Judge Kerry Bensinger, Case Number: 21STCV06832, Date: 2025-02-05 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On February 22, 2021, Plaintiff, Fabiola Vera, filed this action against Defendants Lucas Auto Center Inc. (“Lucas Auto”), Hudson Insurance Company, and Does 1 through 75. On April 5, 2021, Plaintiff filed the First Amended Complaint (“FAC”), alleging, in relevant part, violations of the Consumer Legal Remedies Act and the Song-Beverly Consumer Warranty Act.

On October 13, 2021, after Plaintiff dismissed Hudson Insurance Company and Doe Defendants, the court entered default judgment against Lucas Auto.

On October 10, 2023, Plaintiff filed a Motion for Post-Judgment Attorneys’ Fees and Costs which were incurred post-judgment.

On March 28, 2024, the court granted Plaintiff’s in part and awarded the total sum of $12,366.23, consisting of $12,156.50 in attorney fees and $209.76 in costs.

On December 6, 2024, Plaintiff filed this Second Motion for Post-Judgment Attorneys’ Fees.

Code of Civil Procedure (CCP) section 685.040 states, in part, “The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” Attorney’s fees incurred in enforcing a judgment are expressly excluded unless otherwise provided by law. (Id.) “[W]hen a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 614.)

Costs authorized by Section 685.040 may be claimed by filing a memorandum of costs or via noticed motion before the judgment is satisfied in full but not later than two years after the costs have been incurred. (Code Civ. Proc., §§ 685.070, subd. (b), 685.080, subd. (a).) Allowed costs include, but are not limited to, those costs outlined in Section 685.070. (Code Civ. Proc., §¿685.080, subd. (a).) The notice of motion must describe the costs claimed, must state their amount, and must be supported by “an affidavit of a person who has knowledge of the facts stating that to the person’s best knowledge and belief the costs are correct, and reasonable and necessary, and have not been satisfied.” (Code Civ. Proc., § 685.080, subd. (b).) The motion must be served personally or by mail. (Ibid.) The court must make an order allowing or disallowing the costs to the extent justified under the circumstances of that particular case. (Code Civ. Proc., § 685.080, subd. (c).)

“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment.” (Code Civ. Proc., § 685.040.) “[W]hen a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen, supra, 59 Cal.4th at p. 614.)

Here, Plaintiff was awarded a default judgment against Lucas Auto. (Minute Order, 10/13/21.) The award included attorneys’ fees as authorized under the Consumer Legal Remedies Act (Civ. Code § 1780, subd. (e)) and the Song-Beverly Consumer Warranty Act (Civ. Code § 1794, subd. (d)). (Id.) Plaintiff later obtained an award of post-judgment attorney fees in the sum of $12,156.50 and costs in the sum of $209.76. (See Minute Order, 3/28/24.) Plaintiff now contends she has incurred an additional $16,254.00 in attorney fees to enforce the judgment since the filing of her first motion for post-judgment attorneys’ fees and costs.

Category 1: Fees incurred with the filing of this motion. The court finds this category involves activity to enforce the judgment. Category One is recoverable.

Category 2: Fees incurred with negotiations of the payment plan. Negotiations spanned from April 16, 2024 to November 19, 2024. The court finds this category involves activity to enforce the judgment. Category Two is recoverable.

Category 3: Fees incurred more than a year prior to the filing of this motion (October 30, 2023 to November 16, 2023) and others that occurred eight or more months prior to the filing of this motion. The court finds this category involves activity to enforce the judgment. Category Three is recoverable.

As indicated above, Plaintiff is entitled to some award of attorney fees. Lucas Auto argues the motion should be denied because Plaintiff’s counsel has engaged in fee generating work and bypassed meaningful discussions regarding payment a payment plan. However, Lucas Auto fails to appreciate that (1) upon the entry of judgment against Lucas Auto, the judgment became due and owing, and (2) Lucas Auto, and not Plaintiff, requested discussions on a payment plan. Further, it is undisputed that the parties could not agree on a payment plan because Defendant would not include a personal guaranty. (See Reply, Compendium of Exhibits (COE), Ex. 11, at pp. 9-10.) Plaintiff obtained a judgment against Lucas Auto. Despite two prior fee motions, no portion of that judgment has been paid. Further, Plaintiff has engaged in additional efforts to enforce the judgment. Plaintiff is therefore entitled to some award of attorney fees.

Lucas Auto challenges the reasonableness of Plaintiff’s counsel’s hourly rate of $695/hour because this is “a simple lemon law claim.” However, Defendant provides zero evidence to demonstrate the unreasonableness the rate. Defendant does not meet its burden to overcome the presumption that the claimed rate is reasonable. (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 100.) The court finds Plaintiff’s counsel’s rate of $695/hour is reasonable.

Lucas Auto next takes aim at each Category. Defendant argues Category 1 fees represent an effort by Plaintiff’s counsel to general unnecessary fees. However, as discussed above, Lucas Auto insisted on discussing a payment plan. The parties could not agree on a plan and Lucas Auto has yet to satisfy any portion of the judgment. Lucas Auto bore the risk if negotiations did not result in an agreed upon payment plan. Category 1 does not merit a reduction.

Defendant next argues that Plaintiff’s timesheet as to Category 2 is excessive and insufficiently details the payment plan negotiating process. Upon review of the timesheet, the court disagrees. The entries are sufficiently detailed. (See Plaintiff’s COE, Ex. 1.) Further, Lucas Auto’s undeveloped challenge to the amount of attorney fees falls short. “[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”¿ (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)¿¿ Category 2 does not merit reduction.

Last, Defendant argues Category 3 is not recoverable because the fees were incurred up to a year prior to the filing of this motion and is therefore untimely. However, Defendant does not cite any authority in support of this position. Category 3 does not merit reduction.

Based on the foregoing, the court finds $16,254.00 is a reasonable award of post-judgment attorney fees.

The second motion for post-judgment attorney fees is GRANTED. Plaintiff is awarded the total sum of $16,254.00 in attorney fees.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿