Judge Kerry Bensinger, Case Number: 22STCV05122, Date: 2024-01-16 Tentative Ruling

On February 10, 2022, Plaintiff, Patricia Ramirez, filed this action against Defendant, General Motors, LLC, for violations of the Song-Beverly Consumer Warranty Act, Civil Code § 1790, et seq. Defendant filed an Answer to the Complaint on March 14, 2022.

On June 16, 2023, Defendant served an Offer to Compromise and Acceptance Under Code of Civil Procedure section 998. Plaintiff accepted the 998 Offer on June 27, 2023.

On September 25, 2023, Plaintiff filed this Motion for Attorney’s Fees and Costs and a Memorandum of Costs.

Plaintiff submits twenty-five (25) objections to the Declaration of Yohannes Moore. As the objections are not material to the disposition of this motion, the Court declines to rule on Plaintiff’s objections.

On June 27, 2023, the parties agreed to settle the matter. (Barry Decl., Ex. 3.) The settlement provides for attorney’s fees and costs by motion under Civil Code section 1794. (Id. at ¶ 3.)

(d) If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.

The parties do not dispute that Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act. Accordingly, Plaintiff is entitled to an award of reasonable attorney fees and costs as the prevailing party. The only matter at issue is the reasonableness of the fees and costs requested.

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he 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….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

“[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.)

As a threshold matter, Defendant does not challenge the reasonableness of Plaintiff’s counsels’ hourly billing rates. The Court therefore finds their billing rates to be reasonable.[1] Rather, Defendant argues that Plaintiff’s counsel spent excessive time on tasks which Defendant asserts were routine filings and template discovery, and for duplicative work. (Opp., pp. 7-8.) Defendant challenges specific billing entries. (Opp., pp. 7-10.)

The Court appreciates this case progressed towards trial. Along the way, Plaintiff served and responded to standard written discovery, filed a motion to compel and two motions to compel further (which were resolved after an IDC), participated in mediation, and prepared motions in limine for trial. (Mot., pp. 7-11.) There has been little law and motion practice.

Moreover, there was nothing particularly complex or unique about this case. The issues involved were applicable to other consumers’ vehicles, thereby triggering economies of scale in terms of Plaintiff’s counsel’s efficiency in litigating this type of lemon law case. Lead attorney David Barry is highly experienced in Song-Beverly litigation. (See Barry Decl., ¶ 27.) Litigating this matter should not have required anything more than slight factual modification to existing boilerplate.

The Court in its discretion declines to apply a multiplier given this was a relatively standard Song-Beverly case with no novel or complex issues of law.

Considering these facts, the Court agrees that in some instances, the time quoted is excessive or unreasonable under the circumstances. Attached to the Declaration of David Barry, as exhibit 4, is a chronological running time sheet of the work performed on the case from December 10, 2021 through January 4, 2024. The time sheet spans forty-one pages. The moving papers exceed two hundred pages. No effort was made to categorize the time entries by group. Certain entries demonstrate the why time entries were excessive. Here are some examples: “Anticipatory time for preparation for, attendance at and drafting memo to file re case status for Cont. Order to show cause re: Dismissal hearing: 1.5 hours. (entry dated 1/4/24, page 45); prepare for and attend and appear for hearing on Plaintiff’s motion for attorney’s Fees and Costs: 1 hour (entry dated 11/21-22/23, page 44-45) and travel to and from the hearing for 1 hour each way. But the hearing did not take place on 11/22/24. The hearing was continued by the Court on 11/1/23 to 1/16/24;

Based on the foregoing, the Court finds that the total amount of reasonable attorney’s fees in this case is $48,612. This was calculated by reducing Plaintiff’s counsels’ billing entries as follows:

· 4 hours billed for Drafting Plaintiff’s Requests for Admission, Requests for Production of Documents, Form Interrogatories, and Deposition Notices to GM on March 31, April 3 and 4, 2022: These were templated requests. The Court finds the time billed to be excessive. The Court reduces these entries by 2 hours at Mr. Matera’s hourly rate, amounting to a reduction of $700.

· 4.5 hours billed for Reviewing GM’s Discovery Responses and Objections to Deposition Notice on May 18 and 19, 2022: The Court finds the time to be excessive. The Court reduces these entries by 2.0 hours at Mr. Matera’s hourly rate, amounting to a reduction of $875.

· 1.5 hours billed for Drafting Meet and Confer Correspondence on June 10, 2022: The Court finds the time to be excessive. The Court reduces this entry by 1 hour at Mr. Matera’s hourly rate, amounting to a reduction of $350.

· 13.5 hours billed for Drafting Two Motions to Compel Further Discovery Responses on July 18 and 19, 2022, August 31, 2022, September 8 and 13, 2022, and December 7, 2022: Many of the issues were resolved at an IDC and had Plaintiff availed itself of the IDC sooner the templated motions would not have been necessary. The time is excessive. The Court reduces these entries by 5.5 hours at Mr. Matera’s hourly rate, amounting to a reduction of $1,925.

· 2.9 hours billed for Preparing, Traveling to, and Attending the Hearing on Plaintiff’s Motion to Compel Further Responses to Request for Production on June 8 and 9, 2023: The Court reduces the entirety of these entries, amounting to a reduction of $870.

· 2.6 hours billed for Drafting a Motion to Compel Expert Deposition on May 8, 10, and 16, 2023: Preparation of the motion was likely not necessary because it concerned timing not production. The Court reduces these entries by 1.6 hours at Ms. Rabieian’s hourly rate, amounting to a reduction of $696.

· 1.9 hours billed for Drafting Motion to Compel Further Supplemental Special Interrogatory Responses on May 29, 2023: The Court reduces this entry by 0.9 hours at Ms. Rabieian’s hourly rate, amounting to a reduction of $391.50.

· 6.5 hours billed for Drafting Motions in Limine on June 8, 9, and 12, 2023: These are templated motions. The Court reduces these entries by 3.5 hours at Ms. Rabieian’s hourly rate, amounting to a reduction of $1,522.50.

· 13.3 hours billed for Attorneys’ Fee Demand on July 7. 10, TBD, and 12/4-5, 2023. Six time keepers to prepare this matter is excessive. Moreover, time was billed for events that did not occur. The Court reduces the entries by half for a reduction of $3,726.5.

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, rule 3.1700 (a)(1).) “If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at p. 699.)¿¿

Code of Civil Procedure section 1033.5 lists the costs that are recoverable. Section 1033.5 provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mentioned in this section ... may be allowed ... in the court’s discretion.” (Code Civ. Proc., §¿1033.5, subd. (c)(4).)¿¿

Defendant requests that the Court remove the jury fees ($150), court reporter fees for the hearing on this motion ($550), filing fees for four motions to compel ($240), and mileage and parking fees to attend hearings ($89.38). Defendant argues each of the following fees should not be awarded because: (1) the case settled prior to trial; (2) the court reporter fees have not been actually incurred; (3) the motions to compel were never heard; and (4) mileage and parking fees are business expenses, not allowable costs.

The Court declines to tax the jury fees, court reporter fees, and filing fees for the motions to compel. First, jury fees are allowable costs. (Civ. Proc. Code, § 1033.5, subd. (a)(1).) Second, courter reporter fees are also allowable costs. (Civ. Proc. Code, § 1033.5, subd. (a)(11).) Defendant does not show that the court reporter fees were not incurred. (See Cal. Rules of Court, rule 3.1700(a)(1) [“The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case.”].) Third, the Court is not persuaded by Defendant’s argument that the filing fees for the motions to compel were unreasonable simply because the motions were never heard by the Court. That the motions were never heard does not establish whether the filing of the motions were unnecessary. Further, filing fees for motions are allowable costs. (Civ. Proc. Code, § 1033.5, subd. (a)(1).)

However, with respect to the mileage and parking fees, the Court agrees that mileage and parking fees are not allowable costs. Section 1033.5 provides that travel expenses to attend depositions are allowable costs. (Civ. Proc. Code, § 1033.5, subd. (a)(3)(C), emphasis added.) Section 1033.5 does not include travel expenses to attend hearings. Accordingly, the Court reduces the requested costs by $89.38.

Plaintiff is awarded attorney’s fees in the total sum of $48,612 and costs in the sum of $2,885.95 for a total award of $51,497.95.

Kerry Bensinger

Judge of the Superior Court

[1] The following attorneys worked on this matter (hourly rates in parenthesis): David Barry ($525, $600, and $625/ hr.); Andrew Matera ($350 and $400/hr.); Debora Rabieian ($435/hr.); Elizabeth Quinn ($500 and 550/hr.); Brian Kim ($300/hr.); and Logan Pascal ($350/hr.).