Superior Court of California 

County of Los Angeles 

Department 78 

 

JERARDO LEON, et al.

Plaintiffs, 

          vs. 

GENERAL MOTORS, 

Defendant. Case No.: 21STCV21632 

PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES

 

Plaintiffs’ motion for attorney fees and costs is GRANTED in the reduced amount as described below.

Moving party to give notice.

I. FACTUAL BACKGROUND   

This is an action brought under the Song-Beverly Consumer Warranty Act. The Complaint alleges as follows.  

Plaintiffs Jerardo and Esmeralda Leon purchased a new 2019 Cadillac Escalade ESV (the “Subject Vehicle”) manufactured by Defendant General Motors, LLC. (Compl. ¶ 8.) The vehicle was sold with an express warranty. (Ibid.)  Plaintiffs repeatedly authorized repair facilities to repair the vehicle, but they were unable to fix the Subject Vehicle. (Compl. ¶42.)  

Despite the numerous defects, Defendant refused to issue a refund or replacement. (Compl., ¶19.)

II. PROCEDURAL HISTORY 

On June 10, 2021, Plaintiffs filed their Complaint.

On July 14, 2021, Defendant Answered.  

On April 19, 2023, Plaintiffs filed a notice of settlement.

On October 13, 2023, Plaintiffs filed the instant motion for attorney fees.

III. LEGAL STANDARD

With respect to attorney fees and costs, unless a statute provides for them, (e.g., Code of Civil Procedure sections 1032, et seq.), the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.¿(Code Civ. Proc., § 1021.)¿ 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, subd. (a); Code Civ. Proc, §§ 1032; 1033.5, subd. (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 suit, the reasonable attorney fees.¿ (Civ. Code § 1717, subds. (a), (b).)¿ A party moving for attorneys’ fees as an element of costs shall serve and file the notice before or at the same time the party serves and files the memorandum of costs; if only attorney fees are claimed as costs, the party shall serve and file the notice within the time specified in the Rules of Court, Rule 3.1700 for filing a memorandum of costs.¿ (Cal. Rules Court. 3.1702; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.)¿¿¿ 

Under the Civil Code section 1794, subdivision (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).)  ¿¿¿ 

“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.)¿ “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.”¿ (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.)¿ The court may then adjust the lodestar figure based on consideration of factors specific to the case, 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].)¿  

 

In challenging attorney fees as excessive because the moving party claimed too many hours of work, the challenging party bears the burden of pointing to the specific items challenged, with a sufficient argument and citations to the evidence.¿ (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿ General arguments that the fees claimed are excessive, duplicative, or unrelated do not suffice.¿ (Ibid.)¿¿ 

IV. DISCUSSION

Plaintiffs seek $69,859.17 in fees for attorney’s fees, costs, and expenses pursuant to a Code Civ. Proc., section 998 offer accepted by Plaintiffs. Plaintiffs also seeks a multiplier of 1.1. The parties dispute whether Plaintiffs’ counsel’s billing was reasonable, whether Plaintiffs’ counsel may be awarded a multiplier, and whether Plaintiffs’ costs are reasonable.

Reasonableness of Hours Billed

Defendants argue that Plaintiffs’ counsel billed unreasonable and unnecessary time for pre-Complaint work, template-based work, client correspondence, block billing, clerical tasks, and anticipated fees. Additionally, Defendants argue Plaintiffs’ counsel inflated time spent on certain tasks. 

A prevailing party’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred.  (Hadley v.¿Krepel¿(1985) 167 Cal.App.3d 677, 682.) “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.”  (Lunada¿Biomedical v. Nunez¿(2014) 240 Cal.App.4th 459, 488.) 

Plaintiffs’ counsel provides a detailed account of his billing. (Mizrahi Decl., Exh. A.) 

June 4, 7, 8 2021 Pre-Complaint Work: Defendant argues that the three entries for pre-Complaint work are unreasonable because initial consultation and due diligence prior to engagement are business expenses routinely treated as part of overhead. These entries state Counsel had a telephone conference with Plaintiffs to gather information about the case, reviewed and analyzed Plaintiffs’ videos documenting defects, reviewed further documents, prepared vehicle history timeline, had another telephone conference with Plaintiffs about his assessment of the case, gave his opinions and a timeline of the case, and prepared a representation agreement. The Court finds that the initial consultation and time billed for the review of Plaintiffs’ evidence are reasonable. However, the time spent on June 8, 2021 preparing a vehicle history timeline, providing a case assessment to Plaintiffs, and preparing the representation agreement are unreasonable. These tasks are clerical tasks that may not be billed at an attorney’s full rate. This entry will be taxed by $525.

Template-Based Work: Defendants allege that the following entries should be taxed because they are inflated and should have taken less time because Plaintiffs’ counsel uses templates:

• June 9, 2021, Summons, Complaint, and Civil Cover Sheet: 0.4 hours

• July 16 and September 16, 2021, Counsel’s “Set One” Discovery Requests: 1.3 hours

• September 15-16, 2021, Plaintiffs’ Discovery Responses: 9.6 hours

• June 1 and 9, 2022, GM’s Supplemental Discovery Responses: 3 hours

• February 28, 2023, Plaintiffs’ Motion to Compel GM’s PMK: 2.2 hours

Although it is not disputed that Plaintiffs’ counsel uses templates in his work, the use of templates alone does not mean tasks involving template-based work may not be billed. Plaintiffs’ counsel’s entries are each a little over or under an hour, meaning the time billed is minimal. Because templates are typically used to save time, the small amounts of time billed for these tasks are reasonable. 

With respect to the discovery responses, Defendant argues that each response consists of boilerplate language and that each response should not have taken more than one hour. However, each response already took between 0.8 and 1.4 hours. (Mizrahi Decl., Exh. A, pdf p. 29.) An examination of the responses shows that the responses were not duplicates of each other. Although the responses may have included boilerplate objections, each of Defendant’s discovery requests contained unique requests which Plaintiffs responded to individually. The Court finds that the minimal time billed for Plaintiffs’ responses to Defendant’s discovery requests are reasonable.

October 15, 2021-April 19, 2023, Client Correspondence (3.3 hours): Defendant argues that the time entries for client correspondence are not reasonable because Counsel could not reasonably expect to bill his client over $1,000 for communicating with him in this straightforward manner. The time entries for client communication are minimal, with each entry taking less than one hour. The entries state that Plaintiffs’ counsel communicated with Plaintiffs regarding the status of the case, next steps, and settlement negotiations. Keeping a client apprised of the status of litigation and settlement negotiations is reasonably related to litigation. Additionally, the time entries are minimal, with just 3.3 hours spent on client communications in 1.5 years. These entries are reasonable.

Block Billed Entries: Defendant argues the following entries should be taxed because they are block billed:

• July 13, 2021, Block-Billed Case Analysis Work (1.6 hours)

• October 28, 2021, Block-Billed Time for “Initial” Review of File, Review of GM’s Discovery Responses, and Preparation of Meet and Confer Correspondence: 2.5 hours

• November 1, 2021, Block-Billed Time for Review and Analysis of GM’s Document Production: 2.1 hours

Defendant argues that these entries should be taxed because it cannot determine whether they are reasonable. However, the time entries are sufficiently detailed despite Plaintiffs’ counsel’s use of block billing. 

The July 2021 entry states Plaintiffs’ counsel performed research by reviewing his own files, conducting internet searches, and prepared a memo re findings and areas to address in discovery. Although the time spent on research is reasonable, the time spent preparing an internal memo is not reasonable. $525 will be taxed from this entry.

The October 2021 entry states that Plaintiffs’ counsel reviewed Plaintiffs’ file, reviewed Defendant’s discovery responses, and drafted a meet and confer letter. These entries are reasonably related to litigation and the time spent does not appear unreasonable.

The November 2021 entry again pertains to Plaintiffs’ counsel’s review and response to Defendant’s discovery responses. These entries are reasonably related to litigation and the time spent does not appear unreasonable.

Clerical Tasks: Defendant argues that the following entries are unreasonable because they are clerical tasks:

• November 16, 2021, “Prepare Notice of Posting Jury Fees: (0.1 hours)

• July 14, 2022, “Finalize Notice of Change of Address”: (0.1 hours)

The Court does not find that these tasks are unreasonable because both involve the filing of documents requiring an attorney’s signature. Additionally, the time spent was minimal.

Total to be taxed: $1,050

Lodestar Multiplier

Plaintiffs’ counsel seeks a 1.1 multiplier on the grounds that they were exposed to risk in taking this matter on a contingency basis.

After calculating the lodestar amount, the court may increase or decrease the amount “by applying a positive or negative ‘multiplier' to take into account a variety of other factors.” (Laffitte v. Robert Half Int'l Inc. (2016) 1 Cal.5th 480, 489). Those factors include, but are not  limited to:(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) success or failure, (4) the extent to which the nature of the litigation precluded other employment by the attorneys, (5) the contingent nature of the fee award, (6) that an award against the state would ultimately fall upon the taxpayers, (7) that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved, and (8) that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed. (Glaviano v. Sacramento City Unified Sch. Dist. (2018) 22 Cal.App.5th 744, 751). Such an approach “anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” (Id.). However, “a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138).

Plaintiffs request a 1.1 positive multiplier. Plaintiffs contend that such a multiplier is warranted due to the contingent nature of this action. 

“Although the attorney's fee agreement is relevant and may be considered, the agreement does not compel any particular award.” (Glaviano, 22 Cal.App.5th at 757). 

The court finds that here the lodestar amount calculated above already accounts for the contingency risk and delay in receiving payment, as well as the public interest in these cases.  That is because the substantial hourly rates allowed for by the court are hourly rates for lemon law cases done on a contingency basis. Furthermore, consideration of other factors such as the lack of novelty and complexity in this case do not support awarding a positive multiplier.   

Therefore, Plaintiffs’ request that the lodestar amount be adjusted upward is denied.

Costs

Defendant alleges that the costs for depositions, jury fees, and parking fees are not reasonably incurred.

Under Code Civ. Proc., section 1033.5, subd. (c)(2), allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Subdivision (3) requires: “Allowable costs shall be reasonable in amount.” If costs are requested through a noticed motion under Code Civ. Proc., section 685.080, the motion must be supported by an affidavit of a person who has knowledge of the facts and must state that, to the person's best knowledge and belief, the costs are correct, reasonable, and necessary, and have not been satisfied. (Code Civ. Proc., section 685.080(b).)

Deposition fees ($3,508.60): Defendant argues that it should not be forced to reimburse Plaintiffs for depositions of third-party dealerships and service technicians. Additionally, Plaintiffs had not deposed Defendant. These depositions appear to be relevant to Plaintiffs’ claims because the dealerships and service technicians were involved in attempts to repair Plaintiffs’ vehicle. (Mizrahi Decl., ¶17.) These costs will not be taxed.

Jury Fees: Defendant argues that it should not be forced to reimburse jury fees because the matter never went to trial. However, Defendant accepted Plaintiffs’ 998 offer less than two weeks before trial. Jury fees were due on or before the date scheduled for the initial case management conference. (Code Civ. Proc., section 631(c).) The case management conference here took place in November 2021. The jury fees were reasonable and necessary because the fees were due early in litigation and Plaintiffs would have gone to trial if Defendant had not accepted Plaintiffs’ settlement offer.

Parking: Although travel expenses are not typically allowable under Code Civ. Proc., section 1033.5, this is only the case unless expressly authorized by law. Civ. Code section 1794 allows recovery of fees and costs reasonably incurred by buyers in connection with litigation in lemon law cases. (Civ. Code, section 1794(d); Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138.) Here, the parking fees were for court parking. Plaintiffs’ counsel argues the parking fees were necessary to attend a hearing. (Reply, p.9.) Given the broad reading of Civ. Code, section 1794(d), the Court finds the parking fees for court parking are reasonably incurred in connection with litigation.

The court awards attorney fees and costs as follows:

Attorney Fees

$56,681.5

Costs

$6,354.52

Total

$63,036.02

DATED: November 8, 2023 

________________________

Hon. Jill Feeney 

Judge of the Superior Court