Judge Ralph C. Hofer, Case Number: 23GDCV00934, Date: 2025-04-17 Tentative Ruling

Plaintiff Keith Fearnside alleges that in January of 2021 plaintiff purchased a new 2021 Chevrolet Suburban, which was warranted by defendant General Motors LLC (GM), with defendant providing an express warranty and an implied warranty, including warranties that the vehicle was fit for the ordinary purposes for which vehicles are used and that it was acceptable in the trade.

Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the applicable warranty periods. Plaintiff alleges that plaintiff presented the vehicle to defendant’s authorized facilities for repair of these nonconformities on at least seven occasions, and that those facilities verified the concerns and performed several repair attempts, but, ultimately, many if not all of the problems remain unrepaired.

The file shows that on December 5, 2025, the court signed and filed Judgment in this matter, noting that the court had received plaintiff’s Notice of Defendant’s Acceptance of Plaintiff’s Offer to Compromise Pursuant to Code of Civil Procedure § 998, and entering judgment in favor of plaintiff and against defendant.

“GM shall pay Plaintiff’s attorney's fees, expenses and costs, that have been reasonably incurred pursuant to California Civil Code § 1794(d), which shall be determined by the Court via noticed motion. For purposes of any such motion, GM will agree that Plaintiff is the prevailing party.”

Under CCP §1032 (b), “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” CCP § 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law. CCP § 1033.5 (a)(10).

“(d) 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.”

As set forth above, the judgment in this matter provides for an award of attorney’s fees, expenses and costs reasonably incurred to be determined by noticed motion, and provides that for such purposes, plaintiff is the prevailing party. [Judgment, entered 12/05/2025, para. 2].

There is no dispute here that plaintiff is the prevailing party under section 1784(d), entitled to attorney's fees and costs actually and reasonably incurred in the commencement and prosecution of this action, to be determined by this motion.

This posture leaves the issue of the reasonableness of the attorney’s fees sought by plaintiff. Plaintiff seeks an award of attorney’s fees and expenses in the total amount of $115,935.15, apparently consisting of (1) $75,508.42 in attorney’s fees; (2) a 1.5 multiplier on the attorney’s fees of $37,754.21; and (3) $2,672.52 in costs and expenses. The motion seeks approximately 159.2 hours of time spent litigating this matter at billing rates ranging from $450 to $595 per hour.

“[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. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award." Margolin v. Regional Planning Com. (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49 .) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. ( Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." ( Melnyk v.Robledo (1976) 64 Cal. App. 3d 618, 623 624 [134 Cal. Rptr. 602].)

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

“The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer 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.” ’ ”

An award of attorney fees under the Song-Beverly Act is reviewed for abuse of discretion, and the determination of the value of professional services rendered in the trial court “will not be disturbed unless the appellate court is convinced that it is clearly wrong.” Goglin, at 470-471, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.

The moving papers submit evidence justifying the billing rates claimed, describing the experience and expertise of each attorney who billed on this matter, as well as citation to orders in other cases in Southern California in which rates in the range now claimed for the attorneys for work performed in lemon law cases were approved as reasonable. [See Kaufman Decl., paras. 4-10, 14]. Plaintiff also submits information from other plaintiff-side lemon law attorneys representing their hourly rates for Song-Beverly Consumer Warranty cases. [Kaufman Decl., para. 13]. The rates requested conform with what this court would expect to be charged in matters of this nature. The court has reviewed all evidence submitted and is familiar with the customary billing rates in this county and in cases of this nature, and the opposition does not challenge the appropriateness of the billing rates. The court under the circumstances finds the billing rates reasonable.

The opposition argues that the hours billed include excessive amounts and unreasonable time entries for template and unreasonable work, particularly those related to discovery. Defendant also challenges entries which were block billed or tasks that are clerical in nature, and the time spent on this motion for fees and costs. The opposition also challenges certain items claimed as costs.

“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.”

The court has reviewed the entries and finds that there are duplicative charges to review what is represented to have been a 93 page document production both when it was received and again in preparation for a PMQ deposition. The court reduces the time spent by attorney Ullman by 2.7 hours at $450 per hour, for a reduction in the sum of $1,215.00.

The court also finds that the following entries, reflecting time spent to draft and serve discovery, and pursue discovery, is not reasonable given that this matter was subject to case management orders which streamline discovery, and the court file does not show that plaintiff sought or obtained leave of court to pursue discovery beyond the case management order provisions, including pursuing more than the permitted document disclosure or deposition on the number of subjects or production of documents beyond the limits at a PMQ deposition, or to pursue third party discovery. The discovery time is also excessive due to the experience of counsel in these matters and the use of recognized templates in these discovery matters. The court accordingly reduces the following time entries:

Multiple motions to compel GM’s PMQ—the time billed will be reduced from the 28 hours total claimed to reasonable fees for drafting the initial motion, reviewing opposition, drafting reply and attending hearing, as well as to make modest revisions to future motions of 6.5 hours at attorney Agyeman’s rate of $525.00, for a reduction of $10,474.50.

Unfiled motions to compel discovery—the time billed to compel discovery responses which were not filed and which the court views would likely not have been considered/granted in light of the discover orders in this matter, are not be allowed, for a reduction of 9 hours billed by attorney Ullman at $450 per hour and 2 hours billed by attorney Agyeman at $525 for a reduction of $5,100.00.

Motion for Terminating Sanction—the time billed to file this templated motion will be reduced by the 1.3 hours spent by attorney Kaufman at the rate of $595 per hour to revise the motion which attorney Agyeman already had spent 6 hours preparing, for a reduction of $774.80.

With respect to the fees challenged as involving block billed and clerical tasks, this situation is not a case which requires an allocation of specific tasks which might not involve fees for recoverable work. Hence, the court cannot identify any specific tasks which would be defined as strictly clerical and required to be billed at a lower billing rate.

Defendants also challenge the fees being claimed to bring the instant motion for fees. The court does not find that the time billed and anticipated for work on this motion, a total of 11.1 hours, is excessive, given the product submitted, and the filing of a detailed opposition requiring the filing of a detailed responsive reply.

Overall, in reviewing the file and the billings, it appears that in addition to the fees discussed above, there were reasonable hours spent communicating with the client, and in back and forth concerning the CCP section 998 offer, and appearing at various hearings required by the court. Under the circumstances, it is not appropriate to make further reductions to the lodestar figure other than those set forth above.

This leaves the lodestar calculation at $75,508.42 in attorney’s fees claimed reduced by the sums of $1,215.00, $10,474.50, $5,100.00, $774.80 and $1,849.46 ($19,413.76) for a total reduced lodestar, before costs and expenses, of $56,094.66.

This posture leaves the issue with respect to the multiplier requested by plaintiff. Plaintiff seeks a fee award which would include the sum of $37,754.21 ($115,935.15 total claimed, less $75,508.42 lodestar claimed, less $2,672.52 expenses claimed), which plaintiff indicates is a 1.5 multiplier enhancement on the lodestar attorney’s fees.

Plaintiff argues that a lodestar enhancement is appropriate here to adjust the fee award based on factors such as the results obtained, including a substantial civil penalty obtained for plaintiff, and the risk undertaken by counsel in taking on the case.

The opposition argues that no multiplier is warranted in this case, as the case is a routine Song-Beverly case, with no novel or difficult legal questions, that counsel has failed to present evidence that counsel avoided taking on new clients to represent plaintiff, and the hourly rates claimed based on counsel’s extensive experience handling these cases lends itself to less risk in evaluating which cases are likely to garner a favorable conclusion.

It has been held that despite the specific language of Civil Code § 1794(d) that fees must be “based on actual time expended, determined by the Court to have been reasonably incurred by the buyer,” the lodestar adjustment method, including use of a lodestar fee multiplier, is applicable to an award of attorney’s fees under the Song-Beverly Act. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 821.

The court of appeal in Robertson, although concluding that the use of a multiplier is authorized in such cases, remanded that case to the trial court to recalculate the award, on the ground the trial court had considered some of the same factors in reaching the lodestar amount as it did in applying a multiplier. Robertson, at 821.

“[T]he 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. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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.

“11. My firm’s agreement to handle this case was done on a contingency basis, and my firm advanced all costs and expenses that are sought through the underlying Motion and are reflected in the Memorandum of Costs. Plaintiff tried to resolve this case early and often through settlement negotiations, but GM refused all of Plaintiff’s settlement overtures and insisted on extensive discovery, depositions, and preparing the case for trial. Because we spent so much time in response to GM’s litigation tactics over the last two years, we could not take on other cases as a result.”

The court notes that in connection with this motion, the court has accepted the various billing rates claimed in their entirety, based on arguments by plaintiff and the submission of evidence establishing that the attorneys are experienced specialists in this area of law.

This matter was not a complicated case. Also, the billing rates take into account the level of recovery expected, and the nature of the representation. It would appear, as argued in the opposition, that to the extent the level of counsel’s expertise was considered in setting a billing rate, that a multiplier would duplicate those elements of the lodestar, as was of concern in both Ketchum and Robertson. See Ketchum, at 1142, Robertson, at 822.

Under the circumstances, the contingent nature of the representation, by itself, does not justify the application of a multiplier. The court finds that no multiplier in favor of plaintiff is warranted here. The lodestar will not be further adjusted.

Case law has interpreted this section to permit a prevailing buyer to recover both costs and “expenses” to cover costs which may not be included in the statutory definition of costs under CCP §1033.5. In Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, for example, the court of appeal found the trial court had erred in denying plaintiff expert witness fees claimed in her cost bill.

Accordingly, under these authorities the question for the court in this matter is whether the costs and expenses are proper on their face insofar as they either fall within the categories of CCP section 1033.5 and/or were incurred in the “commencement and prosecution” of this case. Civil Code section 1794 (d); Jensen, at 138.

In general, where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761.

The opposition argues that expense claimed for E-Filing a Notice of Change of Address of $19.17 is business overhead and should not be allowed. The court requires the filing of changes of address, and this cost was proper and necessary and is allowed. The opposition also challenges a $230 expense for courtesy copies, arguing that these expenses negate the very nature of the activity. The court does not understand this argument, but recognizes that this department requires the submission of courtesy copies and notes that there is no challenge to the reasonableness of the sum being claimed for the provision of such copies to the court. These costs are allowed as claimed.

The opposition argues that plaintiff improperly seeks $715.12 in deposition subpoena costs for pursuing depositions of non-parties, which allegedly were completely gratuitous. These costs were evidently incurred and is not unreasonable on its face to attempt to obtain discovery through these processes from what appear to be entities with personal knowledge of the repair attempts to this particular vehicle. This expense appears particularly appropriate in light of the expansive interpretation of the term expenses in the statute. The costs will be allowed as claimed.

The costs and expenses claimed are awarded in full in the sum of $2,672.47 as stated in the Memorandum of Costs. The motion references a costs sum of $2,672.52, which appears to be $.05 over what is claimed in the Memorandum of Costs. The costs number stated in the Memorandum of Costs are awarded.

The Court finds that plaintiff Keith Fearnside was a prevailing party in the action, and so is under Civil Code § 1794 (d) is allowed by the Court to recover as part of the judgment a sum to cover costs and expenses, including attorney's fees based on actual time expended and determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

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