Judge Daniel M. Crowley, Case Number: 21STCV46649, Date: 2024-02-09 Tentative Ruling

Plaintiff Cinthia N. Fierros Morales (“Morales”) (“Plaintiff”) moves for an order awarding her attorneys’ fees, costs, and expenses against Defendant General Motors, LLC (“GM”) (“Defendant”) in the total amount of $61,423.66. (Notice of Motion, pg. 1; Civ. Code §1794(d).)

Plaintiff requests the following fees and costs: (1) $35,709.50 in incurred attorney’s fees with a 1.5 time multiplier (for a total of $53,564.25); (2) an additional $3,000.00 for Plaintiff counsel’s to review Defendant’s Opposition, draft the Reply brief, attend the hearing on this Motion, draft an opposition to Defendant’s anticipated motion to tax costs, and attend the hearing thereto (though Plaintiff’s Counsel expects to spend well over ten hours on these) with a 1.5 time multiplier (for a total of $4,500.00); (3) $2,834.41 in incurred costs and expenses; and (4) $525.00 in anticipated costs and expenses for a Court reporter for the hearing on the instant Motion. (Notice of Motion, pg. 1; Civ. Code §1794(d).)

Plaintiff’s 1/16/24 request for judicial notice of (1) a May 20, 2016, Order granting over 97% in Derakshanian, et al. v. BMW of North America, LLC, LASC No. BC548652 (Exh. 5); (2) a November 21, 2016, Order in the Song-Beverly matter of Moreno v. BMW of North America, LLC, LASC No. BC556383 (Exh. 6); (3) a February 9, 2017, Notice of Entry of Order concerning the Court’s Fee Order in Violi v. Hyundai Motor America, Inc., LASC No. BC574483 (Exh. 7); (4) a March 6, 2017, Minute Order in the Song-Beverly matter of Abedi-Masihi v. Mercedes-Benz USA, LLC, LASC No. BC551688 (Exh. 8); (5) a May 11, 2017, Notice of Entry of Order concerning the Court’s Fee Order in Bustamante v. FCA US, LLC, LASC No. BC595544 (Exh. 9); (6) an October 6, 2017, order in Fuller v. FCA US LLC, LASC No. BC556964 (Exh. 10); (7) a Court Order dated August 8, 2018, in the lemon law case Caplan v. FCA US LLC, LASC No. BC580793 (Exh. 11); (8) May 9, 2017, Stipulation and signed Order regarding judgment of jury verdict with a two times civil penalty and attorney fees, costs, and expenses in the matter of Vanwaus v. FCA US, LLC, LASC No. BC591282 (Exh. 12); (9) an August 31, 2021, order in the matter of Andrade Aguilar v. FCA US LLC, LASC No. 19STCV23470 (Exh. 13); (10) an August 26, 2021, Ruling on Plaintiff’s Motion for Attorney’s Fees approving the hourly rates of Benjeman Beck at $490/hour and Julian Moore at $450/hour in the matter of Raul Duenas v. FCA US, LLC, LASC No. 19NWCV00931 (Exh. 14); (11) an August 30, 2021, Ruling on Plaintiff’s Motion for Attorney’s Fees, approving the hourly rates of Benjeman Beck at $490/hour and Nancy Zhang at $435/hour (who has similar experience to Carey Wood) in Susan Walpert v. Jaguar Land Rover North America, LASC No. BC721746 (Exh. 15); (12) a January 20, 2023, minute order on Plaintiff’s Motion for Attorney’s fees in Ceberio v. Ford Motor Company, LASC No. 19GDCV00391, finding the hours billed reasonable and approving the hourly rates of Benjeman Beck at $490/hour and Nancy Zhang at $410/hour reasonable (Exh. 16); and (13) excerpts of the United States Consumer Law Attorney Fee Survey Report for 2017–2018 (Exh. 17), is denied.

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). On September 23, 2023, the parties reached a settlement in the amount of $73,000.00 with attorney’s fees to be decided by motion and stipulating that Plaintiff would be deemed the prevailing party for purposes of said motion. (Decl. of Pappas ¶16; Decl. of Crandall ¶35.) The settlement agreement was signed in November 2023. (Decl. of Crandall ¶35; Decl. of Pappas ¶16.)

On January 16, 2024, Plaintiff filed this motion for attorneys’ fees and its memorandum of costs. Defendant filed its opposition on January 29, 2024. Plaintiff filed her reply on February 2, 2024.

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

Here, Plaintiff is the prevailing party per parties’ agreement and is entitled to attorneys’ fees and costs, and Defendant does not contest this issue.

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the Plaintiff’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, emphasis added.)

Plaintiff’s Counsel declares the following hourly rates of the attorneys who worked on this case: (1) Carey Wood ($500/hour); (2) Sean Crandall ($425-$470/hour); (3) Vanessa Oliva ($435/hour); and (4) Laura Rogers ($350/hour). (Decl. of Crandall ¶¶37, 57-62.) These rates are appropriate given each attorney’s relative experience and qualifications. (See id.) Plaintiff has sufficiently demonstrated her counsel’s hourly rate is reasonable in their community of practice in their specialized area of law.

Defendant does not challenge Plaintiff’s counsel’s hourly rate as unreasonable. The Court finds Plaintiff’s counsel’s rate to be reasonable and does not warrant a reduction.

The party seeking fees and costs bears the burden to show “the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

Plaintiff’s fee recovery is based on the 85.70 hours spent by her attorneys litigating this case over several years. (Decl. of Crandall ¶51, Exh. 18.) Defendant argues Plaintiff’s counsel’s billed hours were not reasonably incurred and were excessive and therefore should be cut. (Opposition, pgs. 6-8.) The Court has reviewed Defendant’s eight objections to Plaintiff’s counsel’s billed hours and agrees with some of Defendant’s objections.[1]

First, Defendant does not cite to specific time entries in support of its argument that the time incurred by paralegals Clarence Serrano and Alexis Valdovinos is for clerical work that is not recoverable as attorneys’ fees. Courts of Appeal have upheld the awarding of non-attorney fees, including even by non-paralegals such as legal support staff. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 890 [stating time spent by non-paralegal legal staff compensable]; see also Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 [stating paralegal time compensable].) Additionally, a verified fee bill is prima facie evidence that the costs, expenses, and services listed were reasonable. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Therefore, Defendant did not meet its burden to challenge these fees for paralegals’ billed hours.

Second, Defendant’s objection to Plaintiff’s counsel billing 1.5 hours ($637.50) to review GM’s written discovery responses and prepare a “meet and confer” letter regarding is unavailing. (See Crandall Decl. Exh. 18, p. 5-6.) That Plaintiff uses a template to draft a meet-and-confer letter is immaterial considering that Plaintiff had to respond to the case-specific issues based on Defendant’s 18-page response to Plaintiff’s form interrogatories, 28-page response to Plaintiff’s special interrogatories, 13-page response to Defendant’s requests for admission, 58-page response to Plaintiff’s requests for production of documents, and a 798-page document production. (Supp.-Decl. of Crandall ¶4, Exh. 1.) Therefore, Plaintiff met her burden to demonstrate the challenged fees are reasonable and recoverable.

Third, the Court also disagrees with Defendant’s objection to Plaintiff’s request for weekly internal case/calendar review meetings (4.3 hours or $2,052.00) characterized by Defendant as nonproductive time; Defendant does not cite binding authority supporting its position that “interoffice communication” regarding the drafting of filings, outcome of hearings and depositions, and discussion of case strategy and upcoming deadlines is “nonproductive” or otherwise unrecoverable. Therefore, Defendant did not meet its burden to challenge these fees.

Fourth, Defendant’s objection to billed hours on February 15 and 16, 2023, to prepare supplemental discovery responses is unavailing. As Defendant notes, the supplemental requests for admission regarding the genuineness of documents involved the assembly of over four hundred (400) documents in a Dropbox link and listing out the Bates Numbers for all 414 documents in Attachment 2. (Decl. of Pappas ¶13, Exh. E.) The time spent preparing supplemental discovery was reasonable and recoverable. Therefore, Plaintiff met her burden to demonstrate the challenged fees are reasonable and recoverable.

Defendant’s fifth and sixth objections to time spent drafting a motion to compel the deposition of Defendant’s PMQ and the deposition subpoenas of third parties is unavailing, as the witnesses was directly involved in the repair of Plaintiff’s vehicle and generated the repair orders related to Plaintiff’s vehicle. Thus, the testimony of the third-party dealership witnesses was necessary to authenticate and lay the foundation for the repair orders for the Subject Vehicle. The time spent preparing the motion and subpoenas was reasonable and recoverable. Therefore, Plaintiff met her burden to demonstrate the challenged fees are reasonable and recoverable.

Defendant’ eighth objection to the 9.7 hours to draft the instant motion and approximately 6.1 hours of anticipated fees to review Defendant’s opposition, prepare a reply, and attend the hearing on the motion is well taken. The instant fee motion should not have taken more than 5 hours to draft, and reviewing the opposition, drafting the reply, and attending the hearing on the motion should not take more than 5 hours. Plaintiff is entitled to a total of 10 hours on the instant motion ($4,900.00), reducing Plaintiff’s requested fees by $2,853.00.

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $35,759.00.

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 . . . incurred by the buyer in connection with the commencement and prosecution of such action.”

“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 they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Any effort to tax or strike costs must occur in the form of a motion to strike or to tax costs and must be served and filed fifteen (15) days after service of the cost memorandum. (CRC, Rule 3.1700(b)(1).) After the 15-day deadline to file a motion to tax costs has passed, the Court clerk must immediately enter the costs. (CRC, Rule 3.1700(b)(4).)

Here, Plaintiff submitted her Memorandum of Costs on or about January 16, 2024. The deadline for Defendant to file a motion to tax these costs was January 31, 2024. Defendant did not file a motion to tax costs by this deadline, but instead challenges costs in this motion for attorneys’ fees and costs, which was timely filed on January 29, 2024. Therefore, Defendant’s challenge to Plaintiff’s memorandum of costs will be considered by this Court.

First, Defendant challenges Plaintiff’s request for $150 in jury fees in light of the fact this case never went to trial. Defendant’s objection is well taken, and $150 in jury fees are taxed from Plaintiff’s memorandum of costs.

Second, Defendant challenges $123.30 in costs for hearing reservations for two motions to compel, considering only one motion to compel was filed in this case. Defendant’s objection is well taken, and Plaintiff does not respond to Defendant’s argument in its reply, thereby conceding its argument on this issue. Therefore, $61.65 is taxes from Plaintiff’s memorandum of costs.

Third, Defendant challenges $716.00 in costs for service of process of deposition subpoenas on non-party dealers AutoNation Chevrolet Valencia and Felix Chevrolet. Plaintiff sufficiently met its burden to demonstrate AutoNation Chevrolet Valencia and Felix Chevrolet were percipient witnesses who either performed repairs on the Subject Vehicle or whose testimony was necessary to authenticate and lay the foundation for the Subject Vehicle’s repair orders. Thus, their testimony was relevant and discoverable, and all costs incurred to depose them are recoverable. Therefore, Defendant’s request to tax these costs is denied.

Fifth, Defendant’s request to tax $461.69 in costs described as “Electronic filing and fees advanced to complete assignment” is supported by Plaintiff’s invoice. (Supp.-Decl. of Crandall ¶¶6-8, Exhs. 3-5.) Therefore, Defendant’s request to tax these costs is denied.

Finally, Defendant’s objection to Plaintiff’s anticipated costs of $525.00 is well taken, as costs are only allowed if actually incurred. Plaintiff’s request for $525.00 appears to be an estimate for court reporter services that have not been rendered.

The Court denies Plaintiffs’ request for a 1.5 lodestar multiplier. Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant’s opposition is not formatted according to the CRC Rule 2.108(1), which requires “[t]he lines on each page must be one and one-half spaced or double-spaced and numbered consecutively.” Defendant’s objections are single-spaced, presumably to ensure their document is not overlong.