Judge: Nathan Nhan Vu, Case: 2021-01218428, Date: 2023-08-14 Tentative Ruling
Motion for Attorney’s Fees
Plaintiff Olga V. Gonzalez’s Motion for Attorney’s Fees, Costs & Expenses Pursuant to Civil Code § 1794(d) is GRANTED in part and DENIED in part.
Defendant General Motors LLC is ORDERED to pay to Plaintiff Olga V. Gonzalez reasonable attorney’s fees in the amount of $39,237.95 within 30 days of service of the notice of ruling.
Plaintiff Olga V. Gonzalez’s Motion for Costs is DENIED without prejudice.
Plaintiff Olga V. Gonzalez’s seeks an award of $45,817.20 in attorney’s fees, $4,500.00 in anticipated attorney’s fees, $12,587.95 in costs, and $425.00 in anticipated costs from Defendant General Motors LLC pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act).
Basis for Award of Attorney’s Fees and Costs
The Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790 et seq., states that “[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.” (Civ. Code, § 1794, subd. (d).)
The legislature understood that “the prospect of having to pay attorney fees even if one wins a lawsuit can serve as a powerful disincentive to the unfortunate purchaser of a malfunctioning automobile.” (Murillo v. Fleetwood Enter., Inc. (1998) 17 Cal.4th 985, 994.) Thus, by allowing an award of attorneys’ fees to the prevailing plaintiff in a Song-Beverly Act case, “our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Ibid.)
In this case, there is no dispute that Plaintiff is a prevailing buyer who is entitled to attorney’s fees and costs. Plaintiff obtained substantially all the relief she was requesting and the parties agreed that this relief would include an award of attorney’s fees and costs. (See Decl. of Joseph Liu in Supp. of Pltf.’s Mot. for Att’y Fees, Costs, and Expenses (Liu Decl.), id., ¶ 48-50.)
Lodestar Calculation of Attorney’s Fees
The calculation of attorney’s fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)
However, the prevailing party should not receive a “windfall” through an award of reasonable attorney’s fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Thus, a prevailing buyer under the Song-Beverly Act 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.” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.)
“To that end, the court may require defendants to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’” (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437, fn. 12.)
The court also has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure. (Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, supra, 144 Cal.App.4th at 154.)
However, the court is not required to impose a multiplier; the decision is discretionary. (See Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.) “The trial judge is ‘the best judge of the value of professional services rendered in his court.’” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
Reasonable Hourly Rate
The reasonable hourly rate is based on the reasonable market value of the attorney’s services. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095.) This standard applies regardless of how much the attorney actually charged the client. (See ibid.) Thus, the same reasonable hourly rate will apply whether the attorney charged nothing for their services, charged below-market or discounted rates, represented the client on a contingent fee basis, or are in-house counsel paid a fixed salary.
To determine the reasonable market value of the legal services provided, the court must look to the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal. App. 4th 740, 783; see also PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095 [“[The] reasonable hourly rate is that prevailing in the community for similar work.” ].)
“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, citations omitted.)
The value of legal services performed in a case is a matter of which the trial court has its own expertise. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)
In this case, Defendant does not challenge the billing rates claimed by Plaintiff’s counsel. Further, the court has reviewed the billing records and declarations of Plaintiff’s counsel. The court is also familiar with the legal market in the local area for comparable work done by comparable attorneys. The court agrees that the hourly rates sought by Plaintiff’s counsel are within the range of reasonable rates for the type of work performed for a Song-Beverly Act case litigated in the local area.
Hours Reasonably Expended
In determining the number of hours to be used in calculating an award of attorney’s fees, the court need not include inefficient or duplicative efforts. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 579-580.) Thus, the court may reduce the number of hours based on considerations of “whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Christian Research Institute v. Alnor , supra, 165 Cal.App.4th at p. 1320.)
Further, prevailing parties should be compensated only for hours reasonably spent on fee-related issues. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635). As the Supreme Court explained:
A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. “If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . ."
(Ibid., quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.)
In challenges to the reasonableness of the number of hours billed, “it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Medical Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Ibid.)
The prevailing party’s verified time records should be “entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.) However, “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.) The trial court may also “reduce compensation on account of any failure to maintain appropriate time records.” (Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020.)
Here, Plaintiff’s counsel have provided their billing records showing the tasks undertaken, the time spent for the tasks, and the hourly rate for each biller. (See Liu Decl., Exh. 18.)
Defendant requests the court to limit the total amount of Plaintiff’s attorney’s fees to $10,000 because relatively early in the case, Defendant made a Section 998 offer that Plaintiff rejected and that after rejecting the offer, Plaintiff heavily litigated the case and incurred the bulk of her attorney’s fees. Defendant argues that, including prejudgment interest, the Section 998 offer was more than the eventual amount the parties eventually agreed in settlement.
Plaintiff argues that this argument is speculative. Plaintiff presented evidence that the Section 998 offer was for Defendant to make a payment to Plaintiff of $88,195.63 plus attorney’s fees, while the parties finally settled for a payment of $100,000 plus attorney’s fees. (See Liu Decl., ¶¶ 48-49.)
Here, Defendant failed to present evidence of the amount of the Section 998 offer or even present a copy of the Section 998 offer itself. (See Amend. Decl. of Ryan Kay in Supp. of General Motors LLC’s Amend. Opp’n to Counsel’s Mot. for Att’y’s Fees and Costs (Kay Decl.), ¶ 10.) Defendant only submitted evidence that the amount the parties settled upon was $100,000 plus attorney’s fees. (Id., ¶ 11.)
Thus, the court has no basis to determine whether Plaintiff would have been entitled to prejudgment interest if she had accepted the Section 998 offer. The court cannot assume that the Section 998 offer would have resulted in a more favorable recovery for Plaintiff. The only evidence before the court is that the amount of the settlement was greater than the amount of the Section 998 offer.
Defendant also requests the court to reduce the award of attorney’s fees because the work done by Plaintiff’s counsel was unnecessary, unreasonable, and excessive. Defendant’s opposition identifies several specific examples of the alleged overbilling.
The court has carefully reviewed the time entries on Plaintiff’s counsel’s time entries, particularly those entries identified by Defendant. The court finds that some of the hours are for work that was duplicative or for work where the time spent was excessive.
The court thus reduces the hours billed by Joseph Liu by 3.53 hours for time spent drafting discovery requests; 0.5 hours for time spent drafting meet and confer letters; by 2.0 hours to draft motions to compel further responses; by 4.5 hours to draft the motion to compel the deposition of Defendant’s person most qualified; by 3.0 hours to prepare for and attend the person most qualified deposition for category number 16; by 2.0 hours to prepare for and attend the person most qualified deposition for category numbers 10, 11, 15 and 26; and by 1.6 hours to prepare the motion for attorney’s fees. The court also reduces the hours billed by Clarence Serrano by 2.8 hours.
Attorney’s Fees
Altogether, the reduction in hours leads to a reduction of $8,329.25 from the original amount of $45,817.20 requested for work incurred as of April 5, 2023.
In addition, Plaintiff requested $4,500 in anticipated attorney’s fees to review the opposition to this motion, prepare the reply in support of this motion, and attend the hearing on this motion. Plaintiff’s counsel gives no breakdown of the total number of hours or the number of hours per task. (See Liu Decl., ¶ 74.)
The court finds that this amount is excessive and that 3.5 hours or $1,750 is a reasonable amount of time and attorney’s fees for these tasks.
Thus, the total amount of attorney’s fees awarded is $45,817.20 requested plus $1,750 anticipated fees minus $8,329.25 in reductions for a final amount of $39,237.95.
Costs
The Judicial Council has issued California Rules of Court rule 3.1700, which provides:
A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.
(Cal. Rules of Ct., rule 3.1700(a)(1); see Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929 [failure to comply with time limits for memorandum of costs constitutes waiver of claim of costs].)
Here, the court record shows that no memorandum of costs has been filed with the court or served on opposing party. While Plaintiff attached a Memorandum of Costs to his papers in support of this motion, the copy attached is not file stamped. (See Liu Decl., Exh. 19.)
The court therefore is required to deny the request for costs and anticipated costs without prejudice.
Plaintiff shall give notice of this ruling.