Judge: Richard S. Whitney, Case: 37-2020-00047296-CU-BC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 21, 2024

02/23/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00047296-CU-BC-CTL DUNCAN VS GENERAL MOTORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS PURSUANT TO CIVIL CODE SECTION 1794(d) is GRANTED, in part.

Plaintiff MARK DUNCAN ('Plaintiff') seeks a total of $76,982.52 from General Motors LLC ('Defendant') for attorney's fees ($63,099.50) and costs and expenses ($13,883.02) pursuant to Civil Code section 1794(d). Civil Code section 1794(d) provides for an award of 'costs and expenses, including attorney's fees' to the prevailing buyer. The amount of attorney's fees is '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(d).) Further, the parties settled this matter via a CCP section 998 Offer to Compromise ('998 Offer') which provides a total settlement of $100,000.00 plus attorneys' fees and costs in an amount to be determined by the Court to have been reasonably incurred pursuant to Civil Code section 1794(d).

It is undisputed Plaintiff is the prevailing party and entitled to an award of attorney's fees and costs and expenses pursuant to Civil Code section 1794(d). To calculate the appropriate lodestar in this action, one must determine the reasonable hourly rate and multiply that figure by the reasonable number of hours spent. (Graham v. DaimlerChrysler Corporation (2009) 34 Cal.4th 563, 579-580.) Plaintiff has sufficiently shown that the hourly rates are not unreasonable, and Defendant does not sufficiently dispute the reasonableness of the hourly rates.

Defendant argues fees related to the fraud claims are not recoverable. '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.' (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.) However, '[s]uch fees need not be apportioned when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not.' (Bell, supra, 82 Cal.App.4th at p. 687, 98 Cal.Rptr.2d 263.) Moreover, '[a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.' (Ibid.) (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) Here, Plaintiff incurred fees that are clearly attributable to the fraud causes of action – Defendant filed a Calendar No.: Event ID:  TENTATIVE RULINGS

3020968 CASE NUMBER: CASE TITLE:  DUNCAN VS GENERAL MOTORS LLC [IMAGED]  37-2020-00047296-CU-BC-CTL demurrer and motion to strike as to the fraud causes of action. Plaintiff's counsel's work as to Defendant's demurrer and motion to strike are easily separable from Plaintiff's counsel's other work.

Plaintiff's counsel billed a total of $5,655.00 in connection with the work. This work is not so intertwined with work on the statutory claims that the Court cannot allocate it. The Court reduces the requested award by $5,655.00 for work related to Defendant's demurrer and motion to strike.

The Court disagrees with Defendant as to the pre-engagement work because the work appears to have been made 'in connection with the commencement and prosecution of such action' and Defendant does not cite authority precluding such recovery. (Civ. Code, § 1794.) As to Defendant's various arguments that less time should have been billed for work that is based on templates, the Court partially agrees.

The Court believes Defendant cannot expect Plaintiff's counsel to not thoroughly review discovery requests, even when they appear to be based on templates. This is especially the case as to Defendant's discovery requests because Plaintiff's counsel should not assume the requests are identical to past discovery requests in other cases. However, the Court agrees some of the entries that involve work with templates were somewhat inflated (several hours in total than should have been expended), including letters regarding discovery disputes, motions to compel, and this motion (including associated declarations). The Court finds it would be appropriate to reduce the total requested amount for attorney's fees by $3,000.

The Court is unconvinced by Defendant's arguments as to costs (unless Plaintiff ultimately does not use a court reporter, in which case the final ruling will take such fact into account).

Considering all the above, the Court finds it is appropriate to reduce the fee award to Plaintiff by $8,655.00. The Court awards $54,444.50 to Plaintiff for attorney's fees and $13,883.02 for costs and expenses – a total amount of $68,327.52.

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