Judge: Gregory Keosian, Case: 21STCV11749, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV11749    Hearing Date: October 13, 2022    Dept: 61

Plaintiff Heather McCoy’s Motion for Attorney Fees, Costs, and Expenses is GRANTED, and Plaintiff is awarded $38,720.00 in attorney fees, and $3,169.30 in costs and expenses.

I.                   OBJECTIONS

Plaintiff Heather McCoy’s objects to several portions of the declaration of Jonathan M. Shugart submitted in opposition to the present motion. Objection No. 1 is SUSTAINED, as Shugart is testifying concerning the underlying facts of the case for which he lacks personal knowledge. The other objections are OVERRULED.

II.                MOTION FOR ATTORNEY FEES

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree. (Code Civ. Proc. § 1021.) However, the Song-Beverly Act provides for the award of attorneys’ fees to prevailing plaintiffs as follows:

If the buyer prevails in an action 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, subd. (d).)

“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.)  In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment.  (See id.) 

In determining the proper amount of fees to award, courts use the lodestar method.  The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate.  “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).)  A reasonable hourly rate must reflect the skill and experience of the attorney.  (Id. at p. 49.)  “Prevailing parties are compensated for hours reasonably spent on fee-related issues.  A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).)  The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable.  (See id. at p. 624.)

Plaintiff Heather McCoy seeks fees, costs, and expenses in the total amount of $64,864.30. This includes a lodestar fee amount of $40,470.00, plus a 1.5 multiplier for an extra $20,235.00, and $4,159.30 in costs. (Motion at p. 1.) This lodestar amount consists of 128.8 hours of attorney and paralegal work. (Wirtz Decl. Exh. A.) This case settled upon a payment by Defendant General Motors (GM) of $85,000.00, in exchange for dismissal of the case and surrender of the vehicle. (Motion at p. 5.)

Defendant GM makes several arguments in opposition. It notes that the fourth cause of action for negligent repair asserted against Defendant Mark Christopher Chevrolet (MCC) is not a claim for which attorney fees may be sought, and thus $5,585.00 in fees for 15.3 hours of work on these claims should be deducted from the lodestar. (Opposition at pp. 7–8.) Defendant next identifies various categories of work claimed in Plaintiff’s billing records that it claims are excessive or unreasonable: 20.9 hours for communications with the client; 8.7 hours of clerical work; and 13.9 hours incurred for this motion. (Opposition at pp. 8–11.) Defendant also takes issue with various claimed costs and expenses, including court reporter fees and legal research expenses. (Opposition at pp. 14–15.)

Defendant is correct that fees associated exclusively with Plaintiff’s fourth cause of action for common law negligence should be separated from fees that are compensable under the Song Beverly Act. “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. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) At the same time, “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.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129–30.) Here, several fee items were incurred exclusively in relation to Plaintiff’s negligence claim, specifically several items related to communications with MCC regarding service of the complaint, and one charge related to MCC’s substitution of counsel, altogether totaling $225.00. (Shugart Decl. Exh. 4.)

However, Plaintiff’s charges in relation to the motion to transfer venue filed by MCC and the discovery served upon it are not subject to apportionment. The fees incurred in opposing MCC’s motion to transfer were incurred in an effort to keep the entire case in the present venue, including the Song Beverly claims. What’s more, the fees charged for conducting discovery against MCC are not separable from the Song Beverly claims, as discovery against the repairing dealership would be reasonable even if the dealership were not a party.  

Defendant’s arguments concerning client communications are likewise unpersuasive. Although Defendant asks Plaintiff to divulge the “general subject matter” of the communications, it presents authority only for the proposition that the general subject matter of attorney time expenditures must be disclosed, not that privileged attorney-client communications must be disclosed in motions for attorney fees. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 437 fn. 12.)

There is some merit, however, to Defendant’s argument regarding the compensability of clerical tasks. Although paralegal fees may be compensable under statutory attorney fee provisions (See

Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 [holding Code Civ. Proc. § 411.35 allows recovery of paralegal fees in its attorney fee provision]), such work must be differentiated between compensable tasks — e.g., “drafting correspondence, discovery requests or law and motion documents” — and noncompensable administrative tasks, “such as filing and serving documents.” (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 159.)

Here, Defendant identifies 8.7 hours and $2,010.00 of what it characterizes as non-compensable clerical work. (Opposition at pp. 9–10.) Most of the items identified are indeed for what are properly called administrative tasks, such as calendar arrangement, filing, and serving documents. Of the charges identified, only the following concerned legal work, such as drafting correspondence or discovery, that is compensable at the rates charged: 6/23/21 ($50), 8/30/21 ($100), 12/16/21 ($40), 1/19/22 ($75), 2/7/22 ($50), 3/2/22 ($75), 7/5/22 ($50), 8/31/22 ($15), 8/31/22 ($15), and 9/6/22 ($15). Thus the lodestar is properly reduced for administrative tasks by $1,525.00.

Defendant’s objection to the fees sought in connection with this motion is less persuasive. Prevailing parties may be reimbursed for fees incurred in connection with fees motions. (Serrano IV, supra, 32 Cal.3d at p. 624.) The 13.9 hours charged here for the motion’s drafting, replying to the opposition, and attending hearing, is reasonable and not excessive.

No multiplier, positive or negative, is warranted here. “Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Thayer v. Wells Fargo Bank., N.A. (2001) 92 Cal.App.4th 819, 833.) The present action was neither particularly novel nor complex, as demonstrated by the billings submitted with the motion.

Certain costs and expenses sought in this motion are also properly deducted. Specifically, Plaintiff incurred $990 in costs to obtain the services of court reporters at case management conferences, without explanation for why a reporter would be necessary to transcribe such routine proceedings. The charges for reporter services in other hearings, however, such as the motion to transfer venue and the present motion, are reasonably incurred, given the contentious subject matter of the hearings. Thus $990 are properly reduced from the costs sought.

The motion is therefore GRANTED, and Plaintiff is awarded $38,720.00 in attorney fees, and $3,169.30 in costs and expenses.