Judge: Michelle Williams Court, Case: 20STCV24899, Date: 2022-08-15 Tentative Ruling
Case Number: 20STCV24899 Hearing Date: August 15, 2022 Dept: 74
20STCV24899 LAURA
FRANCO-MARIA vs GENERAL MOTORS, LLC
Plaintiff’s Motion for Attorneys’ Fees and Costs Pursuant
to Civil Code section 1794(d)
TENTATIVE RULING:
The motion is GRANTED IN PART. The
Court awards Plaintiff $48,962.50 in attorneys’ fees and $5,445.13 in costs. If an attorney other than David Barry appears
at the hearing or a court reporter is not in attendance, the Court shall reduce
the award accordingly.
Background
On July 1, 2020 Plaintiff Laura Franco-Maria
filed this action against Defendant General Motors, LLC alleging claims for breach
of express and implied warranty obligations under the Song-Beverly Consumer
Warranty Act and fraudulent inducement – concealment arising out of Plaintiff’s
purchase of a 2016 Chevrolet Silverado
1500.
On November
2, 2021, Plaintiff filed a Notice of
Settlement of Entire Case.
Motion
On March 9, 2022, Plaintiff filed the instant motion
for attorneys’ fees, costs, and expenses seeking lodestar attorneys’ fees of $49,712.50, a 1.5 multiplier of $24,856.25,
and $5,710.52 in costs and expenses.
Opposition
In opposition, Defendants argue Plaintiffs’
counsels’ claimed hours are unreasonable and suggests an award of $30,372.50 in
attorney’s fees and costs of $4,655.13.
The Court notes Defendant’s opposition includes
several pages of single-spaced text, (Opp. at 8:10-12:2), in violation of California
Rules of Court, rule 2.108: “[T]he
spacing and numbering of lines on a page must be as follows: (1) The lines on
each page must be one and one-half spaced or double-spaced and numbered
consecutively. (2) Descriptions of real property may be single-spaced. (3)
Footnotes, quotations, and printed forms of corporate surety bonds and
undertakings may be single-spaced.” Had
Defendant properly spaced its arguments, the opposing fifteen-page memorandum would
likely have exceeded the fifteen-page limit imposed by California Rules of
Court, rule 3.1113(d).
Reply
In reply, Plaintiff contends the fees and costs are
appropriate, Defendant failed to meet its burden, and withdraws the request for
a lodestar multiplier.
Discussion
Standard
Pursuant
to Civil Code section 1794(d), “[i]f 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.” As stated by the court in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462:
The statute requires the trial
court to make an initial determination of the actual time expended; and then to
ascertain whether under all the circumstances of the case the amount of actual
time expended and the monetary charge being made for the time expended are
reasonable. These circumstances may include, but are not limited to, factors
such as the complexity of the case and procedural demands, the skill exhibited
and the results achieved. If the time expended or the monetary charge being
made for the time expended are not reasonable under all the circumstances, then
the court must take this into account and award attorney fees in a lesser
amount. A prevailing buyer has the burden of ‘showing that the fees incurred
were “allowable,” were “reasonably necessary to the conduct of the litigation,”
and were “reasonable in amount.”
(Goglin, supra at 470 quoting Nightingale v. Hyundai Motor America (1994)
31 Cal.App.4th 99, 103.) However, “[t]he lodestar method is applicable to
calculating attorney fees under section 1794, subdivision (d).” (Doppes v.
Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.) The Court cannot tie
the attorney fee award to the amount of plaintiff’s recovery. (Warren v. Kia
Motors America, Inc. (2018) 30 Cal.App.5th 24, 37 (“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.”).)
“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.) “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 University (2005) 132 Cal.App.4th
359, 395.)
“The law is clear . . . that an
award of attorney fees may be based on counsel's declarations, without
production of detailed time records. (Raining
Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “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.” (Premier Medical Management
Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
550, 564.)
Reasonable Hourly Rates
The parties entered into a settlement agreement,
which provided “Attorneys' fees and costs
shall be determined by way of noticed motion to the court. Defendant reserves
the right to oppose any fee motion to be filed in this case.” (Barry Decl. Ex. 4. See Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170,
181 (“Because Kim's right to attorney fees arises not from contract, but under
section 1780(d), Kim is not precluded from obtaining an award of attorney fees
even though the litigation was resolved by a settlement agreement.”).) Plaintiff
obtained a significant recovery and is the prevailing party.
Plaintiff provides declarations from her counsel, as
well as their billing records to support the fees claimed. (Barry Decl. ¶¶ 11-19,
Ex. 5; Galaviz Decl. ¶¶ 2-13; Shumake Decl. ¶¶ 2-28; Hayes Decl. ¶¶ 2-10;
Pascal Decl. ¶¶ 2-29; Norder Decl. ¶¶ 2-8.) Plaintiff seeks recovery for work
performed by eight different attorneys handling this action:
(1) David Barry,
attorney practicing for 21 years with an hourly rate of $525.00 prior to
January 1, 2022 and an hourly rate of $600.00 thereafter;
(2) Anna Galaviz,
attorney practicing for 12 years with an hourly rate of $425.00 prior to
January 2022 and an hourly rate of $475.00
thereafter;
(3) Carrie
Shumake, attorney practicing for 3 years with an hourly rate of $250.00 prior
to January 2022 and an hourly rate of $300.00 thereafter;
(4) Otis Hayes,
III, attorney practicing for 7 years with an hourly rate of $350.00 prior to
January 2022 and an hourly rate of $400.00 thereafter;
(5) Logan Pascal,
attorney practicing law for 3 years with an hourly rate of $250.00 prior to
January 2022 and an hourly rate of $300.00 thereafter;
(6) Allison
Norder, attorney practicing law less than 1 year with an hourly rate of
$250.00;
(7) Troy
Candiotti, attorney practicing for 1 year with an hourly rate of $250.00; and
(8) Daniel
Macioce, attorney practicing for 3 years with an hourly rate of $300.00.
(Ibid. See also Mot. at 12.)
“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.) Plaintiff’s
counsel provide evidence that their rates have been previously approved in
other cases in the Los Angeles Superior Court. (Barry Decl. ¶¶ 27-115; Galaviz Decl. ¶¶ 8-13; Shumake Decl. ¶¶ 7-28;
Hayes Decl. ¶¶ 6-10; Pascal Decl. ¶¶ 6-29; Norder Decl. ¶ 8.) “[R]ate
determinations in other cases, particularly those setting a rate for the
plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.”
(Heritage Pacific Financial, LLC v.
Monroy (2013) 215 Cal.App.4th 972, 1009.)
Defendant’s
does not specifically challenge Plaintiff’s counsel’s hourly rates, except in a
summary chart suggesting attorney Barry should only be compensated at his
“pre-settlement rate.” (Opp. at 11:27, 12:7-8.) Defendant does not cite any
authority for this proposition and Plaintiff provides an additional declaration
indicating courts have approved both rates. (Barry Reply Decl. ¶¶ 6-14.) The
Court finds the hourly rates claimed are reasonable based upon the experience
of counsel and the Los Angeles legal market.
Reasonable Hours Expended
Plaintiff seeks recovery for 138.5 hours of attorney
time, which is detailed in Plaintiff’s counsels’ billing records. (Barry Decl.
Ex. 5.) The billing entries list the total hours for each timekeeper as
follows:
-
40.7 hours by Barry;
-
11.1 hours by Galaviz;
-
52.3 hours by Shumake;
-
3.0 hours by Candiotti;
-
9.7 hours by Hayes;
-
4 hours by Macioce;
-
11 hours by Pascal; and
-
6.7 hours by Norder.
(Ibid. See also Mot. at 12.)
In opposition, Defendant contends Plaintiff should
not recover for “any work related to the fraud claim,” citing entries related
to its demurrer and motion to strike. (Opp. at 6:18-28.) The Court is not
persuaded as Defendant demurred to each cause of action, not just the fraud
claim, and the fraud issues arose out of the same set of facts. (See e.g. Santana
v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349 (“‘[a]pportionment is not
required when the claims for relief are so intertwined that it would be
impracticable, if not impossible, to separate the attorney's time into
compensable and noncompensable units.’ [Citation] The trial court found the
latter exception applied, describing the two causes of action—fraud and
Song-Beverly Act—as encompassing ‘one set of facts.’ We agree.”).)
Defendant also contends, without citation to
authority, Plaintiff should not recover for attorneys’ fees for investigating
Plaintiff’s claims prior to the engagement, preparing the retention agreement, case
status communications, preparing “templated” discovery, travel time to the CMC,
“premature discovery work,” deposition preparation, motions to compel, opposing
an ex parte application, preparation for the FSC, OSC hearings, a November 2,
2021 entry, and all of the anticipated fees for the fee motion. (Opp. at 8:10-11:28.)
“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.” (Premier, supra,
163 Cal.App.4th at 564.) Much of Defendant’s argument consists of its
unsupported belief that certain entries are unreasonable or should be
considered overhead, and Defendant applies suggested reductions without
explanation. Such arguments fail to meet Defendant’s burden.
The
Court finds pre-engagement work, travel time, 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 section 1794(d).) Defendant cites a September 2, 2020 by
Galaviz for “review and analysis of defendant’s discovery responses in
preparation to meet and confer,” (Barry Decl. Ex. 5 at 4), and contends “GM did
not serve its discovery responses until November 2020, which means Ms. Galaviz
could not have reviewed those responses in September as she claims.” (Opp. at
9:6-9.) Defendant does not cite to any declaration or evidence indicating
service of discovery in November 2020. Additionally, it is clear this entry
refers to Defendant’s objections to the PMK notice. (Major Decl. Ex. F (“We are
in receipt of your client General Motors, LLC’s September 2, 2020 objection to
Plaintiff’s Notice of Deposition of General Motors, LLC’s Person(s) Most Knowledgeable.”).)
While
Defendant contends Plaintiff’s fees should be reduced due to use of “templated”
discovery requests, responses, and meet and confer letters, (Opp. at 8:22-10:17),
the evidence cited demonstrates significant variation in the documents. (Major
Decl. Ex. B-K.) Moreover, considering the documents at issue, the time spent
appears to demonstrate the reasonable efficiency created by using prior discovery
materials as references. Defendant contends Plaintiff sent two “initial” meet
and confer letters regarding its September 2, 2020 objections to the PMQ
deposition, one dated October 1, 2020 and one dated October 26, 2020. (Major
Decl. Ex. F.) However, these letters are not identical, and Defendant does not
indicate it responded to the first letter, such that a second letter was
unwarranted.
In
connection with Defendant’s October ex parte application, Defendant contends
Plaintiff’s billing was excessive, noting 1.9 hours were billed on October 20,
2021 before the ex parte application was served. (Opp. at 10:18-27.) While the
proof of service of the ex parte is dated October 21, 2021, the ex parte
application included Defendant’s email notifying Plaintiff of the ex parte on
October 20, 2021. Accordingly the Court finds the preparatory billing
reasonable.
Defendant
notes that Plaintiff billed for, and filed, numerous trial documents on the
same date the notice of settlement was filed: November 2, 2021. (Opp. at 11:20-22.)
Defendant only indicates the parties “reached a settlement” on November 2,
2021, (Major Decl. ¶ 17), which does not provide the Court with sufficient
information to determine that attorney work on trial related documents, filed
prior to the notice of settlement, was unreasonable.
Defendant
also argues fees associated with the January 6, 2022 and February 8, 2022 OSC
hearings regarding dismissal after settlement were “entirely avoidable, and
unnecessary to Plaintiff’s case, but for Counsel’s own delay in preparing and
filing its fee petition.” (Opp. at 11:16.) However, the settlement agreement
was not executed until December 23, 2021. (Barry Decl. Ex. 4.) The Court finds
these fees reasonable and compensable.
Defendant
further contends the costs associated with the fee motion are unreasonable and
the motion is “virtually identical to fee motions Counsel has recently filed in
other Song-Beverly cases against GM.” (Opp. at 11:24-25; Major Decl. ¶ 20, Ex.
M.) However, the fees claimed reflect the similarities and the time savings
resulting therefrom. Barry billed 1.00 hour to draft the fee motion, and each
attorney billed 0.3 hours to review and revise their declarations, which is
significantly less time than would be required to draft the motion and
declarations in the first instance. (Barry Decl. Ex. 5 at 47-48.) The fee
request includes fees associated with attorney Barry’s attendance at the
hearing. (Id. at 48.) The Court shall, as Defendant requests, “confirm that Mr.
Barry (and not one of the other lawyers who also ‘billed’ to this file)
personally appears or reduce the hourly rate accordingly.” (Opp. at
11:28-12:2.)
However,
the Court finds one of Defendant’s arguments persuasive. Specifically, on April
6, 2021, Shumake billed 3.00 hours to draft reply briefs in support of
Plaintiff’s motions to compel further responses to requests for production and
form interrogatory 12.1. (Barry Decl. Ex. 5, at 21.) The motion to compel
further related to the requests for production was heard on April 14, 2021 and
no reply was filed. The motion to compel further related to Form Interrogatory
No. 12.1 was set for hearing on April 16, 2021, no reply was filed, and the
motion was taken off-calendar after Plaintiff’s counsel failed to timely
appear. The Court reduces the fees claimed by 3 hours of attorney Shumake’s
time, or $750.00.
In
reply, Plaintiff withdraws its request for a lodestar multiplier. (Reply at 9:11-14.)
Accordingly, the Court awards Plaintiff
attorneys’ fees in the amount of $48,962.50.
As to the 2.3 hours anticipated to
travel to and attend the hearing by attorney Barry at his $600.00 hourly rate,
the Court shall, as Defendant requests, “confirm that Mr. Barry (and not one of
the other lawyers who also ‘billed’ to
this file) personally appears or reduce the hourly rate accordingly.” (Opp. at
11:28-12:2.)
Costs
Plaintiff also seeks costs in the
amount of $5,710.52 pursuant to the memorandum of costs. (Barry Decl. Ex. 7.) A
prevailing plaintiff in a Song-Beverly action may recovery all costs and
expenses “reasonably incurred by the buyer in connection with the commencement
and prosecution of [this] action.” (§ 1794, subd. (d).)” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138.)
Courts interpret this language to require fees and costs to be reasonably
necessary to the conduct of litigation. (See e.g. Hanna v. Mercedes-Benz
USA, LLC (2019) 36 Cal.App.5th 493, 507.)
In opposition, Defendant argues that
costs for “Courtesy Copy/Messenger Service” are not required and excessive,
parking and mileage are not recoverable, and costs associated with the hearing
for court reporter fees, mileage, and parking are only estimates. (Opp. at
15:15-24.) In reply, Plaintiff contends Defendant cannot challenge the cost
request because it did not file a timely motion to tax costs. (Reply at 9:1-10.)
However, the parties expressly agreed to address fees and costs via a noticed
motion. (Barry Decl. Ex. 4 (“Attorneys' fees and costs shall be determined by
way of noticed motion to the court.”).) Accordingly, the use of anticipated
fees and costs as well as the lack of a separate motion to tax costs are
necessary results from the parties’ chosen procedure.
The Court agrees that parking and mileage
are not recoverable. (See Ladas v. California State Auto. Assn., (1993)
19 Cal.App.4th 761,775-776 [“[r]outine expenses for local travel by attorneys
or other firm employees are not reasonably necessary to the conduct of
litigation.”].) Accordingly, the Court reduces the costs claimed by $265.39.
Defendant has otherwise failed to meet its burden.
The Court awards costs in the amount of
$5,445.13. However, the Court shall reduce the amount by $550.00 for court
reporter costs associated with the motion hearing if a court reporter is not in
attendance.