Judge: Michael Shultz, Case: 21CMCV00174, Date: 2024-07-16 Tentative Ruling

Case Number: 21CMCV00174    Hearing Date: July 16, 2024    Dept: A

21CMCV00174 Nicolas Perez v. General Motors, LLC

Tuesday, July 16, 2024, at 8:30 a.m.

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION TO TAX COSTS

I.        BACKGROUND      

       Plaintiff alleges that Defendant issued an express warranty in connection with Plaintiff’s purchase of a 2019 Chevrolet Silverado. Plaintiff alleges that the vehicle developed defects in its transmission, braking, and mechanical systems which Defendant failed to remedy or repair in violation of the Song-Beverly Consumer Warranty Act (“Act”).

       On September 18, 2023, Plaintiff filed Notice of Settlement of Entire Case. Plaintiff now requests attorney’s fees of $55,497.00 and additional fees of $5,000 to review Defendant’s opposition to this motion and to appear at the hearing. [1]

II.      ARGUMENTS

       Plaintiff argues he is entitled to attorney’s fees under the Act because Defendant unreasonably forced Plaintiff to file suit and litigate the case. Defendant settled the case for $110,000, which includes damages for restitution and civil penalties.

       In opposition, Defendant argues this case did not present any unique issues and did not require special skill. This case is identical to the hundreds of matters litigated against Defendant. The fee request is padded, unreasonable, inefficient, and unsupported by the record.  

       In reply, Plaintiff argues that Defendant’s contentions are based on an entirely arbitrary assessment of the work expended by Plaintiff to litigate this case, which arose as a result of Defendant’s unreasonable conduct. Other courts have affirmed that Plaintiff’s counsel’s fees are reasonable.

III.    LEGAL STANDARDS

       A prevailing buyer in an action under the SBA “shall be allowed by the court” to recover 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).) A prevailing buyer has the burden of showing that the fees incurred were allowable, reasonably necessary to the conduct of the litigation, and were reasonable in amount.
(Pulliam v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, 405.) The reasonable hourly rate is that prevailing in the community for similar work. (Id.)

       A reasonable fee can be measured by the marketplace by analyzing the quality and necessity of services and then comparing that cost with what other attorneys with similar experience and ability charge for the same services. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002.)

       In “lemon law” cases, the court applies the lodestar method in calculating attorney’s fees, including the use of fee multipliers where applicable. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818.) The court determines a lodestar figure “based on a careful compilation of the actual time spent and reasonable hourly compensation for each attorney.” (Robertson at 819.) The lodestar may be augmented or diminished “by taking various relevant factors into account 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; and (3) the contingent nature of the  fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.” (Robertson at 819.) The multiplier is a risk enhancement based on the probability of loss. (Robertson at 821.)  

       The prevailing party is entitled to “’compensation for all the hours reasonably spent” in litigating the action to a successful conclusion. (Ibid., italics in original.) ‘Reasonably spent’ means that time spent ‘in the form of inefficient or duplicative efforts is not subject to compensation. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394.)

       The court may rely on his or her own experience and is given broad discretion in calculating reasonable attorney’s fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 ["The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”].)

IV.    DISCUSSION

       Plaintiff seeks reimbursement of fees incurred by a partner (Jordan G. Cohen), a senior associate (Rodney Gee), an associate, (Diana Rivero) and four paralegals. The bulk of the work was completed by Ms. Rivero (95.6 hours) and Robert Aguilar (18.5 hours).

       The Court has considered all of the relevant factors including the nature of the case, which in the Court’s view, is a relatively routine “lemon law” case that did not involve novel or difficult questions of law or fact and resolved relatively quickly with little motion practice. The case required minimal discovery. The Court also considers the outcome of the case, which resulted in restitution and civil penalties without requirement of trial.

       With respect to the number of hours that each of three attorneys and five paralegals spent on various tasks, the Court has reviewed the billing record and finds that a number of the itemized tasks are unreasonable, inefficient, and at times duplicative among the attorneys and paralegal. Plaintiff’s counsel is entitled to reasonable compensation; however, “‘padding” in the form of inefficient or duplicative efforts is not subject to compensation." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

       The Court is permitted to make “across the board cuts and apply a negative multiplier” where it determines that the case was not complex, as well as the experience of counsel in this area. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 [permitting a negative multiplier of 33% to the lodestar fee request of $351,055.26, resulting in a fee award of $115,848.24].)

       The court has discretion to apply a reduction in hours for duplicative and or excessive billing. Proper factors to consider in applying a negative reduction are the lack of complexity, that the matter did not go to trial, that name partners were doing work that could have been done by lower-billing attorneys, and that all the attorneys were doing work that could have been done by paralegals, thus applying a 39% reduction in the lodestar. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.) These factors are applicable here. Accordingly, the court declines fees incurred by senior counsel and a senior associate and four of the five paralegals except for Robert Aguilar.

       The court finds that $400 per hour incurred by Diana Rivero and $210 per hour incurred by Mr. Aguilar are reasonable. Ms. Rivero claims 95.6 hours of work for this case which the court reduces to 77 hours. Mr. Aguilar’s total hours of 18.5 are reduced to 15 hours.

V.      CONCLUSION

Accordingly, Plaintiff’s Motion for attorney’s fees is GRANTED. The court permits fees as follows:

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION TO TAX COSTS

I.        BACKGROUND

       The parties settled this matter on September 18, 2023, and Defendant agreed to pay fees and costs to be determined by the court. Plaintiff filed his Memorandum of Costs on April 22, 2024, requesting $2,974.16 in costs.

       Defendant asks for a reduction of $2,255.88, as these costs were unreasonable and unnecessary, the motions to compel discovery were boilerplate, frivolous, and did nothing to advance the case. Plaintiff seeks to enrich himself. Plaintiff’s counsel should recover no more than $718.28.

       In opposition, Plaintiff states he is entitled to recover costs as the prevailing party. Recoverable costs under the Song-Beverly Consumer Warranty Act (“SBA”) are not limited to statutory costs defined under Code Civ. Proc., § 1033.5. Plaintiff is entitled to out-of-pocket expenses. The SBA permits recovery of costs and expenses that are far broader than section 1033.5 permits.

        In reply, Defendant reiterates its arguments that the majority of Plaintiff’s costs were not necessary or reasonable.

II.      LEGAL STANDARDS

       The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. (Code Civ. Proc., § 436 subd (a)-(b).)        

       Section 1032 of the Code of Civil Procedure “is the fundamental statutory authority for awarding costs in civil actions.” (Leiper v. Gallegos (2021) 69 Cal.App.5th 284, 297.) Section 1033.5 “is a list of what is, and is not, allowable as a cost, [and] similarly is trial-court-oriented, with items exclusively related to trial court proceedings (e.g., references to jury fees, taking depositions, process servers, etc.).” (Stratton v. Beck (2018) 30 Cal.App.5th 901, 910.)”

       A prevailing party defined in part as the party with a net monetary recovery is entitled to costs as a matter of right. (Code Civ. Proc., § 1032 subd. (b).) The SBA permits the buyer’s recovery of “costs and expenses … determined to have been reasonably incurred by the buyer.” (Civ. Code, § 1794 subd (d).) For purposes of the SBA, "expenses encompass out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5.” (Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 457.) Accordingly, Plaintiff is not limited to costs articulated under section 1033.5. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137 ["it is clear the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs.’”].) Instead, the court considers whether costs were “reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action.” (Jensen at 138.)

       Defendant has not established that any of the expenses incurred by Plaintiff as distinguished from statutory costs were unreasonably incurred.

1.      Filing fees incurred for the attorney’s fees motion, discovery motions and court reporter fees incurred for the motion hearing were reasonable costs and expenses given Plaintiff’s inability to obtain relevant information to prosecute the action. The fact that Defendant contends that this is an “optional cost” does not establish it was unreasonably incurred. Moreover, reservation fees are required at the time of reservation.

2.         Advanced and nonrefundable jury fees are required by local rule to be deposited in order for Plaintiff to preserve his right to a jury trial. (Code Civ. Proc., § 631 subd (b).) Although the matter did not go to trial, it remains a reasonably incurred expense.

3.         Remaining costs for filing CMC statements, Notice of Change of Address, and related notices and courtesy copy delivery fees.

         Defendant contends that the notice “fees” were administrative in nature and not required for the litigation. While the Court may not charge a filing fee for some of these notices, Plaintiff’s counsel still incurred an expense to a third party to file the notices with the court electronically. A Case Management Conference statement is required by the Court.  Defendant has not established that the expense of serving courtesy copies to the court is unreasonable. It is required with respect to discovery motions. (LASC First Amended General Order, ¶ 9.) It stands to reason that a litigant should make the court aware of changes in contact information to ensure delivery of court-issued communication.

V.     CONCLUSION

         Based on the foregoing, Defendant’s Motion to Tax Costs is DENIED.