Judge: Glenn R. Salter, Case: 19-1109892, Date: 2022-09-01 Tentative Ruling

On the court’s own motion, and for good cause, the plaintiff’s motion for attorney fees is CONTINUED to October 13, 2022, at 1:30 pm.

The prevailing buyer in a Lemon Law case is statutorily entitled to attorney fees.  Here, the plaintiff accepted a “998 Offer” and is therefore entitled to an award of reasonable attorney fees.  The plaintiff was represented by two attorneys.

In calculating the fee award, the court must first determine the “actual time expended” by the buyer’s attorneys.  (Civ. Code, § 1794, subd. (d).)  The court then must determine the time that was “reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”  (Ibid.)

It has been the experience of this court that most Lemon Law attorney fee requests are accompanied by a copy of the attorney’s billing statements.  Here, for example, the first attorney provided his billing statements.

But James Whitworth, who says he was the designated trial attorney, did not.  Instead, he submitted a declaration stating only:  “I have spent over 300 hours preparing this matter for trial.  Because defendants never produce [sic] witnesses or discovery this has [sic] to be done through other means.”  No further explanation of the actual time spent, or the reasonableness of the time incurred, was provided.

This attorney’s decision not to include his billing statements as part of the motion appears based on the general rule in California that an attorney seeking an award of attorney fees need not include a copy of the billing statements; that a declaration by the attorney that states only the amount of time spent is sufficient evidence.  (See, e.g., Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)

The court questions whether this general rule as to billing statements supersedes the Legislature’s express requirement that the court find the “actual time expended.”  Without an authenticated billing statement, how is a trial court to rationally determine if the hours claimed were, as the statute requires, actually expended on this case?  And then how does a court determine whether the time actually expended was “reasonably incurred,” and was incurred from the commencement of the action through its prosecution to the settlement?

Because a specific rule of procedure supersedes a general one, the court finds that in a Lemon Law case a buyer’s attorney must include a copy of the billing statement with the motion.  To the extent the buyer’s attorney is wanting to rely on the general rule, the attorney must provide the court with a comprehensive declaration, sufficiently detailed to permit the court to make the required finding as to the “actual time expended” and the reasonableness of those hours, without guessing.

This interpretation of the Lemon Law statute makes further sense because in a non-Lemon Law case, the client has been billed and has usually paid the fees requested.  Thus, there is some evidentiary basis on which to find that the time claimed was actually expended, and that the attorney fees were reasonably incurred:  The client paid it.  A general declaration is thus supported by some evidence.  That is not true here.  The record indicates the client in this case was not billed and thus the time expended, and reasonableness of the fees claimed, is otherwise unsupported.

Further, the explanation offered here by Whitworth’s declaration as to time expended, and its reasonableness, is little more than ipse dixit.  The court finds it cannot rely on that declaration without substantially more.

Attorney Whitworth may submit his billing statements (or a sufficient declaration in lieu thereof) no later than September 15, 2022.  Any opposition may be filed by September 26, 2022, and any reply by October 3, 2022.

Counsel are advised that this minute order simply addresses one issue.  All other issues—including whether the motion was timely filed—are still before the court.

The defendant shall give notice.