)(4).) Expenses awarded as costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (C.C.P. §§1033.5(c)(2), (c)(3).)

“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71, internal quotation omitted.) “If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Id., internal quotation omitted.) However, where “costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Id., internal quotation omitted.)

Ganas argues the mediation fees and travel expenses Plaintiff seeks are not authorized under the statute, and there is no basis for Plaintiff to receive reimbursement for mediation fees they agreed to pay. (Opposition, pg. 11.) Ganas argues photocopies and postage are also not expressly recoverable. (See El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 618 [“Costs for photocopies are allowable only if they are copies of exhibits; other copy costs are expressly disallowed by statute.”].) Ganas argues although the costs of deposition transcripts are allowable under C.C.P. §1033.5, the depositions of the four additional Ganas employees were wholly unnecessary, as were the depositions of third parties Fox and Guaranty, including service of their deposition subpoenas. (Opposition, pgs. 11-12.)

Plaintiff’s requested mediation fees, travel expenses, photocopying costs, and postage are not recoverable by statute. (Civ. Code §1794(d). Further, Plaintiff fails to justify the depositions of the four additional Ganas employees, as well as the depositions of third parties Fox and Guaranty, including service of their deposition subpoenas.

Accordingly, Plaintiffs’ request for costs and expenses reasonably incurred is reduced by $4,792.37, for a reduced total of $4,005.43.

Based on the foregoing, Plaintiff’s motion for attorney fees is granted as to the request for attorney fees in the reduced amount of $70,021.50, and costs in the reduced amount of $4,005.43 for a reduced total of $74,026.93.

Hon. Daniel M. Crowley

Judge of the Superior Court