Marcos Flores v. General Motors, LLC

MOTION FOR ATTORNEY FEES AND COSTS

 

MOVING PARTY: Plaintiff Marcos Flores

RESPONDING PARTY: Defendant General Motors, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action brought pursuant to the Song-Beverly Consumer Warranty Act.  The case resulted in a settlement on October 26, 2022.

Plaintiff now moves for an order awarding attorney fees and costs.  Defendant opposed the motion.  

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees is GRANTED IN PART in the total amount of $33,642.00.

Plaintiff is awarded its full costs in the amount of $3,331.05.

Moving party to give notice, unless waived.  

DISCUSSION:

Motion for Attorney’s Fees

A. Analysis

Plaintiff moves for an order awarding attorney’s fees in the amount of $42,922.00. Plaintiff also seeks costs in the amount of $3,331.05. 

Civil Code § 1794, subdivision (d) provides:

 

(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.

(Civ. Code, § 1794, subd. (d) [emphasis added].)

 

 The parties do not dispute that Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act.  Accordingly, Plaintiff is entitled to an award of reasonable attorney fees as the prevailing buyer.  The only matter at issue is the reasonableness of the fees requested.

 

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.)  “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’”  “[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….”  (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)  In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’”  (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.)  The burden is on the party seeking attorney fees to prove reasonableness of the fees.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

 

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

1. Reasonable Hourly Rate

From beginning to end, Plaintiff staffed six attorneys on this matter.  Those include David N. Barry, billing between $525.00 and $625.00 per hour; Anna Galaviz at $475.00 per hour; Otis Hayes III between $350.00 and $400.00 per hour; Sarah Jane Norris between $300.00 and $350.00 per hour; Andrew Matera between $290.00 and $350.00 per hour; and Stephanie Papayanis at $250.00 per hour. 

This court finds that the hourly rates are not, on their face, unreasonable given the attorneys’ experiences.  Plaintiff has demonstrated these rates are consistent with the general prevailing rates in the Los Angeles area and have been approved by courts in similar circumstances. Indeed, Defendant does not provide evidence suggesting that the quoted rates are unreasonable or excessive, nor does it even argue the point.

Thus, under the totality of the circumstances and based upon general prevailing rates in the Los Angeles area for this type of litigation, this court finds the quoted rates to be reasonable. This determination considers the complexity of the case, the quality of services provided, and the attorneys’ experience.  

2. Number of Hours Reasonably Expended

Plaintiff’s attorneys expended the following time in this matter: Barry 29.9 hours; Galaviz 3.7 hours; Hayes III 5.5 hours; Norris 11.2 hours; Matera 56.3 hours; and Papayanis 0.9 hours.  In total, this represents 107.5 hours. 

In opposition, Defendant contends the hours incurred are excessive for a “routine” and “straight-forward breach of warranty case that did not raise any complex or novel issues.” (Opp. 2: 3-5.) "[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)  

Defendant first argues Plaintiff’s counsel should not be compensated for the 3.3 hours of work related to the fraud claim asserted in the Complaint, as they have “zero statutory or contractual rights to recover any fees” on that cause of action. Defendant demurred to this cause of action on August 24, 2022.  Before the motion came for hearing and without opposing, Plaintiff filed a First Amended Complaint omitting the fraud cause of action.  Defendant’s only authority excluding fees incurred on a fraud claim brought in conjunction with Song-Beverly is a nonbinding federal district court case.  (See In re Ford Motor Co. DPS6 Powershift Transmission Prods. Liability Lit., No. ML 18-02874 AB (PVCx) (July 22, 2021). 

This court is aware of no California authority requiring fees to be apportioned between the causes of action, and therefore declines to do so.  Rather, “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.” (Akins v. Enter. Rent-A-Car Co. of San Francisco (2000) 79 Cal. App. 4th 1127, 1133.)

Second, Defendant argues the court should “disallow all fees that Counsel has not demonstrated were actually and reasonably incurred.” (Opp. 4: 12-14.) In particular, Defendant contends the following billing entries are either “padded” or nonrecoverable in their entirety:

(1) 2.8 hours billed by Attorney Barry for communicating with a “potential client”;

(2) 0.3 hours billed by Attorney Barry to draft the representation agreement.

(3) 1.1 hours billed by Attorney Barry for communicating the “case status” to Plaintiff before the Complaint was filed;

(4) 3.6 hours by Attorney Matera to draft “templated” discovery requests, deposition notice, and letter;

(5) 7.4 hours by Attorney Matera to review GM’s discovery responses;

(6) 3.4 hours by Attorney Matera to draft Plaintiff’s discovery responses;

(7) 1.8 hours by Attorney Matera to review, draft, and correspond to stock meet and confer letters about GM’s PMK deposition;

(8) 2.0 hours by Attorney Matera to prepare a templated meet and confer concerning GM’s discovery responses;

(9) 1.3 hours to review the file and draft memos to file regarding the case status;

(10) 7.1 hours by Attorney Matera related to Plaintiff’s motion compel special interrogatories and requests for production of documents, and 6.8 hours to review and draft the reply briefs;

(11) 3.1 hours by Attorney Matera to draft the motion to compel deposition of GM’s PMK, and 2.4 hours to draft the reply;

(12) 1.9 hours by Attorney Matera related to motion to exclude GM’s expert witness;

(13) 4.9 hours by Attorney Matera on the ex parte to shorten the time for hearing on Plaintiff’s motions to exclude;

(14) 1.1 hours by Attorney Matera relating to the post-settlement OSC hearing;

(15) 14.6 hours for time Plaintiff’s counsel has spent or will spend on the instant fee motion.

The court appreciates that this case did potentially involve more law and motion practice than the average Song-Beverly case. This included, among other things, Plaintiff filing of a motion to compel further responses to its requests for production of documents; a motion to compel the deposition of Defendant’s person most knowledgeable; a motion to exclude Defendant’s expert witness from testifying at trial, or in the alternative, to compel the expert witness’s deposition; a trial brief; and opposing Defendant’s motion to compel further responses to special interrogatories.

By and large, however, the issues involved in this case were applicable to other consumers’ vehicles, thereby triggering economies of scale in terms of Plaintiff’s counsel’s efficiency in litigating this type of lemon law case. The court also acknowledges that Plaintiff’s counsel prepared some unique discovery, which should not have required anything more than slight factual modification to existing boilerplate.

Considering this reality, this court agrees that in some instances, the time quoted is excessive under the circumstances. 

First, as to discovery, 3.6 hours to draft Plaintiff’s discovery requests, 3.4 hours to draft Plaintiff’s discovery responses, and 3.8 hours for two meet and confer letters, is unreasonable and excessive. 

 

Second, 7.4 hours to review GM’s discovery responses is unreasonable and excessive. The law firms involved in this case routinely litigate nearly identical issues, and the discovery likely reflected as much.  

Next, the 13.9 hours purportedly spent on the motions to compel special interrogatories and requests for production of documents, including drafting reply briefs, are excessive and unreasonable.  These motions did not raise any novel legal issues and were likely nearly identical to those motions filed by Plaintiff’s counsel in other cases. 

Next, the 1.9 hours to exclude the expert witness, and in particular the 4.9 hours to advance the hearing on that motion, are unreasonable and excessive.  

Next, 3.1 hours to draft the motion to compel the deposition of Defendants PMK, followed by 2.4 hours to draft the reply, is also unreasonable and excessive.

Finally, the time incurred in drafting the instant motion and reply (14.6 hours) is excessive and unreasonable.   Again, the fee motions and attached declaration are undoubtedly largely unmodified from those used in every fee motion by Plaintiff’s counsel.  

In light of the foregoing discussion, and in view of the totality of the circumstances, the Court finds that the total amount of reasonable attorney’s fees in this case, using a lodestar methodology, is $33,642.00. 

The Court in its discretion declines to apply a multiplier given this was a relatively standard Song-Beverly case with no novel or complex issues of law.  

3. Costs and Expenses

Plaintiff seeks costs in the amount of $3,331.05.  Defendant contends this includes costs not actually or reasonably incurred.  In particular, Defendant argues the estimated $550.00 in court reporter fees for the hearing on the instant motion, and an estimated $56.32 for mileage and parking on the instant hearing, is unrecoverable because they have not yet been incurred. Thus, GM seeks a reduction of $786.32.

The court disagrees that these fees are unrecoverable.  Although these are anticipated costs, just like a party may recover fees anticipated for bringing the instant motion itself, Defendant cites no authority suggesting fees incurred on the day of the hearing should also not be recoverable.  

Second, the court disagrees that Plaintiff’s filing fees on motions that were ultimately denied are unrecoverable. Rather, Plaintiff motions were proper and reasonable, even if they were unsuccessful. 

Accordingly, Plaintiff is awarded its full costs in the amount of $3,331.05.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated: January 26, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.