Judge: Malcolm Mackey, Case: 20STCV25977, Date: 2022-12-12 Tentative Ruling

Case Number: 20STCV25977    Hearing Date: December 12, 2022    Dept: 55

FLORES v. GENERAL MOTORS, LLC                                                  20STCV25977

Hearing Date:  12/12/22,  Dept. 55

#3:   MOTION FOR ATTORNEYS' FEES AND COSTS.

 

Notice:  Okay

Opposition

 

MP:  Plaintiffs

RP:  Defendant

 

Summary

 

On 7/9/20, plaintiff filed a Lemon Law Complaint, alleging that they purchased a 2017 GMC Terrain vehicle, manufactured by Defendant, having defects, including the transmission, control system, and inoperable reverse shifting.

 

 

MP Positions

 

Moving parties request an order awarding attorneys’ fees and costs, in the sum of $43,725.01, on grounds including the following:

 

·         GM merely contends that "Plaintiffs' counsels' fees are unreasonable and exaggerated" with the only evidence in support being the personal opinion of its counsel, which is not the standard upon which this Court must use in determining  whether Plaintiffs are entitled to their fees and costs. Attorney fee awards should be "fully compensatory[.]" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.).

·         GM did not meet the burden to overcome the presumed credibility of TBLF's billing records (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396).

·         There were not seven attorneys used for "egregious level[s] of 'padding"' on this case.     Exhibit "5" attached to Plaintiffs' fee motion clearly shows billing details, as well as declarations attached to the reply.

·         GM's speculation and opinions regarding TBLF's time entries, should be disregarded.

·         Pre-engagement work and status communications with the client sufficiently fall within the statutory mandate of providing recovery for fees "in connection with the commencement and prosecution of such action" (Civil Code § 1794(d)).  Distinguishably, Dominguez v. Am. Suzuki Motor Corp. (2008) 160 Cal. App. 4th 53, 58, dealt with the willfulness issue as it applies to civil penalties and attorneys’ fees.

·         The discovery was tailored to this case, and not copied from other Lemon Law cases.

·         This case was in litigation for almost 2 years.

·         Specifics are as follows:

 

RP Positions

 

Opposing party advocates reducing the award to at least $29,150.00, for reasons including the following:  

 

·         The Barry Law Firm seeks $43,725.01 in fees and costs, for “billing” 100.80 hours of work, done by seven different timekeepers,  in a breach of warranty case that did not raise any complex or novel issues.

·         Counsel has billed grossly excessive amounts for preparing template-based correspondence, discovery and motions.

·         Meet-and-confer discovery letters did not try to resolve any disputes; they simply listed so-called deficiencies.

·         Counsel’s time records and its actual work-product, does not support that the time “billed” was either actually or reasonably incurred.

·         Mr. Barry should not recover anything for the 2.9 hours ($1,575.00) he “billed” to the file before Plaintiffs were even clients of Counsel’s firm, such as a “telephonic conference with potential client.”  Dominguez v. Am. Suzuki Motor Corp. (2008) 160 Cal. App. 4th 53, 58.

·         Mr. Barry should not recover anything for the 0.4 hours ($210.50) he “billed” to “prepare representation agreement,” which is a business expense not billed to clients.

·         Mr. Barry should not recover for the .5 hours ($262.50) he “billed” communicating with Plaintiffs about case status.

·         Mr. Barry, Ms. Galaviz and Mr. Hayes entered duplicative billing on Plaintiffs’ status reports to their clients and meet and confer letters.

·         Counsel should not get full credit for the 12.8 hours ($5,722.50) that Counsel claims that it has spent or will spend on its fee motion based on templates.

·         Some costs are not recoverable, including reporter fees, messenger fees, and mileage and parking for hearings.

 

 

Tentative Ruling

 

The motion is granted, as prayed.

The Court awards to plaintiffs attorneys' fees in the amount of $43,725.01 against Defendant.

The opposing memorandum and declaration with exhibits do not disprove any of the claimed attorneys’ fees, expenses or costs as defined by law addressing the Song-Beverly Act, and moving counsel’s documents do not reveal that attorneys duplicated other attorneys’ work.

As to Song–Beverly warranty claims, prevailing buyers have the burden to show that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable amounts.  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.  Under the Song-Beverly Act, the question whether attorneys’ fees were reasonably incurred may depend on circumstances including, “factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved.”  Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470.  The appellate court reviews awards of attorney fees under Civil Code section 1794, subdivision (d), for abuse of discretion.  Doppes, supra, at 998.

Civil Code Section 1794(d) requires a court to base the attorneys’ fee award on actual time expended on the case, and reasonably incurred, as to time spent, and amount, under all circumstances including complexity of the case, procedural demands, skill exhibited, and results achieved.  McKenzie v. Ford Motor Co. (2015) 238 Cal. App. 4th 695, 698, 703 (reversing a judge’s denial of fees where based on instances of duplicative work).  “The ‘plain wording’ of section 1794, subdivision (d) requires the trial court to ‘base’ the prevailing buyer's attorney 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.’ ”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 35.  Accord  Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.  But see  Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1110  (as to the Song-Beverly Act, fee awards must be based on the judge’s calculation of actual time expended determined to have been incurred reasonable, and the Act does not include a requirement that the court also determine that the amount of attorneys’ fees is reasonable). 

Parties opposing motions for attorneys' fees fail to show any abuse of discretion where they merely contend that amounts of attorneys' fees are excessive without providing a specific analysis or factual support.  Mallard v. Progressive Choice Ins. Co.  (2010) 188 Cal.App.4th 531, 545;  Raining Data Corp. v. Barrenechea  (2009) 175 Cal.App.4th 1363, 1376 (an “‘assertion [that] is unaccompanied by any citation to the record or any explanation of which fees were unreasonable or duplicative’ is insufficient to disturb the trial court's discretionary award of attorney fees.”);  Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1250;  Avikian v. Wtc Fin. Corp. (2002) 98 Cal. App. 4th 1108, 1119;  Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 560  (emphasizing that opposing parties “submitted no evidence that the hours claimed by counsel were excessive,” and declining to “declare as a matter of law that the hours were unreasonable”);  Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1204 (opposing party “offered no evidence of any kind which might have warranted a reduced fee award.”).

A trial court’s referencing counsel’s use of templates, as one part of reasoning that a reduced number of attorneys was needed in a case, was affirmed.  See  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 31-33, 39  (“asserted that even though her counsel used ‘form documents’ in the case, work was necessary to conform those templates to the actual facts of this case.”).   Legal research indicates that there is no governing California authority requiring reduced fees for efficiently reusing information derived from other cases that counsel handled.  "A legal proposition asserted without apposite authority necessarily fails."  People v. Taylor (2004) 119 Cal.App.4th 628, 643.

A court “ ‘indicated a fee reduction was warranted because it was unreasonable to have so many lawyers staffing a [Song-Beverly Act] 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.  [Emphasis added.]

“[W]hen attorney fees are recoverable by statute, the reasonable attorney fees incurred in preparing the motion are also recoverable.”  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 1002. 

“An across-the-board reduction in hours claimed based on the percentage of total time entries that were flawed, without respect to the number of hours that were actually included in the flawed entries, is not a legitimate basis for determining a reasonable attorney fee award.”   Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 282.

The Song-Beverly Act requires allowing costs “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution” of the case, which is reviewed under the abuse of discretion standard.  Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 813.  Cf.  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 43  (“it is indisputable that Warren ‘reasonably incurred’ the $5,882 cost of the trial transcripts ‘in connection with the ... prosecution of [the] action.’ ”).  See also generally  Duff v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal. App. 5th 491, 501  (summarizing Civ. C. § 1794(d)).

“[I]n enacting Civil Code section 1794, subdivision (d) the Legislature intended the phrase ‘costs and expenses’ to cover items not included in “ ‘the detailed statutory definition of ‘costs’ ” set forth in Code of Civil Procedure section 1033.5.”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 42.

As to parties prevailing in an action on a contract with terms for recovery of attorney fees and costs, counsel's disbursement costs, such as secretarial, copying, telephone, expert fees and travel, are recoverable as a part of attorney fees, “if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel's hourly rate.”   Bussey v. Affleck (1st Dist. 1990) 225 Cal. App. 3d 1162, 1166-67.  But see, e.g., Benson v. Kwikset Corp. (4th Dist. 2007) 152 Cal. App. 4th 1254, 1283 (recognizing great weight of a split of authority);   Fairchild v. Park (2d Dist. 2001) 90 Cal. App. 4th 919, 930 (disagreeing with Bussey opinion, and following view that attorney fees and expenses are distinctly different by statute);  Robert L. Cloud & Assocs., Inc. v. Mikesell  (1st Dist. 1999) 69 Cal. App. 4th 1141, 1154  (“attorney fees do not include expenses….”).  Support services, including expenses related to secretaries and paralegals, are includable in an award for attorneys’ fees.  City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7.

Finally, an opinion cited in opposition distinguishably did not involve a plaintiff prevailing in litigation—the reason why attorneys’ fees were not available in that case.  See  Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 60  (“the Legislature would have provided for an attorney fees award in section 1793.2, subdivision (d)(1), which it did not, or it would not have conditioned an attorney fees award on prevailing in an action, which it did in section 1794, subdivision (d).7 Based on a plain reading of the applicable statutory provisions, we cannot conclude the Legislature intended that every time a manufacturer repurchases or replaces consumer goods, a consumer is entitled to attorney fees, regardless of whether it was pre- or postcommencement of litigation.”).