Judge: Robert B. Broadbelt, Case: 21STCV18697, Date: 2023-05-22 Tentative Ruling

Case Number: 21STCV18697    Hearing Date: May 22, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Elinoy Shalev          

RESPONDING PARTY:       Defendant General Motors, LLC

Motion for Attorney’s Fees and Costs

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court rules on plaintiff Elinoy Shalev’s evidentiary objections to the declaration of Ryan Kay as follows:

Objections Nos. 1, 3-13, 16, and 18-22 are overruled.

Objections Nos. 2, 14-15, and 17 are sustained.

DISCUSSION

Plaintiff Elinoy Shalev (“Plaintiff”) moves the court for an order awarding him attorney’s fees and costs in the total amount of $42,094.22, to be paid by defendant General Motors, LLC (“Defendant”), pursuant to Civil Code section 1794.

Plaintiff and Defendant settled this action when Plaintiff accepted Defendant’s “CCP § 998 Offer of Compromise” on September 14, 2022.  (Barry Decl., ¶ 11; Barry Decl., Ex. 5, Offer of Compromise.)  The Offer of Compromise provided that (1) Defendant would “pay Plaintiff’s attorney fees, expenses, and costs in the amount of $10,000[,]” or (2) “[a]lternatively, at Plaintiff’s election, Plaintiff’s attorney’s fees, expenses and costs that have been reasonably incurred pursuant to California Civil Code § 1794(d) may be determined by the Court via noticed motion.”  (Barry Decl., Ex. 5, Offer of Compromise, ¶¶ 2-3.)  Defendant agreed that, for purposes of a motion for attorney’s fees, Plaintiff is the prevailing party.  (Id. at ¶ 3.)

“A buyer who prevails in an action under the Song-Beverly Act may . . . recover reasonable attorney fees.”  (Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 691.)  Civil Code section 1794, subdivision (d), states the following:  “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 the 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.”  

Plaintiff requests an award of (1) attorney’s fees in the amount of $40,350, and (2) costs in the amount of $1,744.22.

“[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. . . . .¿ The reasonable hourly rate is that prevailing in the community for similar work.¿ 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.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted).)¿ “[T]he verified 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 Univ. (2005) 132 Cal.App.4th 359, 396.)¿ 

Plaintiff requests an award of attorney’s fees based on work performed by the following attorneys: (1) David. N Barry (at the hourly rate of $525 before January 2022 and the hourly rate of $600 after January 2022); (2) Elizabeth Quinn (at the hourly rate of $450 before January 2022 and the hourly rate of $500 after January 2022); (3) Otis Hayes, III (at the hourly rate of $400); (4) Erik Whitman (at the hourly rate of $425); (5) Sarah Jane Norris (at the hourly rate of $350); (6) Brian Kim (at the hourly rate of $250); and (7) Stephanie Papayanis (at the hourly rate of $250). 

Plaintiff submits the declarations of counsel to attest to their qualifications, skill, and experience. (Barry Decl., ¶¶ 19-21; Quinn Decl., ¶¶ 1, 4-10; Hayes Decl., ¶¶ 1, 3-5; Whitman Decl., ¶¶ 1, 3-7; Norris Decl., ¶¶ 1, 3-6; Kim Decl., ¶¶ 1, 3-6, 9.)  The court finds that the hourly rates charged and requested by Plaintiff’s attorneys are reasonable based on counsel’s qualifications and experience.

Plaintiff submits evidence showing that counsel billed a total of 107.2 hours (at the hourly rates described above) in connection with this action.  (Barry Decl., Ex. 6 [time entries]; Mot., p. 13:10-19 [chart summary of number of hours billed at counsel’s corresponding hourly rates].)  Defendant challenges various entries as unsubstantiated and unreasonable.  (Opp., pp. 5:17-8:4.)

First, the court finds that the 0.3 hours billed to draft the representation agreement were not reasonably incurred by Plaintiff in connection with the commencement or prosecution of this action, and therefore excludes from the award the fees requested in connection with this entry.  (Barry Decl., Ex. 6, p. 1 [March 31, 2021 entry billing 0.3 hours at Barry’s $525 hourly rate].)

Second, the court finds that the total 2.4 hours billed to review Defendant’s discovery requests were not reasonably expended.  (Barry Decl., Ex. 6, p. 4 [June 23, 2021 and June 24, 2021 entries billing 2.4 hour at Papyanis’s $250 hourly rate].)  The court reduces the lodestar to reflect 1.0 hours expended to review Defendant’s discovery requests at Papyanis’s $250 hourly rate.

            The court finds that the other challenged entries in Defendant’s motion, including the entries billing for time incurred in preparing discovery and discovery responses, communicating with Plaintiff, drafting meet and confer letters, motions, and memoranda, and drafting the pending motion for attorney’s fees, do not reflect unreasonable, unnecessary, or excessive billing requests.  Although the court notes that Defendant argues that Plaintiff’s counsel used various templates in litigating this action, the court finds that (1) the hours expended were not unreasonable, and (2) even if counsel used some templates, counsel would still have to expend time to tailor the motions, discovery, and correspondence to the facts at issue in this case.

The court therefore finds that Plaintiff has established a lodestar of $39,593, consisting of 105.5 hours billed at counsel’s hourly rates and reflecting a reduction of 1.7 hours ($757) for the reasons set forth above.

Plaintiff requests an award of costs amounting to $1,744.22.  In support of this request, Plaintiff submits as an exhibit his Memorandum of Costs.  (Barry Decl., Ex. 8.)  Plaintiff filed his Memorandum of Costs with the court on January 17, 2023, claiming the same costs requested in this motion.  “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.”  (Cal. Rules of Ct., rule 3.1700, subd. (b)(1).)  Defendant has not filed a motion to tax or strike costs with the court.

Thus, since Plaintiff has already filed his Memorandum of Costs, and Defendant did not file a motion to strike or tax costs, the court finds that Plaintiff is entitled to an award of costs, as requested, in the amount of $1,744.22.

ORDER

The court grants plaintiff Elinoy Shalev’s motion for attorney’s fees and costs as follows.

The court orders that plaintiff Elinoy Shalev shall recover from defendant General Motors, LLC a total award of $41,337.22, consisting of $39,593 in attorney’s fees and $1,744.22 in costs, pursuant to Civil Code section 1794, subdivision (d).

The court orders plaintiff Elinoy Shalev to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 22, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court