Judge Peter A. Hernandez, Case 19PSCV00400 2022-12-08 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

The hearing on Plaintiff Ana P. Gomez’s Motion for Attorney Fees, Costs, and Expenses is CONTINUED TO February 21, 2023 at 9:30 a.m.

Plaintiff Ana P. Gomez (“Plaintiff”) alleges as follows: On February 20, 2017, Plaintiff purchased a 2017 Jeep Renegade, VIN #ZACCJBBB1HPE85579 (“subject vehicle”).

Plaintiff alleges that the subject vehicle suffers from various defects and that the subject vehicle has not been repaired after a reasonable number of attempts.

On April 30, 2019, Plaintiff filed a complaint, asserting causes of action against FCA US LLC (“Defendant”) and Does 1-50 for:

5. Breach of the Implied Warranty of Merchantability (Civ. Code §§ 1791.1; 1794)

On April 8, 2022, a conditional “Notice of Settlement of Entire Case” was filed.

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code § 1794, subd. (a).)

“If 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).)

Plaintiff moves the court for an award of attorneys’ fees in the amount of $53,152.50 and costs in the amount of $4,682.99 pursuant to Civil Code § 1794[1].

The court rules on Plaintiff’s Request for Judicial Notice as follows: Denied as to Exhibit 4 (i.e., an unsigned “Rulings/Orders” dated February 26, 2014 in case styled Khani v. Ford Motor Company, et al., Case No. BC466626); Denied as to Exhibit 5 (i.e., an “Order Granting Plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses” filed October 3, 2014 in case styled Reyes v. Ford Motor Company, Case No. BC521175); Denied as to Exhibit 6 (i.e., “Order Re: Plaintiffs’ Motion for Attorneys’ Fees, Costs and Expenses” filed may 20, 2016 in case styled Derakshanian v. BMW of North America LLC, et al., Case No. BC548652); Denied as to Exhibit 7 (i.e., “Order Granting Plaintiff’s Motion for Attorney Fees, Costs, and Expenses” filed November 21, 2016 in case styled Moreno v. BMW of North America, LLC, Case No. BC556383); Denied as to Exhibit 8 (i.e., “Order Granting Plaintiff’s Motion for Attorney Fees, Costs, and Expenses” filed February 6, 2017 in case styled Violi v. Hyundai Motor America, Inc., Case No. BC574483); Denied as to Exhibit 9 (i.e., March 6, 2017 minute order on Motion for Attorney’s Fees, Costs and Expenses and Motion to Strike Memorandum of Costs or Tax Costs in case styled Masihi v. Mercedes-Benz USA LLC, Case No. BC551688); Denied as to Exhibit 10 (i.e., Bustamante v. FCA US LLC, Case No. BC595544); Denied as to Exhibit 11 (i.e., ruling filed September 27, 2017 in case styled Fuller v. FCA US, LLC, Case No. BC556964); Denied as to Exhibit 12 (i.e., ruling filed August 8, 2018 in case styled Caplan, et al. v. FCA US, LLC, et al., Case No. BC580793); Denied as to Exhibit 13 (i.e., “Joint Stipulation Re Parties Agreement Re Judgment of Jury Verdict and Attorney Fees, Costs and Expenses” filed May 9, 2017 in case styled Vanwaus v. FCA US, LLC, Case No. BC591282); Denied as to Exhibit 14 (i.e., “Order Re Plaintiff’s Motion for Attorneys’ Fees and Motion for Prejudgment Interest” filed January 11, 2019 in case styled Forouzan v. BMW of North America, LLC, et al., Case No. CV 17-3785-DMG (GJSx)); Denied As to Exhibit 15 (i.e., October 23, 2019 minute order on Motion Re: for Attorney Fees, Costs, and Expenses in case styled Noorhammad v. BMW, Case No. CIVDS1717263); Denied as to Exhibit 16 (ruling on Motion for Attorney Fees in case styled Zayas v. FCA US, LLC, Case No. 30-2019-01053549-CU-BC-CJC); Denied as to Exhibit 17 (i.e., November 20, 2020 minute order on Plaintiff’s Motion for Attorney Fees in case styled Cechvala v. FCA US, LLC, Case No. 37-2018-00010099-CU-BC-CTL); Denied as to Exhibit 18 (i.e., November 23, 2020 minute order on Order to Show Cause re: Dismissal on Settled Case in case styled Galligan v. General Motors, LLC, Case No. 30-2019-01045846-CU-BC-CJC); Denied as to Exhibit 19 (i.e., tentative ruling dated October 6, 2020 in case styled Gomez, et al. v. FCA US, LLC, et al., Case No. BC709126); Denied as to Exhibit 20 (i.e., June 1, 2021 ruling in case styled Dikov v. Mercedes-Benz USA, LLC, et al., Case No. 19TRCV00971); Denied as to Exhibit 21 (i.e., “Order/Ruling” filed August 26, 2021 in case styled Duenas v. FCA US, LLC, Case No. 19NWCV00931) and Denied as to Exhibit 22 (i.e., ruling filed August 31, 2021 in case styled Aguilar v. FCA US LLC, Case No. 19STCV23470).

Here, it is undisputed that Plaintiff is the prevailing party and is entitled to an award of attorneys’ fees and costs pursuant to Civil Code § 1794, subdivision (d). The only dispute relates to the appropriate amount of recovery.

With respect to the issue of reasonableness of fees, Defendant argues that Plaintiff has failed to provide any supporting evidence for more than $6,000.00 in fees requested. Plaintiff, in reply, concedes that the billing records as to the above fees were not attached to the motion due to clerical error. Plaintiff seeks to remedy this omission by attaching said records as Exhibit 1 to the Declaration of Julian Moore filing concurrently with the reply brief.

The court will consider this late-submitted exhibit; however, the court will continue the hearing to February 23, 2023 at 9:30 a.m. to enable Defendant to file and serve a supplemental opposition limited to the reasonableness of the $6,101.50 in fees billed as reflected in said exhibit. No additional briefing will be permitted or considered. Defendant’s supplemental opposition must be filed and served no later than five court days prior to the continued hearing date.

[1] Plaintiff’s notice of motion requested $49,597.50 in attorney’s fees, plus $4,682.99, and reserved as to an additional $5,000.00 in fees for the preparation of the instant motion. In her reply brief, Plaintiff advised that the amount of fees being requested for motion preparation time was $3,555.00.