Judge Keri G. Katz, Case 37-2020-00026413-CU-BC-CTL 2023-08-25 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2020-00026413-CU-BC-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023 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) 37-2020-00026413-CU-BC-CTL RUIZ TATUM VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff's request for judicial notice is DENIED as to Exhibit 15 and Exhibit 16 and GRANTED as to the remainder.

The court then rules as follows. Plaintiff's motion for attorney's fees is GRANTED IN PART. CC § 1794(d).

Preliminarily, GM's opposition includes four identical declarations from Alexandria O. Pappas, each attaching different portions of Exhibits A-P, each without electronic bookmarks and, over the four declarations, totaling approximately 583 pages of exhibits. Such filing fails to comply with California Rules of Court, rule 3.1110(f)(1) and (4). Such filing also places an undue burden on this court and the court exercise its discretion against consideration of these exhibits in ruling on this motion.

The evidence before the court is that the parties settled this matter for a monetary payment from Defendant General Motors LLC to Plaintiff with the amount of CC § 1794(d) 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) which provides: 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; Calendar No.: Event ID: TENTATIVE RULINGS

2961994 5 CASE NUMBER: CASE TITLE: RUIZ TATUM VS GENERAL MOTORS LLC [IMAGED] 37-2020-00026413-CU-BC-CTL (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.

. . . .

Pursuant to 8.108 [Extending the time to appeal] (a) Extension of time This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.

(b) Motion for new trial If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: (1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: (A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; (B) 30 days after denial of the motion by operation of law; or (C) 180 days after entry of judgment.

As judgment has not been entered and no motion to for new trial has been filed, CRC 3.1702(b)(1), by its express terms, does not apply. The court is not persuaded by any of GM's arguments for application of the time deadlines of CRC 3.1702(b)(1) to Plaintiff's motion for attorney's fees in this case.

GM then raises arguments 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 Calendar No.: Event ID: TENTATIVE RULINGS

2961994 5 CASE NUMBER: CASE TITLE: RUIZ TATUM VS GENERAL MOTORS LLC [IMAGED] 37-2020-00026413-CU-BC-CTL 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).' 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'].

GM argues Plaintiff's '[c]ounsel failed to provide any billing records or detailed explanation of its time spent to support its fee request' and also references 'Counsel's failure to introduce any evidentiary documentation into the record.' However, a review of the Declaration of Vanessa J. Oliva shows that attached as Exhibit 18 is a 'correct copy of my firm's computerized billing records of attorney hours spent in litigating this case.' A review of Exhibit 18 shows it consists of approximately 97 pages of time entries and billing records. With the exceptions below, the court finds such evidence, combined with the other evidence Plaintiff submits, sufficient to support Plaintiff's claimed attorney's fees. See, Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.

GM argues for a 'blanket reduction' of paralegal time. However, without reference to specific billing entries, the court finds GM fails to establish grounds for any reduction in fees for paralegal time. As to GM's arguments regarding specific billing entries, the court finds the time spent for review of conformed filings/served documents and for tasking/status requests reasonable. The court finds the time spent on templated discovery requests, templated discovery responses, templated meet and confer letters and templated motions to compel reasonable and reflective of the duplicative discovery efforts from both Plaintiff and GM and reflective of the efficiency of using form/template documents by both Plaintiff and GM. The court also finds time spent for the non-appearance deposition of Bob Stall and the motion to compel deposition of Bob Stall reasonable. That the parties were engaged in settlement discussions does not obviate Plaintiff's counsel's need to continue with the prosecution of this case. The court finds the time spent on Plaintiff's first motion to compel person most qualified (PMQ) deposition, and second motion to compel compliance with court order, excessive given the outcome of these motions. The court reduces these fees by one-half each ($615.00, $1,153.50). The court finds the time spent on Plaintiff's second motion to compel PMQ deposition, which was granted on February 25, 2022 [ROA 91], reasonable. The court reduces the fees spent for reviewing the declaration of Cummings Chevrolet as this was time spent after the matter had settled. The court reduces Plaintiff's attorney's fees by $46.50.

The court finds the time spent on this attorney's fees motion and Plaintiff's memorandum of costs excessive given counsel's experience in this area of the law. The court reduces the fees by one-half ($3,813.00). The court allows Plaintiff's request for additional fees of $3,468.00 for review of GM's opposition, preparation of Plaintiff's reply and attending the hearing. The court is not persuaded by any of the other arguments GM raises. The court finds GM fails to offer sufficient basis for any further reduction in the time spent.

Plaintiff also seeks a multiplier of 1.5. The court finds Plaintiff fails to establish grounds for application of a multiplier to the Lodestar in this case.

Under Serrano III, 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.

(Serrano III, supra, 20 Cal.3d at p. 49.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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. The ' 'experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly Calendar No.: Event ID: TENTATIVE RULINGS

2961994 5 CASE NUMBER: CASE TITLE: RUIZ TATUM VS GENERAL MOTORS LLC [IMAGED] 37-2020-00026413-CU-BC-CTL wrong.' ' (Ibid.) Ketchum, 24 Cal.4th at 1132.

Addressing the factors set forth above, the court considers the length of time this matter has been pending. The court also considers that, while Plaintiff's counsel displayed skill in presentation of the issues, this was not a case that required exceptional skill. The court considers the amount of Plaintiff's recovery, but also considers that the issues in this matter were not particularly novel nor particularly difficult – especially considering Plaintiff's counsel's experience in this area of the law. The court considers evidence that Plaintiff's counsel took this matter on a contingency fee basis, and the delay in obtaining a recovery from GM, but also considers the fee-shifting provision of the Song-Beverly Consumer Warranty Act allowing for the recovery of fees and costs. The court considers that Plaintiff's counsel's rates are toward the high range for attorneys of similar experience and that the hours billed by a plaintiff's attorneys working under a contingency fee agreement are not subject to the same scrutiny as those of hourly attorneys billing at similar rates. The court finds these high rates – which the court finds typical of 'Lemon Law' cases – sufficiently account for the contingent-nature of counsel's representation of Plaintiff in this case. Based on all of these factors, the court exercises its discretion against application of a multiplier in this case.

Based on the foregoing the court finds attorney's fees of $54,867.50 reasonable ($57,027.50 - $615.00 - $1,153.50 - $46.50 - $3,813.00 + $3,468.00). The court exercises its discretion in favor of the award of attorney's fees of $58,986.25 in favor of Plaintiff Alberto Spencer and against Defendant General Motors, LLC.

The court orders Plaintiff to submit a judgment, reflecting this award, 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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