Judge Kenneth J. Medel, Case 37-2020-00047294-CU-BC-CTL 2024-01-26 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2020-00047294-CU-BC-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024 09:30:00 AM C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00047294-CU-BC-CTL CRANE VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 08/01/2023

Plaintiff's Motion for Attorney Fees and Costs is GRANTED, in part, and DENIED, in part.

This case involved plaintiff's purchase of a used 2018 Cadillac Escalade in December, 2019. Plaintiff alleged that the vehicle had serious defects that would cause it to shut down while driving at high speed on the freeway as well as transmission issues.

On December 22, 2020, Plaintiff filed a Complaint against GM, asserting three claims: (1) breach of implied warranty under Song-Beverly, (2) breach of express warranty under Song Beverly, and (3) fraudulent inducement - concealment. (Declaration of Steven D. Park ('Park Decl.'), ¶ 2, Ex. A.) A First Amended Complaint was filed on 8/16/21, dropping the fraud. The FAC alleged only the two Song-Beverly claims for breach of implied and express warranties. The First Cause of Action is for Breach of Implied Warranty of Merchantability. [Civil Code 1791.1] The second cause of action alleges breach of express warranty. [Civil Code 1791.2] On August 26, 2022, GM filed its Motion for Summary Judgment. On January 13, 2023, the Court granted GM's Motion for Summary Judgment finding (1) Plaintiff's breach of implied warranty claim failed because Plaintiff bought the Vehicle used (citing Nunez v. FCA US (2021) 61 Cal. App.5th 385, 399); and (2) Plaintiff's breach of express warranty claim failed because Plaintiff bought the Vehicle used without any new or additional warranty coverage from GM (citing Rodriguez v. FCA US (2022) 77 Cal.App.5th 209, 215). This ruling was prompted by the April, 2022, decision Rodriguez v. FCA US (2022) 77 Cal.App.5th 209, which held Song-Beverly does not apply to vehicles that were purchased used.

Simultaneously with the Court's order on summary judgment, the Court also granted Plaintiff's Motion for Leave to Amend to bring a claim under Magnuson-Moss. On January 18, 2023, Plaintiff then filed the SAC asserting a breach of express warranty claim under California Commercial Code § 2-313 and a claim for violation of Magnuson-Moss.

Plaintiff then proceeded to prepare for trial on the Magnuson-Moss claim. When the Court called the matter for trial on April 21, 2023, the parties informed the Court that the matter had settled literally on the eve of trial.

On July 17, 2023, Plaintiff signed the Settlement Agreement resolving all claims without a finding or admission of liability in return for a cash payment of $13,000 with fees and costs to be determined by stipulation or motion. (Park Decl., ¶ 17; Barry Decl., Ex. 5) GM reserved 'all rights to oppose any fee motion to be filed in this case.' (Id.) A Motion for Attorney Fees was noticed on August 1, 2023. The Notice of Motion moved for fees 'pursuant to the accepted Settlement Agreement and Release and The Song-Beverly Consumer Warranty Act (Civil Code § 1794(d)).' Whether Plaintiff is a Prevailing Party entitled to fees A prevailing party is entitled to costs, including attorney fees is awardable pursuant to contract or statute.

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3003373 33 CASE NUMBER: CASE TITLE: CRANE VS GENERAL MOTORS LLC [IMAGED] 37-2020-00047294-CU-BC-CTL (CCP 1032(a)(4) and CCP 1033.5(a)(10).

Defendant argues that the Notice of Motion moves for fees under the Song-Beverly, but because the Court granted summary judgment in favor of defendants on the Song Beverly claims, plaintiff is not a prevailing party entitled to fees under the Song Beverly Act. Plaintiff's Motion for Attorney's Fees moves for attorney fees, costs, and expenses solely pursuant to Civil Code § 1794(d).

The Notice of Motion indeed indicates that fees are sought based upon Civil Code 1794(d). However, the notice also indicates reliance on the settlement agreement. 'This motion is made on the grounds that Plaintiff is the prevailing party under The Song Beverly Consumer Warranty Act and the Settlement Agreement and Release signed by Plaintiff on 5 July 17, 2023, entitling Plaintiffs counsel to attorney fees, costs, and expenses.' In the agreement, the parties expressly agreed the issue of fees and costs would be decided by the Court. Pursuant to Paragraph 17 of the signed Settlement Agreement and Release, GM 'shall pay Plaintiff attorney's fees, costs, and expenses in an amount determined by the Court, by way of a single noticed motion, to have been reasonably incurred by Plaintiff in the commencement and prosecution of the claims of this action, unless the parties agree on the amount of fees, costs and expenses to be paid absent such a motion. The parties agree that Plaintiff is the prevailing party for purposes of the motion.' This language indicates that parties agreed that GM would pay fees, regardless of the potential inapplicability of Song-Beverly to the claims at the time of the filing of the motion.

Moreover, the Magnuson-Moss Warranty Act allows the consumer to recover attorney fees, costs, and expenses if he or she is deemed the prevailing party. (See 15 U.S.C. § 2310(d)(2).) Magnuson-Moss provides: 'If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.' 15 U.S.C. § 2310(d)(2). Thus, regardless of the applicability of Song-Beverly, there is a statutory basis for fees and costs to the prevailing party in this action.

The Court finds that plaintiff is the prevailing party based upon the resolution of the case in plaintiff's favor. The fees are awardable based upon the agreement of the parties as well as Magnuson-Moss Warranty Act.

Lodestar Analysis The evaluation of reasonable fees under Magnuson-Moss is the same as Song-Beverly: parties should recover compensation for 'all the hours reasonably spent' in successfully litigating the action and obtaining their fee. (Ketchum, supra, at 1133; Roth, supra at 290; See also Hensley v. Eckerhart (1983) 461 U.S. 424, 430 (counsel for prevailing parties should be paid for all time reasonably expended on a matter); Horsford, supra, at 394; Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 447.) In reaching the lodestar, a court begins by deciding 'the reasonable hours spent' on the case and multiplying that number by 'the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.' Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133.

Reasonable Rate TBLF's hourly rates range from $250-$625. The Court finds that the hourly rates are reasonable based on rates sought in the community for cases such as this. The Court notes that plaintiff has provided support for the hourly rates through the declaration of counsel as well as provided instances where California Courts, including this Court, has approved fees for counsel within this range. The Court also recognizes the inflation in the attorney fees for the community within the last two years.

Number of Hours Plaintiff requests $114,385.00 in attorneys' fees and the reimbursable costs and expenses set forth in Plaintiffs bill of costs $8,501.66, for a total request of $122,886.66 in fees and costs.

After reviewing the billing, the Court determines to exclude the following fees sought: - Fees related solely to Song-Beverly claims.

As stated above, the Court recognizes that fees are awardable under Magnuson-Moss. The Court also agrees with plaintiff, in principle, that time spent on unsuccessful claims would be compensable if it contributes to the success of other claims. There is a significant overlap with fees incurred for litigating Song-Beverly and Magnuson Moss. This Court recognized in granting leave to amend to allow for pleading under Magnuson-Moss that the statute is similar to Son-Beverly and focuses on the same key Calendar No.: Event ID: TENTATIVE RULINGS

3003373 33 CASE NUMBER: CASE TITLE: CRANE VS GENERAL MOTORS LLC [IMAGED] 37-2020-00047294-CU-BC-CTL issue-whether GM abided by its warranty.

However, to the extent that previous time was expended solely on issues related to recovery under Song-Beverly, the Court would not find that recovery of fees for these efforts would be 'reasonable' given that Song-Beverly was ultimately found to be inapplicable. The fees related to the Summary Judgment related solely to whether Song-Beverly applied to used vehicles. This claim was based only on the applicability of Song-Beverly and thus, the Court does not find it reasonable to award fees related to this expense. The Court thus excludes fees in the amount of $13,347.50 related to the summary judgment.

The Court also recognizes that Magnuson-Moss, unlike Song-Beverly, does not contain a provision for Civil Penalties. However, the Court is not able to determine amounts billed solely related to civil penalties, with the possible exception of some discovery discussed below.

- Time spent evaluating a potential client prior to engagement The Court excludes time billed on 9/16/20 to 9/28/20 which is billed to a 'potential client.' The Court excludes $1312.50.

- Discovery Motion of April 15, 2022.

Plaintiff filed a motion to compel GM's Person Most Qualified deposition that was heard on April 15, 2022 that the Court determined was related to issues the Court previously ruled were irrelevant to the claims in previous motions heard in January, 2022. In January 2022, the Court found 'documents about other vehicles of the same year, make, and model' of Plaintiff's Escalade are 'irrelevant to the pending claims' under Song-Beverly. Park Decl., Ex. C. Plaintiff nonetheless filed a motion to compel GM's Person Most Qualified deposition on these same categories even though GM had already offered to produce a witness on categories related to any repurchase request received from Plaintiff and any corresponding repurchase assessment, 'the only information relevant to the pending claims and defenses.' (See Park Decl., Exs. C, D.) Furthermore, the Court agreed with GM that Plaintiff's overbroad pursuit on expansive discovery on 'documents about other vehicles of the same year, make, and model' of Plaintiff's Escalade are 'irrelevant to the pending claims' under Song-Beverly. (Id.) Further, these issues seemed to relate to the recovery of civil penalties, which are not recoverable under Magnuson-Moss. The Court excludes $2,675.

Defendant argues that the motion filed and heard in January, 2022, was in bad faith. However, the Court granted and denied the relief sought. The Court cannot determine that the motion in January, 2022 was filed in bad faith or that the fees were otherwise unreasonable. Nor can the Court conclude that the issues would be solely related to recovery under Song-Beverly.

- Fees related to the Attorney fee motion The Court finds that the fees to prepare the instant Motion for Attorney's fees should be reduced by the 1.5 hours spent by all five timekeepers to '[r]eview and revise' their personal declarations as to their experience and hourly rate, which are not case-specific and do not change from case to case except for the caption. Accordingly, Counsel's request should be reduced by $667.50.

- Costs The Court excludes costs $60 for the motions to compel. Second, Counsel also seeks $550.00 in court reporter fees for the hearing on this fee motion. (Barry Dec. Ex. 8, worksheet p. 1.) Costs are only allowed if actually incurred; Counsel has not spent anything for future services. Moreover, $550.00 appears to be an estimate, not an actual charge incurred. (Id. at worksheet p. 3.) The Court reduces the costs by $670.

Conclusion The Court awards $96,382.50 in attorney fees. The Court awards $7,831.66 in costs.

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