Judge Kerry Bensinger, Case Number: 22STCV10632, Date: 2024-03-06 Tentative Ruling

DEFENDANT’S MOTION TO STRIKE, OR IN THE ALTERNATIVE TAX PLAINTIFF’S COUNSEL’S MEMORANDUM OF COSTS

On March 28, 2022, Plaintiff Andrea Bugarin filed a Complaint against Defendant General Motors, LLC (“GM”) for violations of the Song-Beverly Act.

On September 26, 2023, Plaintiff accepted GM’s section 998 offer to settle the case.

On November 7, 2023, Plaintiff’s counsel represented to the court that the issue of attorney fees and costs was pending and more time was needed to submit the Request for Dismissal.

On November 22, 2023, Plaintiff filed a motion for attorney fees, costs, and expenses.

On December 1, 2023, GM filed a motion to strike, or in the alternative tax, Plaintiff’s counsel’s memorandum of costs.

Plaintiff requests judicial notice of nineteen (19) court orders awarding attorney fees in other cases Song-Beverly actions. As the court does not rely on the documents to resolve this motion, the court declines to rule on Plaintiff’s request.

Plaintiff seeks $21,641.00 in attorney fees.[1] Plaintiff also seeks an additional $2,575 for reviewing GM’s opposition, drafting a reply brief, and attend the hearing for this motion, and to prepare an opposition to GM’s motion to strike, or alternatively tax, Plaintiff’s claims costs.[2] The total being $24,216.

On September 26, 2023, the parties agreed to settle the matter.¿ (Moore Decl., ¶ 19, Ex. 2.) The settlement provides for attorney fees by motion under Civil Code section 1794, subdivision (d).¿ (Id.)

(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.¿

(Civ. Code, § 1794, subd. (d), emphasis added.)¿

The settlement provides Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act for the purposes of this motion.¿ Accordingly, Plaintiff is entitled to an award of reasonable attorney fees as the prevailing party.¿ The only matter at issue is the reasonableness of the fees 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.)¿

It is settled “ ‘that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.’ ” (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [the “ ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and ... his judgment ... will not be disturbed unless the appellate court is convinced that it is clearly wrong” ’ ”].)

Similarly, the United States Supreme Court has stated that “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time. And appellate courts must give substantial deference to these determinations, in light of ‘the district court's superior understanding of the litigation.’ [Citations.] We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

Plaintiff retained Consumer Law Experts, P.C. for this matter which involved work by attorneys Julian A. Moore and Joseph Kowalski, billing at hourly rates of $515 and $350, respectively. (Moore Decl., ¶ 20, Ex. 23.)¿

GM does not challenge the reasonableness of Plaintiff’s counsel’s hourly billing rates.

Based upon general prevailing rates in the Los Angeles area for this type of litigation, and GM’s lack of opposition to Plaintiff’s counsels’ hourly rates, the court finds $515 and $350 to be reasonable.

GM’s real point of contention lies here. Plaintiff’s counsel’s records reflect a total of 45.4 billable hours spent litigating this matter. ¿(Moore Decl., ¶ 41, Ex. 23.)

¿ “[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.)¿¿¿

¿ GM objects to Plaintiff’s counsel’s attempt to recover fees for administrative tasks performed by a non-attorney, the amount of billing given Plaintiff’s counsel’s use of template discovery, and billing for trial preparation after the parties agreed to settle the matter. GM challenges specific billing entries. (Opp., pp. 6-7.) Plaintiff does not address these specific challenges to the billing entries.

The court appreciates that this case progressed towards trial.¿ Along the way, Plaintiff served and responded to standard written discovery. Save for this motion, and GM’s motion to strike or tax costs, there was no 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.¿

Considering these facts, the court agrees that in some instances, the time quoted is excessive or unreasonable under the circumstances.¿¿Accordingly, the court finds the total amount of reasonable attorney’s fees in this case is $20,013.50. This was calculated by reducing Plaintiff’s counsels’ billing entries as follows:

· 0.9 total hours billed by an unidentified person named Jessica Anvar on November 2, 2021 at various hourly rates. The entries are for clerical work which are not recoverable as attorney fees. The Court reduces these entries in their entirety for a total reduction of $376.50.

· 0.9 hours billed by paralegal Katherine Carreno on November 13 and 16, 2023 for clerical work. Clerical work is not recoverable as attorney fees. The Court reduces these entries in their entirety for a reduction of $180.00.

· 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 $350.00.

· 21.4 hours billed by attorney Julian Moore for drafting discovery and preparing and responses. (See Moore Decl., Ex. 23, Entries from April 6, 2022; May 9, 19 and 31, 2022; June 21 and 22, 2022.) The time is excessive. The Court reduces these entries by 6.4 hours at Mr. Moore’s hourly rate, amounting to a reduction of $3,296.00.

Plaintiff seeks costs and expenses in the sum of $1,044.80. (See Memorandum of Costs.) GM argues Plaintiff’s costs should be stricken because there is no evidence to support the requested sum.

A party challenging the amounts claimed may file a motion to tax costs, which must be served and filed 15 days after service of the cost memorandum.¿ If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4). (Cal. Rules of Court., rule 3.1700, subd. (b)(1).)¿ “Unless objection is made to the entire cost memorandum, the motion ... must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.”¿ (Cal. Rules of Court, rule 3.1700, subd. (b)(2).)¿

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, subd. (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).)¿¿

Here, GM fails to carry its burden to show Plaintiff’s costs should be reduced by any amount. Plaintiff seeks to recover $747.70 for filing and motion fees, $72.10 for service of process, and $225 for ADR. These costs are allowable. (See Code Civ. Proc., §¿1033.5, subd. (c)(4).)¿¿

Alternatively, GM argues $333.93 incurred in filing and motion fees ($261.83) and service of process ($72.10) should be taxed because they were unnecessary costs. (See Mot., pp. 4-5.) Specifically, GM challenges (1) fees for filing the Notice of Case Management and posting jury fees, Notice of Change of Address, and Motion for Attorney’s Fees, and service of process for Laurence Braddell (“Braddell”) and James Oaks (“Oaks”). (See Memorandum of Costs, Items 1c, 1d, 1e, 5a, and 5b). GM argues these fees were incurred solely for the benefit of Plaintiff’s counsel because this case did not advance to trial nor were Braddell or Oaks deposed. This challenge also fails. GM’s “hindsight” approach fails to carry the day. First and foremost, the challenged costs are all allowable costs. (See Civ. Proc. Code, § 1033.5, subds. (a)(1) and (a)(4).) GM does not meet its burden to overcome the presumption that the costs were reasonably incurred.

Plaintiff is awarded attorney’s fees in the sum of $20.013.50, and costs in the sum of $1,044.80, for a total award of $21,058.30.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff’s reply indicates counsel has expended $2,575 in review of the Opposition of the Motion and Reply, and review of the Motion to Tax Costs. (Reply, Moore Decl., ¶ 5, Ex. 3.)

[2] Plaintiff also seeks $1,044.80 in costs and expenses which the court addresses in the sections below.