Judge Keri G. Katz, Case 37-2020-00019936-CU-BC-CTL 2023-10-27 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2020-00019936-CU-BC-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00019936-CU-BC-CTL POTTER VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion for attorney's fees is GRANTED IN PART. CC § 1794(d).

The evidence before the court is that the parties settled this matter for payment from Defendant General Motors LLC to Plaintiff in the amount of $132,000.00 with the amount of attorney's fees and costs to be decided by the court. Based on this evidence, the court finds Plaintiff establishes that Plaintiff is a prevailing buyer for purposes of the award of CC § 1794(d) attorney's fees and costs.

GM first argues that Plaintiff's motion is untimely. As authority GM relies on California Rule of Court, Rule 3.1702(b)(1) and Rule 8.104. Pursuant to CRC 3.1702(b)(1): A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court--including attorney's fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.

Pursuant to CRC 8.104 [Time to appeal] (a) Normal time (1) Unless a statute or rules 8.108, 8.702, or 8.712 provide otherwise, a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.

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However, GMC fails to provide authority holding that acceptance of a CCP § 998 offer alone (and not the Calendar No.: Event ID: TENTATIVE RULINGS

2974298 8 CASE NUMBER: CASE TITLE: POTTER VS GENERAL MOTORS LLC [IMAGED] 37-2020-00019936-CU-BC-CTL subsequent dismissal) triggers these time deadlines. Absent such authority, the court is not persuaded by any of GM's arguments that Plaintiff's motion for attorney's fees is untimely.

As to the amount of fees, PLCM Group v. Drexler (2000) 22 Cal.4th 1084 sets forth the applicable analysis.

[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. 'California courts have consistently held that 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. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.

(Serrano v. Priest, supra, 20 Cal.3d at p. 49.) PLCM Group, 22 Cal.4th at 1095. These factors include ' ' 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, 22 Cal.4th at 1096 citing Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624. See also, Robertson v. Fleetwood Travel Trailers of California, Inc.

(2006) 144 Cal.App.4th 785 at 818-819. ['Since our Supreme Court has held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to be applied in the absence of clear legislative intent to the contrary (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135–1136, 104 Cal.Rptr.2d 377, 17 P.3d 735), we conclude it is applicable to attorney fee awards under section 1794, subdivision (d).' Preliminarily, GM does not contest Plaintiff's counsel's hourly rates and the court finds the hourly rates charged by Plaintiff's counsel reasonable. The rates charged are commensurate with counsel's skill and experience and within the range of market rates charged by attorneys of equivalent experience, skill and expertise. PLCM Group, 22 Cal.4th at 1095 ['[t]he reasonable hourly rate is that prevailing in the community for similar work'].

The only substantive argument GM raises is that Plaintiff should not be awarded attorney's fees for time spent after GM issued its October 12, 2020, CCP § 998 offer to Plaintiff. GM states that its offer 'included an offer to pay Plaintiff $144,433.11 plus attorney's fees, expenses, and costs in the amount of $10,000.00.' In opposition, Plaintiff states that GM's October 12, 2020, CCP § 998 offer also included a requirement that Plaintiff surrender the vehicle to GM. GM fails to include a copy of GM's October 12, 2020, CCP § 998 offer. However, Plaintiff attaches GM's October 12, 2020, CCP § 998 offer as Exhibit 1 to Plaintiff's reply. A review of the offer confirms that Plaintiff's surrender of the vehicle was required.

In reply, Plaintiff states 'at the time of GM's October 2020 Offer of Compromise, Plaintiff was no longer in possession of the vehicle and could not comply with the terms of that settlement.' Plaintiff cites to 'Exhibit 1' to support this statement. Exhibit 1 to Plaintiff's reply papers is GM's October 12, 2020, offer.

Exhibit 1 to Plaintiff's moving papers is the lease agreement. Neither evidences that Plaintiff was no longer in possession of the vehicle at the time of GM's October 12, 2020, offer. Absent such evidence, Plaintiff fails to establish that Plaintiff could not have complied with the surrender provision of GM's October 12, 2020, CCP § 998 offer. In these circumstances, and considering that Plaintiff accepted GM's October 20, 2022, CCP § 998 offer in the amount of $134,000.00, the court exercises its discretion against the award of attorney's fees for time spent after GM's October 12, 2020, CCP § 998 offer. The court does not address the remaining arguments Plaintiff raises in reply as these arguments do not reflect the two arguments GM raises in opposition.

GM relies on Plaintiff's counsel's billing records to establish that, as of October 15, 2020, Plaintiff's counsel had billed a total of $14,545.00 through Plaintiff's counsel's review of GM's October 12, 2020, CCP § 998 offer. Plaintiff submits no evidence in dispute on this point. A review of Plaintiff's counsel's 'Activities Export' shows that Plaintiff's counsel expended or anticipated expending $4,179.50 in Calendar No.: Event ID: TENTATIVE RULINGS

2974298 8 CASE NUMBER: CASE TITLE: POTTER VS GENERAL MOTORS LLC [IMAGED] 37-2020-00019936-CU-BC-CTL attorney's fees in connection with this motion for attorney's fees. GM submits no evidence in dispute on this point. Based on the foregoing, the court finds attorney's fees of $18,724.50 reasonable ($14,545.00 + $4,179.50). The court exercises its discretion in favor of the award of attorney's fees of $18,724.50 in favor of Plaintiff Thomas Potter and against Defendant General Motors, LLC.

Addressing a related issue, a review of the court file shows that Plaintiff filed a memorandum of costs [ROA 138] and that no motion to strike/tax costs has been filed. Accordingly, the clerk shall enter costs in the amount of $4,288.12 in favor of Plaintiff Thomas Potter and against General Motors, LLC.

California Rules of Court, Rule 3.1700(b)(4).

The court sets aside the dismissal entered on March 29, 2023 [ROA 135] and orders Plaintiff to submit a judgment, reflecting these awards, within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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