Judge: Elaine Lu, Case: 21STCV36166, Date: 2023-04-20 Tentative Ruling
Case Number: 21STCV36166 Hearing Date: April 20, 2023 Dept: 26
|
carlos
barragan, Plaintiff, v. general motors,
llc; et
al.,
Defendants. |
Case No.: 21STCV36166 Hearing Date: April 20, 2023 [TENTATIVE]
order RE: Plaintiff’s motion for attorneys’ fees |
Background
On October 1, 2021, Plaintiff Carlos Barragan (“Plaintiff”)
filed the instant action against General Motors, LLC (“Defendant”) asserting a
single cause of action for Breach of Express Warranty pursuant to the Song-Beverly
Act.
On December 22, 2022, Plaintiff filed a notice
of settlement of the entire case. On March
13, 2023, Plaintiff filed the instant motion for attorneys’ fees and costs and
filed a memorandum costs. On April 7,
2023, Defendant filed an opposition. On April
14, 2023, Plaintiff filed a reply.
Legal
Standard
Pursuant to
Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees
are allowable as costs when authorized by contract or statute and may be
awarded upon a noticed motion pursuant to Code of Civil Procedure section
1033.5, subdivision (c)(5).
In determining
what fees are reasonable, California courts apply the “lodestar” approach.
(See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310,
1332.) This inquiry “begins with the
‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the
reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th
1084, 1095.) From there, the “[t]he
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.” (Ibid.)
Relevant factors 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, [and] (4) the contingent nature of the fee award.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132.)
Discussion
Right to Recover
A prevailing
buyer in an action under the Song-Beverly Act “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(d).) “[W]hen ‘prevailing party’ is
undefined by the statute, ‘a court may base its attorney fees decision on a
pragmatic definition of the extent to which each party has realized its
litigation objectives, whether by judgment, settlement or otherwise.
[Citations.] In assessing litigation success, Hsu v. Abbara (1995)
9 Cal.4th 863, 877, ... instructs: ‘[C]ourts should respect substance rather
than form, and to this extent should be guided by “equitable considerations.”’” (MacQuiddy v. Mercedes-Benz USA, LLC (2015)
233 Cal.App.4th 1036, 1048.)
On May 17, 2022, Plaintiff accepted
Defendant’s Code of Civil Procedure section 998 offer and settled the instant
action. (Barry Decl. ¶ 11, Exh. 6.) Pursuant to the settlement agreement,
Plaintiffs are the prevailing party and are entitled to attorneys’ fees
pursuant to Civil Code section 1794(d). (Barry
Decl. ¶ 11, Exh. 6.)
Reasonableness of Attorney’s Fees
Plaintiff seeks
attorney fees and costs totaling $24,604.79, consisting of $22,880.00 in
attorneys’ fees and $1,724.79 in costs. (Barry
Decl. ¶¶ 19, 23, Exhs. 7, 9.)
The trial court
has broad authority to determine the amount of a reasonable fee. (PLCM
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the
burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., §
1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the
appropriate hours expended and hourly rates. (City of Colton v. Singletary
(2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to
the nature and value of the services rendered. (Martino v. Denevi (1986)
182 Cal.App.3d 553, 559.)
An attorney's
testimony as to the number of hours worked is sufficient evidence to support an
award of attorney fees, even in the absence of detailed time records or billing
statements, and there is no requirement that such records or statements be
offered in evidence. (Steiny & Co., Inc. v. California Electric Supply
Co. (2000) 79 Cal.App.4th 285, 293.)
Ascertaining the fee amount is left to the trial court’s sound
discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Moreover, “[t]here is ‘no mathematical rule
requiring proportionality between compensatory damages and attorney's fees
awards’, [Citation], and courts have awarded attorney's fees where plaintiffs
recovered only nominal or minimal damages.”
(Harman v. City and County of San Francisco (2007) 158
Cal.App.4th 407, 421.)
Attorney David Barry (“Barry”) is the lead
counsel for The Barry Law Firm, counsel of record for Plaintiff, and billed at an
hourly rate of $525.00, which increased to $600 after January 1, 2022. Barry claims a total of 5.6 hours prior to January
2022 and 9.4 hours after January 2022 on the instant action. (Barry Decl. ¶ 24, Exh. 7.) Barry graduated from Pepperdine School of Law
in 2000 and served as an Associate Editor for the Pepperdine Law Review. (Barry Decl. ¶ 26.) Barry has been practicing law for more than 21
years and for most of those years specialized in consumer law, including breach
of warranty and lemon law cases. (Barry
Decl. ¶ 25.) Barry has operated his own
firm since August of 2010. (Barry Decl.
¶ 25.) Further, Barry’s hourly rate has
been approved by numerous other courts.
(Barry Decl. ¶¶ 38-91.) Moreover, Barry’s rate is similar and lower than other
hourly rates charged by attorneys with similar experience in the area. (Barry Decl. ¶ 28, Exh. 8 [Consumer Law Fee
Survey Report for 2017-2018].)
Attorney Brian Kim (“Kim”) is an
associate of the law firm, The Barry Law Firm., counsel of record for
Plaintiff, and billed at an hourly rate of $250. (Kim Decl. ¶¶ 1, 9.) Kim claims a total of 41.1 hours on the
instant action. (Barry Decl., Exh. 7.) Kim graduated from the University of Pittsburgh,
School of Law in May of 2018 and served as an editor for the Pittsburgh Journal
of Environmental and Public Health Law. (Kim
Decl. ¶ 3.) Kim has been admitted to the
State Bar of California since December 2021.
(Kim Decl. ¶ 6.) Kim has over a
decade of experience in High-Performance Driving events, owns a special
constructed vehicle, and has significant experience with automotive knowledge
and insight. (Kim Decl. ¶¶ 7-8.)
Since
March of 2021, Kim has been an associate at the Barry Law Firm. (Kim Decl. ¶ 9.) Further, Kim’s hourly rate has been approved
by numerous other courts. (Quinn Decl. ¶¶
10-33.)
Attorney Sarah
Jane Norris (“Norris”) is an associate of the law firm, The Barry Law Firm.,
counsel of record for Plaintiff, and billed at an hourly rate of $350. (Norris Decl. ¶¶ 1, 6.) Norris spent 8.1 hours working on the
instant action. (Barry Decl., Exh. 5.) Norris
graduated from the Regent University School of Law in May of 2016. (Norris Decl. ¶ 3.) Norris has been admitted to the State Bar of
California since December 2016. (Norris
Decl. ¶ 4.) Norris worked on unlawful
detainer cases until November 2017, and then from December 2017 to June 2018
worked as a sole practitioner. (Norris Decl. ¶¶ 4-5.) Since July of 2018, Norris has been an
associate at the Barry Law Firm. (Norris
Decl. ¶ 6.) Further, Norris’s hourly
rate has been approved by numerous other courts. (Norris Decl. ¶¶ 7-86.)
Attorney Allison Norder (“Norder”) is a
former associate of the law firm, The Barry Law Firm., counsel of record for
Plaintiff from November 2021 to May 2022, and billed at an hourly rate of $250. (Barry Decl. ¶ 29.) Macioce spent a total of 3.5 hours on the
instant action. (Barry Decl., Exh. 7.) Norder has been in practice since May 2021
and graduated from American University Washington School of Law in May 2021. (Barry Decl. ¶ 29.)
In sum, four
attorneys spent a total of 68.6 hours on the instant action over approximately two
years. Based on the stated experience of
each respective attorney and prevailing rates of similar attorneys, the Court
finds the hourly rates are reasonable.
However, in
light of Plaintiffs’ Counsel firm’s expertise in lemon law actions, as
reflected in Counsel’s hourly rates, the Court finds the hours billed on
pursuing discovery to be slightly excessive.
In light of Plaintiff’s Counsel’s firm’s expertise in lemon law matters
and in light of the availability of templates from other lemon law actions that
Plaintiff’s Counsel’s firm has handled in the past, propounding discovery and
litigating motions to compel further are routine matters that should have
required only a fraction of the hours that Plaintiff’s Counsel billed. Moreover, there was very little to no motion
practice in this action, with only a single discovery motion filed. Accordingly, given these factors, a reduction
is warranted.
In opposition, Defendant disputes the time
spent on pre-engagement work, time spent preparing a representation agreement, pre-action
“case status” communications, template discovery use, post settlement OSC
attendance, and the fees for the instant motion for attorneys’ fees. Here, the court agrees that some of the
claimed time spent on these issues are excessive. As noted above, the costs spent on routine
and clear template discovery is excessive.
Further, the time spent post settlement also appears excessive as the
time consists of nearly a third of the entire time spent on the instant action
over two years. Plaintiff’s Counsel
claims a total of 14.3 hours preparing the instant motion. However, the instant motion is relatively
standard and generally simple in light of Plaintiff’s Counsel experience. Therefore,
a reduction is warranted.
Utilizing a lodestar approach, and in view of
the totality of the circumstances, the Court finds that the total and
reasonable amount of attorney’s fees incurred is $18,330.00.
Costs
As to costs, Defendant contends that the Court should deny
court reporter fees and mileage and parking fees.
Parking
and Mileage Fees
In the memorandum of costs, Plaintiff
claims $178.36 in mileage and parking fees to attend Court hearings in
person. These fees are not expressly
authorized. Nor are they precluded under
Code of Civil Procedure section 1033.5. Moreover,
Plaintiff is entitled to expenses that have been “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(d).)
The costs for appearing at hearings in
person are not per se unreasonable as they are akin to the fees incurred to
electronically attend a hearing. Moreover, the amount of the mileage and
parking fees are not unreasonable.
Accordingly, the Court declines to reduce the $178.36 in mileage and
parking fees to attend Court hearings in person.
Court Reporter Fees
Per the memorandum of costs, the
court reporter fees are for the instant motion.
The Court has not ordered these
transcripts. Thus, Code of Civil
Procedure section 1033.5(b)(5) prohibits recovery of these court reporter fees as
costs except when authorized by law. The
sole authority for awarding such fees would be as expenses that have been
“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(d).)
The Court finds that Plaintiff did not
reasonably incur these reporter fees in connection with the commencement or
prosecution of the instant action. Plaintiff
incurred these claimed court reporter fees for transcription of the hearing on the
instant motion for attorneys’ fees. The
parties are litigating this motion for attorneys’ fees well after settling the
instant action. Thus, there is no matter left to prosecute, and this motion is not
dispositive of the action in any sense.
Accordingly, the Court finds that these court reporter fees were not necessary
or reasonably incurred. The Court will deny
the claimed court reporter fees of $600.00.
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CONCLUSIONS AND
ORDER
Based on the forgoing, Plaintiff’s motion
for attorneys’ fees is GRANTED in the total amount of $19,454.79, consisting of $18,330.00 in attorneys’
fees and $1,124.79 in costs
The Moving Party is to give notice and
file proof of service of such.
DATED:
April 20, 2023 ___________________________
Elaine
Lu
Judge
of the Superior Court