Superior Court of California 

County of Los Angeles 

Department 78 

 

CATHERINE M. NICHOLAS, et al.

Plaintiffs, 

          vs. 

GENERAL MOTORS, 

Defendant. Case No.: 22STCV01840 

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 Catherine and Jonathan Nicholas leased a 2020 Cadillac Escalade with express warranties. The vehicle was delivered to Plaintiffs with serious defects and nonconformities which Defendant General Motors failed to repair after a reasonable number of attempts.

II. PROCEDURAL HISTORY 

On January 14, 2022, Plaintiffs filed their Complaint.

On September 28, 2023, Plaintiffs filed a notice of settlement.

On March 12, 2024, Plaintiffs filed this motion for attorney fees.

On March 26, 2024, Defendant filed an opposition.

On April 2, 2024, Plaintiffs filed a reply.

III. LEGAL STANDARD

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).) 

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., section 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, section 1717, subd. (a); Code Civ. Proc., sections 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, section 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.)¿¿¿  ¿¿¿ 

“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 $50,395.32 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 compensable.

Reasonableness of Hours Billed

Defendant argues that Plaintiffs’ counsel billed unreasonable and unnecessary time for pre-representation work, template-based work, block billing, unnecessary motions, 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.) 

Pre-Representation Work: 

Defendant argues that entries for pre-representation work should be taxed in their entirety because these expenses are typically treated as part of overhead and no formal client relationship existed prior to January 13, 2022. The disputed entries are as follows:

Date Description Rate Time Total

1/4/2022 Telephone conference with client re case involving 2020 Cadillac Escalade with repeat electrical and loss of power defects; answer questions regarding lemon law in general and documents needed for further case evaluation; prepare correspondence to client re next steps and documents needed $550 0.9 $495

1/5/2022 Review and analyze documents forwarded by client re assessment of manufacturer liability and strategy; prepare vehicle history timeline including warranty work performed; telephone conference with client re additional evidence needed and preliminary analysis $550 1.4 $770

1/7/2022 Review and analyze additional records forwarded by client re vehicle history and evidence of defects re liability analysis; revise vehicle history timeline; telephone conference with client re liability assessment, process and next steps; prepare Representation Agreement $550 1.2 $660

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 one hour of attorney time for a total of $550.

Template-Based Work: Defendant alleges that the following entries should be taxed because they are inflated. Defendant alleges that the time spent drafting he Complaint was unreasonable because Plaintiffs’ counsel already billed for time spent evaluating the case and the work necessary to complete the Complaint was negligible. Defendant also alleges time spent on templated discovery responses and motions in limine should be taxed because the time is inflated and the time spent filling in minor details in templates should be lower. The disputed entries and proposed reductions are as follows:

Date Description Rate Time Total Proposed tax

1/13/2022 Review executed Representation Agreement; begin preparing Summons, Complaint, Civil Case Cover Sheet, and initial filing papers $550 0.6 $330 0.5 hours

$275

1/14/2022 Complete preparing Summons, Complaint, Civil Case Cover Sheet, and initial filing papers $550 0.4 $220

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Request for Admissions $550 0.9 $495 9.1 hours 

$5,005

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Request for Admissions $550 0.9 $495

3/28/2022 Prepare Plaintiff C. Nicholas' Respones to Form Rogs $550 1.4 $770

3/28/2022 Prepare Plaintiff C. Nicholas' Respones to Form Rogs $550 1.4 $770

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Special Rogs $550 1.2 $715

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Special Rogs $550 1.2 $715

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Request for Production of Docs $550 1.3 $660

3/28/2022 Prepare Plaintiff C. Nicholas' Responses to Request for Production of Docs $550 1.3 $660

3/28/2022 Prepare Plaintiff J. Nicholas and Plaintiff C. Nicholas' documents for production including analysis of documents for privileged content $550 0.6 $330

3/4/2022 Prepare Plaintiff's Special Rogs, Form Rogs, Request for Production of Documents, and Request for Admissions to Defendant $550 1.8 $990 1 hour

$550

9/14/2023 Prepare Plaintiff's Motions in Limine #1 for exclusion of certain evidence of Attorney Fees $350 1.4 $490 3.2 hours 

$1,120

9/14/2023 Prepare for and draft Motion in Limine #2 for exclusion of certain evidence Warranty Coverage $350 0.3 $105

9/14/2023 Prepare Plaintiff's Motion in Limine #3 for exclusion of certain evidence Affirmative Duty $350 0.5 $175

9/14/2023 Prepare Plaintiff's Motion in Limine #4 for exclusion of certain evidence Dealer is Agent $350 0.3 $105

9/14/2023 Prepare Plaintiff's Motion in Limine #5 for exclusion of certain evidence Post-lit Offers $350 0.3 $105

9/14/2023 Prepare Plaintiff's Motion in Limine #6 for exclusion of certain evidence Tanner Act $350 0.4 $140

9/14/2023 Prepare Plaintiff's Motion in Limine #7 for exclusion of certain evidence Attempts $350 0.3 $105

9/14/2023 Prepare Plaintiff's Motion in Limine #8 for exclusion of certain evidence Mileage $350 0.3 $105

9/14/2023 Prepare Plaintiff's Motion in Limine #9 for exclusion of certain evidence Arbitration $350 0.3 $105

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #1 Golden Rule $350 0.3 $105 1.8 hours

$630

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #2 Evidence of Issues $350 0.4 $140

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #3 Other Complaints $350 0.3 $105

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #4 Damages $350 0.3 $105

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #5 Design Defects $350 0.3 $105

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #6 Corporate Rep $350 0.4 $140

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #7 Evidence not Produced $350 0.3 $105

9/14/2023 Prepare Opposition to Defendant's Motion in Limine #8 Lemon Law $350 0.3 $105

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. The Court agrees that the time spent on these discovery responses was excessive. The Court will tax time spent in excess of one hour, for a total of 1.8 hours or $990.

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

• January 18, 2022: 1.7 hours for “Analysis of client videos depicting defects; review and analyze prior cases involving Cadillac/GM re identifying information for use in prosecuting Plaintiff s claim; research re complaints, ratings and known product problems in 2020 Cadillac Escalade vehicles; prepare memo to file re same including outline of discovery plan”

• April 11, 14, 26, 2022: 3.8 hours for initial review of file, review of gm’s discovery responses, and preparation of templated meet and confer correspondence.

• May 9, 2022: Review of GM’s discovery responses, review of gm’s meet and confer letter and preparation of templated follow up letter

• September 29, 2022: 1.4 hours for damages analysis work

• September 11, 12, 2023: 5.9 hours to review and analyze department rules over trial document requirements, to review and analyze the file, to identify witness and exhibits, prepare “Plaintiffs’ portion” of joint witness list, joint statement, and joint exhibit list, and prepare proposed jury instructions.

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. Moreover, the entries are for small amounts of time. 

Duplicative Entry: Defendant alleges the May 9, 2022 entry for discovery review is duplicative of the April 26, 2022 entry for discovery review. The Court agrees that the time spent for discovery review is duplicative. Defendant’s request to tax 1.1 hours for $434.50 is granted.

Motion to Compel: Defendant argues Plaintiffs’ counsel billed 3.5 hours to prepare a templated motion to compel on the eve of trial even though Defendant had already agreed to produce a witness on 8 of 12 of the topics requested. Defendant alleges Plaintiffs’ counsel failed to meet and confer on the issue and Defendant’s Person Most Knowledgeable was never deposed. Plaintiffs’ counsel alleges that he only spent 1.5 hours drafting the motion and 1.5 hours preparing an internal memo to add to the case file regarding the results of the hearing. (Reply p.8.) Although the Court finds the entries for drafting the motion and attending the hearing are reasonable, the time spent drafting an internal memo is not. One hour will be taxed for a total of $550.

Ex parte Application: Defendant argues that Plaintiffs’ counsel’s 3.8 hour billing for the ex parte application to advance the hearing on the motion to compel Defendant’s deposition should be taxed because Plaintiffs’ counsel unreasonably delayed serving the deposition notice until the eve of trial. Plaintiffs’ counsel argues that the deposition was timely noticed, Plaintiffs were forced to file a motion to compel the deposition, and the Court did not have dates available to hear the motion prior to trial. The Court finds this entry was not unreasonable because the Plaintiffs served the deposition notice a sufficient time before trial to complete a deposition. 

Anticipated fees: Finally, Defendant argues that Plaintiffs’ anticipated fees and fees for this motion should be taxed because the request is unsupported. The Court finds the 3.7 hours for this motion and 3.5 hours to respond to Defendant’s opposition are reasonable. 

Total to be taxed: $2,524.50

Costs

Defendant alleges that the costs for parking, filing fees for the motion to compel deposition, and filing fees for the notice of change of firm name.

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).)

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 final status conference. (Reply, p.10.) 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.

Filing fees: Defendant argues that filing fees for Plaintiffs’ motion to compel deposition and the notice of change of firm name. As discussed above, the motion to compel deposition was not unreasonable. Additionally, Plaintiffs’ counsel was required to file a notice of change of firm name. Therefore, under the broad reading of Civ. Code, section 1794(d), the filing fees were reasonably incurred.

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). “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). 

Based on all the factors to be considered, the Court does not find that a multiplier should be applied here given this was a routine case. 

The court awards attorney fees and costs as follows:

Attorney Fees

$42,401.50

Costs

$976.72

Total

$43,378.22

DATED: April 9, 2024 

________________________

Hon. Jill Feeney 

Judge of the Superior Court