Judge Loren G. Freestone, Case 37-2021-00037118-CU-BC-CTL 2023-09-01 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2021-00037118-CU-BC-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00037118-CU-BC-CTL FULLER VS SUBARU OF AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Cynthia Fuller' motion for attorney fees and costs is GRANTED.

Fuller's evidentiary objections to the Declaration of Samuel Laughlin are overruled.

Pursuant to the parties' settlement, 'Plaintiff's attorneys' fees, costs, and expenses shall be determined by filed memorandum of costs and motion for attorneys' fees.' For purposes of the motion, Subaru 'acknowledges and stipulates to the fact that Plaintiffs are [sic] the 'prevailing party' under Civil Code section 1794(d).' A prevailing buyer in an action under the Song-Beverly Consumer Warrant Act '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).) Subaru argues that the fees are unreasonable because they are 'over double the amount that Plaintiff received in settlement.' But fees are not based on the amount recovered. Indeed, 'it is inappropriate and an abuse of a trial court's discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff's damages or recovery in a Song-Beverly Act action.' (Warren v. Kia Motors America, Inc.

(2018) 30 Cal.App.5th 24, 37.) Rather, '[i]n determining the methodology to be used to award attorney fees under the Song-Beverly Act, the appellate courts have unanimously concluded the lodestar adjustment method of calculating attorney fees is appropriate. . . . A trial court assessing attorney fees using the lodestar adjustment method begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation for each attorney involved in the presentation of the case.' (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1112.) Reasonable Number of Hours A total of 134.3 attorney hours is claimed.

The motion is supported by detailed time records identifying all work performed over the last 2 years.

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2967619 30 CASE NUMBER: CASE TITLE: FULLER VS SUBARU OF AMERICA INC [IMAGED] 37-2021-00037118-CU-BC-CTL (See Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, 407, affd. (2022) 13 Cal.5th 127 [detailed invoice was substantial evidence supporting fee award].) Subaru argues that the fee award is excessive. '[G]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 848.) The court addresses each specific challenge raised by Subaru in its opposition.

First, Subaru argues that the total time should be reduced by 14.7 hours for the time Fuller's attorney spent traveling to Florida (where she moved after the case was filed) for her remote deposition. But the fact Subaru chose to take the deposition remotely did not require Fuller's attorney to defend it remotely.

(See Code Civ. Proc., § 2025.310, subd. (b); Cal. Rules of Court, rule 3.1010(a)(3).) His travel time is recoverable as long as his decision to defend the deposition in person was reasonable. (See Roe v. Halbig (2018) 29 Cal.App.5th 286, 312.) To that end, a remote appearance is often an acceptable substitute, but not always. (See Rycz v. Superior Court (2022) 81 Cal.App.5th 824, 840–843.) Although it may have been reasonable to appear remotely for the deposition of a third-party witness, it was eminently reasonable for Fuller's attorney to be physically present at the deposition of his own client, a party to the action.

Second, Subaru argues that the total time should be reduced by 8.2 hours for the time Fuller's attorneys spent 'avoiding a demand for inspection' of the subject vehicle. A prevailing party may be denied fees for work performed 'in bad faith.' (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1303.) However, that is not what the evidence indicates occurred here. Fuller was not outright refusing to produce the vehicle for an inspection. The parties simply could not agree on dates (Fuller was insisting the inspection occur on a Friday, whereas Subaru was insisting it not occur on a Friday). Moreover, most of the challenged time relates to Fuller's successful opposition to Subaru's ex parte application to shorten time on a motion to compel an inspection. (See ibid. ['Compensation is ordinarily warranted even for unsuccessful forays'].) Third, Subaru argues that the total time should be reduced by 22.3 hours (or at least half of that) for time Fuller's attorney spent on an initial set of motions to compel further responses to discovery. Such time is generally compensable. (See Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 967, 1001.) Subaru asserts that it was unreasonable for Fuller to file four separate motions instead of one combined motion. However, apart from technically being separate motions under the Code of Civil Procedure (see Code Civ. Proc., §§ 2030.300, 2031.310, 2033.290), separate motions are preferable in terms of calendaring and workability. Subaru also asserts that several of the motions were rendered moot because it voluntarily served further responses in advance of the hearing. But that does not mean that those motions, which were presumably the impetus for those further responses, were unreasonable.

(See Cal. Rules of Court, rule 3.1348(a) [sanctions may be awarded even though 'the requested discovery was provided to the moving party after the motion was filed'].) Fourth, Subaru argues that the total time should be reduced by 19.2 hours for time Fuller's attorneys spent after it had offered to settle. 'Where a party continues to litigate after receiving a settlement offer, absent a finding that failure to resolve the case through negotiation was unreasonable or solely attributable to counsel's desire to generate more fees, additional fees incurred to establish liability or damages, including evidence of willfulness necessary to recover civil penalties, are properly included in an award of fees under Civil Code section 1794, subdivision (d).' (Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 508.) Here, Subaru did not offer to repurchase the vehicle until September 2022, after the motions had already been filed. Fuller promptly responded that she would provide her repurchase calculation 'to see if we have an agreement on the figures.' Despite asserting that the parties had 'reached a settlement in principle,' Subaru itself initially refused to withdraw its demand for a vehicle inspection off calendar until 'the settlement numbers are finalized' and only withdraw it later due to 'weather conditions'. When Fuller provided her repurchase calculation, Subaru disputed that it was obligated to reimburse her for various service contracts, disputed the appropriate mileage offset, and disputed its obligation to reimburse her for prior year registrations. The first two issues were resolved in favor of Fuller in late-November 2022, but Subaru continued to insist on 'official' proof of payment for Calendar No.: Event ID: TENTATIVE RULINGS

2967619 30 CASE NUMBER: CASE TITLE: FULLER VS SUBARU OF AMERICA INC [IMAGED] 37-2021-00037118-CU-BC-CTL the prior registrations rather than online records from the DMV website. In late-January 2023, Subaru asked if Fuller would withdraw her motions to compel 'due to the status of settlement,' to which Fuller replied the case was 'not yet fully settled' in light of the ongoing dispute over past registrations. The issue was not resolved until February 2023, when the settlement ultimately agreed to by Fuller was sent.

As such, the Court cannot say the challenged fees were unreasonable or unnecessarily incurred.

Finally, Subaru argues that the total time should be reduced by 9.6 hours for time Fuller's attorney spent on tasks that were 'excessive or purely hypothetical.' On these points, the Court finds: 1.2 hours to prepare 83 requests for admission is reasonable; and 2.4 hours to prepare the motion for attorney fees is also reasonable. Finally, nothing prohibited Fuller from requesting fees in the motion for the 6 hours she reasonably anticipated incurring to review the opposition, prepare a reply, and attend the hearing-work that has now been/soon will be verifiably performed. (See Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 349 [rejecting argument that court could not award anticipated fees and costs on the basis they were speculative]; see also McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 703 ['The fees incurred in preparing a motion for fees are properly includable in the award'].) Fuller met her burden of establishing the work performed and the reasonableness of the work. None of Subaru's arguments are persuasive. Accordingly, the full 134.3 hours is awarded.

Reasonable Hourly Rate Fuller requests the following rates: Partner David Barry ($525/hr and $600/hr), Supervising Attorney Elizabeth Quinn ($500/hr), Associate Logal Pascal ($250/hr and $300/hr), Associate Sarah Norris ($350/hr), and Associate Brian Kim ($250/hr).

Their declarations detail their qualifications. They also cite various other matters where these requested rates have been approved. Attorney Barry also submits evidence that the requested rates are in line with those charged by 20 other lemon law attorneys, including 3 based in San Diego, and those set forth in a national survey of prevailing rates among consumer protection attorneys, including those in California. (See Pulliam, supra, 60 Cal.App.5th at p. 407 [hourly rates supported by declarations detailing the billing attorneys' experience and qualifications, evidence of rates in the local market, and survey of rates for consumer protection attorneys]; Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473–474 [affirming a rate of $575/hr for work performed in 2013 and 2014 by a San Diego lemon law attorney].) Subaru argues that the hourly rates for Attorney Barry and Attorney Quinn should be reduced to $350/hr, but they do not present any evidence demonstrating why such a reduction is warranted. (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156 [unrebutted declarations 'compelled a finding that the requested hourly rates were within the reasonable rates for purposes of setting the base lodestar amount'].) Fuller met her burden of establishing the reasonableness of the requested rates, and Subaru failed to demonstrate why they should be reduced. Accordingly, the requested hourly rates are approved.

Costs/Expenses Fuller requests $4,707.26 in costs.

Fuller submitted a verified memorandum of costs detailing the costs she is requesting. (See Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693 [If the items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred]; see also Warren, supra, 30 Cal.App.5th at pp. 42–43 [types of costs recoverable under Song-Beverly are broader than those recoverable under Code of Civil Procedure section 1033.5].) Calendar No.: Event ID: TENTATIVE RULINGS

2967619 30 CASE NUMBER: CASE TITLE: FULLER VS SUBARU OF AMERICA INC [IMAGED] 37-2021-00037118-CU-BC-CTL Subaru has not opposed the request for costs. This may be construed as a concession that the request is meritorious. (Super. Ct. San Diego County, Local Rules, rule 2.1.19.B; see also Cal. Rules of Court, rule 3.1700(b)(4).) The full amount of costs requested is therefore awarded.

Conclusion The motion for attorney fees and costs is granted. Fuller is awarded a total of $57,207.26. ($52,500 in fees and $4,707.26 in costs).

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