Judge: Peter A. Hernandez, Case: 21PSCV00688, Date: 2022-09-06 Tentative Ruling
Case Number: 21PSCV00688 Hearing Date: September 6, 2022 Dept: O
Plaintiff Rosaura
Gonzalez’s Motion for an Order Awarding Attorneys’ Fees is
GRANTED, in the
reduced amount of $15,835.00 in
attorney’s fees. Costs are awarded in
the reduced amount of $993.13. Plaintiff’s request for a multiplier is declined.
Background
On September 10, 2021, Plaintiff dismissed Sus Amigos, without prejudice.
The Final Status Conference is set for March 14, 2023. Trial is set for March 28, 2023.
Legal Standard
“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).)
Discussion
Plaintiff moves the court for an award of attorneys’ fees and costs in this matter against Defendant in the amount of $38,668.47[1] pursuant to Civil Code § 1794, subdivision (d).
Merits
1. Entitlement to Fees
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.
2. Reasonableness of Fees
Accordingly, the
court turns to the issue of reasonableness of fees. “[T]rial courts have broad
discretion in determining the amount of a reasonable attorney's fee award.” (Meister v. Regents of University of
California (1998)
“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The lodestar is the basic fee for comparable legal services in the community; it 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
a. Reasonableness of Hourly Rates
“In determining hourly rates, the court must look to the prevailing market rates in the relevant community. The rates of comparable attorneys in the forum district are usually used. In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees. The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [internal quotations and citations omitted].)
The hourly rates in this matter are set forth as follows:
Thomas Ledbetter - $400.00/$425.00
Nicole E. Nemeth - $350.00
Keily Delius (Paralegal) - $200.00
Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in the Declaration of Thomas K. Ledbetter, the court finds that requested hourly rates are appropriate.
b. Reasonableness of Time Incurred
“[V]erified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) “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.)
Ledbetter has attached his firm’s invoices as Exhibit 2 to his declaration. The firm billed a total of 60.7 hours in this matter, which it itemized as follows
Thomas Ledbetter - $400.00/$425.00
Nicole E. Nemeth - $350.00
Keily Delius (Paralegal) - $200.00
Defendant, in opposition, contends that counsel’s fee request should be reduced from 60.7 hours to 31.3 hours; more specifically, Defendant seeks a reduction of 1.4 hours for “pre-client engagement & representation agreement drafting,” an additional 1.4 hours reduction for “dealer discovery & dismissal from lawsuit,” an additional 9.4 hours reduction for “preparing templated discovery responses,” an additional 0.9 hours reduction for “propounding Plaintiff’s templated discovery requests,” an additional 10.7 hours reduction for “motion to compel GM’s PMQ” and an additional 5.6 hours reduction for this instant motion.
The court agrees that 13.4 hours billed in connection with the preparation of Plaintiff’s discovery responses is excessive, inasmuch as they appear to be largely derived from templates. The court will reduce the 13.4 hours billed by 5 hours (i.e., at $400.00/hour), for a reduction of $2,000.00. The court further agrees that Plaintiff should not recoup attorney’s fees in connection with the motion to compel GM’s PMQ, inasmuch as it was filed prematurely without an adequate meet and confer. The court will reduce the fee award requested by another $4,547.50 on this basis. The court will also reduce the 11.1 hours billed in connection with this instant motion by 5.1 hours (i.e., at $425.00/hour) to 6 hours total, which equates to a monetary reduction of $2,167.50.
The amount of attorney’s fees, then, is reduced from $24,550.00 to $15,835.00.
3.
Entitlement
to Multiplier
Plaintiff
next requests a multiplier of 1.5. “Once the court has fixed the lodestar, it may
increase or decrease that amount by applying a positive or negative
‘multiplier’ to take into account a variety of other factors, including the
quality of the representation, the novelty and complexity of the issues, the
results obtained, and the contingent risk presented.” (Thayer v. Wells Fargo
Bank, N.A. (2001) 92 Cal.App.4th 819, 833 [quotation marks and citation
omitted].) “T]he party seeking a fee enhancement bears the burden of proof.” (Ketchum,
supra, 24 Cal.4th 1122, 1138.)
Plaintiff’s counsel has not articulated any basis warranting the imposition of a multiplier under these circumstances. The court finds that Plaintiff is not entitled to a multiplier.
4. Costs
Plaintiff seeks costs in the amount of $1,228.98. Defendant, in turn, seeks a reduction of $340.05. The court will reduce costs by $235.85 (i.e., costs associated with the motion to compel PMQ and courtesy copy delivery of motion and reply), for a total costs award of $993.13.
5.
Conclusion
The motion is
granted in the reduced amount of $15,835.00 in attorney’s fees. Costs are awarded in the reduced amount of $993.13.
[1] The $38,668,47 in attorney’s fees and
costs includes $24,550.00 in attorney’s fees and $1,228.98 in expenses, with a
1.5 multiplier.