Judge: Gail Killefer, Case: 22STCV11320, Date: 2024-03-29 Tentative Ruling
Case Number: 22STCV11320 Hearing Date: March 29, 2024 Dept: 37
HEARING DATE: Friday, March 29, 2024
CASE NUMBER: 22STCV11320
CASE NAME: Jason Williams v. General Motors, LLC
MOVING PARTY: Defendant Genera Motors, LLC
OPPOSING PARTY: Plaintiff Jason Williams
TRIAL DATE: Post Dismissal
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s Fees
and Costs
OPPOSITION: 18 March 2024
REPLY: 22
March 2024
TENTATIVE: Plaintiff’s motion for attorney’s fees is granted in the sum of
$23,425.00. As
there was not timely motion to tax costs, the Clerk’s Office will enter
costs. Plaintiff to give notice.
Background
On April 1, 202, Jason Williams
(“Plaintiff”) filed a Complaint against General Motors LLC (“GM” or
“Defendant”) and Does 1 to 20 for (1) Breach of Implied Warranty of
Merchantability and (2) Breach of Express Warranty under the Song-Beverly Act.
On August 9, 2023, the parties filed a
Notice of Settlement. On December 7, 2023, the action was dismissed with
prejudice.
On January 25, 2024, Plaintiff filed a
Motion for Attorney’s Fees and Costs. Defendant GM opposes the Motion. The
matter is now before the court.
I. Legal Standard
A prevailing
party is entitled to recover costs, including attorneys’ fees, as a matter of
right.¿ (CCP §§ 1032(a)(4),
1032(b), 1033.5.)¿Attorney’s fees may be recovered as costs when
authorized by contract, statute, or law. (CCP § 1033.5(a)(10).)¿The prevailing
party on a contract, which specifically provides for attorney fees and costs
incurred to enforce the agreement, is entitled to reasonable attorney fees in
addition to other costs.¿ (Civ. Code § 1717(a); CCP, §§ 1032, 1033.5(a)(10)(A).)¿
The court, upon notice and motion by a party, shall determine the prevailing
party and shall fix, as an element of the costs of the suit, the reasonable
attorney fees.¿ (Civ. Code § 1717(a), (b).)¿¿¿¿¿¿
¿
“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, 623-624.)¿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.”¿(Graciano v. Robinson Ford Sales,
Inc. (2006) 144 Cal.App.4th 140, 154.)¿ 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.¿ (See Serrano
v. Priest (1977) 20 Cal.3d 25, 49 (discussing factors relevant to proper
attorneys’ fees award).)¿ The factors considered in determining the
modification of the lodestar 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.”¿ (Mountjoy v.
Bank of Am. (2016) 245 Cal.App.4th 266, 271.)¿¿¿¿¿¿
Pursuant to CCP § 425.16(c), a prevailing defendant is
entitled to recover attorneys’ fees and costs associated with the motion. Under
CRC 3.1702, a request for attorneys’ fees must be made within 180¿days of
service of the notice of entry of judgment or “within the time for filing a
notice of appeal under rules 8.104 and 8.108 in an unlimited civil case[.]” A
defendant may only recover fees and costs related to the motion to strike. (Lafayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379,
1383.) This includes fees associated with bringing the motion for fees. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1141 (“an award of fees may include not
only the fees incurred with respect to the underlying claim, but also the fees
incurred in enforcing the right to mandatory fees under Code of Civil Procedure
section 425.16.”).) Additionally, “[a]ny fee award must also include those
incurred on appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th
113, 122.)¿¿¿¿
II. Discussion
Plaintiff’s counsel, The Barry
Law Firm (“TBLF”), seeks $32, 227.50 in attorney’s fees and $2,316.20 in costs
for 88.1 hours of work in this action. (Barry Decl. Ex. 7, 9.) Plaintiff
asserts that they are entitled to attorney’s fees and costs reasonably incurred
as the prevailing party under the Song-Beverly Act. (Civ. Code, § 1794(d).)
Plaintiff asserts he is the prevailing party because GM settled this action for
$120,002.03.
Defendant GM argues that Plaintiff’s
fee motion is untimely under Cal. Rules of Court, rule 3.1702, as it was filed
217 days after the notice of settlement.
Plaintiff maintains that the
Motion is timely because it was filed within 60 days from December 7, 2023,
when the case was dismissed, on January 25, 2023. Defendants fail to cite any
case law supporting the proposition that the date of settlement begins the
accrual of time for a motion for attorney’s fees. Accordingly, the court will
consider the Plaintiff’s Motion.
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.”].)¿¿
In support of the attorney rates
requested by TBLF, Plaintiff submits the Declaration of David N. Barry, who was
Plaintiff’s lead counsel, and attests that the rates of the four attorneys who
billed hours in this action are as follows:
·
David
N. Barry – (Partner) $600.00/hour until March 31, 2023, and $625.00/hour after
April 1, 2023.
·
Elizabeth
Quinn – (Supervising Attorney/Senior Associate)
$550.00/hour
·
Brian
J. Kim – (Associate) $250.00 until April 1, 2023, to $300.00/hour beginning
April 1, 2023.
·
Logan
G. Pascal (Associate) $350.00/hour
Mr. Barry provides proof that
his hourly rate of $600/hour and later $625.00 are reasonable and have been
approved in other actions. (Barry Decl. ¶ 24, 28-94, 95-127.) Ms. Quinn
similarly provides proof that her $550.00/hour rate is reasonable and has been
approved by other courts, as does Mr. Kim and Mr. Pascal. (Quinn Decl. ¶¶ 11-92; Kim Decl. ¶¶ 10-70;
Pascal Decl. ¶¶ 6-95.)
Based on the above, the court
finds that the billing rates of TBLF’s attorneys are reasonable.
B. Reasonable Hourly Rate
The burden is on the
party seeking attorney’s fees to prove that the fees it seeks are reasonable.
(See Vines v. O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174,
184.) But “ ‘[I]n 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.)¿
TBLF’s billing record reflects that
of the 88.1 hours spent litigating this action, David N. Barry billed 14.5 hours,
and Brian J. Kim billed 66.7 hours, with Ms. Quinn billing only 3.7 hours and
Mr. Pascal billing only 3.2 hours. TBLF’s billing entries are attached as
Exhibit 7.
Defendant GM argues that the hours
billed for this action are excessive and takes issue with various billing
entries:
Defendant GM fails to cite any case law supporting the
proposition that any prelitigation work, including initial consultations and
meeting with clients, “drafting
of the initial pleadings and the work associated with the development of the
theory of the case” is pre-litigation work that is not compensable under the
Song-Beverly Act. (Webb v. Board of Educ. of Dyer County, Tenn.
(1985) 471 U.S. 234, 243.) The court finds that TBLF’s pre-litigation work is
“actual time expended” and the fees were reasonably incurred. (Civ. Code, §
1974(d).)
As to the 1.6 hours billed by Mr.
Kim in reviewing GM’s discovery
requests, the court agrees that a reduction is warranted and 1.1 hours or $330.00
will be deducted from the lodestars.
Defendant GM objects to the 1.8
hours billed by Mr. Kim to draft the deposition notices and subpoenas on the
basis that TBLF uses template work product and it should only have taken a
total of 0.1 hour to change the caption if the case on the documents. The court
agrees that deduction is warranted and deducts one hour billed at $300.00/hour
from the lodestar or $300.00.
Defendant GM objects to the 4.2
hours billed by Mr. Kim spent reviewing and drafting discovery responses
because Plaintiff’s response were identical to responses TBLF submitted in
another case against GM. (Quezada Decl. ¶ 6, Ex. E, F.) The court finds that
Plaintiff’s discovery responses were similar but not identical and that 3 hours
reduction billed at a rate of $300.00 is warranted or $900.00.
Defendant GM objects to the 5.5
hours billed by Mr. Kim related to reviewing GM’s discovery responses and
objections to deposition notices. The court agrees that given TBLF’s lemon law
experience and the lack of novelty or variance in GM’s responses and objections,
4 hours billed at $300/hour or $1,200.00 should be deducted from the lodestar.
Defendant GM objects to 4.9 hours
billed by Mr. Kim related to meet and confer, drafting the meet and confer
correspondence and emails because the letters and emails do not differ from
other correspondences received by GM in other actions brought by TBLF. (Quezada
Decl. ¶ 9, Ex. I, H.) The court finds that a deduction of 3.9 hours billed at
$300.00/hour or $1170.00 is warranted.
Defendant GM objects to the 5.8
hours billed primarily by Mr. Barry regarding client updates to Plaintiff on
the basis that they were inefficiently billed and accounted for nearly 10% of
TBLF’s fee request. The court agrees and deducts 1.5 hours at $600/hour or $900
is warranted.
Defendant GM objects to the 8.3
hours Mr. Kim billed related to drafting the motion to compel the deposition of
GM’s PMK despite the use of templates and spending 1.0 hours reviewing the
declaration in opposition to the motion. The court finds that Mr. Kim did not
first schedule an Informal Discovery Conference (IDC) before drafting a motion
a compel. Department 37 requires an IDC
before motions to compel are filed.
Accordingly, the court deducts 8.3 hours billed at $300/hour or $2490.00 will be
subtracted from the lodestar.
Defendant GM objects to the 5.1
hours billed for work related to reviewing the case file to determine the case
status. Having reviewed TBLF’s billing entries, the court finds that the
billing entries about which GM complaint reflect that the case file review was
done in conjunction with other tasks and the costs were reasonably incurred.
Therefore, no deductions will be made.
Defendant GM objects to the 9.2
hours billed by Counsel related to time spent on travel. Defendant GM fails to
show that time spent traveling is not compensable under the Song-Beverly Act.
Meanwhile, Plaintiff cite case law supporting the finding that time spent
traveling is compensable. (See Roe v. Halbig
(2018) 29 Cal.App.5th 286 [“[A]ttorney's fees for travel
hours may be awarded if the court determines they were reasonably incurred”];
see also U.S.
v. City and County of San Francisco (N.D. Cal. 1990) 748 F.Supp. 1416, 1422.) The court
finds that no deductions are warranted related to time spent traveling.
Defendant GM objects to
the 2.5 hours billed by Mr. Kim related to the post-settlement on the basis
that the expenses were avoidable had Plaintiff accepted Defendant GM’s earlier
998 Offer. (Quezada Decl. ¶ 11.) The court finds the objection is without merit
and having reviewed the billing entries, finds no deductions are warranted.
Lastly, Defendant GM objects to the 10.5
hours spent on this fee motion on the basis that the time billed is excessive
and relates to 13.1% of TBLF’s fee request. Having reviewed TBLF’s billing
entries and taking into consideration GM’s opposition to this Motion, the court
finds that the time spent was somewhat excessive and deducts 2 hours of Mr. Kim’s
Kim’s time at $300 per hour or $600 and 1.5 hours of Mr. Barry’s time at $625
per hour or $912.50 for a total deduction of $1512.50.
Accordingly,
$8,802.50 will be subtracted from the lodestar.
C. Costs
A “prevailing party” entitled to
costs: In general, the “prevailing party” is entitled as a matter of right to
recover costs for suit in any action or proceeding. (CCP, § 1032(b); Santisas
v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount,
Inc.(1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party”
requirements are met, the trial court has no discretion to order each party to
bear his or her own costs of suit. (Michell v. Olick(1996) 49
Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111,
129.)
Any motion to strike or tax
costs must be served and filed 15 days after service of the memorandum, plus an
additional 5 days if served by mail or 2 days if served electronically. (Cal.
Rules of Court, rule 3.1700, subd. (b)(1).) “Unless objection is made to the
entire cost memorandum, the motion to strike or tax costs must refer to each
item objected to by the same number and appear in the same order as the
corresponding cost item claimed on the memorandum of costs and must state why
the item is objectionable.” (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)
On January 25, 2024, Plaintiff
filed a Memorandum of Costs, seeking $2,316.20 in costs. Defendant GM now
objects to certain costs. Plaintiff opposes the request on the basis that
Defendant GM was required to file a motion to strike or tax costs.
Even if the court were to treat
Defendant GM’s objection to Plaintiff’s costs as a motion to strike or tax
costs, the motion would be untimely as it was filed more than 15 days after
service of the memorandum of costs on February 7, 2024. Accordingly, Defendant
GM waived any objection to Plaintiff’s costs.
However, as there is no motion
to tax costs, the Clerk’s Office will enter costs without the involvement of the
court.
D. Adjusted Lodestar
Plaintiff’s unadjusted lodestar
is $32, 227.50.
With deductions totaling $8,802.50, Plaintiff’s adjusted lodestar is $23,425.00.
Accordingly, Plaintiff’s motion
for attorney’s fees and costs is granted.
Conclusion
Plaintiff’s motion for
attorney’s fees is granted in the sum of $23,425.00. Plaintiff to give notice.