Judge: Gail Killefer, Case: 21STCV30920, Date: 2024-07-09 Tentative Ruling
Case Number: 21STCV30920 Hearing Date: July 9, 2024 Dept: 37
HEARING DATE: Tuesday, July 9, 2024
CASE NUMBER: 21STCV30920
CASE NAME: Raul Raygoza v. General Motors
MOVING PARTY: Plaintiff Raul Raygoza
OPPOSING PARTY: General Motors
TRIAL DATE: Post Settlement
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorneys’
Fees, Costs, and Expenses
OPPOSITION: 24 June 2024
REPLY: 01
July 2024
TENTATIVE: Plaintiffs’ Motion for Attorneys’ Fees is
granted in the sum of $20,934.50. No multiplier is awarded. The court declines
to rule on the issue of costs. Plaintiff to provide notice.
Background
On August 20, 2021,
Raul Raygoza (“Plaintiff”) filed a lemon law action against General Motors LLC
(“Defendant” or “GM”) and Does 1 to 10 with five causes of action: (1)
Violation of Civ. Code § 1793.2(d); (2) Violation of Civ. Code § 1793.2(b); (3)
Violation of Civ. Code § 1793.2(A)(3); (4) Breach of Express Written Warranty
(Civ. Code §§ 1791.2(a), 1794); and (5) Breach of Implied Warranty of
Merchantability (Civ. Code §§ 1791.1, 1794, 1795.5).
On December 4,
2023, a Notice of Settlement was filed. On April 9, 2024, Plaintiff filed a
Motion for Attorney’s fees, costs, and expenses. Defendant GM opposes the
Motion. The matter is now before the court.
Motion for Attorneys’ Fees, Costs, and Expenses
I. Legal Standard
Under the Civ. Code §
1794(d), the prevailing party in an action that arises out of the Song-Beverly
Consumer Warranty Act is entitled to fees that were reasonably incurred. “If
the buyer prevails 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(d).)¿¿¿¿¿¿¿
The lodestar method
is the primary method for determining a reasonable attorney fee award under
Civ. Code § 1794(d).¿ (See Robertson v. Fleetwood Travel Trailers of
California, Inc. (2006) 144 Cal.App.4th 785, 818-19.)¿ “A trial court
assessing attorney fees begins with a touchstone or lodestar figure, based on
the careful compilation of the time spent and reasonable hourly compensation of
each attorney involved in the presentation of the case.” (Christian Research
Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations
omitted].) “The reasonableness of attorney fees is within the discretion of the
trial court, to be determined from a consideration of such factors as the
nature of the litigation, the complexity of the issues, the experience and
expertise of counsel and the amount of time involved.¿ [citation] The court may
also consider whether the amount requested is based upon unnecessary or
duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443,
448.)¿ “The basis for the trial court's calculation must be the actual hours
counsel has devoted to the case, less those that result from inefficient or
duplicative use of time.”¿(Horsford v. Board of Trustees of California State
University (2005) 132 Cal.App.4th 359, 395.)¿“The law is clear, however,
that an award of attorney fees may be based on counsel's declarations, without
production of detailed time records.”¿(Raining Data Corp. v. Barrenechea
(2009) 175 Cal.App.4th 1363, 1375.)¿¿¿¿¿¿
II. Request for Judicial Notice
The court may take judicial notice of records of any court of
record of the United States. (Evid. Code, § 452(d)(2).) However, the court may
only judicially notice the existence of the record, not that its contents are
the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Plaintiff requests judicial notice of the following:
1)
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-cv-03875-DMG-GJS), attached as Exhibit 1 to the Declaration of
Payam Shahian.
2)
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- cv-08273-SVW-SK),
attached as Exhibit 2 to the Declaration of Payam Shahian.
3)
An Order on attorneys’ fees, costs and expenses
in the lemon law matter of Catherine Shepard v. BMW (Los Angeles
Superior Court Case No. BC622506), attached as Exhibit 3 to the
Declaration of Payam Shahian.
4)
Order on attorneys’ 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-cv-5061-DMG(PLAx)), attached as Exhibit 4 to the Declaration of
Payam Shahian.
5)
Order on attorneys’ 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-RSWL-PLA), attached as Exhibit 5 to the Declaration of
Payam Shahian.
6)
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) attached as Exhibit 6 to the Declaration of Payam Shahian.
7)
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) attached as Exhibit 7 to the Declaration of Payam
Shahian.
8)
Order on attorneys’ fees in Oscar Millan vs.
Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No.
BC710535) attached as Exhibit 8 to the Declaration of Payam Shahian.
9)
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) attached as Exhibit 9 to the Declaration of Payam
Shahian.
10) 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), attached as Exhibit
10 to the Declaration of Payam Shahian.
11) 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) attached as Exhibit 11 or the
Declaration of Payam Shahian.
12) 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) attached as Exhibit 12 to the
Declaration of Payam Shahian.
13) A
true and correct copy of the July 19, 2021, Order in the matter of Hoyt v.
FCA, US LLC Orange Co. Super. Ct., Civil Case No.
30-2019-01066585-CU-BC-CJC) is Exhibit 13 to the Declaration of Payam
Shahian.
14) April
24, 2023, Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the lemon law matter of Sergio Proa v. Kia Motors America
Inc. (Los Angeles Co. Super. Ct. Civil Case No. BC716647) attached as Exhibit
14 to the Declaration of Payam Shahian.
15) July
6, 2023, Minute Order in Francisco Rodriguez and Norma Rodriguez v. Hyundai
Motors America. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655)
(July 6, 2023) attached as Exhibit 15 to the Declaration of Payam
Shahian
16) October
16, 2023, Minute Order in Charles Steven Sedlacek IV v. General Motors, LLC
(Los Angeles Co. Super. Ct. Civil Case No. 21STCV23811) (October 16, 2023)
attached as Exhibit 16 to the Declaration of Payam Shahian.
17) 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) attached as Exhibit
17 to the Declaration of Payam Shahian.
Plaintiff’s request for judicial
notice is granted.
III. Evidentiary Objections
Plaintiff’s evidentiary objections
to the Gavrilescu Declaration are overruled.
IV. Discussion
Plaintiff moves for attorney fees and costs as the prevailing
party pursuant to a signed CCP § 998 Offer and under the Song-Beverly Act.
Plaintiff’s counsel, Strategic Legal Practices, APC (“SLP”) requests attorneys’
fees and costs consisting of 1) $26,845.50 in attorney fees for SLP (2) a 1.35
multiplier enhancement on the attorney fees totaling $9,395.93 and (3)
$1,296.86 in costs and expenses. In addition, for filing this fee Motion and in
anticipation of responding to Defendant GM’s opposition, Plaintiff seeks an
additional $3,500.00 in attorney’s fees.
A. Reasonable Hourly Rates
In setting the hourly rate for an attorney fees award, courts
are entitled to consider the rate of “fees customarily charged by that attorney
and others in the community for similar work.” (Bihun v. AT&T
Information Systems, 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; see also Heritage Pacific Financial,
LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in
other cases, particularly those setting a rate for the plaintiffs' attorney,
are satisfactory evidence of the prevailing market rate.”].)¿¿¿¿
SLP asserts that “[a]lthough 14 SLP attorneys and 2 law clerks were staffed on this
case, only 7 attorneys (David Berschauer, James Carroll, Christian Castro,
Tionna Carvalho, Regina Liou, Ian McCallister, and Hannah Theophil) accounted
for 38.30 hours out of the 57.30 total hours billed (i.e. around 70%) with
other attorneys performing non-duplicative tasks[.]” (Motion, at p. i, fn. 1.)
The hourly billing rates of SLP are as follows:
(Shahian, ¶¶ 44 -77, Ex.
18.)
Having examined SLP’s
evidence submitted in support of its hourly rates, the court finds that SLP has
shown that courts have approved SLP’s billing rates, including $610.00 for
Sanam Vairi. (See Shahian Decl. Ex. 16.) The court finds that the cases referenced
in the Declaration of Payam Shahian are sufficient to show that SLP’s hourly
billing rates ranging from $285 to $585 and $610 for Sanam Vairi are
reasonable. (Shahian Decl. Ex. 1 -16.)
No deductions will be made
to SLP’s requested hourly rates.
B. Time Reasonably Spent on the
Litigation
“‘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.’ ” (Lunada Biomedical v. Nunez¿(2014) 230 Cal.App.4th 459,
488, citing Premier Medical Management Systems, Inc. v. California Ins.
Guarantee Assn. (2008) 163¿Cal.App.4th¿550, 564.) The court will exercise
its discretion in determining if the Plaintiff’s attorney’s fees request is
reasonable by considering the following factors: the nature of litigation, its
difficulty, the amount involved, the skill required in handling the matter, the
attention given, the success or failure, and the resulting judgment. (Melnyk
v. Robledo (1976) 64 Cal.App.3d 618, 623.)¿¿
SLP
asserts that they reasonably spent about 57.30 hours totaling $26,845.50 in
fees litigating this action.
Defendant
GM specifically objects to billing entries incurred after November 10, 2023,
when GM served its second CCP § 998 Offer. (Gavrilescu Decl. ¶ 8; Castro Decl.
¶ 34.) Plaintiff accepted the 998 Offer on November 30, 2024, but between
November 10 and November 30, Defendant GM asserts that SLP billed 11.7 hours
($6,530.00) for drafting templated trial documents, motions in liminie (“MIL”),
and opposition, constitution 34% of the total fees sought. (Opposition at p.
3:5-6; see also Shahian Decl. Ex. 18 at p. 2.) SLP’s billing records reflect
that SLP did not review that 998 Offer until November 30, 2024. (Shahian Decl.
Ex. 18 at p. 2.)
Defendant
GM also objects to the following billing entries:
a)
08/18/2021 – Complaint: SLP billed 2.0 hours to draft the Complaint, but it should
have been completed in 0.5 hour because SLP used a template. (Gavrilescu Decl.
¶ 3, Ex. A-B.)
Having
reviewed the Gavrilescu Declaration, the court finds that SLP relied on a
template Complaint that contained the same allegations against GM but with
varying facts about when the wrongful conduct was discovered and the year, make
and model of the subject vehicle. (Gavrilescu Decl. ¶ 3, Ex. A-B.) The court
finds that SLP should have spent no more than 1.5 hours drafting the Complaint.
The court will deduct 0.5 hours billed at a rate of $475.00/hour, or $237.50,
from the lodestar.
b)
2/07/2022- Written Discovery Responses: SLP billed 3.3 hours to draft Plaintiff’s
discovery responses, but it should only have taken no more than 0.5 hour
because Plaintiff’s responses were templated objections identical to other
responses SLP responded to in other cases against GM. (Gavrilescu Decl. ¶ 5,
Ex. C-D.)
Having
reviewed the written discovery responses, the court agrees that SLP used
templated responses that required minimal changes. Accordingly, the court
deducts 1.3 hours billed at a rate of $595.00/hour, or $773.50, from
the lodestar.
c)
2/14/2022 & 04/14/2022 – Discovery Request to GM: SLP billed 6.2 hours to draft, review, and
finalize the discovery requests to GM but it should have taken no more than 0.5
hour to change the caption and edit the document since SLP has edited similar
documents. (Gavrilescu Decl. ¶¶ 6-7, Ex. E-H.)
Having
reviewed the SLP’s discovery request, the court finds that deductions are
warranted. The court deducts, 2.3 hours billed at a rate of $520.00/hour, or $1,196.00,
from the lodestar
d)
2/17/2022; 11/03/2022; 2/17/2023; & 11/28/2023 – Block
Billing for Preparing and Attending Status Conference and Drafting “Hearing
Outcome Memos: Amirian,
Avelino, Vaziri, and McAllister billed 4.4 hours for preparing and attending
the CMC, PMSC, and FSC and drafting a hearing outcome memo. Defendant GM
asserts the fee should be reduced by half due to block billing.
The court
finds that SLP overbilled the time spent preparing, attending, and drafting an
outcome memo for the CMC, PMSC, and FSC. The court makes the following
deductions:
Accordingly,
$392.50 will be subtracted from the lodestar.
e)
11/10/2023 & 11/13/2023 – In Limine Motions and
Opposition:
McCallister and Carvalo billed a total of 6.5 hours in drafting, reviewing, and
finalizing “templated in-limine motions” and oppositions to GM’s standard MIL.
Defendant GM asserts the billed amount is unreasonable and SLP used motion
templates and opposition. (Gavrilescu Decl. ¶ 9, Ex. I-J.) GM asserts it should
have taken a total of 2.0 hours to complete this task.
SLP’s
billing records reflect that it took two days to review GM’s CCP § 998 Offer,
communicate the offer to Plaintiff, and sign the Offer. (Shahian, Ex. 18.) Yet, neither party disputes that the CCP § 998 Offer was
given to Plaintiff on November 10, 2023. (Gavrilescu Decl. ¶ 8; Castro Decl. ¶
34.) SLP fails to explain why it waited until November 30, 2023, to review the
998 Offer. Had SLP diligently reviewed or contemplated the 998 Offer sooner,
the trial preparation that was billed after November 10, 2023, would have been
unnecessary.
Accordingly,
the court finds that the time spent reviewing and finalizing MIL and drafting
trial documents was not reasonably incurred nor necessary for the conduct of
the litigation, and deductions are warranted. Accordingly, $2,014.00
will be deducted from the lodestar. The court finds that no other deductions
are warranted pertaining to trial documents and trial notices as those fees
were reasonably incurred.
f)
12/04/2023 – Prepare for Vacated Final Status Conference: Defendant GM asserts that the .8 hours billed
was unnecessary because Plaintiff had accepted the 998 Offer, and the hearing
was vacated by the court.
SLP’s
opposition fails to address the contention that preparation for the FSC hearing
was unnecessary because Plaintiff had already accepted the 998 Offer.
Accordingly, $380.00 will be subtracted from the lodestar.
g)
4/08/2024 – Attorney’s Fee Motion: Defendant GM asserts that SLP should not have
billed 7.2 hours preparing this fee Motion because the Motion is similar to
other fee motions filed against GM. (Gavrilescu Decl. ¶ 10, Ex. I.) GM asserts
that it is unreasonable for SLP to estimate billing for 7.3 hours spent reading
the opposition, preparing a reply, and preparing for the hearing. GM asserts
SLP should have spent 3.0 hours preparing the fee Motion, reviewing the
opposition, and preparing a reply.
SLP’s
moving papers reflect that SLP expects $3,500.00 for reviewing GM’s opposition
to this motion, drafting a reply, and attending the hearing. (Motion at p.
2:7-9.) This is on top of the 7.20 hours billed at a rate of $475.00/hour spent
preparing this fee motion and supporting documents. (Shahian, Ex. 18.)
The court reviewed the
supporting papers attached to the Shahian Declaration and found that many of
the cases cited as exhibits failed to show the hourly rates of the SLP attorneys
who worked in this case and were inapplicable. The court also finds that
Defendant GM has shown that SLP relied on a template in drafting the fee
motion. Taken together the court finds a deduction is warranted. It should have
taken SLP at most 5.0 hours to draft this fee Motion, review the opposition,
write a reply, and prepare for a hearing. Accordingly, of the 14.3 hours spent
on this fee Motion, the court deducts 9.3 hours billed at a rate of $475.00, or
$4,417.50 from the lodestar.
In total $9,411.00
will be deducted from the lodestar.
C. Request for Multiplier
The lodestar amount “may be adjusted by
the court based on factors including (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.”¿ (Bernardiv.
County of Monterey (2008) 167 Cal.App.4th 1379, 1399, citing Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132.)¿ The purpose of any lodestar and the
increase thereto “is intended to approximate market-level compensation for such
services” and is entirely discretionary.¿ (Id.)¿“The purpose of a fee
enhancement is not to reward attorneys for litigating certain kinds of cases,
but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)¿¿¿¿
SLP requests a multiplier of 1.35 or $9,395.93
on the basis that SLP took this case on a contingency fee basis with no
guarantee of recouping the costs expended in bringing this action. Moreover,
SLP asserts that it obtained an excellent outcome. The court finds that the
results of this case are not exceptional and awarding a multiplier is not warranted
because the time and skill of counsel, as well as the contingent nature of the
representation, are compensated with high fees. Plaintiff’s counsel also
failed to show how this case is different from other lemon law actions or
presented new or complex issues that made this case particularly hard to
litigate.¿¿¿¿
¿¿¿
Accordingly, Plaintiff’s
request to award a multiplier is denied.
D. Reasonable
Costs and Expenses
“A prevailing party who
claims costs must serve and file a memorandum of costs within 15 days after the
date of service of the notice of entry of judgment or dismissal by the clerk
under Code of Civil Procedure section 664.5 or the date of service of written
notice of entry of judgment or dismissal, or within 180 days after entry of
judgment, whichever is first. The memorandum of costs must be 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.” (CRC, rule 3.1700(a); see also Hydratec, Inc. v. Sun Valley
260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927–928.)
Defendant
GM asserts that the court should not award costs
because no memorandum of costs has been filed. Plaintiff’s moving papers fail
to address why a memorandum of costs is not necessary and Plaintiff’s reply
asserts requiring a memorandum of costs would be a waste of the courts’ time.
Plaintiff fails to show that a memorandum of costs is not necessary.
Plaintiff’s request for $1,296.86 in costs is supported only by SLP’s billing
system, with no verification from counsel that the costs incurred were reasonably
incurred, necessary, and allowable.
Moreover, Plaintiff did not seek to file a memorandum of costs
until July 1, 2024. The memorandum of cost seeks $1,615.71 in costs. The court
declines to award costs at this time to allow Defendant GM to review the
memorandum of costs and decide if it will move to tax or strike costs.
E. Adjusted
Lodestar
Plaintiff’s unadjusted lodestar consists of (1) $26,845.50 in attorney fees for Strategic Legal Practices, APC
(“SLP”); (2) a 1.35 multiplier enhancement on the attorney fees (or $9,395.93);
(3) $1,296.86 in costs and expenses for SLP; and (4) an additional $3,500.00 in
attorney’s fees related to this fee motion.
From the total attorney fee request of $30,345.00, the court
deducts $9,411.00, resulting in an adjusted lodestar of $20,934.50. No
multiplier is awarded. The court declines to award costs at this time.
Accordingly, Plaintiff’s request for attorneys’ fees is granted in the sum of
$20,934.50.
Conclusion
Plaintiffs’ Motion for Attorneys’
Fees is granted in the sum of $20,934.50. No multiplier is awarded. The court
declines to rule on the issue of costs. Plaintiff to provide notice.