Judge Edward B. Moreton, Jr, Case Number: 22SMCV02074, Date: 2025-05-12 Tentative Ruling

Judge: Edward B. Moreton, Jr, Case: 22SMCV02074, Date: 2025-05-12 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

ALFREDO ESPINOZA GOMEZ,

Plaintiff,

GENERAL MOTORS, LLC, and DOES 1 through 50, inclusive,

Defendants.

Case No.: 22SMCV02074

Hearing Date: May 12, 2025

[TENTATIVE] order RE:

PLAINTIFF’S MOTION FOR

ATTORNEYS’ FEES, COSTS AND

EXPENSES

This case arises from a dispute over an allegedly defective GMC Sierra. Plaintiff Alfredo Gomez bought a new 2020 GMC Sierra for nearly $60,000. (Oliva Decl. ¶ 3.) Plaintiff alleges that he delivered his GMC three times to Defendant General Motors, LLC’s authorized repair facilities for repeated problems with the car, including engine defects. (Id. ¶ 4.) Plaintiff claims the repair centers were unable to fix the problems with the car. (Id. ¶¶ 5-9, Ex. 2.) And Defendant failed to promptly replace the car or make restitution to Plaintiff. (Id. ¶ 10.)

The operative complaint alleges violations of the Song-Beverly Consumer Warranty Act, including failure to promptly repurchase or replace the defective car and breach of the implied warranty. Defendant filed an Answer generally denying all allegations in Plaintiffs’ complaint and asserting numerous affirmative defenses.

This hearing is on Plaintiff’s motion for attorneys’ fees and costs. The parties agreed to settle the matter by way of an offer under Code Civ. Proc. §998. The parties agreed that Plaintiff’s fees, costs and expenses should be determined by noticed motion, and for purposes of the motion, Plaintiff is the prevailing party. Plaintiff seeks $55,745.52 consisting of (1) $45,730.00 in attorneys’ fees, (2) an additional estimated $5,000 for Plaintiff’s counsel to review the opposition, draft the reply and attend the hearing, and (3) $5,015.52 in costs.

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree or a statute provides otherwise. (Code Civ. Proc. § 1021.) Here, the Song-Beverly Act (“SBA”) provides for the award of attorneys’ fees to prevailing plaintiffs 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.¿

(Civ. Code § 1794, subd. (d).)¿

California courts have consistently “rejected the motion that the fee award must be proportionate to the amount of damages recovered.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1508 (1987).) An attorneys’ fee award is to be based upon actual time expended rather than being tied to any percentage of the recovery. (Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486, 493.) Because Plaintiff is suing under the SBA, the legislative policies are in favor of recovery of all attorney fees reasonably expended without limiting the fees to a proportion of the actual recovery. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 164.)

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. 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.)

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.)¿¿¿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).)

A negative modifier is appropriate when duplicative work has been performed. (Thayer v. Wells Fargo Bank,¿N.A.¿(2001) 92 Cal.App.4th 819.) On the other hand, a positive multiplier may be applied to compensate the attorney for the prevailing party at a rate reflecting the risk of nonpayment in contingency cases. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.”¿ (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)¿

The Court first addresses Defendant’s argument that Plaintiff’s motion is untimely. California Rules of Court, Rule 3.1702 provides that a fee motion “must be served and filed within the time for filing a notice of appeal under Rule 8.104 and 8.108 in an unlimited civil case . . . .”, which deadline ordinarily “falls 60 days after notice of entry of judgment or 180 days after entry of judgment, whichever is first.” (Opp. at 8:6-7.) Defendant argues that when the parties settled the case on June 13, 2024, this settlement was a “judgment” under 3.1702, and the time limits to file this motion started to run on October 17, 2023. None of the cases Defendant cites is on point. They do not define “judgment” in the context of Rule 3.1702, and accordingly, the Court will not deny the motion as untimely.

The Court turns now to the merits of the motion. Plaintiff is the prevailing party, and under the SBA, he is entitled to “attorneys’ fees based on actual time expended, determined by the court to have been reasonably incurred.” (Civ. Code § 1794.)

In calculating the attorneys’ fees, the Court starts with the lodestar which is the reasonable hourly rate multiplied by the reasonable hours expended. For the period at issue in this case, Plaintiff’s counsel’s hourly rate ranged from $465 in 2022 to $530 in 2025. (Oliva Decl. ¶58.)

Ms. Oliva has been practicing law for 10 years, and exclusively on lemon law cases since 2017. (Oliva Decl. ¶ 57.) Her rates are similar to the rates of other counsel in Los Angeles County who handle lemon law cases. (Oliva Decl. ¶¶ 61-75, Exs. 4-18; see also Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473–74 (approving $625 per hour fee on lemon law action).) Moreover, counsel has submitted evidence of other cases in which similar fee awards have been approved for her firm. (Id.) Her hourly rate is also confirmed by the United States Consumer Law Attorney Fee Survey Report for 2017-2018 which includes the Los Angeles, Long Beach, and Anaheim areas and lists the median attorney fee rate for vehicle cases as $569.00 per hour seven years ago not taking into account inflation since then. (Oliva Decl., Ex. 19 at p. 230.) Ms. Oliva’s rates are lower than the median rate in the survey report. Accordingly, Ms. Oliva has provided ample support for her hourly rate.

Plaintiff also seeks to recover the time of paralegal Robert Aguilar whose hourly rate started at $175 at the beginning of 2022 and increased to $200 in June 2022. Mr. Aguilar’s rate increased again in January 2024 to $210 per hour and $215 per hour beginning in 2025 to account for inflation. (Oliva Decl. ¶¶ 59-60.) The Court concludes these rates are also reasonable for an experienced paralegal in the prevailing Los Angeles market.

Next, the Court looks at the time expended by Plaintiff’s counsel. Plaintiff’s fee recovery is based on the 114.6 hours spent by his attorneys litigating this case through this Motion. The time expended is supported by detailed billing records. (Oliva Decl. ¶77, Ex. 20.) Although the submission of detailed time records is not necessary under California law, if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal. App. 4th 359, 396.)

Plaintiff’s counsel attests that the time spent was as a result of: (1) Defendant’s refusal to repurchase Plaintiff’s car necessitating the filing of the instant action; (2) Defendant’s decision to delay a reasonable settlement offer until after extensive litigation; (3) Defendant’s obstruction of reasonable discovery efforts, and (4) Defendant’s refusal to resolve Plaintiff’s attorneys’ fees request resulting in the instant motion. (See Oliva Decl. ¶¶ 10-56.) According to Plaintiff, Defendant’s strategy was to delay payment for as long as possible so either Plaintiff or his counsel would lose resolve to expend the necessary resources to pursue this case—or that these resources would eventually expire.

The Court disagrees that Defendant’s approach to discovery was in any way inappropriate or overly aggressive. Defendant was entitled to object to the geographical scope of Plaintiff’s document requests, and the merits of that objection were never ruled upon by this Court. Also, while there was delay in scheduling depositions, Defendant did provide dates for depositions, which never took place given the settlement. Notwithstanding, while the Court does not find Defendant engaged in bad faith, no such finding is required to find that the time expended by Plaintiff’s counsel is reasonable.

Next, the Court addresses Defendant’s argument that Plaintiff’s counsel’s time should be reduced because their work was based on templates routinely filed in actions against Defendant and Defendant should not be required to repeatedly pay for the same work. Defendant argues that counsel merely engaged in a fill-in-the-blanks/copy-and-paste method for composing all of its documents, simply replacing the Subject Vehicle and alleged defects. The Court agrees in part.

Counsel billed 2.3 hours ($1,069.50) to draft templated discovery requests and notice of deposition of Defendant’s PMQ. Plaintiff’s requests were not novel, and they did not vary significantly from prior cases. (Gruszecki Decl., ¶¶ 5-6, compare Ex. A with Ex. B and Ex. C with Ex. D.) It should not have taken counsel more than 45 minutes to draft these templated discovery requests. The Court will therefore reduce counsel’s hours by 1.5 hours or $697.50.

Counsel billed 3.8 hours ($1,789.50) to review Defendant’s discovery responses and draft meet-and-confer letters regarding Defendant’s discovery responses. But counsel’s discovery requests and Defendant’s responses to those requests never differ from case to case, so Plaintiff’s meet-and-confer letters to Defendant also do not differ from case to case, except for Plaintiff’s name and case number. (Gruszecki Decl., ¶ 8 compare Ex. E with Ex. F; Gruszecki Decl., ¶ 11, compare Ex. K with Ex. L). Accordingly, it should not have taken counsel more than 45 minutes to complete these tasks, and the Court will reduce counsel’s time by 3.0 hours ($1,417.50).

Counsel billed 2.7 hours ($1,267.00) to prepare Plaintiff’s written discovery responses. (Oliva Decl., Ex. 20, pp. 76 & 78-79.) Defendant’s discovery requests do not substantially differ from case to case, and Plaintiff’s responses were largely templated objections counsel has made in every other case against Defendant. However, to draft the discovery responses, counsel had to obtain information from the specific plaintiff in this case, including the relevant repair history and communications with Defendant. Thus, while some reduction is necessary, the Court does not agree with Defendant that it would have taken no more than 45 minutes to draft Plaintiff’s responses. The Court will reduce the fees by $500.

Counsel billed 5.1 hours ($2,411.00) to draft a templated motion to compel further responses to document requests, review Defendant’s Opposition, and draft a reply. The motion is a template counsel uses in essentially every case against GM. (See Gruszecki Decl., ¶ 10, compare Ex. I with Ex. J; Gruszecki Decl., ¶ 13, compare O with Ex. I.) Accordingly, the Court will reduce counsel’s time by 4.1 hours ($1,941.00).

Counsel billed 3.3 hours ($1,617.00) to draft a templated motion to compel the deposition of Defendant’s PMQ, review Defendant’s opposition, and draft a reply. A cursory review of the motion shows it is merely tweaked from templates counsel uses in virtually every case against Defendant. (Gruszecki Decl. ¶ 12, compare Ex. M with Ex. N.) Considering counsel routinely files the same motion as part of its standard litigation strategy, the Court will cap counsel’s time at 1 hour for a reduction of 2.3 hours ($1,127.00).

Counsel billed 2.6 hours ($1,274.00) to draft Plaintiff’s templated ex parte application, review Defendant’s opposition, attend the hearing, and review the order regarding same. The ex parte application was to seek an order shortening time on Plaintiff’s motion to compel further responses to Plaintiff’s document requests. The Court denied the application, noting that there were no exigent circumstances, and Plaintiff had delayed in bringing the motion to compel, resulting in the need to shorten time. The ex parte application is one counsel routinely uses in other cases. (Gruszecki Decl. ¶ 14, compare Ex. P with Ex. Q.) The time spent on this ex parte application was unnecessary, and the Court will strike the hours in its entirety.

Counsel “billed” 1.2 hours ($588.00) to draft templated motions in limine. These motions do not differ from case to case. (Gruszecki Decl. ¶ 15, compare Ex. R with Ex. S.) It could not have reasonably taken counsel more than 30 minutes to update these templates. Therefore, the Court will reduce the time by .7 hours ($343.00).

Counsel billed 10.2 hours ($5,406.00) on the fee motion and memorandum of costs, and requests an additional $5,000.00 in “anticipated” fees to review Defendant’s opposition, prepare a reply brief, and attend the hearing. Counsel’s fee motion in this case is substantially like motions that counsel filed in other Song-Beverly cases against Defendant. (See Gruszecki Decl. ¶ 17, compare Counsel’s Motion with Ex. T.) Accordingly, counsel’s hours for the fee motion will be capped at 3.0 hours, resulting in a reduction of 7.2 hours ($3,861.00). Defendant further argues that counsel should not be awarded any fees for the reply and attending the hearing. The Court disagrees. The reply addressed challenges to specific entries made in this case and required time to generate, and obviously, Plaintiff’s counsel had to appear at the hearing. The Court will award $2,000 in preparing the reply and attending the hearing.

Next, the Court considers Defendant’s argument that the Court should strike the entire time billed by counsel’s paralegal (36.2 hours at $7,600.50) because the paralegal performed only clerical work, which is not recoverable as attorney fees. (See Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288 n. 10 (“purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”).) For example, Defendant points to time billed for paralegal tasks such as “saved,” “served,” “filed,” “update calendar,” and “receipt and review.” (See generally Oliva Decl., Ex. 20.) In opposition, Plaintiff argues that Defendant’s objections do not meet its burden to point to the specific items challenged. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-64 (“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.”).) As Defendant point out, however, it is difficult to make a specific challenge when the paralegal engaged in block billing. Trial courts have “discretion ‘to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not’”. (In re Marriage of Nassimi¿(2016) 3 Cal.App.5th 667, 695.) Given the block billing, the Court will reduce the paralegal hours by 50% ($3,825).

Next, Defendant argues that counsel should not be allowed to recover for “administrative tasks”. Counsel billed 5.6 hours ($2,514.50) for tasks such as “[c]reate case summary,” “[d]iscuss case status with supervising partner,” “[c]onfer with paralegal,” “task case manager,” “[r]eview … status of case,” and “[c]alendar review with handling attorney.” (See generally Oliva Decl., Ex. 20.) The Court disagrees that these tasks are unnecessary. Preparing a case summary and conferring with team members are reasonably necessary to the prosecution of a case.

Defendant then complains that counsel billed 2.1 hours ($976.50) to “[r]eview customer documents (PK and repair order)”. (Oliva Decl., Ex. 20, p. 101.) Defendant maintains that it should have taken counsel no more than 30 minutes to review 15 pages of records, comprising Plaintiff’s purchase contract and repair orders. (Oliva Decl., Ex. 1-2.) In response, Plaintiff argues that the time was spent not only reviewing Plaintiff’s documents but also creating a repair chronology, which incorporates any attorney impressions and analysis of the case’s merits and procedural status. Plaintiff maintains that the repair history is the most important aspect of a Song-Beverly case, and the repair chronology is something that is continuously referenced and revised throughout the life of the case to avoid wasting time reviewing individual repair orders over and over again in search of specific information. The Court agrees with Plaintiff and will award the full 2.1 hours.

Defendant also objects to time billed for a certification of non-appearance (“CNA”). Counsel billed 0.5 hour ($232.50) for “[r]emote appearance for PMQ deposition; CNA taken” and “[r]eview CSR’s CNA.” (Oliva Decl., Ex. 20, pp. 84-85.) Defendant claims counsel was aware that Defendant’s PMQ was unavailable for deposition that day, and it was unnecessary to take a non-appearance. Plaintiff argues in response that Defendant refused to respond to their inquiries to set the deposition on a mutually agreed date, necessitating a certificate of non-appearance to begin the process of compelling the deposition. According to Plaintiff, Defendant had also previously been warned that if no alternative date was provided before the unilaterally set date, a CNA would result. Given the foregoing, the Court agrees with Plaintiff that the time for the CNA should be awarded.

More broadly, Plaintiff’s counsel argues that there should be no reduction in the fees she requests because counsel has received 100% of the lodestar amount in other cases. (Oliva Decl., Ex. 9 (awarding Plaintiff’s counsel 100% of their lodestar in the amount of $327,782.75); id., Ex. 10 (awarding Plaintiff’s counsel 100% of their requested lodestar in the amount of $233,118.36); id., Ex. 15 (awarding Plaintiff’s counsel 100% of their requested lodestar in the amount of $96,162.00); id., Ex. 16 awarding Plaintiff’s counsel 98% of their requested lodestar in the amount of $68,991.50.) But Plaintiff makes no attempt to show that the facts here are similar to those in other cases, and the Court cannot conclude that the fees here are reasonably necessary simply because fees in some other cases were deemed reasonable.

Plaintiff also seeks costs of $5,015.52. A prevailing party who claims costs “must serve and file a memorandum of costs…verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, Rule 3.1700(a)(1).) “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” Cal. Rules of Court, Rule 3.1700(b)(1). “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. Rules of Court, Rule 3.1700(b)(4).)

Here, Plaintiff filed and email served to Defendant their Cost Memorandum seeking a total of $5,015.52 in costs on February 4, 2025. (Oliva Decl. ¶54.) Defendant’s deadline to contest any of those costs was February 21, 2025. Defendant did not move to tax Plaintiff’s costs by that date. (Id. ¶55.) Accordingly, its objections to those costs are now untimely, and the Court declines Defendant’s request to tax Plaintiff’s costs.