Judge: Lee W. Tsao, Case: 22NWCV00964, Date: 2023-08-29 Tentative Ruling
Case Number: 22NWCV00964 Hearing Date: March 26, 2024 Dept: C
Teresa Sanchez-Visperas, et al. vs General
Motors, LLC
Case No.: 22NWCV00964
Hearing Date: March 26, 2024 @ 9:30 AM
#3
Tentative Ruling
Plaintiff to give notice.
Background
On
October 11, 2022, Plaintiffs Teresa Sanchez-Visperas and Danilo Visperas filed
the instant suit against Defendant General Motors. The Complaint asserts a
cause of action for Violation of the Song-Beverly Act Section 1793.2.
On
September 7, 2023, Plaintiff filed a Notice of Settlement of Entire Case.
Legal Standard
Attorney’s fees are allowed as costs when authorized by
contract, statute, or law. (Code Civ. Proc, § 1033.5, subd.
(a)(10)(B).)
In a lemon law action, costs and expenses, including
attorney’s fees, may be recovered by a prevailing buyer under the Song-Beverly
Act. (See Civ. Code, § 1794(d).) Section 1794 provides:
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 [emphasis added].) Thus,
the statute includes a “reasonable attorney’s fees” standard.
The attorney bears the burden of proof as to
“reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This
burden requires competent evidence as to the nature and value of the services
rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony
of an attorney as to the number of hours worked on a particular case is
sufficient evidence to support an award of attorney fees, even in the absence
of detailed time records.” (Id.)
A plaintiff’s verified billing invoices are prima facie
evidence that the costs, expenses, and services listed were necessarily
incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “In
challenging attorney fees as excessive because too many hours of work are
claimed, it is the burden of the challenging party to point to the specific
items challenged, with a sufficient argument and citations to the 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, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee
Ass’n (2008) 163 Cal.App.4th 550, 564.)
Discussion
Plaintiffs
seek attorney’s fees and costs in the amount of $65,676.71 consisting of
$43,187.00 in attorney’s fees, $896.21 in costs, and a lodestar multiplier of
1.5 for an additional $20,697.29 in fees.
Hourly
Rate
“The
reasonable hourly rate is that prevailing in the community for similar
work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The
experienced trial judge is the best judge of the value of professional services
rendered in [her] court.” (Ibid.)
Plaintiffs
seek to recover attorney’s fees for 4 different attorneys, 1 paralegal, and 1
legal assistant who worked on the case. Their hourly rates are as follows:
·
Joseph Kaufman: $595/hour (Kaufman Decl., ¶
16.)
·
J. Brian Lynn: $475/hour (Kaufman Decl., ¶ 16.)
·
Gavin Holland: $375/hour (Kaufman Decl., ¶ 16.)
·
Maria Sanjur-Van Brande: $375/hour (Kaufman
Decl., ¶ 16.)
·
Melissa Lopez: $175/hour (Kaufman Decl., ¶ 16.)
·
Jonny Masri: $175/hour (Kaufman Decl., ¶ 16.)
In opposition, Defendant argues that Plaintiffs did not
raise complex or novel issues. Defendant also argues that Counsel’s request is
unreasonable and excessive.
In reply, Plaintiffs argue that
Defendant has not provided any actual evidence suggesting that the requested
rates are improper.
The
Court finds that the hourly rates requested by Plaintiffs are reasonable and
commensurate with rates charged by attorneys with comparable skill and
expertise. The rates suggested by Defendant are not supported by any evidence
and thus the Court declines to adjust the rates as requested.
Reasonable
Hours Incurred
“A
trial court assessing attorney fees begins with a touchstone or lodestar
figure, based on the ‘careful compilation of the time spent and reasonable
hourly compensation of each attorney ... involved in the presentation of the
case.” (Christian Research Institute v. Alnor (2008) 165
Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the
discretion of the trial court, to be determined from a consideration of such
factors as the nature of the litigation, the complexity of the issues, the
experience and expertise of counsel and the amount of time involved. The court
may also consider whether the amount requested is based upon unnecessary or
duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443,
448.)
While
not per se objectionable, block billing can exacerbate the vagueness of an
attorney fee request and support a court’s finding that time entries were
inflated and non- compensable. (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1325-1326.)
Plaintiffs’ counsel provides
detailed billing records for this case. (Kaufman Decl., Exhibit 2.) Plaintiffs seek attorney’s
fees in the amount of $43,187.00.
Plaintiffs argue that this case required a range of specialized knowledge, including: (1) an
understanding of the full scope of consumer protection laws, which are highly
nuanced; (2) knowledge of the intricacies of automobiles and the lexicon
associated with them, as well as knowledge concerning how to investigate issues
with automobiles; and (3) knowledge of auto manufacturers’ and dealers’
policies and protocols for repairing vehicles and complying with their legal
obligations.
Plaintiffs
argue Defendant should have acknowledged the defects in Plaintiffs’ vehicle and
resolved the matter before this case was ever filed. Rather than settle the
case, Defendant chose a drawn out litigation process.
In
opposition, Defendant argues that various time entries are unreasonable or
reflect non-compensable services including time spent preparing the engagement agreement,
preparing the Complaint, reviewing the file, reviewing discovery requests,
preparing deposition notices, reviewing discovery responses, preparing an
unnecessary motion to compel deposition of GM’s PMQ, block-billed time entries,
excessive settlement conference preparation, tasks related to surrendering
Plaintiffs’ vehicle, and preparing the attorney fee motion.
In
reply, Plaintiffs argue that Defendant fails to rebut the reasonableness
presumption afforded by Plaintiffs’ fee bill. Plaintiffs assert that rather
than carry its burden and offer evidence disputing Plaintiffs’ showing,
Defendant incorrectly tries to place the burden on Plaintiffs. As to Defendant’s
arguments regarding block-billing, Plaintiffs contend that the items Defendant
identifies as block billing are not examples of block billing, but instead
describe the work performed by the attorney.
The
Court has reviewed the contested entries and finds the fees associated with
them are reasonable. Defendant argues that Plaintiffs’ motion to compel the
deposition of Defendant’s PMQ was unnecessary, but Plaintiffs’ motion to compel
was granted. (Minute Order dated August 29, 2023.)
Lodestar Multiplier
While
the lodestar reflects the basic fee for comparable legal services in the
community, it may be adjusted based on various factors, including “(1) the
novelty and difficulty of the questions involved, and the skill displayed in
presenting them; (2) the extent to which the nature of the litigation precluded
other employment by the attorneys; (3) the contingent nature of the fee award”
and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25,
49.)
Nonetheless,
the court must not consider extraordinary skill and the other Serrano
factors to the extent these are already included with the lodestar. (Ketchum
v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) “[A] trial court should award
a multiplier for exceptional representation only when the quality of
representation far exceeds the quality of representation that would have been
provided by an attorney of comparable skill and experience billing at the
hourly rate used in the lodestar calculation. Otherwise, the fee award will
result in unfair double counting and be unreasonable.” (Id. at 1139.)
Plaintiffs seek a lodestar multiplier
of 1.5 for an additional amount of $20,697.29. Plaintiffs argue that throughout the litigation there always
existed the possibility that Plaintiffs would not prevail. Plaintiffs assert
that the risk was further compounded by the fact that Plaintiffs’ attorneys
advanced all litigation costs and expenses without reimbursement. Plaintiffs
contend that if they did not prevail, their attorneys would have suffered a
substantial loss of uncompensated attorney hours and thousands of dollars in
out-of-pocket expenses.
In
opposition, Defendant argues that each of the factors Plaintiffs cite should
result in a downward adjustment. Defendant asserts that this was a routine
lemon law case that did not present novel issues or preclude Plaintiffs’
counsel from handling any other cases while they litigated this case. Defendant
point out that this case did not proceed to trial. Defendant argues that the circumstances
do not amount to a rare and exceptional case justifying a multiplier.
In reply, Plaintiffs
repeat the argument that an upward lodestar adjustment is necessary to properly
account for Plaintiffs' attorneys' opportunity costs, the delay in payment, and
the contingent risk.
The
Court finds that under the circumstances of this case, a lodestar multiplier is
not appropriate. Nothing before the Court indicates that the case presented
novel issues or that the quality of representation far exceeded the quality of
representation that would have been provided by attorneys of comparable skill
and experience billing at the same rates. Plaintiffs litigated only one
discovery motion which resulted in a court ruling. While Plaintiffs argue that counsel accepted
the case only on a contingency basis, the Court finds that such considerations
and risks are already included within the lodestar amount.
Based
on the foregoing, the Court declines to award a lodestar multiplier.
Costs
Allowable
costs “shall be reasonably necessary to the conduct of the litigation rather
than merely convenient or beneficial to its preparation.” (Code Civ. Proc., §
1033.5, subd. (c)(2).) Any items not specifically mentioned by statute “may be
allowed or denied in the court's discretion.” (Id., subd. (c)(4).)
“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 [citations], and the burden of showing that an item
is not properly chargeable or is unreasonable is upon the [objecting party].'
[Citation.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) The
Court therefore first determines if the statute expressly allows for the item,
and whether it appears proper on its face. If so, “the burden is on the
objecting party to show them to be unnecessary or unreasonable.” (Id.)
The
Beverly-Song Act allows a successful plaintiff to recover both “costs” and
“expenses.” (See Civ. Code, § 1794, subd. (d).) Courts have held that “it is
clear the Legislature intended the word ‘expenses' to cover items not included
in the detailed statutory definition of ‘costs.”’ (Jensen v. BMW of North
America, Inc. (“Jensen”) (1995) 35 Cal.App.4th 112, 137.) The court
in Jensen held that “[t]he legislative history indicates the Legislature
exercised its power to permit the recovery of expert witness fees by prevailing
buyers under the Act … ,” noting that the legislature included “expenses” in
the lemon law act because '“[t]he addition of awards of “costs and expenses” by
the court to the consumer to cover such out-of-pocket expenses as filing fees, expert
witness fees, marshall’s fees, etc., should open the litigation process to
everyone.’ [Citation.]”
Plaintiffs seek costs in the
amount of $896.21.
Defendant challenges $173.87
of these costs on the basis that they were for jury fees. Defendant argues that
since this case never went to trial, Defendant should not be awarded jury fees.
In reply, Plaintiffs argue
that since Defendant refused to settle the case earlier in the lawsuit,
Plaintiffs were forced to post the fees in order to preserve the right to a
jury trial.
The Court finds that Plaintiffs
are entitled to the costs sought under Civil Code Section 1794. The Court thus
awards Plaintiffs costs in the amount of $896.21.
Accordingly, Plaintiff’s
motion for attorney’s fees is GRANTED in part. The Court awards attorney’s fees
in the amount of $43,187.00 and costs in the amount of $896.21, for a total of
$44,083.21 in attorney’s fees and costs.