Judge: Kristin S. Escalante , Case: 21STCV41202, Date: 2023-03-23 Tentative Ruling
Case Number: 21STCV41202 Hearing Date: March 23, 2023 Dept: 24
MOVING PARTY: Gerardo Barraza (Plaintiff)
RESP. PARTY: General Motors, LLC (Defendant)
NATURE OF PROCEEDINGS: Hearing on Motion for
Attorney Fees and Costs pursuant to Civil Code Section 1794(d);
The above-captioned
matters are called for hearing.
The Court has
read the moving papers in the above-captioned motions and announces its
tentative ruling in open Court.
The Motion for
Attorney Fees reservation no.: 955223486585 filed by Plaintiff Gerardo Barraza
on 02/24/2023 is GRANTED in part.
The court
awards Plaintiff fees in the amount of $29,992.5 and costs in the amount of
$982.73. The fee award includes all fees incurred for this motion.
This is a lemon
law action. On November 9, 2021, Plaintiff Gerardo Barraza (“Plaintiff”) filed the present suit for breach of warranty
claims under the Song Beverly Consumer Warranty Act (“Song Beverly”) against
Defendant General Motors LLC (“Defendant”) in connection with his March 2021
purchase of a 2023 Chevrolet Silverado. (Compl. ¶5.) In September 2022,
Defendant served, and Plaintiff accepted, Defendant’s Code of Civil Procedure
section 998 offer (“998”). (Declaration of David N. Barry [“Barry Decl.”], ¶4,
Ex. 4 at p. 3 [“998 Offer”].) Per the 998, Plaintiff could elect to bring a
motion for attorney’s fees, expenses and costs reasonably incurred as the
prevailing party. (Barry Decl., 998 Offer at p. 3.) Plaintiff has done so.
Plaintiff now
moves for an order granting attorneys’ fees in the amount of $35,452.50 and
costs in the amount of$1,629.33. (Motion, at p. 2.)
1. Attorneys’
Fees
In Song Beverly Act cases, a
prevailing plaintiff is entitled to recover “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.) “As the plain wording of section 1794, subdivision (d) makes clear,
the trial court is ‘to base the fee award upon actual time expended on the
case, as long as such fees are reasonably incurred—both from the standpoint of
time spent and the amount charged.’ [Citation.] In the case of contingency fee
arrangements, “a prevailing buyer ... is entitled to an award of reasonable
attorney fees for time reasonably expended by his or her attorneys.”
(Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal. App. 5th 240, 247.)
“Under the lodestar adjustment
methodology, the trial court must initially determine the actual time expended
and then ‘ascertain whether under all the circumstances of the case the amount
of actual time expended and the monetary charge being made for the time
expended are reasonable.’ [Citation.] Factors to be considered include, but are
not limited to, the complexity of the case and procedural demands, the attorney
skill exhibited and the results achieved. [Citation.] The prevailing party and
fee applicant bears ‘the burden of showing that the fees incurred were ...
‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable
in amount.’ [Citation.] It follows that if the prevailing party fails to meet
this burden, and the court finds the time expended or amount charged is not
reasonable under the circumstances, then the court must take this into account
and award attorney fees in a lesser amount.” (Mikhaeilpoor, supra, 48 Cal. App.
5th at 247.)
After the lodestar is determined,
the court in its discretion may, but is not required to, apply a fee
enhancement or multiplier. Here, Plaintiff has not requested an enhancement.
The court has carefully considered the papers filed in
support of and in opposition of the motion, and generally agrees with Defendant
that a reduction of hours in some of categories Defendant identifies is
warranted. Plaintiff argues that Defendant has not
raised valid objections or submitted evidence to dispute the reasonableness of
the billings. The court disagrees. Defendant submits Cameron Major’s
declaration. Defendant then argues many of the documents are duplicative form
templates and submit templates they have received from Plaintiff in other
cases. Major attaches these templates to his declaration.
The areas of dispute between the parties are Plaintiff’s
fees incurred related to pre-ligation activities, client communication,
discovery, and the motion for attorneys’ fees. The court takes each in turn.
Plaintiff argues prelitigation work is recoverable
categorically, implicitly including work prior to a representation agreement.
Without an agreement, counsel did not represent Plaintiff and cannot to recover
fees for work with “potential” clients. Moreover, Plaintiff cites no authority
that “commencement” under Civil Code section 1794 includes pre-engagement
activities with a potential client. Instead, Plaintiff relies heavily on
non-binding—and often unpublished—federal cases. Thus, the court reduces the
fees for pre-engagement work. As to the template discovery the court finds that
in several instances excessive hours are billed for the preparation of routine,
template-based documents. This case is similar to many other cases that
Plaintiff counsel’s firm has litigated, and many factual and legal issues are
the same from case to case. The court concludes that counsel has
overbilled for these tasks, though not to the extent claimed by Defendant. As
to travel for the hearing on the present motion, the parties may appear
virtually, thus, fees for two hours of travel are excessive considering other
options.
The court declines to reduce fees for client discussions in
the lead up to the drafting of the complaint as it is akin to penalizing
counsel for an open attorney-client relationship. The court also declines to
reduce fees for reviewing Defendant’s discovery responses as it is part of due
diligence in representing a client and not the product of form templates.
Based on the aforementioned issues, the court finds a
reduction of 13 hours is appropriate. The hourly rates sought are generally
reasonable, and the court will not reduce the rates. The firm appeared to make
appropriate use of lower-billing attorneys for more routine task, resulting in
a reasonable blended rate of about $420. The court uses this blended rate to
calculate the reduction in fees from the lodestar amount sought by Plaintiffs.
The court thus reduces the lodestar amount by $5,460.00, resulting a total
award of $29,992.50.
2. Costs
Plaintiff seeks
$1,629.33 in costs comprised of (1) $675 in filing fees, (2) $150 in jury fees,
(3) $40 in service of process fees, (4) $550 in court reporter fees, (5)
$117.73 in electronic service fees, and (6) 96.60 in “other” fees. (Memo. Of
Costs.) Defendant moves to tax the costs for the court report fees of $550 for
the attorneys’ fees motion as they have not been expended yet, and the costs of
$96.60 for the parking and milage fees in attending the attorneys’ fees
hearing.
Under the law, a verified memorandum of costs is correct.
However, a party may contest the costs that a prevailing party seeks. (Code
Civ. Proc., §1034 subd. (a).) The challenging party has the burden of
demonstrating that those costs are unreasonable or unnecessary. (Adams
v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486 (Adams).) “Any notice of motion to strike or tax costs must be
served and filed 15 days after service of the cost memorandum.” (Rules of
Court, Rule 3.1700, subd. (b)(1).)
Plaintiff served the memorandum
of costs on February 24, 2023. Defendant had until March 13, 2022, to serve a
notice of motion to strike or tax costs. (See Rules of Court, Rule
3.1700, subd. (b)(1).) Defendant served its opposition to Plaintiff’s motion
for attorneys’ fees and costs on March 9, 2023. The court may consider
Defendant’s opposition to the motion for attorneys’ fees and costs as a motion
to tax. (See Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44,
68-70.) Accordingly, Defendant’s opposition is timely and the court considers
it.
If the opposing party proper objects to the costs, “they
are put in issue and the burden of proof is on the party claiming them as
costs.” (Ladas
v. California State Automobile Association (193) 19 Cal.App.4th 761, 774
(Ladas).) To be recoverable, the costs
must be “reasonably necessary” to the conduct of litigation. (Code
Civ. Proc., §1033.5
subd. (c).) “Whether a cost item was reasonably necessary to the litigation
presents a question of fact for the trial court and its decision is reviewed
for abuse of discretion.” (Ladas,
supra, 19 Cal.App.4th at p. 744; see also Code
Civ. Proc., §1033.5
subd. (c).) However, items not mentioned in the code of civil procedure and
“asserted upon application may be allowed or denied in the court’s discretion.”
(Code
Civ. Proc., §1033.5,
subd (c)(4).)
As to the court reporter fees,
court reporter fees are recoverable as provided by statute. (Civ. Code § 1033.5
subd. (11).) Under the Government Code, for any proceeding “lasting more than
one hour” a court reporter fee “equal to the actual cost of providing that
service shall be charged per one-half day of services to the parties, on a pro
rata basis, for the services of an official court reporter on the first and
each succeeding judicial day those services are provided. . .” (Gov’t. Code, §
68086.) Upon Defendant’s objection to the cost as unsubstantiate and estimated
given that it is for a future hearing, it was Plaintiff’s burden to establish
the validity of the cost. Plaintiff provides no evidence supporting the sought
after $550. Accordingly, the court taxes the cost entirely.
As to the parking and mileage
fees, the court finds these fees are more appropriately categorized as overhead
for the practice of law and not appropriately billed to the opposing party. The
court declines to exercise its discretion in awarding costs for mileage and
parking.
Accordingly, the court taxes the costs $646.60.
Moving party is directed to give notice.