Judge: Joseph Lipner, Case: 22STCV31614, Date: 2023-08-29 Tentative Ruling

Case Number: 22STCV31614    Hearing Date: August 29, 2023    Dept: 72

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Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED IN PART.

Plaintiff is awarded attorneys’ fees and expenses under the lodestar method in the amount of $33,075.84.

Plaintiff’s request for an enhancement is DENIED.

Background

This is an action brough under the Song-Beverly Act by Plaintiff Edward Herreres Jr. (“Plaintiff”) against Defendant General Motors LLC (“Defendant”). The parties agreed to settle on May 3, 2023 when Plaintiff accepted Defendant’s Code of Civil Procedure section 998 offer to repurchase Plaintiff’s 2021 Chevrolet Silverado and have Plaintiff’s attorneys’ fees and costs determined by motion wherein Plaintiff would be the prevailing party.  (Ledbetter Decl. ¶ 2; Ex. “1.”)

Now, Plaintiff moves for an order awarding attorneys’ fees and costs in the amount of $33,175.84, plus an enhancement of 1.5.  The total requested is $49,763.84.  Defendant opposes the motion and Plaintiff filed reply.

Legal Standard

The calculation of attorneys’ fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate.  (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)  “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.”  (Graciano, 144 Cal.App.4th at pg. 154.)  “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.”  (Ibid.)  “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.”  (Ibid.)  An attorney’s time spent and hourly rate are presumed to be reasonable.  (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.)  ¿Reasonable hourly compensation does not include inefficient or duplicative efforts, aka “padding.” ¿(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580) ¿¿ 

Further, prevailing parties are compensated for hours reasonably spent on fee-related issues. ¿(Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635). ¿A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ¿(Ibid.) ¿The Supreme Court stated:¿¿ 

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A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.  ‘If . . . the Court were required to award a reasonable fee when¿an outrageously unreasonable one has been asked for, claimants¿would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would¿be reduction of their fee to what they should have asked in the¿first place. To discourage such greed, a severer reaction is needful¿….’ [Citation.] 

(Ibid.) ¿¿ 

Discussion

As a preliminary matter, the Court notes Defendant’s untimely filed opposition, however the Court is inclined to rule on the merits. (Code Civ. Proc. § 1005.)

Code of Civil Procedure section 1794, subdivision (d)

A prevailing buyer in an action under Song-Beverly “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).)  

Here, Plaintiff is the prevailing buyer in a Song-Beverly action and, therefore, is entitled to an order awarding reasonably incurred attorneys’ fees and costs under Civil Code section 1794 subdivision, (d).  Plaintiff requests attorneys’ fees under the lodestar method in the amount of $33,175.84, plus an enhancement of 1.5. The total requested is $49,763.84.

Reasonable Hours Expended

Although¿detailed¿time records are not required, California Courts have expressed a preference for¿contemporaneous billing and an explanation of work. (Raining Data Corp. v.¿Barrenechea¿(2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney’s testimony must be based on the attorney’s personal knowledge of the time spent and fees incurred.  (Evid. Code, § 702,¿subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian¿& Associates, Inc. v.¿Ersoff¿(2007) 153 Cal.App.4th 257, 269.) A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)  It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.,¿at p. 38.)

Here, Plaintiffs retained The Ledbetter Law Firm, APC (“the Firm”). The invoice of the Firm reflects 78.30 hours billed to Plaintiff. (Ledbetter Decl. ¶ 6; Ex. “2.”) In opposition, Defendant argues the Firm’s request should be reduced because at least 40.5 hours reflect excessive and unnecessary time. (Opposition 3:24-5:28.) Specifically, Defendant argues that billing was unreasonable for (1) analyzing Plaintiff’s claims pre-lawsuit; (2) using templates; (3) bringing the instant fee motion; (4) reviewing the discovery responses; and (5) bringing the motions to compel. (Ibid.)  However, the Court does not find Defendant’s arguments persuasive.

First, the Court disagrees with Defendant’s objection to the hours billed by the Firm for analyzing Plaintiff’s claims pre-lawsuit because the task is administrative; and the Court finds Defendant’s reliance on Hensley v. Eckerhart (1983) 461 U.S. 424, 429 is not applicable to Defendant’s argument on this point. Second, as to the use of templates, Defendant’s argument fails to consider that the Firm must conform the facts of this case to each document; instead, Defendant argues generally that the Firm makes few, if any, modifications. Third, based on the Court’s experience, 9.8 hours or $4,165.00 for bringing the instant fee motion is reasonable. Moreover, Plaintiff has filed its reply in response to Defendant’s opposition. Lastly, the Court finds the billing was reasonable for reviewing the discovery responses and bringing the motions to compel.

Notwithstanding the foregoing, the Court strikes the following items from Plaintiff’s fee request as administrative: (1) 3/6/2023 Calculate and calendar trial deadline; and (2) 3/13/2023 Calculate and calendar motion to compel further discovery responses.

Reasonable Hourly Rate

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿ 

Here, the Firm’s standard billing rates for lemon law are $425 an hour for attorney Thomas K. Ledbetter and $200 an hour for paralegal Keily Deluis. (Ledbetter Decl. ¶ 10; Ex. “2.”) The Firm’s representation in this matter was on a contingency basis. (Ledbetter Decl. ¶ 9.)  The Court notes that it is not tied to the determinations of other judicial bodies on the reasonableness in fees. A review of the Ledbetter Declaration in support of the motion for attorney’s fees, the descriptions of Ledbetter and Deluis’ background and experience, and the arguments and evidence brought forth by Plaintiff leads to the conclusion that Plaintiff’s requested hourly rates are reasonable. (Ledbetter Decl. ¶¶ 7-8, 13-18.) Further, Defendant does not oppose the requested hourly rates.

Multiplier

Relevant factors to determine whether an enhancement is appropriate include (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.)  

Here, Plaintiffs request a lodestar multiplier of 1.5, in the amount of $16,588.00.  The Court does not find that this matter involved complex or novel legal issues warranting a multiplier.  (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.)  Further, the Firm has extensive experience litigating similar matters.  (Ledbetter Decl. ¶ 11.) Although Plaintiff ultimately was successful, there are no indications the Firm engaged in any actions different from their usual strategy to achieve this result. Also, the¿contingent risks, skill, and difficulty¿that the Firm asserts are absorbed by its hourly rates.¿¿(See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.) Therefore, the request for a lodestar multiplier is denied. 

            Expenses for Motions to Compel

Defendant argues that it should not pay the $156.56 in service of process costs and filing fees for Plaintiff’s motions to compel (4/7/2023, 4/10/2023, 4/11/2023 and 5/4/2023 entries). (Opposition 8:7-12.) However, the Court disagrees because the motions were necessary and reasonable in enforcing Plaintiff’s discovery rights. Further, the 5/4/2023 entry concerns the instant motion, not the motions to compel.

Conclusion