Judge Kenneth J. Medel, Case 37-2022-00034399-CU-BC-CTL 2024-03-29 Tentative Ruling

Judge: Kenneth J. Medel, Case: 37-2022-00034399-CU-BC-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 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) 37-2022-00034399-CU-BC-CTL ANDRADE VS FCA US LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 09/27/2023

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

This is an action filed under the Song-Beverly Act, related to a 2018 Jeep Renegade purchased in December, 2018. Plaintiff complained for engine issues and excessive oil consumption, and 'other serious nonconformities to warranty.' Complaint filed on August 26, 2022 alleging only recovery under the Song-Beverly Act as well as Negligent Repair.

Plaintiff accepted defendant's Offer to Compromise and this fee motion requests the Court to decide the fees pursuant to the Agreement signed between the parties.

The parties do not dispute that plaintiff is the prevailing party under the Song-Beverly Act and entitled to a recovery of its attorney fees and costs pursuant to the Act. Defendant only challenges the amount of the fees.

Defendant's primary argument is that it complied with the Song-Beverly Act and therefore a sharp reduction in fees is warranted, including a request for a negative multiplier. (Def. Opp. p.1:5-8, p. 10:19-22.) FCA US argues it offered to repurchase the Subject Vehicle almost immediately after responding to the Complaint (see Skanes Dec. ¶¶ 6-7).

According to FCA US, there were no discovery disputes, no depositions taken, no motion practice, no vehicle inspection, and no trial preparation. According to FCA, 'the only work performed in litigating this case was the filing of a template complaint, the service of form discovery demands recycled from previous lemon law cases, and settlement.' Lodestar A declaration of attorney Michael Saeedian of 'The Lemon Pros, LLP' is provided to support the motion.

In all lemon law cases, Partner Michael Saeedian bills his time at a rate of $695.00 per hour and managing attorney Christopher Urner at a rate of $525.00 per hour. (See, Saeedian Decl. ¶¶ 3-4). The firm's law clerk, Mr. Acosta bills at $250.00 per hour. Counsel indicates that 'these rates are justified and below listed rates in the Laffey Matrix for contingency attorney rates, www.laffeymatrix.com. The Laffey Matrix has been utilized in numerous cases involving attorney fees.' (See, Saeedian Decl. ¶ 12).

A 'reasonable' hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095). Specifically, Plaintiffs' counsel may only refer to noncontingent rates of attorneys that practice the same area of law in the same county. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1129 ['The lodestar was based on the market rate for comparable legal services in a noncontingent matter']).

FCA relies on multiple tentative rulings in the greater Los Angeles area and Riverside to support the argument that the rates requested are excessive.

The Court does not find that the rates charged by counsel are sufficiently supported. There needs to be support by the moving party that the rates are within the prevailing rates charged by attorneys of similar skill and experience in San Diego County. The Court may rely on its own knowledge and familiarity with Calendar No.: Event ID: TENTATIVE RULINGS

3029816 38 CASE NUMBER: CASE TITLE: ANDRADE VS FCA US LLC [IMAGED] 37-2022-00034399-CU-BC-CTL the legal market, as well as experience, skill and reputation of the attorney requesting the fees. Heritage Pacific v. Monroy (2013) 215 Cal.App.4th 972, 1009. In the Court's experience, the fees requested for Lemon Law seem to be higher than normal. The Court lowers the fees requested for Saeedian to $500, Urner to $400 and Acosta to $200.

Amount of Hours A common theme in the Opposition is to compare this case to other cases to attempt to show that the amount of fees sought are for 'boilerplate' tasks, repeated in every case. For the most part, the Court does not find that FCA supports its contentions that the fees are unreasonable.

- Complaint time Defendant FCA US LLC disputes some of the time related to the Complaint. The Song-Beverly Act fee shifting provision in the statute covers the legal time in connection to the 'commencement and prosecution' of the action. (Civ Code 1794(d).).

Defendant claims that '2.3 hours/1,198' is excessive by claiming the Complaint in this case is the same as every other case. This is a common argument. Defendant cites to another case and provides that Complaint to prove that these Complaints are identical. However, the Complaints, while similar, are different- the Complaint in this case is 13 pages compared to 10 pages in the other complaint. Even if the Complaints are similar, there would be substantial work to review for the complaint and the case specific details added. 2.3 hours would not seem to be unreasonable.

- Discovery Defendant next contends that '2.3 hours/$1,376 to draft template discovery demands' is unreasonable.

The entries on the billing statement show 0.2 hours for Form Interrogatories, 0.4 hours for Special Interrogatories, 0.4 hours for Requests for Admission, and 0.3 hours for RFP requests by attorney Michael Saeedian. None of this seems unreasonable.

In this case, 77 Special Interrogatories were propounded. 75 Requests for Production were made.

Defendant FCA then contests '3.1 hours' to review the discovery response of FCA as unreasonable.

This is 3.1 hours for the review of Form Interrogatory responses, 50+ Special Interrogatory responses, 50+ Request for admission responses, and 50+ Requests for production of documents AND the review of those documents themselves.

FCA's responses total about 98 pages, excluding document production. (Decl. MS.) The parties then met and conferred on the deficient responses, as required, and FCA provided supplemental responses, and FCA contests 1.5 hours to review the supplemental responses. FCA's supplemental responses total approximately 21 pages. (Decl. MS.) 1.5 hours to review those pages is not unreasonable.

Defendant does not provide any benchmark of reasonable time which Defendant believes the tasks should be completed in.

FCA challenges specific time related to a meet and confer letter. The meet and confer letter was 16 pages. The standard practice is to prepare such letters. Recovery for meet and confer letters is not unreasonable.

- Client communications Defendant FCA US LLC next gathers together 11.9 hours (inclusive of client document review) to argue that client communications is excessive. This amount of time is not unreasonable. The communications are over a 14 month period. The first correspondence with the client at the start of the case occurs on 6-8-2022. The final communication with the client involving settlement and payment occurs on August 14, 2023.

- Clerical support '[N]ecessary overhead support services that secretaries and paralegals provide to attorneys may be included in an attorney fees award. (City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7; Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 951 [stating time spent by non-paralegal legal staff compensable]; see also Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 [stating paralegal time compensable].) Additionally, a verified fee bill is prima facie evidence that the costs, expenses, and services listed were reasonable. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Defendant provides no legal citation or support that reasonable and necessary litigation support tasks are unrecoverable.

The amounts requested here do not on their face appear to be unreasonable.

Apportionment for Negligence FCA also argues that fees incurred pursuing the negligence claim against Defendant FCA US LLC are Calendar No.: Event ID: TENTATIVE RULINGS

3029816 38 CASE NUMBER: CASE TITLE: ANDRADE VS FCA US LLC [IMAGED] 37-2022-00034399-CU-BC-CTL not recoverable. Unlike the Song-Beverly causes of action, Plaintiff's negligence cause of action (Count Four) does not provide for the recovery of attorney's fees.

Count 4 was for Negligent Repair, primarily against the dealer - PERRY CDJR. The dealer defaulted in this case. It is not clear that an apportionment is required here. Graciano v. Robinson Ford Sales, Inc.

(2006) 144 Cal.App.4th 140 provides that causes of action, which are based on a common core of facts and course of conduct, or are based on related legal theories, need not be apportioned. Questions about the warranty repairs – all of which are required for proof against FCA US LLC under the Song-Beverly Act – would seem to be a common core of facts.

Fees for Attorney Fee Motion Plaintiff's bill includes 7 hours ($3,797.00) to draft the subject fee motion (see Invoice p. 8, entries dated 9/20/23, 9/21/23, 9/27/23). This does not include the additional time (3 hours/$2,085.00) requested for drafting a reply and for attending the hearing.

The Court finds that 7 hours is excessive – and reduces the award to four hours. 3 hours for the reply is reasonable given that it is responsive to the Opposition.

Negative Multiplier? FCA requests a negative multipler. The California Supreme Court has repeatedly observed that 'a lodestar figure may be adjusted not just upward but also, where appropriate, downward.' (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 840.) A court has discretion to decrease the lodestar by looking factors including ' 'the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' ' (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096). Even where a party prevails on a single cause of action for which he or she is entitled to attorney fees, if the court determines the attorney's work on that claim is duplicative or excessive, the court has broad discretion to apply a negative multiplier to the lodestar amount. (See, e.g., Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 840-845).

The Court denies the application of the negative multiplier, but, as stated above, reduces the rates of the attorneys and the amount of time for drafting the attorney fee motion.

Counsel is to re-calculate the fees based upon the rates awarded above and the reduction of the attorney fees' motion. Counsel is to present to the Court the new calculation at the hearing.

The Court awards the amount of the costs requested.

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