Judge: Gail Killefer, Case: 22STCV19072, Date: 2024-12-16 Tentative Ruling
Case Number: 22STCV19072 Hearing Date: December 16, 2024 Dept: 37
HEARING DATE: Monday, December 16, 2024
CASE NUMBER: 22STCV19072
CASE NAME: Enrique Valencia v. General
Motors LLC
MOVING PARTY: Defendant General Motors LLC
OPPOSING PARTY: Plaintiff Enrique Valencia
TRIAL DATE: Post settlement
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s
Fees
OPPOSITION: 3 December 2024
REPLY: 9
December 2024
TENTATIVE: Plaintiff’s motions for attorney’s fees is
granted in part and the court awards Plaintiff $21,161.75 in attorney’s
fees.
Background
This is a lemon law
action arising out of the purchase by Enrique Valencia (“Plaintiff”) of a 2014
Chevrolet Cruze (“Subject Vehicle”) on or about July 16, 2016, manufactured by
General Motors, LLC (“Defendant GM”).
Plaintiff alleges that
in connection with his purchase of the¿Subject Vehicle, he received an express
written warranty and subsequently received an extended warranty, which together
allegedly covered the Subject Vehicle’s engine, transmission, water pump and
related cooling system. Plaintiff alleges that the Subject Vehicle developed a
litany of defects during the warranty period, including but not limited to
defects with the cooling system, transmission, engine. Further, and according
to Plaintiff, the Subject Vehicle was presented to Defendant or its
representatives on many occasions but failed to be repaired of its various
defects.
On March 17, 2023,
Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging seven causes
of action: (1) violation of Civil Code § 1793.2(d) against GM, (2) violation of
Civil Code § 1793.2(b) against GM, (3) violation of Civil Code § 1793.2(a)(3)
against GM, (4) breach of the implied warranty of merchantability against GM,
(5) fraudulent inducement, (6) violation of Consumer Legal Remedies Act, and
(7) violation of the Magnuson-Moss Warranty Act.¿
On April 22, 2024, Plaintiff
filed a Notice of Settlement.
Plaintiff now moves for
attorney’s fees and costs. Defendant GM opposes the Motion. The matter is now
before the court.
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) 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) attached as Exhibit 12 to the
Declaration of Payam Shahian.
13) 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.
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) April
8, 2024, Minute Order in Espinal, et al. v. Kia Motors America, Inc.
(Los Angeles Co. Super. Ct. Civil Case No. 18STCV05920) (April 8, 2024)
attached as Exhibit 17 to the Declaration of Payam Shahian.
18) April
5, 2024, Minute Order in Diana Parros v. Kia Motors America, Inc. (Los
Angeles Super. Ct. Civil Case No. BC710391) attached as Exhibit 18 to
the Declaration of Payam Shahian.
19) August
29, 2024, Minute Order in Christine Hang and Haoning Wang v. MBUSA (Los
Angeles Super. Ct. Case No. 20STCV31327) attached as Exhibit 19 to the
Declaration of Payam Shahian.
20) 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
20 to the Declaration of Payam Shahian.
Plaintiff’s request for judicial
notice is denied.
California Rule of Court, rule
8.115(b) prohibits citing or relying on unpublished decisions. A written trial
court ruling in another case has no precedential value in this court (Santa
Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831),
which is also the rule in federal courts. (King v. Order of Travelers
(1948) 333 U.S. 153, 160–161.) While trial court cases show that SLP’s
attorney’s fees have been found reasonable by other courts, the unpublished
cases are not the proper subject for judicial notice. These unpublished
opinions are submitted not as evidence but are being cited as precedent. Such
citation is beyond the scope of judicial notice and is legally improper. (Budrow
v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875,
884-885.)
Evidentiary Objections
Plaintiff’s
objections to the Declaration of Gregory Gruszeki are overruled.
I. Legal Standard
Under 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. 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, costs, and expenses consisting
of (1) $40,648.00 in attorney fees for Strategic Legal Practices, APC (“SLP”);
(2) a 1.35 multiplier enhancement on the attorney fees (or $14,226.80); and (3)
$3,314.37 in costs and expenses for SLP. In addition, for filing this fee
Motion and in anticipation of responding to Defendant GM’s opposition and attending
the hearing, Plaintiff requests an additional $3,5000.
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 were staffed on this case, only 6 attorneys (Angel Baker,
James Carroll, Daniel Law, Maro Orte, Michael Raichelson, and Sanam Vaziri)
accounted for 53.20 hours out of the 72.70 total hours billed (i.e. 73%) with
other attorneys performing non-duplicative tasks, such as: Mr. Hollingsworth
billing a total of 2.3 hours for drafting complaint, supporting documents, and
subpoenas of business records; Ms. Sanaia billing a total of 0.6 hours for
revising and finalizing Plaintiff's CMS, Notice of CMC, and Notice of Jury Fees
Deposit; Ms. Weiser billing a total of 2.0 hours for preparing for and
attending Post-Mediation Status Conference.” (Mot., at p. 10, fn. 12; Shahian
Decl., Ex. 21 [SLP Billing Statement].)
The hourly billing rates of SLP’s attorneys in this action
are as follows:
2)
Angel Baker (21 years of experience):
2024 rate is $ 595.00/hour, billed 7.2 hours totaling $4,284.00.
3)
James Carroll (18 years of experience): 2022
& 2023 rate is $595.00/hour, billed 20.1 hours totaling $ 11,959.
4)
Tionna Carvalho (Partner, 10 years of
experience): 2024 rate of $595.00/hour, billed 3.9 hours totaling $2,320.50
5)
Mark Gibson (16 years of experience):
2023 rate of $495/hour, billed 1.2 hours totaling $594.00.
6)
Tyler Hollingsworth (19 years of
experience): 2022 rate of $595.00/hour, billed 2.3 hours totaling $1,368.50.
7)
Daniel Law (12 years of experience): 2023
rate of $475.00/hour, billed 4.8 hours totaling $2,280.00
8)
Ian McCallister (26 years of experience):
2024 rate of $595.00/hour, billed 3.2 hours totaling $1,904.00.
9)
Orte Maro (9 years of experience): 2024
rate of $495.00/hours, billed 9.3 hours totaling $4,603.50.
10) Michael
Raichelson (30 years of experience):2024 rate of $620.00/hour, billed 4.7
hours totaling $2,914.00.
11) Nino
Sanaja (9 years of experience): 2022 rate of $385.00/hour, billed 0.6 hour
totaling $231.00.
12) Tyson
Smith (10 years of experience): 2022 rate of $460.00/hour, billed 2.3 hours
totaling $1,058.00.
13) Sanam
Vaziri (29 years of experience): 2022 and 2023 rate of $610/hour, billed
7.1 hours totaling $4,331.00.
14) Anna
Weiser (14 years of experience): 2024 rate of $550.00/hour, billed 2.0
hours totaling $1,100.00.
(Shahian Decl., ¶¶ 47-75, Ex. 21.)
The record before the court reflects that in 2022, a total
of six attorneys worked on this action. Ms. Aronowitz, Ms. Sanaia, Mr. Smith,
helped staff this action along with the assistance of senior counsel, Mr.
Carroll and Mr. Hollingsworth, who each respectively have 18 and 19 years of
experience. Given the experience of Mr. Carroll and Mr. Hollingsworth, and the
assistance of three other attorneys, it was neither reasonable nor necessary
for Ms. Vaziri to work on matters in this action. Ms. Vaziri’s tasks could have
been completed and billed by Mr. Carroll or Mr. Hollingsworth at a more
reasonable, reduced hourly rate of $595.00 per hour.
In 2023, four attorneys worked on this matter. Mr. Carroll
and Mr. Gibson each respectively had 18 years and 16 years of experience and
had assistance from Mr. Law, who had 12 years of experience. Yet, in 2023 Ms. Vaziri
also assisted in this matter on a task that could have been handled by another
attorney at a reduced and reasonable hourly rate.
In 2024, six attorneys worked on
this matter. Mr. McAllister, Ms. Baker, Ms. Weisler, and Ms. Carvalho each respectively
had 26 years, 21 years, 14 years, and 10 years of experience. Mr. Maro, with 9
years of experience, also assisted with matters in 2024. Yet despite very
experienced counsel already staffing this action, Mr. Raichelson also billed
for matters in this action that could have been billed by another attorney a
more reasonable hourly rate.
As Plaintiff fails to show that
more experienced counsel were needed to prosecute this action, the court caps
the hourly rates of Ms. Vaziri and Mr. Raichelson at
$595.00/hour.
Therefore, $224.00
will be subtracted from the lodestar.
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 Plaintiffs’ 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 it spent 72.7 hours
litigating this action, incurring $40,648.00 in attorney fees.
Defendant GM asserts that Plaintiff’s counsel’s billing
hours should be reduced because the case was over-litigated and overstaffed. Defendant
GM specially objects to the following billing entries.
i. Demurrer to Fraud Claim and Amended
Complaints
Defendant GM asserts that Plaintiff should not recover attorney’s
fees for the fraud cause of action. “When
a cause of action for which attorney fees are provided by statute is joined
with other causes of action for which attorney fees are not permitted, the
prevailing party may recover only on the statutory cause of action.” (Akins
v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127,
1133.) “ ‘[A]ttorney's fees need not be apportioned when incurred for
representation on an issue common to both a cause of action in which fees are
proper and one in which they are not allowed.’ ” (Turner v. Association of
American Medical Colleges (2011) 193 Cal.App.4th 1047, 1072.)
Plaintiff’s fraud claim is premised on the fact that GM knew
before and after the Subject Vehicle was purchased that there was a Cooling
System Defect, and GM chose to conceal the defect and its inability to fix and
repair it. (SAC, ¶ 32.) Therefore, because the fraud claim is premised on the
same operative facts as the Song-Beverly Act claims, the court declines to
apportion the fees. Moreover, GM agreed in its CCP § 998 Offer to pay for
Plaintiff’s reasonable attorney’s fees.
However, Defendant GM provides evidence that the FAC was
nearly identical to other complaints filed against GM. (Gruszecki Decl., ¶ 5,
Ex. B, C.) Accordingly, the court agrees that it should not have taken SLP 3.0
hours to draft the FAC. 1.5 hours billed at $595.00/hour or $892.50 will be deducted from the lodestar.
The court finds that the 4.8 hours billed by Mr. Law and to
draft the opposition to the demurrer and motion to strike the First Amended
Complaint (“FAC”) was excessive, and deducts 2.3 hours billed at $475.00/hour
or $1,092.50 will be deducted from the lodestar. The court also finds
that Mr. Carroll billing of 2.3 hours to prepare for, attend the hearing on the
demurrer, and prepare the hearing outcome memo is excessive as the hearing
rarely takes more than 20 minutes to complete and Mr. Carroll appeared virtually.
The court deducts 1.3 hours billed at $595.00 or $773.50 from the
lodestar.
The court gave Plaintiff leave to amend the FAC but due to
a calendaring error SLP missed the deadline to file the SAC and had to file a CCP
§ 473(b) Declaration seeking leave to amend. Defendant GM stipulated to the filing
of the SAC. On March 16, 2023, the Parties appeared virtually and orally
stipulated before the court to continue the hearing regarding amending the SAC.
Accordingly, the 1.2 hours billed by Mr. Gibson to prepare, attend the hearing,
and draft a hearing outcome memo was excessive. The court deducts 0.7 of an
hour billed at $495.00/hour or $346.50 from the lodestar. Moreover,
because the error in failing to timely file the SAC lies with SLP, the court
finds that it would be unreasonable for Defendant GM to pay attorney’s fees for
SLP’s mistake. Accordingly, 4.1 hours billed at $595.00/hour or $2,875.00 will be deducted from the lodestar.
The court also finds that Ms. Vaziri excessively billed 2.3
hour to prepare for and attend the June 21, 2022, hearing re OSC Answer and
draft a hearing memo because SLP appeared virtually, and this matter took no
more than 20 minutes. 1.7 hours billed at $595.00/hour or $1,011.50 will
be deducted from the lodestar.
ii. Case Management Conference
Defendant GM requests that 2.0
hours billed by Ms. Sanam be deducted because the parties stipulated to a
continuance at the December 15, 2022 CMC hearing. (Baker Decl., ¶ 16, Gruzecki
Decl., ¶ 11.) Accordingly, $1,190.00 will be deducted from the lodestar.
iii. Post-Mediation Conference
Defendant GM objects to the 2.0
hours billed by Ms. Weisler on February 5, 2024 to attend and prepare for the
Post-Mediation conference, only to inform the court that mediation had not yet
occurred. (Gruszeki Decl., ¶ 17.) The court deducts 1.3 hours billed at $550.00
or $715.00 from the lodestar.
iv. Trial Documents and Preparation
On March 3 and March 4, 2024, the Parties exchanged expert
witness designations. (Baker Decl. ¶¶ 33, 34; Gruszecki Decl., ¶ 20). Defendant
GM asserts that SLP’s expert witness designation in this action is identical to
others filed by SLP against GM, except for the case caption. (Gruszecki Decl.,
¶ 20, Exs. P, O, U, T.) The court agrees that the 0.9 of an hour billed is
excessive for the expert witness designation. The court deducts 0.3 of an hour
billed at $595.00/hour or $178.50 from the lodestar. Defendant GM also
presents evidence that the Notice of Deposition of GM’s Expert Witness was
identical to other notices SLP has served on GM, save for the case caption on
the Notice. (Gruszecki Decl., ¶ 22, Exs. T, U.) Accordingly, it should not have
taken SLP 0.5 hours to draft the Notice. 0.2 of an hour billed at $595.00/hour
or $119.00 will be deducted from the lodestar.
Defendant GM presents evidence that SLP served the same
eight template motions in limine as it had in other cases against GM and
that the 2.9 hours billed were excessive. (Baker Decl., ¶ 36; Gruszecki Decl.,
¶ 21, Ex. R, S.) Accounting for the fact that the 2.9 hours included drafting
the declaration and proposed orders, the court finds that a deduction of 1.6
hours billed at $595.00/hour or $952.00 is warranted.
Defendant GM also takes issue with the fact that its CCP § 998
Offer was served on April 11, 2024, yet on April 16, 2024, SLP billed 6.2 hours
for trial preparation. (Baker Decl., Ex. 2; Gruszecki Decl. ¶ 24.) It would not
be until April 18, 2024, that SLP informed Plaintiff of the CCP § 998 Offer.
(Shahian Decl., Ex. 21 at p. 2.) The court agrees that it was unreasonable for
SLP to bill for matters related to trial preparation when SLP delayed in
reviewing the offer and proceeded to bill hours without first informing Plaintiff
of the 998 Offer. Accordingly, 1.5 hours billed at $495.00/hour and 4.7 hours
billed at $595.00/hour or $3,539.00 will be deducted from the lodestar.
The court also agrees that 3.8 hours billed at $495.00/hour
should be deducted from the lodestar for attending the first day of trial on
April 23, 2024 to request a continuance simply because SLP failed to promptly
file the Notice of Settlement. (Gruszecki Decl. ¶ 27). Accordingly, $1,881.00
will be deducted from the lodestar.
v. Motion for Attorney’s Fees
The court also agrees that the 7.2 hours billed to draft
this fee Motion is excessive, and deducts 2.2 hours billed at $595.00/hour or $1,309.00 from the lodestar
vi. Discovery
Defendant GM provides evidence
that this case was over-litigated and overstaffed, especially regarding
discovery. The notice to depose GM’s Person Most Knowledgeable and the ESI
letter served on Defendant GM is identical to others served on GM and did not
warrant 6.8 hours of work. (Baker Decl., ¶ 14; Gruszecki Decl., ¶ 10, Exs. G,
H.) Defendant GM also presents evidence that SLP’s discovery responses are template
objections that SLP has used in other cases. (Gruszecki Decl., ¶, 15, Exs. K, L.) Plaintiff’s objections to the Notice of
Plaintiff’s Deposition is also identical in form and substance to other
objections SLP has served GM in other cases. (Id., ¶ 19, Ex. M, N.) Defendant
GM also provides evidence that SLP billed excessively to draft a meet and
confer letter that is nearly identical to the letter SLP routinely sends to GM.
(Id., ¶ 13, Exs. I, J.) This makes the court question SLP’s good faith
attempt to resolve the discovery issues.
The record before the court
supports the finding that SLP over-litigated and overstaffed this case, which
did not present complex or unique issues and did not go to trial, with 14 very
experienced attorneys. To correct billing inefficiencies, the Court applies a 0.25
negative multiplier to the lodestar. (See Morris v. Hyundai Motor America¿(2019)
41 Cal.App.5th 24, 39 [“Plainly, it is appropriate for a trial court to reduce
a fee award based on its reasonable determination that a routine, noncomplex
case was overstaffed to a degree that significant inefficiencies and inflated
fees resulted.”].)
The court made the following
deductions totaling $17,099.00:
·
$224.00
– Reduced hourly fee rates for Ms. Vaziri and Mr. Raichelson
·
$6991.50 –
Amending FAC and leave to amend.
·
$1,190.00 – Case
Management Conference
·
$715.00 – Post Mediation
Conference,
·
$6,669.50 – Trial documents and preparation
·
$1,309.00 - Drafting fee motion
After deductions, the lodestar is $23,549.00.
After the 0.25 multiplier the lodestar is $17,661.75 ($23,549.00 x .25 =
$5,887.25).
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.)¿¿¿¿¿
Plaintiff requests a 1.35 multiplier totaling a $14,226.80
enhancement 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. 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.)
Plaintiff requests $3,314.37 in costs and expenses as
generated by SLP’s billing statement without any additional support that those
expenses were incurred. (Shahian Decl., Ex. 21.) The billing statement is
insufficient and with more, neither the court nor Defendant GM can determine if
the costs were correct, reasonable or necessary. Plaintiff asserts that a
memorandum of costs will be filed but fails to explain why SLP has delayed in
filing it. The court denies Plaintiff’s request for costs without prejudice.
Should Plaintiff file a memorandum of costs, Defendant GM can move to strike
the entire memorandum or tax costs.
E. Adjusted Lodestar
Plaintiff’s unadjusted lodestar request seeks (1)
$40,648.00 in attorney fees for SLP; (2) a 1.35 multiplier enhancement on the
attorney fees (or $14,226.80); (3) $3,314.37 in costs and expenses for SLP, and
(4) $3,500.00 for opposing and reply to the fee Motion.
The court awards no multiplier or costs. Plaintiff is
awarded $21,161.75 in attorney’s fees.
Conclusion
Plaintiff’s motions for attorney’s
fees is granted in part and the court awards Plaintiff $21,161.75 in
attorney’s fees.