Judge: Daniel M. Crowley, Case: 22STCV03064, Date: 2024-02-16 Tentative Ruling

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Case Number: 22STCV03064    Hearing Date: February 16, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiffs Rosalinda Garcia’s and Juan Garcia’s motion for attorneys’ fees and costs is granted in the total reduced amount of $44,940.81.  Plaintiffs’ request for attorneys’ fees is granted in the reduced amount of $43,250.00, and Plaintiffs’ costs is granted in the reduced amount of $1,690.81.

Plaintiffs Rosalinda Garcia (“Rosalinda”) and Juan Garcia (“Juan”) (collectively, “Plaintiffs”) move for an order awarding them attorneys’ fees and against Defendant General Motors, LLC (“GM”) (“Defendant”).  (Notice of Motion, pgs. 1-2; 15 U.S.C. §2310(d)(2).) 

Evidentiary Objections

Plaintiffs’ 2/8/24 evidentiary objections to the Declaration of Xylon Quezada (“Quezada”) are sustained as to Nos. 4, 5, 7, 9, 10, 12, 17, 18, 19, and 20, and overruled as to Nos. 1, 2, 3, 6, 8, 11, 13, 14, 15, and 16.

Background

This is a lemon law action brought under the Magnuson-Moss Warranty Act (“Act”).  On June 28, 2023, Defendant sent Plaintiffs a C.C.P. §998 Offer to Compromise, with Defendant agreeing to the following: (1) to pay Plaintiffs $11,000.00 in cash; (2) that Plaintiffs are the prevailing party; and (3) that Defendant would pay Plaintiffs’ attorneys’ fees, costs, and expense pursuant to Civil Code §1794(d) by way of a motion.  (Decl. of Barry ¶37, Exh. 3.)  Plaintiffs accepted Defendants’ §998 Offer on July 5, 2023.  (See Decl. of Barry ¶37, Exh. 3 at pg. 2.)

On October 24, 2023, Plaintiffs filed this motion for attorneys’ fees and their memorandum of costs.  Defendant filed its opposition on January 30, 2024.  Plaintiffs filed their reply on February 8, 2024.

Defendant argues Plaintiffs’ motion is untimely under CRC, Rule 3.1702, which states that a fee motion “must be served and filed within the time for filing a notice of appeal under Rules 8.104 and 8.108 in an unlimited civil case . . . .”  (CRC, Rule 3.1702(b)(1), emphasis added.)  Under CRC Rule 8.104(a)(1), the “deadline ordinarily falls 60 days after notice of entry of judgment, or 180 days after entry of judgment, whichever is first.”  (Kaufman v. Diskeeper Corp. (2014) 229 Cal.App.4th 1, 8.)

Defendant’s argument is unavailing since no judgment has been entered in this case.  Plaintiffs’ only statutory filing deadline was to file the instant motion at least sixteen court days before the hearing date.  (C.C.P. §1005(b).)  Therefore, Plaintiffs’ motion is proper.

Discussion

The Act contains a cost-shifting provision that specifically allows prevailing buyers to recover their costs, including attorney’s fees.  (15 U.S.C. §2310(d)(2).) The prevailing buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation and reasonable in amount.  (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 820.)

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

Reasonable Fees

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the Plaintiffs’ 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.)

Plaintiffs’ Counsel declares the following hourly rates of the attorneys who worked on this case: (1) David N. Barry ($520.00/hour prior to January 2022, $600.00/hour from January 2022 – April 2023, and $625.00/hour from April 2023 – present); (2) Elizabeth Quinn ($550.00/hour); (3) Carrie Shumake ($300.00/hour from January 2022 – April 2023, and $350.00/hour from April 2023 – present); (4) Elizabeth Eabisa ($250.00/hour); and (5) Allison Norder ($250.00/hour). (Decl. of Barry ¶¶45-54.)  These rates are appropriate given each attorney’s relative experience and qualifications.  (See id.)  Plaintiffs have sufficiently demonstrated their counsel’s hourly rates are reasonable in their community of practice in their specialized area of law.

Defendant challenges Plaintiffs’ counsel’s hourly rate, arguing Plaintiffs failed to meet their burden to demonstrate their counsels’ rates are reasonable based on two rate increases in the span of this case.  Defendant’s argument is unavailing.  A declaration of Plaintiffs’ counsel is sufficient evidence of the market rates charged in the legal community, especially where no evidence is presented to the contrary. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 902-904; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)  The Court finds Plaintiffs’ counsel’s rate to be reasonable and does not warrant a reduction.

Billed Hours

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.)

Plaintiffs’ fee recovery is based on the 109.8 hours spent by their attorneys litigating this case over several years.  (Decl. of Barry ¶48, Exh. 4.)  Defendant argues several categories of Plaintiffs’ counsel’s billed hours were unsubstantiated or unreasonable and should be reduced.  (Opposition, pgs. 7-10.)  The Court has reviewed Defendant’s seventeen objections to Plaintiff’s counsel’s billed hours and agrees with some of Defendant’s objections.

First, Defendant’s objection to Plaintiffs’ counsel’s pre-engagement work (2.2 hours or $1,155.00) is unavailing.  An attorney’s time spent on a case before the action is filed may be compensable, including time reasonably spent interviewing the client, investigating the facts and law, and preparing the initial pleadings.  (See, e.g., Webb v. Board of Education (1985) 471 U.S. 234, 242-243 [noting that services performed before a lawsuit is formally begun are often performed “on the litigation,” including drafting the initial pleadings and work associated with developing the theory of the case]; see also Hogar Dulce Hogar v. Community Development Commission (2007) 157 Cal.App.4th 1358, 1370.)

Second, Defendant’s objection to Plaintiffs’ counsel billing 0.9 hours ($472.50) to communicate with Plaintiff regarding the “case status” before filing this action is unavailing for the same reasons as stated regarding Defendant’s first objection.  Therefore, Defendant did not meet its burden to challenge these fees.

Third, the Court also disagrees with Defendant’s objection to the 3.7 hours ($925.00) Plaintiffs’ counsel billed for preparing templated discovery requests.  Defendants fail to support their argument with case law to support a reduction in fees for using templates. Therefore, Defendant did not meet its burden to challenge these fees.

Fourth, fifth, and sixth, Defendant’s objection to billed hours (3.0 hours or $750.00) on February 11, 14, and 15, 2022, to read Defendant’s discovery requests, prepare templated discovery responses on March 14, 2022 (3.0 hours or $700.00), and to review Defendant’s responses to Plaintiff’s discovery requests on January 17 and 18, 2023 (6.5 hours or $1,470.00) is unavailing.  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. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s seventh objection to Carrie Shumake reviewing Defendant’s proposed stipulation and protective order on February 1, 2023 (0.3 hours or $90.00) is unavailing. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Premier Medical Management Systems, Inc., 163 Cal.App.4th at pg. 564.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s eighth objection to the 3.5 hours ($1,050.00) spent on January 18, 19, and 25, 2023, to draft meet and confer letters and review Defendant’s responses is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s ninth objection to the 3.7 hours ($1,110.00) spent on September 1, 2022, and February 9 and 15, 2023, to draft Plaintiffs’ notice and motion for leave to amend is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s tenth, eleventh, and twelfth objections to the 2.7 hours ($1,620.00) spent on February 3, 2023, to review Defendant’s motion for summary judgment, 14.8 hours ($5,180.00) to draft a response to the motion for summary judgment, and addition of Elizabth Quinn to review Defendant’s reply to the motion and appear for the hearing on May 23 and 26, 2023, is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s thirteenth objection to the 8.4 hours ($2,940.00) on June 12, 2023, to draft motions in limine is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s fourteenth objection to 8.2 hours ($4,312.50) on February 9, 16, 2022; March 14, 2022; May 4, 2022; July 27, 2022; August 30, 2022; January 20, 2023; February 2, 14, and 24, 2023; March 13, 20, 24, 2023; April 10, 2023; May 1 and 18, 2023; and June 1, 28, and 30, 2023, to Plaintiffs’ counsel’s communication with Plaintiffs is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Defendant’s fifteenth objection to 1.5 hours ($635.00) on May 2, 2022; January 27, 2023; May 9, 30, 2023; and October 20, 2023, to be reimbursed to “draft memo to file” is well taken on the basis the entry is clerical in nature and impermissibly vague.  Therefore, Defendant met its burden to challenge Plaintiff’s billed fees for clerical tasks.  Plaintiffs did not meet their burden to justify the clerical tasks, and therefore will not be awarded the $635.00 requested.

Defendant’s sixteenth objection to 2.5 hours ($1,375.00) for travel time on October 20, 2023, is well taken.  This Court does not require in-person attendance at Stanley Mosk Courthouse, and Quinn could have appeared on Los Angeles Superior Court Connect to attend the hearing remotely.  Therefore, Defendant met its burden to challenge Plaintiff’s billed fees for travel time.  Plaintiffs did not meet their burden to justify the clerical tasks, and therefore will not be awarded the $1,375.00 requested.

Defendant’s final, seventeenth objection to 12.2 hours ($6,805.00) incurred on September 29, 2023, and October 2, 20, and 24, 2023, on the instant fee motion is unavailing.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.  (Id.)  Therefore, Defendant did not meet its burden to challenge these fees.

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $43,250.00.

Costs

The California legislature intended the word “expenses” in the Act to cover outlays not included in the detailed statutory definition of “costs,” and the legislative history of the Act further demonstrates that the legislature exercised its power to permit the recovery by prevailing buyers of a host of litigation expenditures.  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.)  “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, Plaintiffs submitted their Memorandum of Costs on or about October 24, 2023.  The deadline for Defendant to file a motion to tax these costs was November 8, 2023.  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 30, 2024.  Therefore, Defendant’s challenge to Plaintiff’s memorandum of costs will be considered by this Court.

First, Defendant challenges Plaintiffs’ request for $550.00 in court reporter fees for the hearing on the instant motion on the basis such fees are actually incurred, and are estimated fees rather than an actual charge.  Defendant’s objection is well taken, and $550.00 are taxed from Plaintiffs’ memorandum of costs.

Second, Defendant challenges Plaintiffs’ request for $150 in jury fees in light of the fact this case never went to trial.  Defendant’s objection is not well taken because the fees had to be paid in advance and are non-refundable.  (Code of Civil Procedure section 631(b) and (c).)

Third, Defendant challenges $37.68 in anticipated costs for mileage and parking fees.  Defendant’s objection is well taken, and $37.68 in anticipated mileage and parking costs are taxed from Plaintiffs’ memorandum of costs.

Accordingly, Plaintiff is entitled to costs in the reduced amount of $1,840.81.

Conclusion

Accordingly, Plaintiffs’ request for attorneys’ fees is granted in the reduced amount of $43,250.00, and Plaintiff’s costs is granted in the reduced amount of $1,840.81.  Plaintiffs’ motion is granted in the total reduced amount of $44,940.81.

Moving Party to give notice.

Dated:  February _____, 2024