Judge: Joel L. Lofton, Case: 21BBCV00485, Date: 2023-08-17 Tentative Ruling

Case Number: 21BBCV00485    Hearing Date: August 17, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:    August 17, 2023                                               TRIAL DATE: No date set.

CASE:                         ZITLALI BAILON PINEDA, an individual, and OSMANI BAILON PINEDA, an individual, v. GENERAL MOTORS, LLC; and DOES 1 through 50, inclusive.  

CASE NO.:                 21BBCV00485

MOTION

MOVING PARTY:               Plaintiffs Zitlali Bailon Pineda and Osmani Bailon Pineda (“Plaintiffs”)

RESPONDING PARTY:      Defendant General Motors, LLC (“Defendant”)

SERVICE:                              Filed July 17, 2023

OPPOSITION:                       Filed August 4, 2023

REPLY:                                   Filed August 10, 2023

RELIEF REQUESTED

             Plaintiffs seek recovery of attorney’s fees and costs totaling $49,951.47.

BACKGROUND

            This case arises out of Plaintiffs Zitlali Bailon Pineda and Osmani Bailon Pineda’s (“Plaintiffs”) lemon law claim. Plaintiffs allege that on or about April 19, 2020, they purchased a 2020 Chevrolet Silverado 1500. Plaintiffs allege that the vehicle suffered from a number of defects that Defendant General Motors, LLC (“Defendant”) was unable to fix within a reasonable number of attempts. Plaintiffs filed this complaint on May 19, 2021, alleging five causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2, (2) violation of subdivision (b) of Civil Code section 1793.2, (3) violation of subdivision (a)(3) of Civil Code section 1793.2, (4) breach of express written warranty civil code section 1791.2, subdivision (a); section 1794, and (5) breach of the implied warranty of merchantability civil code section 1791.1; section 1794.

TENTATIVE RULING

            Plaintiffs’ motion for attorney’s fees is GRANTED for a total of $35,695.97 (65 hours at $450 per hour, plus $3,945.97 in costs, and $2,500 in fees for the present motion.

LEGAL STANDARD

            “The Song-Beverly Act is commonly known as the automobile “lemon law.” [citation] Under the Act, “[i]f the manufacturer ... is unable to service or repair a new motor vehicle ... to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle ... or promptly make restitution to the buyer” at the buyer's election. (§ 1793.2, subd. (d)(2).)” (Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 691.) A buyer who prevails under the Act “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 section 1794, subd. (d).)

“The ‘plain wording’ of section 1794, subdivision (d) requires the trial court to ‘base’ the prevailing buyer's attorney fee award ‘upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.’ “ (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 35 (“Warren”).)  “A prevailing buyer has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ ” (Hanna v. Mercedez-Benz USA, LLC (2019) 36 Cal.App.5th 493, 507.)

DISCUSSION

            On August 24, 2022, defendant served a Code of Civil Procedure section 998 Offer of Compromise on Plaintiffs. (Rivero Decl. ¶ 45.) On September 27, 2022, Plaintiffs accepted Defendant’s offer. (Id. ¶ 46.) On January 5, 2023, Plaintiffs filed a notice of conditional settlement. (Id. ¶ 47.)

            Plaintiffs provide that several professionals provided services for this case. Plaintiffs provide that Jordan G. Cohen charged $510 per hour (Rivero Decl. ¶ 53), Rodeny Gi charged between $450 per hour to $510 per hour, Iraida Gonzalez charged between $300 and $325 an hour, and Diana Rivero charged between $415 and $475 per hour.

            Plaintiffs provide attorneys and paralegals provided 101.3 hours of work for this case for a total of $37,505.50. (Rivero Decl. ¶ 88.) Plaintiffs also seek $3,500 for the present fee motion with an expected additional $5,000. (Id. ¶¶ 89-90.) Plaintiffs also seek $3,945.97 in costs. (Id. ¶ 91.)

            Lodestar Calculation

            “[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that prevailing in the community for similar work.” (Ibid.) Once the lodestar figure is calculated, a court may adjust the award based on factors such as “(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, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Ibid.)

            Plaintiffs seek $37,505.50 in attorneys’ fees for 101.3 hours worked for this present case. However, this case only involved two discovery motions based on two sets of discovery and the present motion for fees. There were no other substantive motions or questions of law that required additional work.

            The court finds that the reasonable blended rate is $450 per hour for a reasonable time allotted of 65 hours for a total lodestar calculation of $29,250. Additionally, the fees sought for the present motion is reduced to $2,500 in total, including the time spent preparing the motion and the anticipated fees for the reply, preparation, and attendance at the hearing for this motion.

CONCLUSION

            Plaintiffs’ motion for attorney’s fees is GRANTED for a total of $35,695.97 (65 hours at $450 per hour, plus $3,945.97 in costs, and $2,500 in fees for the present motion.

            Moving Party to give notice.

Dated:   August 17, 2023                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org