Judge: Douglas W. Stern, Case: 21STCV28796, Date: 2022-10-24 Tentative Ruling
Case Number: 21STCV28796 Hearing Date: October 24, 2022 Dept: 68
Lucia Gonzalez v. FCA US LLC, et al., Case No.
21STCV28796
Tentative Ruling:
Motion for Award of Attorneys Fees – Song Beverly Act
BACKGROUND
This is an action arising from
multiple defects in a new 2018 Chrysler Pacifica, purchased by Plaintiff on
August 21, 2018. On August 4, 2021,
Plaintiff Lucia Gonzalez (“Plaintiff”) filed a complaint against Defendants FCA
US LLC (“Defendant”), W & B Automotive, Inc. (Bravo), and Does 1 through 40
for (1) violation of Song-Beverly Act – breach of express warranty; (2)
violation of Song-Beverly Act – breach of implied warranty; (3) violation of
Song-Beverly Act – Section 1793.2; and (4) negligent repair.
On June 14, 2022, Plaintiff filed a
notice of settlement of entire case.
On September 27, 2022, Plaintiff
filed the instant motion for attorneys’ fees and costs. Defendant filed opposition papers on October
11, 2022. Plaintiff filed reply papers
on October 17, 2022.
Moving Party
Position
Plaintiff initially sought $34,000.50
in attorneys’ fees, a 1.5 lodestar multiplier of $17,000.25, and $3,561.71 in
costs. Plaintiff asserts her counsel’s hourly rates and time billed are
reasonable. Plaintiff contends she is entitled to the fees incurred in bringing
this motion. Plaintiff argues a 1.5 fee multiplier is justified because of the
contingent nature the case.
Opposition
Defendant argues the requested
attorneys’ fees are unreasonable and excessive. Defendant alleges that
Plaintiff’s counsel engaged in unsupported block billing, and it should be
curtailed. Defendant argues that Plaintiff should not recover any fees for time
spent drafting the motion to compel, claiming that the Court has already
awarded Plaintiff reasonable fees. Defendant asserts that the time spent on the
fee motion should be reduced. Defendant argues that Plaintiff should not
recover any fees incurred in connection with the negligent repair claims
against Defendant Bravo because no fees may be recovered from those. Defendant
requests that the Court use its discretion to reduce Plaintiff’s counsel’s
hourly rate. Defendant argues that the facts in this case do not warrant a
multiplier and the Court should apply a negative multiplier. Defendant does not recommended a specific
reduced amount in attorney’s fees requested by Plaintiff. Instead, Defendant
requests that Plaintiff’s motion be denied in its entirety, or that the amount
be reduced by various suggestions made by Defendant. Defendant makes no substantive
arguments against Plaintiff’s requested costs.
Reply
Plaintiff argues Defendant has
failed to satisfy its burden of proof as to why the requested fees are
unreasonable or unnecessary. Plaintiff argues that Defendant misrepresented the
Court’s discretion as to reduction of a fee amount. Plaintiff contends that her
counsel did not ignore Defendant’s settlement efforts. Plaintiff asserts that
the hours billed for the work are reasonable, and that Plaintiff no-charged the
time entries solely attributed to the claim against Bravo. Plaintiff reiterates
that her counsel’s hourly rate is reasonable and that a multiplier is warranted
in this case.
ANALYSIS
I. Attorneys’ Fees
A prevailing party in entitled to recover costs, including attorneys’
fees, as a matter of right. (CCP §§ 1032(a)(4), 1032(b), 1033.5.) A buyer who prevails on a claim under the
Song-Beverly Act is entitled to recover “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.” (Cal. Civ.
Code, § 1794(d).)
The fee setting inquiry in California
ordinarily begins with the “lodestar” method, i.e., the number of hours
reasonably expended multiplied by the 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
lodestar figure may then be adjusted, based on consideration of factors
specific to the case, in order to fix the fee at the fair market value for the
legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s
analysis to an objective determination of the value of the attorney’s services,
ensuring that the amount awarded is not arbitrary. (Id. at 48, n.23.) After the trial court has performed the
lodestar calculations, it shall consider whether the hourly rate is reasonable,
and then the lodestar figure may be adjusted, in order to fix the fee at the
fair market value for legal services provided. (PLCM Group v. Drexler
(2000) 22 Cal.4th 1084, 1095.)
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 in original].)
Plaintiff initial motion seeks $34,000.50
in fees, $17,000.25 as a 1.5 fee multiplier, and $3,561.71 in costs.
Defendant argues that Plaintiff’s
counsel’s hourly rates are excessive. The Court finds that Plaintiff’s
counsel’s hourly rates of $695 for Mr. Wirtz, $400 and $500 for attorneys and
$150-$250 for paralegals are reasonable given their experience and the locality
of the services provided. (See Wirtz Decl., ¶¶ 13-25.)
Defendant further contends that the
hours billed are unreasonable or excessive due to block billing, overbilling,
use of templates, sanctions that were awarded for the motion to compel, and
charges for work done in relation to the claim against Defendant Bravo.
With respect to entries referencing
Plaintiff’s claim against Defendant Bravo for negligent repair, Plaintiff has
explained that time entries solely attributable to this claim were no-charged,
and those that were not no-charged were relevant to Plaintiff’s Song Beverly
Act claims against Defendant. (Reply at pp. 6-7.) Plaintiff sought to discover
information and documents generally related to the attempted repairs on the
vehicle, as Defendant Bravo inspected the vehicle when Plaintiff began having
problems with it. (Reply at p. 7; Barns Reply Decl., ¶ 3.) These fees are thus
recoverable in this case.
Defendant asserts that the time
entries for client communication are excessive because Plaintiff’s counsel spent
18 hours communicating with their client. Plaintiff argues in their reply that
18 hours of communication with the client over 16 months of litigation is not
excessive because that amounts to just over an hour per month. (Reply at p. 4.)
The Court finds that 18 hours for client communication is not excessive.
Defendant also requested that the
$2,515.00 billed in connection with the Motion to Compel be deducted because
Plaintiff was awarded sanctions in the amount of $1,500 in connection with the
Motion to Compel. (Opposition at pp. 5-6.) Plaintiff argues that the standard
is different for awarding sanctions versus recovery of fees, costs, and
expenses under the Song Beverly Act. (Reply at p. 6.) The standard for
discovery sanctions under CCP § 2023.010 is the misuse of the discovery
process, while the standard for recovery under the Song Beverly Act is for all
fees, costs, and expenses “reasonably incurred.” (Civ. Code § 1794(d)).)
What if the Court had granted the
motion to compel but not awarded any discovery sanctions? Would that dictate that the Court exclude the
time spent on that discovery motion in its entirety when determining the Song-Beverly
statutory “reasonable” fee? Indeed, what
if the motion to compel had been denied, and thus no fees awarded. Would it be proper for the Court to exclude
the time spent making the motion? Such
an outcome would not be appropriate. Attorney’s
fees awarded at the conclusion of a case to the successful party will
inherently include fees for time spent fighting losing battles or
skirmishes. But fees are not awarded on
a battle-by-battle basis. This Court
believes that the award of sanctions on a discovery motion does not preclude
the award of the “balance” of such fees at the end of the case as a “reasonable”
fee under the statute. The Court declines
to reduce the amount of fees by $2,515.00.
Additionally, Defendant argues that
the amount that Plaintiff’s counsel billed for reviewing and replying to the
opposition to this motion and for attending the hearing related to the motion
is excessive. The final amount for this work requested by Plaintiff in its
reply is $4,400. (Barns Reply Decl., Ex. A.) Given the issues raised in the
Opposition, the amount (which is in line with the predicted amount of fees) is
in the ballpark.
The original lodestar amount
requested by Plaintiff was $34,000.50. The Court finds that to be a reasonable fee.
II. Lodestar Multiplier
Plaintiff seeks an additional
$17,000.25 in attorney’s fees as a 1.5 multiplier enhancement for the
contingency risk in this matter.
Relevant factors to determine
whether an enhancement is appropriate include (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. (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1132.)
Defendant asserts that there is no
basis for a fee enhancement in this case. The Court agrees. This is not a
matter involving any complex or novel legal issues warranting a multiplier, nor
did the matter require any special skill. While there is a risk factor present
in the case due to the contingency nature of the representation, the Court
finds that the rates charged by Plaintiff’s counsel reflects that risk.
The Court would note that the type
of risk in a case such as this where statutory attorneys fees are involved is materially
different from the risk associated with what may be called a “traditional
contingency fee” case, such as a personal injury case. In that type of case there is both the risk
of losing on liability and also the risk that one might win liability, but
recover an amount that results in a small fee.
(Conversely the recovery in such a case is not limited to a “reasonable fee”.) In a case such as this, the amount of the recovery
for the Plaintiff does not limit the amount of attorneys fees that shall be
awarded. Even a relatively small
recovery for the Plaintiff may result in a dramatically larger award of
attorney fees.
Further, the Court notes that there
is no lack of interest in the Bar to representing Song-Beverly plaintiffs,
strongly suggesting that there is no need to apply an upward multiplier in order
to entice representation of aggrieved purchasers.
Plaintiff has failed to show that
her counsel engaged in any actions different from the usual lemon law action.
Therefore, Plaintiff’s request for the 1.5 lodestar multiplier is denied.
III. Costs
Plaintiff has requested $3,561.71
in costs. Defendant has not challenged the reasonableness of the costs. The
Court grants Plaintiff’s request for costs.
Evidentiary Objections
Defendant’s objections to
Plaintiff’s Exhibits C and D are OVERRULED.
(Plaintiff’s counsel states that he used the materials to determine what
he believes to be an appropriate rate to charge. That is of very limited value to the Court.)
As to Plaintiff’s objections, the
Court would note that it is capable of discerning the “facts” to which the party
attests and the argument that is included in the declaration of counsel. The Court shall give the declaration such
weight as it deserves. Plaintiff’s Objections
are OVERRULED as to Objections 1 - 20, and SUSTAINED as to Objections 21 - 29.
Conclusion
Based on the foregoing, Plaintiff’s
motion is GRANTED. Plaintiff is awarded
attorneys’ fees in the amount of $34,000.50 and costs in the amount of $3,561.71.