Judge: Malcolm Mackey, Case: 20STCV09635, Date: 2023-01-20 Tentative Ruling
Case Number: 20STCV09635 Hearing Date: January 20, 2023 Dept: 55
PAREDES v. TRICOLOR CAL. AUTO GROUP, LLC 20STCV09635
Hearing Date: 1/20/23, Dept. 55
#8: MOTION FOR ATTORNEYS’ FEES, COSTS, AND
EXPENSES.
Notice: Okay
Opposition
MP:
Plaintiff.
RP:
Defendant TRICOLOR CALIFORNIA AUTO
GROUP, LLC.
Summary
On 3/10/20, Plaintiff PEDRO DOMINGUEZ PAREDES filed a
Complaint.
On 10/29/21, Plaintiff filed a First Amended
Complaint, alleging that Defendant, doing business as “Ganas,” sold Plaintiff a
2009 GMC Sierra, in poor mechanical condition, and not really adequately
inspected as part of its certification process, as advertised on its website.
The causes of action are:
1. VIOLATION OF THE CONSUMERS
LEGAL REMEDIES ACT, CIVIL CODE § 1750,
ET SEQ;
2. FRAUDULENT MISREPRESENTATION;
3. NEGLIGENT MISREPRESENTATION;
4, VIOLATION OF THE SONG-BEVERLY
CONSUMER WARRANTY ACT, CIVIL CODE § 1790,
ET SEQ;
5. VIOLATION OF BUSINESS
AND PROFESSIONS CODE § 17200, ET SEQ.
6. VIOLATION OF VEHICLE
CODE § 11711.
MP
Positions
Moving party requests an award of attorneys’ fees, on
bases including the following:
·
The case was more than a simple Lemon Law
case. It dealt with the disclosure
practices of a dealership that claimed it was not subject to California’s
buy-here-pay-here laws.
·
Mr. Paredes would not have bought the
vehicle for over 70% above the reasonable market value, if Defendant Ganas Auto
had disclosed that information to him. (See Vehicle Code section 11950.)
·
The depositions were necessary to
establish that Ganas Auto was a buy-here-pay-here dealership, and was not
subject to the exception under Vehicle Code § 11713.18, and because Defendants
maintained this position throughout the case up to trial, the Court should not
strike or reduce the $23,564.00 in attorney’s fees attributed to depositions.
·
Plaintiff needed an expert to offer a
valuation of the vehicle, and that he would need to rely on the valuations, it
was reasonable for Plaintiff’s counsel to incur time related to the retention
and deposition of the expert. Accordingly, the Court should not strike the
$8,137.60 in fees.
·
Defendants challenge $21,409.50 in fees
they attribute to Plaintiff’s unsuccessful motion for summary adjudication. It
is well-settled that a plaintiff may recover attorney fees for “unsuccessful”
arguments. (See, e.g., Sundance v. Municipal Court (1987) 192 Cal. App. 3d 268,
273-74).
·
A .3 percent multiplier is justified. Delay in payment of counsel is a recognized
basis for a multiplier. (Robertson v. Fleetwood Travel Trailers of California,
Inc. (2006) 144 Cal.App.4th 785, 822.)
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Request attorneys’ fees in the sum of $320,010.08
is unreasonable.
·
This action was a simple, garden-variety
lemon law case, involving a used car with allegedly malfunctioning door locks
and a “jerking” transmission.
·
The settlement that Plaintiff accepted was
$15,000, plus Plaintiff’s return of the vehicle in exchange for a release of the
amount of the loan balance.
·
Plaintiff could have received the same
result, without incurring superfluous fees.
·
The case was overstaffed.
·
Challenged fees entries fall into three
categories: (1) fees incurred in taking duplicative depositions, (2) fees
incurred in connection with retaining an unnecessary valuation expert, and (3)
fees incurred in unsuccessfully moving for summary adjudication. The amounts for
each category are $23,564.00 (Deposition Fees), $8,137.60 (Expert Fees) and
$21,409.50 (MSA Fees).
·
There is no basis for the Court to award
Plaintiff a multiplier for working on a contingency basis. Instead, the Court
should apply a negative multiplier of .66, to reduce Plaintiff’s requested fee
award in an amount commensurate with the fact that only two out of the six
claims he litigated allow for recovery of attorneys’ fees.
Tentative
Ruling
The motion is granted, as prayed.
Depositions
The depositions were not duplicative, including
because the similar topics highlighted were small excerpts from the deposition
transcripts involving more content, and attorneys can explore the possibility
of different answers from different deponents on the same topics.
“The basis for the trial court's calculation must be
the actual hours counsel has devoted to the case, less those that result from
inefficient or duplicative use of time.”
Horsford v. Board Of Trustees Of California State Etc. (2005) 132
Cal.App.4th 359, 395. Discovery is
allowed even if it is duplicative of other information already obtained. Tbg Ins. Servs. Corp. v. Sup. Ct.
(2002) 96 Cal. App. 4th 443, 448; Carter
v. Sup. Ct. (1990) 218 Cal.App.3d 994, 997.
Settlement
Amount
Case law does not require attorney fee awards to be in
proportion to awards in litigation. Bernardi
v. County of Monterey (2008) 167 Cal.App.4th 1379, 1397. Under the Song-Beverly Act, awards of
attorney fees are limited to actual hours expended and reasonably incurred, and
not based on the amount of the prevailing plaintiff's damages or recovery, or
the fact of a contingency fee agreement.
Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105,
1112-1117.
Apportionment
The court lacks information to decide if attorneys’
fees were expended on some claims but not others.
Courts are not required to require moving parties to
formally apportion their hours between claims for which attorney fees are
compensable, or so interrelated that it would have been impossible to separate
them, where there is a common legal, or factual, issue that links the
claims. Akins v. Enterprise
Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133-34. " 'Attorneys fees need not be
apportioned between distinct causes of action where plaintiff's various claims
involve a common core of facts or are based on related legal theories.' " Graciano
v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159. “[A]ttorney fees need not be reduced for work
on unsuccessful claims if the claims ‘are so intertwined that it would be
impracticable, if not impossible, to separate the attorney's time into
compensable and noncompensable units.’"
Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th
328, 342.
Valuation
Expert
The valuation expert is part of common attorney
practice and may usefully help support a finding of damages.
“A judge may rule on the admissibility of the
valuation methods used by experts, and if an expert uses a methodology not sanctioned
by California law, the judge may exclude the expert's opinion.” Examples of Permissible Testimony:, Cal.
Judges Benchbook Civ. Proc. Trial § 8.88 (citing City of San Diego v Barratt
Am. Inc. (2005) 128 CA4th 917, 936-37 (valuation expert opinion may be
excluded in part or in whole in courts’ discretion)).
Unsuccessful
Motion.
Attorneys’ fees are allowed for unsuccessful motions. Also, defendants similarly made an
unsuccessful summary judgment/summary adjudication motion that was denied on
3/23/22. Further, Plaintiff’s motion was
partially successful, on 3/15/22-- The
motion was denied as to the CLRA Cause of Action, but granted as to the 18th
Affirmative Defense that Defendant had conceded.
Proof that parties were unsuccessful on particular
motions is not tantamount to a demonstration that such expenses were
unreasonably incurred. Michell v. Olick (1996) 49 Cal.App.4th 1194,
1200.
Overstaffing
There was no overstaffing, considering the novelty and
complexity of buy-here-pay-here laws applied in this case, which involved
extra, time-consuming research efforts also by the Court.
Distinguishably, a court “ ‘indicated a fee reduction
was warranted because it was unreasonable to have so many lawyers staffing a …
case that did not present complex or unique issues, did not involve discovery
motions, and did not go to trial.’ ” Mikhaeilpoor
v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 253. “[I]t is appropriate for a trial court to
reduce a fee award based on its reasonable determination that a routine,
non-complex case was overstaffed to a degree that significant inefficiencies
and inflated fees resulted.” Morris
v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 39.
Multiplier
The small multiplier is justified, because the novelty
and complexity of buy-here-pay-here laws, and the delay in obtaining payment of
attorneys’ fees.
“The award of a multiplier is in the end a
discretionary matter largely left to the trial court.” Hogar v. Community Development Com'n of
City of Escondido (2007) 157 Cal.App.4th 1358, 1371. “[T]he trial court is not required to include
a fee enhancement for exceptional skill, novelty of the questions involved, or
other factors. Rather, applying a multiplier is discretionary.” Rey v. Madera Unif. Sch. Dist. (2012)
203 Cal.App.4th 1223, 1242.