Judge Kerry Bensinger, Case Number: 23STCV05995, Date: 2024-12-03 Tentative Ruling

MOTION FOR ATTORNEYS’ FEES AND COSTS PURSUANT TO CIVIL CODE SECTION 1794(D)

This is a Song-Beverly action relating to a 2019 Chevrolet Silverado (the “Vehicle”). On March 17, 2023, Plaintiff, Charles Wilder, filed a Complaint against Defendant, General Motors, LLC, after Defendant failed to repair the transmission of the Vehicle, among other parts, pursuant to a Chevrolet Limited Warranty for the Vehicle.

On September 30, 2024, Plaintiff filed this Motion for Attorneys’ Fees and Costs Pursuant to Civil Code Section 1794(d) and concurrently filed a Memorandum of Costs.

Plaintiff seeks a total award of $74,920.99, consisting of $58,162.50 in attorneys’ fees, a 0.25 multiplier in the amount of $14,540.63, and $2,217.86 in costs.

On September 17, 2024, the parties agreed to settle the matter. (Barry Decl., ¶ 32, Ex. 3.) 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).)¿¿

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 requested fees and costs.¿¿

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” ’ ”].)

Plaintiff retained The Barry Law Firm for this matter which involved work by attorneys David N. Barry, Andrew P. Matera, Debora Rabieian, Otis R. Hayes III, and Logan G. Pascal, billing at hourly rates of $675, $500, $500, $500, and $400, respectively. (Barry Decl., ¶¶ 36-37.)

¿ Defendant argues the hourly billing rates for Plaintiff’s attorneys are unreasonable because counsels’ declarations and own billing records from other cases shows that Plaintiff’s counsel retroactively increased their historic hourly rates. For instance, Mr. Barry’s declaration indicated he increased his rate on April 1, 2023, to $625 per hour and again on January 1, 2024 to $675 per hour. However, all of Mr. Barry’s work on this case is billed at $675. (See Barry Decl., Ex. 4.) Mr. Hayes III billable rate in 2023 through 2024 ranged between $400 to $500; all of Mr. Hayes III’s work is billed at $500 per hour. (See Hayes III Decl., ¶¶ 5, 32-87; Barry Decl., Ex. 4.) Ms. Rabieian’s billable rate in 2023 through 2024 ranged between $435 to $500; all of Ms. Rabieian’s work is billed at $500 per hour. (See Rabieian Decl., ¶¶ 5-25; Barry Decl., Ex. 4.) Mr. Matera’s billable rate in 2023 through 2024 ranged between $290 to $500; all of Mr. Matera’s work is billed at $500 per hour. (See Matera Decl., ¶¶ 7, 41-95; Barry Decl., Ex. 4.) Mr. Pascal’s billable rate in 2023 through 2024 ranged between $300 to $400; all of Mr. Pascal’s work is billed at $400 per hour. (See Pascal Decl., ¶¶ 5, 56-115; Barry Decl., Ex. 4.) Accordingly, Defendant requests a reduction.

¿ “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982), 32 Cal.3d 621, 634.)

Plaintiff’s counsel does not explain the discrepancies in the rates. Accordingly, the court finds counsels’ rates are unreasonably inflated. The court will reduce the award by $5,000.

Plaintiff’s counsel’s records reflect a total of 113.10 billable hours spent litigating this matter. ¿(Barry Decl., Ex. 4.) Defendant argues the hours billed is unreasonable.

¿¿ “[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.)¿¿¿¿

Defendant objects to counsel’s pre-representation billing, the amount of billing given Plaintiff’s counsel’s use of template discovery, and excessive billing in connection to this fee motion. Defendant challenges specific entries.

The court appreciates that this case progressed towards trial.¿ Along the way, Plaintiff served and responded to standard written discovery. There was 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.¿ ¿

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 $34,702.50. This was calculated by reducing the award by $5,000 due to the discrepancies in counsel’s billable rate; declining to apply a multiplier given this Song-Beverly case did not involve novel or complex issues of law; and, by reducing Plaintiff’s counsels’ billing entries as follows:

1. February 7, 2023—Pre-engagement Work to “[r]eview repair orders and research technical service bulletins and recalls[.]” (Barry Decl., Ex. 4, p. 1.)
The court strikes this entry of 1.0 hour ($675.00).

2. June 5 & 6, 2023—Drafting Templated Discovery Requests
The court reduces these entries by 1.75 hours ($875).

3. May 30 & 31, 2023; June 1 & 2, 2023—Preparing Templated Discovery Responses

4. September 20-22, 2023; January 26, 30 & 31, 2024; April 12, 2024—Motion to Compel Further Responses to Special Interrogatories and Requests for Production

6. March 17, 24 & 27, 2023; June 1, 2 & 13, 2023; July 25, 2023; & November 6, 2023—“Review Court’s Notice”
The court strikes these entries by .7 hours ($385).

Plaintiff seeks costs of $2,217.86. Defendant challenges the following costs: jury fees ($150), court reporter fees for the hearing for this fee motion ($550), and costs for electronic filing or service ($345.86). The court finds the costs were incurred, or will be reasonably incurred, in the prosecution of this litigation. The court declines to reduce Plaintiff’s requested costs.

Plaintiff is awarded attorney’s fees in the sum of $37,407.50, and costs in the sum of $2,217.86, for a total award of $39,625.36.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Defendant’s opposition does not comply with California Rules of Court, rules 2.108 and 3.1113(d). The opposition exceeds the 15-page limit. Nonetheless, the court exercises its discretion to consider Defendant’s opposition. (Cal. Rules of Court, rules 3.1300(d), 3.1113(g).)