Judge: Elaine Lu, Case: 22STCV38289, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV38289    Hearing Date: August 3, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background   

             On July 13, 2021, Plaintiff Paul Soares (“Plaintiff”) filed the instant action against General Motors, LLC (“Defendant”) asserting six causes of action for (1) Violation of Civil Code section 1793.2(d), (2) Violation of Civil Code section 1793.2(b), (3) Violation of Civil Code section 1793.2(a)(3), (4) Breach of Express Warranty, (5) Breach of the Implied Warranty of Merchantability, and (6) Fraud by Omission.

            On January 11, 2022, Plaintiff filed the operative First Amended Complaint against Defendant asserting four causes of action for (1) Violation of Civil Code section 1793.2(d), (2) Violation of Civil Code section 1793.2(b), (3) Violation of Civil Code section 1793.2(a)(3), and (4) Breach of the Implied Warranty of Merchantability.

            On April 7, 2023, Plaintiff filed a notice of settlement of the entire case.  On May 23, 2023, Plaintiff filed the instant motion for attorneys’ fees and costs.  On July 21, 2023, Defendant filed an opposition.  On July 27, 2023, Plaintiff filed a reply.

Request for Judicial Notice

            In conjunction with the moving papers, Plaintiff requests that the Court take judicial notice of:

1.     A February 27, 2014 Minute Order granting plaintiff’s motion for fees and costs in the matter Khani v. Ford Motor Company (L.A. Super. Ct. Case No. BC466626)

2.     A May 9, 2017 Stipulation and signed Order regarding judgment of jury verdict and attorney fees, costs, and expenses in the matter of Vanwaus v. FCA US, LLC (Los Angeles Super. Ct., Case No. BC591282)

3.     A September 27, 2017 Minute Order concerning the Court’s Fee Order in the matter of Fuller v. FCA US, LLC (Los Angeles Super. Ct., Case No. BC556964)

4.     A February 27, 2018 Notice of Ruling and Tentative Ruling in the matter of Kazaryan v. Mercedes-Benz USA, LLC (Los Angeles Super. Ct., Case No. BC574416)

5.     A Notice of Ruling in the matter of Geredes v. Chrysler Group LLC (Los Angeles Super. Ct., Case No. BC523641)

6.     A Notice of Ruling in the matter of Ahmed Al-Jiboury v. FCA (Los Angeles Superior Court Case No BC648057)

7.     A Second Amended Judgment on Jury Verdict after Entry of Additur in the matter of Kadkhoda v. MBUSA (Los Angeles Superior Court Case No BC563069)

8.     A Notice of Ruling on Plaintiff’s motion for attorney’s fees, costs and expenses in the matter of Raul Galindo v. General Motors (LASC Case No BC693061)

9.     An Order on attorney’s fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW (United States District Court for the Central District of California Case No. 2:17-cv03875-DMG-GJS)

10.  An Order on attorney’s fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA (United States District Court for the Central District of California Case No. 2:17-cv08273-SVW-SK)

11.  An Order on attorney’s fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los Angeles Superior Court Case No. BC622506)

12.  Order on attorney’s fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United States District Court for the Central District of California Case No. 2:17-cv5061-DMG(PLAx))

13.  Order on attorney’s fees and prejudgment interest in the lemon law matter of Zargarian v. BMW (United States District Court for the Central District of California Case No. 2:18-cv-04857-RSWLPLA)

14.  September 16, 2016 order granting plaintiff’s Motion for Attorney’s Fees, Costs and Expenses in the lemon law matter of Soderstrom v. Mercedes-Benz USA, LLC (San Francisco Super. Ct., Civil Case No.CGC15544475)

15.  The Declaration of Bryan Kemnitzer filed in support of plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses in the Song Beverly natter of Soderstrom v Mercedes-Benz, USA, LLC (San Francisco Super. Ct., Civil Case No. CGC15544475)

16.  February 14, 2019, order in Khomsone v BMW of North America, LLC (Alameda Super. Ct., Civil Case No. RG17856686)

17.  July 28, 2020, order granting plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses in the matter of Flores v. FCA US, LLC (Sacramento Super. Ct., Case No. 34-2016- 00192221-CU-BC-GDS)

18.  August 25, 2020, order in the matter of Jurosky v BMW of North America, LLC, (United States District Court for the Southern District of California Case No. 19cv706 JM (BGS))

19.  December 18, 2020 Order granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Gonzalez v. MBUSA, (Los Angeles Co. Super. Ct. Civil Case No. SC128379)

20.  April 29, 2021 Minute Order granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No. 19STCV02985)

21.  May 10, 2021 Tentative Ruling granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351)

22.  July 23, 2021, Minute Order granting Plaintiffs’ Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Scott Michael Feldman Gregory v. FCA US LLC, (County of Marin Case No. CIV1901820)

23.  August 10, 2021 Tentative Ruling granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Covarrubias v. Ford Motor Company, (N.D. Cal. Case No. 19-cv-01832-FMC).

24.  June 25, 2018 order granting Plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Hall vs. FCA US LLC, (San Diego Superior Court Case No. 37-2016-00006383)

25.  Declaration of Payam Shahian in support of Plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses in the Song Beverly matter of Hall vs. FCA US LLC, (San Diego Superior Court Case No. 37-2016-00006383)

26.  Order on attorneys’ fees in Oscar Millan vs. Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No. BC710535)

27.  March 14, 2022 order granting Plaintiff’s’ Motion for Attorney’s Fees, Costs, and Expenses in the Song Beverly matter of Jason J. Arnold, et al.. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case No. 19STCV26274)

28.  Order on Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the matter of Mo Rahman v. FCA US, LLC et al., (United States District Court for the Central District of California Case No. 2:21-cv-02584)

29.  June 13, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888)

30.  October 3, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Galvan v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC715568)

31.  January 24, 2023, Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United States District Court for the Central District of California Case No.: 5:21-cv01346-SPG-SHK)

32.  A true and correct copy of the Minute Order from Miranda v. FCA (Sacramento Co. Super. Ct., Civil Case No. 34-2020-00276881-CU-BC-GDS)

33.  A true and correct copy of the February 3, 2023 Order in the matter of Gregory P. Ricksecker v. Ford Motor Company (United States District Court for the Northern District of California Case No.: 21-CV-04681-HSG (SK), 2023 WL 1542199 (N.D. Cal. Feb. 3, 2023)

34.  Order on attorneys’ fees in Holcomb v. BMW of N. Am., LLC, Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020)

            As the Court may take judicial notice of court records, (See Evid. Code, § 452(d)), Plaintiff’s unopposed request for judicial notice is granted.  However, the Court will not take judicial notice of the truth of assertions within the court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Discussion

Right to Recover

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).

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 April 7, 2023, the parties entered into a Settlement Agreement and Release.  (Sasik Decl. ¶ 43, Exh. 3.)   Pursuant to the settlement agreement, Plaintiff is the prevailing party and is entitled to attorneys’ fees pursuant to Civil Code section 1794(d).  (Sasik Decl. ¶ 43, Exh. 3.)  Thus, Plaintiff is entitled to reasonable attorneys’ fees.

Reasonableness of Attorneys’ Fees

Plaintiff seeks attorney fees and costs totaling $43,786.40 consisting of $28,769.00 in attorneys’ fees, a 1.35 lodestar multiplier (i.e., $10,069.15), $1,448.25 in costs and expenses, and an anticipated $3,500.00 in attorneys’ fees in reviewing the opposition, drafting a reply, and attending the hearing on this motion.

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 determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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….”  (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) 

The party seeking fees bears the burden of proof as to “reasonableness” of any fee claim. (CCP § 1033.5(c)(5).) In addition, 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.)

The court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)  The court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Here, the Court finds that most of the claimed respective hourly rates appear to be reasonable on their face ranging from $395 to $595 for the ten attorneys working on the action and an hourly rate of $295 for the law clerk.   However, the Court finds the claimed number of hours worked – and the number of attorneys or paralegals staffed – to be unreasonable. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.)  Here, the instant action did not involve any complicated issues but was a standard run-of-the-mill lemon law action.

Here are the relevant facts: Plaintiff filed the instant action; Defendant filed a preemptory challenge resulting in the instant action being reassigned to the current department; Defendant demurred to the fraud claim which Plaintiff dropped by filing a First Amended Complaint; Defendant withdrew the demurrer and then answered the First Amended Complaint; the parties appeared for a case management conference; nine months later Defendant filed eight boilerplate motions in limine and Plaintiff filed seven boilerplate motions in limine;  Defendant filed oppositions to Plaintiff’s motions in limine; the parties stipulated to continue trial for further discovery and appeared at a final status conference where trial was continued; Plaintiff filed oppositions to Defendant’s eight motions in limine; the parties filed joint documents for trial and Plaintiff filed proposed jury instructions; the parties appeared for a second final status conference; the parties filed revised joint documents and proposed jury instructions; the parties appeared for a third final status; the next day, the parties settled.  In sum, over a two-year period, little to no litigation occurred in the instant action until the filing of eight routine motions in limne.  Yet, ten separate attorneys and a law clerk worked on the instant action plainly resulting in unnecessary inefficiencies. 

Further, given Plaintiffs’ Counsel firm’s expertise in lemon law actions, as reflected in Counsel’s high hourly rates, the Court finds the hours billed to pursue discovery to be clearly 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 is a routine matter that should have required only a fraction of the hours that Plaintiff’s Counsel billed -- not a matter requiring numerous hours by partners and senior attorneys at the highest hourly rate to complete.  (See Soares Decl., Exh. 35.)  Further, the claimed time on the instant motion is excessive.  Plaintiff’s Counsel claims to have spent 7.9 hours drafting the instant motion at $495 per hour and claim an additional 7.2 hours working on the reply at $525 an hour.  (Soares Decl., Exh. 35; Linell Decl. ¶ 4.)  This is unreasonable.  The instant motion is a clear template of near identical motions brought by this counsel before this department.  Further, given the expertise of Plaintiff’s Counsel, such extreme time spent on a simple and straightforward motion is excessive.  Accordingly, given these factors, a significant 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 $19,500.00.

Lodestar Enhancement

Plaintiff requests a lodestar enhancement multiplier of 1.35 given the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. 

In whether to apply a multiplier the California Supreme Court has given clear guidance for the trial courts to follow.

Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.

(Ketchum, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors raised have already been addressed in the calculations of the hours worked and hourly rate above.  Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

Costs

            As to costs, Defendant contends that some of the filing fees were not actually or reasonably incurred.  Specifically, the $156.90 in filing fees inccurred on February 1, 2023, the $47.25 incurred on March 15, 2023, and the costs in filings that occurred on April 15, 2023.

            “[T]he Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act[.]”  (Ibid.)  “[T]he Legislature intended the phrase ‘costs and expenses’ to cover items not included in ‘the detailed statutory definition of “costs” ’ set forth in Code of Civil Procedure section 1033.5.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42.)  Therefore, a prevailing buyer is entitled to “costs and 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).)

            Filing fees for the instant motion are clearly reasonably incurred costs.  Moreover, the challenged filing fees also appear to merely be fees charged for earlier filed documents – i.e., the April 15, 2023 filing fee for the Special Verdict filed on April 3 and 4, 2023.   Accordingly, the Court declines to strike these costs.

CONCLUSIONS AND ORDER

Based on the forgoing, Plaintiff Paul Soare’s motion for attorneys’ fees is GRANTED in the total amount of $20,948.25, consisting of $19,500.00 in attorneys’ fees and $1,448.25 in costs.

The Moving Party is to give notice and file proof of service of such.

DATED: August ___, 2023                                                    ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court