Judge: Nick A. Dourbetas, Case: 2019-01110057, Date: 2022-07-29 Tentative Ruling
Motion for Attorney Fees
Discovery and post-Answer litigation fees:
Defendant contends that the total of $154,295 claimed by plaintiff’s attorneys related to discovery was excessive and unwarranted, because FCA’s Answer to plaintiff’s SAC “admitted liability” as well as plaintiff’s entitlement to “full statutory recovery available under the Song-Beverly Act (ie. reimbursement for repurchase of the vehicle, incidental costs, and double civil penalty;” that none of the discovery conducted after that date pertained to the “only” remaining dispute at trial, i.e. “calculation of the appropriate mileage offset/damages;” and that none of the discovery conducted after that date was used at trial. (Opp at 4:22-7:16; Gruzman Decl. in support of Opp, Paras. 14-20.)
Similarly, defendant contends that any fees incurred after it “admitted liability” should not be recoverable, including fees for expert discovery and trial. (Opp at 8:5-23.)
Defendant’s arguments are not persuasive. While defendant contends that it offered “full statutory recovery” as part of its liability admission and settlement offers, this is disputed by plaintiff, in particular as to calculation of the mileage offset to which plaintiff was entitled. Further, as plaintiff points out, defendant took this same position in discovery, including opposing plaintiff’s motions to compel, which position was rejected by the court. (Moving papers at 1:18-2:5; Reply at 1:13-2:18; Haw Reply Decl., Para. 2 and Ex. 2 thereto [noting that defendant cited “no authority that a settlement offer, even in an amount the offering party contends is the entire damages amount available, renders discovery moot”].)
Plaintiff also disputes defendant’s contention that the post-Answer discovery was not used at trial, particularly as plaintiff’s expert testified regarding same at trial, and the court cited with plaintiff regarding calculation of the mileage offset. (Reply at 2:10-17; Ex. 3 to Haw Reply Decl.) Further, even if they were not, until a case actually settles, a plaintiff is entitled to “conduct discovery and prepare to prove liability on her varied claims with their varied elements,” as well as to prepare to counter any affirmative defenses. (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 846.)
Accordingly, based on the foregoing, it cannot be said that the entirety of discovery conducted after defendant filed its Answer to the SAC was unreasonable or unnecessary; given the parties’ continued disputes as to the correct damages calculation, plaintiff was entitled to conduct discovery regarding damages, even if liability was no longer disputed.
Likewise, as damages remained in dispute throughout trial, defendant’s request to disallow all fees incurred in litigating this matter through trial lacks merit.
Defendant also contends that plaintiff seeks $9,361 in fees for discovery against the dealer Central Valley, a separate defendant whom plaintiff dismissed at trial. (Opp at 2:11-12.) While defendant might have a point that plaintiff should not be able to recover costs incurred in connection with discovery against a separate defendant against whom plaintiff did not prevail, defendant unfortunately does not provide any specifics as to this point. Nor does defendant’s Ex. U identifying any billing entries which it contends pertain solely to discovery regarding the dealer defendant; Also, per plaintiff’s billing records (Ex. 27 to Shahian Decl.) nothing is ascertainable whether any entry pertained to discovery concerning the dealer defendant.
Notwithstanding the foregoing, defendant does show that some of the time billed by plaintiff’s attorneys on discovery is excessive, in particular, time spent by two or more attorneys on the same/similar tasks. (RP Ex. U.) Accordingly, these amounts are reduced by a total of $11,944.50, as follows:
1. 9/9/2020: 9.4 hours @ $365/hour to draft an ex parte application & declaration; this appears excessive and is reduced to 6 hours ($1,241 reduction)
2. 9/27/2020: 2.2 hours @ $575/hour to prepare draft opposition to motion for protective order; this appears duplicative of work performed by another attorney for the same task on the same date and is disallowed ($1,265 reduction)
3. 9/28/2020: 1.5 hours $550/hour to review and revise opp to motion for protective order; this appears duplicative of work performed by another attorney for the same task on the same date and is disallowed ($825 reduction)
4. 10/2/2020: 8.4 hours at $360/hour to draft a Reply and supp declaration in connection with a discovery motion; this appears excessive and is reduced to 4 hours ($1,584 reduction)
5. 2/10/2021: 5.6 hours at $390/hour for various tasks, including conferring with associated counsel re: discovery and motions; this appears partially duplicative of work performed by another attorney for the same task on the same date and is reduced to 3.5 hours ($819 reduction)
6. 2/16/2021: 1.6 hours at $390/hour for various tasks, including conferring with associated counsel re: discovery and motions; this appears duplicative of work performed by another attorney for the same tasks on the same date and is disallowed ($624 reduction)
7. 4/14/2021: 3.3 hours at $575/hour to research and draft motion to compel; this appears duplicative of work performed by another attorney for the same tasks on the same date and is disallowed ($1,897.50 reduction)
8. 6/24/2021: 7/7 hours at $595 to revise opposition to motion for protective order; this is patently excessive to review and revise work performed by another attorney on the same date, and is reduced to 1.5 hours ($3,689 reduction)
Motions:
Defendant takes issue with the fees claimed by plaintiff for: (1) plaintiff’s motion for summary judgment; (2) plaintiff’s motion to tax costs claimed by the dealer defendant; and (3) the instant motion.
Plaintiff does not oppose disallowing the fees claimed in connection with the motion to tax the dealer’s costs, but only identifies $9,046 in fees sought on this point, rather than the $9,291 addressed by the Opp. (Opp at 10:7-20; Gruzman Decl., Ex. U; Haw Reply Decl., Para. 7.) Plaintiff’s Reply does not address why the entire amount should not be disallowed. Accordingly, the fees are reduced for this item, in the amount of $9,291.
Defendant contends that the fees claimed for plaintiff’s MSJ should be disallowed. The MSJ was filed on 8-31-21, only 14 days before the then-scheduled 9-13-21 trial date. (Gruzman Decl., Para. 24.) A motion for summary judgment requires at least 75 days notice. (CCP 437c(a)(2).) The court does not have the power to shorten this notice period absent consent from the opposing party. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267–1268.)
Further, a motion for summary judgment must be heard “no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (CCP 437c(a)(3).) On 9-2-21, plaintiff filed an ex parte application to allow the MSJ to be heard, and to continue trial, which application was opposed by defendants and denied on 9-3-21. (ROA 512, 524.)
Plaintiff contends that fees incurred on the MSJ should be recoverable “because Plaintiff was too busy filing motions to compel and compliance/sanctions motions, which the Court granted, as was opposing FCA’s motions for protective order, which the Court denied.” (Moving papers at p. 2, footnote 2; see also Reply at 9:7-12.) This is not persuasive. If plaintiff needed “proper” discovery responses from defendant in order to prepare a summary judgment motion, plaintiff should have sought a trial continuance on this basis months earlier, particularly given the lengthy notice period required for MSJs. It is simply not reasonable for plaintiff’s counsel to spend time drafting the MSJ and file it only two weeks before trial, then to retroactively justify this late filing by seeking a trial continuance so close to the scheduled trial date. Therefore, the fees claimed for the MSJ in the amount of $9510 are disallowed.
Finally, defendant also has a point that the fees claimed for the instant motion appear excessive, particularly given that the motion is largely duplicative of prior motions filed by plaintiff’s attorneys. (Gruzman Decl., Paras. 25-27 and Exs. T1, T2, T3, and U thereto.)
Plaintiff seeks the following fees for the instant motion:
1. 12/7/21: 5.80 hours at $325.00/hr to draft fee motion and supporting documents (total $1,885.00)
2. 12/9/21: 4.20 hours at $550.00/hr to review and revise fee motion and supporting documents (total $2,310.00)
3. 1/25/22: 2.20 hours at $565.00/hr to “[r]eview Fee Motion and supporting briefs” (total $1,243.00)
4. 3/1/22: 1 hour at $490.00/hour to “[r]eview and revise fee motion draft” (total $490)
5. 3/4/22: 2.30 hours at $325.00/hr to review and revise fee motion (total $747.50)
6. 3/8/22: 1.90 hours at $565.00/hr to “[r]eview and finalize Fee Motion and supporting Declarations” (total $1,073.50)
(Ex. 27 to Shahian Decl., pp. 16-17.)
Defendant argues that plaintiff’s attorney has apparently used a template from other cases to prepare the instant motion (Gruzman Decl., Paras. 25-27 and Exs. T1, T2, T3, and U thereto), thus the time spent on preparation of the instant motion appears somewhat excessive. Further, plaintiff’s attorneys spent a total of 11.6 hours to review and revise the motion, which is nearly double the time spent on drafting the motion itself. Accordingly, the fees allowed will be based on 5 hours for motion prep at $325.00/hour, 2 hours to revise the motion at $550/hour to review and revise the motion, and 1.0 hour at $565.00/hour to revise and finalize the motion. This results in a total reduction of $4,819.
The original moving papers sought an anticipated $5,000 in attorney fees to review the Opp, prep a Reply, and appear at the hearing. (Shahian Decl., Para. 74.) Plaintiff’s Reply Decl. in fact sought $9,630, as follows:
1. 10 hours Reply prep at $550/hour (attorney Yu)
2. 4.2 hours Reply review/revision at $575/hour (attorney Tabesh)
3. 2 hours to prepare for and appear at prior hearing at $490/hour (attorney Haw)
4. 1.5 hours to prepare for and appear at current hearing at $490/hour (attorney Haw)
(Haw Reply Decl., Para. 8.)
The original $5,000 estimate itself appears excessive, as does $9,630. Accordingly, $3,000 for preparation of the Opp and to appear at the hearings appears appropriate and reasonable.
Finally, plaintiff’s Reply Decl. also sought additional fees for preparing and filing an Opposition to defendant’s prior motion to set aside the judgment, which was filed and heard after plaintiff filed the instant fee motion. Plaintiff seeks a total of $9,525 for this task, consisting of 10 hours motion prep by attorney Yu at $550/hour, plus 7 hours review and revision by attorney Tabesh at $575/hour. (Haw Reply Decl., Para. 8.) This again appears excessive, as defendants’ motion to set aside did not appear to be particularly complicated. Costs of $3,000 for this seems proper and reasonable.
Fraud claim:
Defendant takes issue with the fees incurred in litigating plaintiff’s C/A for fraud by omission, which was disposed of by demurrer. (Opp at 8:24-10:6; Gruzman Decl., Paras. 3-9.) Plaintiff contends these fees are compensable because the fraud claim was based on the same facts as plaintiff’s SBA claims, such that no apportionment is required. (Reply at 3:9-4:22.)
Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, cited by RP, is instructive on this point:
When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award. [Citations.] When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required. [Citations.] (Id. at 1133; emphasis added.)
Given that defendant is only seeking to disallow fees incurred on the demurrers, which targeted only the fraud claim, defendant’s point is more persuasive. Defendant is not asking the court to apportion fees for tasks involving both the fraud and SBA claims, such as drafting the complaint, or drafting discovery or discovery responses. Further, plaintiff’s SBA claims were based on events occurring after the purchase of the subject vehicle, i.e. whether defendant failed to properly repair the vehicle after a reasonable number of attempts, and/or failed to repurchase the subject vehicle; on the other hand, plaintiff’s fraud by omission claim depended on events occurring prior to the purchase, i.e. whether defendant knew the subject vehicle was defective, and whether fraudulently concealed material information about the defects, in order to induce plaintiff to purchase the vehicle. As defendant is only targeting fees incurred specifically addressing the fraud claim, the fees sought in this respect are reduced in the amount of $5,368.
Multiplier:
On this point, the Rutter practice guide states:
The unadorned lodestar reflects the basic fee for comparable legal services in the community.
It may be adjusted based on various factors, including:
the novelty and difficulty of the questions involved;
the skill displayed in presenting them;
the extent to which the nature of the litigation precluded other employment by the attorneys;
the contingent nature of the fee award (except as mitigated by the client's agreement to pay some portion of the fee regardless of the outcome);
the success achieved (including all positive results from litigation—i.e., changes in company policy, dollar value of settlement benefits) …
(Wegner, et al., Civil Trials and Evidence, Chapter 17-E, Section 17:153.15, and cases cited therein.)
The party seeking the fee enhancement bears the burden of proof. (Ketchum v. Moses, supra at 1138.)
Here, the moving papers only address two of the above factors: the success obtained by plaintiff, and the contingent nature of the fee award. (Moving papers at 13:18-14-19.) Plaintiff’s supporting declarations only address the contingency factor. (Shahian Decl., Para. 77.)
While this matter involved a fair amount of law and motion work, there is no evidence that this matter involved any novel or difficult issues. Rather, it appears to be a fairly routine SBA case. There is also no evidence that this litigation precluded other employment by plaintiff’s counsel. Further, defendant has a point that while plaintiff prevailed at trial, plaintiff’s “success” was against one defendant, on one claim, and she recovered only $25,413 more than the $60,000 offered by defendant in its CCP 998 Offer to Compromise. Accordingly, the request for multiplier is DENIED.
Plaintiff Inez Moran’s motion for attorney fees is GRANTED. (Code Civ. Proc., § 1033.5, subd. (a)(10)(B); Civ. Code, § 1794, subd. (d).) The court awards plaintiff attorney fees in the amount of $257,878.50, which amounts the court finds were reasonably and necessarily incurred. Plaintiff’s request for a multiplier is DENIED.
Plaintiff to give notice.