Judge: Nathan Nhan Vu, Case: 2022-01257892, Date: 2023-08-14 Tentative Ruling

Motion for Attorney’s Fees

Plaintiff Timothy Freer’s Motion for Attorney’s Fees, Costs & Expenses Pursuant to Civil Code § 1794(d) is GRANTED in part and DENIED in part.

Defendant FCA US LLC is ORDERED to pay to Plaintiff Timothy Freer reasonable attorney’s fees in the amount of $32,265.00 and costs in the amount of $3,938.06 within 30 days of service of the notice of ruling.

Plaintiff Timothy Freer seeks an award of attorney’s fees in the amount of $95,085 and costs in the amount of $3,938.06 from Defendant FCA US 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. The parties stipulated in the settlement agreement that “Releasor [Plaintiff] shall be deemed the prevailing party should a motion be necessary.” (Compendium of Exhs. Attached to Pltf.’s Mot. for Att’y Fees (O’Connor Decl.), Exh. 1, ¶ 2; see also Decl. of Mark O’Connor in Supp. of Pltf.’s Mot. for Att’y Fees (O’Connor Decl.), id., ¶ 5.)

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.)

This is a standard Song-Beverly Act case that did not involve any challenges to the pleadings, dispositive motions, or trial. Plaintiff served discovery upon Defendant and filed three discovery motions related to discovery requests commonly made in Song-Beverly Act cases. The discovery motions did not address any novel or complex issues and all were resolved without Defendant having to file an opposition or the court to hold a hearing. It also appears that no depositions or expert discovery was ever conducted.

“[A] court reasonably could [ ] reduce[ ] rates based on its finding that the matter was not complex; that it did not go to trial; that the 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.” (Morris v. Hyundai Motor America, supra, 41 Cal.App.5th at p. 41.) Further, the court may reduce rates where an attorney spent time on tasks that “should not have required anything more than [a] slight factual modification to [an] existing boilerplate.” (See Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 250.)

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. In this case, the hourly rates sought by Plaintiff’s counsel are excessive for the type of work performed in this routine, non-complex Song-Beverly Act case.

The court finds that the reasonable billing rate for the work done by a senior attorney such as Mark O’Connor is $475 per hour, for work done by a junior or mid-level attorney such as Larry Castruita and Dana Castruita is $375 per hour, and for work done by paralegals such as Kristin Arndt and David Womack is $125 per hour.

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. Defendant requests the court to reduce the fee request, arguing that the amount sought is excessive on its face. However, as Plaintiff notes, Defendant has not pointed to any specific billing entries that Defendant contends was unreasonable.

Nonetheless, the court is required to review the billing statements independently. In conducting this review, the court has discretion to reduce or deny altogether a fee request that appears to be unreasonably inflated.  (Serrano v. Unruh, supra, 32 Cal.3d at p. 635; see also Morris v. Hyundai Motor America, supra, 41 Cal.App.5th at p. 28 [trial court may properly reduce fee request by 61%].)

The court finds that some of the time entries for Mark O’Connor are for work that could have been done by less expensive attorneys, for work that was duplicative, or for work where the time spent was excessive given Mr. O’Connor’s experience and skill. In particular, the time entries for April 5-7, 2022; May 4, 2022; September 15-16, 2022; February 22, 2023; May 5, 2023; and August 4, 2023 should be reduced by 14.8 hours.

In addition, the court finds that some of the time entries for Dana Castruita are for work that was duplicative or for work where the time spent was excessive given Ms. Castruita’s experience and skill. Specifically, the time entries for September 8, 2022; September 12-14, 2022; and October 12-14, 2022 should be reduced by 16.7 hours.

In addition, the billing records include anticipated hours by Mark O’Connor, Larry Castruita, and Kristin Arndt to respond to a Motion to Strike/Tax Costs that was never filed. Therefore, Mark O’Connor’s hours should be reduced by 0.5 hours, Larry Castruita’s hours should be reduced by 3.0 hours, and Kristin Arndt’s hours should be reduced by 3.0 hours accordingly.

Multiplier

 “The lodestar . . . may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” (Graciano v. Robinson Ford Sales, supra, 144 Cal.App.4th at p. 154.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action.” (Ibid.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ibid.)

Plaintiff requests a lodestar multiplier of 1.5 because Plaintiff’s counsel handled this case on a contingency fee basis and advanced costs, and because it took over a year to resolve the matter.

The court declines to award a multiplier in this case. The contingency risk factor is already accounted for in the hourly rate awarded, which was for comparable work done by comparable attorneys in the area of Song-Beverly Act cases.

Further, the fact that this case required more than year to resolve is not so unusual that it warrants a multiplier, particularly given that the work done during that year was neither difficult nor voluminous. (See Ketchum v. Moses, supra, 24 Cal.4th at pp. 1138–1139 [“for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.”].)

Attorney’s Fees Awarded

The court therefore award’s attorney’s fees as follows:

Costs Awarded

Defendant does not challenge any of Plaintiff’s costs. Therefore, the court will allow Plaintiff’s $3,938.06 request for costs.

Plaintiff shall give notice of this ruling.