Judge Robert B. Broadbelt, Case Number: 21STCV26090, Date: 2023-10-13 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 21STCV26090, Date: 2023-10-13 Tentative Ruling

RESPONDING PARTIES: Defendants Ford Motor Company and NGP Motors, Inc., dba Sunrise Ford North Hollywood

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

The court rules on defendants Ford Motor Company and NGP Motors, Inc., dba Sunrise Ford North Hollywood’s evidentiary objections[1] as follows:

The court rules on plaintiffs Luciano Gauna and Sylvia Castillo Gauna’s evidentiary objections as follows:

Plaintiffs Luciano Gauna and Sylvia Castillo Gauna (“Plaintiffs”) filed this lemon law action against defendants Ford Motor Company and Sunrise Ford North Hollywood (“Defendants”) on July 15, 2021. On April 6, 2023, Plaintiffs filed a Notice of Settlement of Entire Case with the court.

Plaintiffs accepted Defendants’ Code of Civil Procedure Section 998 Offer to Compromise on April 5, 2023, pursuant to which Defendants agreed to “pay the attorneys’ fees and costs amounts determined by the Court within 60 days’ notice of the Court’s ruling on same.” (Wirtz Decl., Ex. H, § 998 Offer to Compromise, ¶ 2.) The offer further specified that, in ruling on Plaintiffs’ motion, “the fees, expenses, and costs amount shall be calculated as if Plaintiff were found to have prevailed in this action under section 1794(d) of the California [Civil Code] as of the date of this offer of judgment.” (Ibid.)

Plaintiffs now move the court for an order awarding their attorney’s fees and costs, to be paid by Defendants in the total amount of $106,527.53, consisting of (1) attorney’s fees in the amount of $98,062.50 ($65,375 lodestar + multiplier in the amount of $32,687.50),[2] and (2) costs in the amount of $8,465.03.

Civil Code section 1794, subdivision (d), provides:¿ “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.”

“[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.)

Plaintiffs have submitted the declaration of Richard M. Wirtz, who has attested to the qualifications, experience, and hourly rates of the attorneys who worked on this case. (Wirtz Decl., ¶¶ 4-9, 13 [as to attorney Wirtz], 15 [as to attorney Rotman], 16 [as to attorney Underwood], 17 [as to attorney Inscore], 18 [as to attorney Henry], 19 [as to attorney Chavez].) The court finds that the hourly rates charged and requested by Plaintiffs’ attorneys are reasonable. The court disagrees with Defendants’ argument that the hourly rates were excessive. The court also finds that the hourly rates for the paralegals – less than the amounts charged by the attorneys and ranging from $250 to $300 an hour – are reasonable. (Wirtz Decl., ¶¶ 20 [paralegal Evans], 21 [paralegal Viviani], 22 [paralegal Goldson], 23 [paralegal Vitanatchi], 24 [paralegal Beatty], 25 [paralegal Bollenbacher], 26 [paralegal Hildebrand].)

In opposition, Defendants have challenged various billing entries as improper. First, Defendants contend that the time incurred in connection with drafting the motion to withdraw from arbitration was unnecessary. Second, Defendants contend that various entries were inflated and reflect improper value billing, including the entries billing for time drafting opposition papers to Defendants’ motion to compel arbitration, drafting a meet and confer letter, and preparing the pending fee motion. Third, Defendants argue that 18.80 hours billed are supported by vague entries described as client communication. Fourth, Defendants contend that the 54.7 hours billed for administrative or secretarial tasks should be excluded. Finally, Defendants argue that Plaintiffs’ counsel’s anticipated time to prepare a reply brief and attend the hearing on this motion should be excluded.

In reply, Plaintiffs have modified their request for attorney’s fees, and have (1) removed all entries for calendaring deadlines, reviewing case status, and saving documents to file, and have therefore addressed Defendants’ objection that Plaintiffs improperly billed for administrative tasks; (2) updated the actual time spent on preparing the reply papers, addressing, in part, the objection to anticipatory fees; and (3) provided an updated, “further audited” summary of the amounts billed by counsel. (Dizon Decl., Ex. A, pp. 5:7-9:22 [challenging various administrative tasks], p. 10:1-6 [challenging anticipatory fees in connection with motion for attorney’s fees]; Wirtz Reply Decl., ¶ 3.)

The court has reviewed Plaintiffs’ revised invoice and Defendants’ Summary of Objectionable Specific Charges. The court finds that (1) Plaintiffs’ attorney’s fees incurred in connection with bringing their motion to withdraw arbitration was not unnecessary; (2) the Defendants have not shown that the challenged entries reflect improper value billing; (3) the time incurred for “Client Communication” is not impermissibly vague or unreasonable; and (4) the attorney’s fees requested in connection with preparing the pending motion for attorney’s fees are reasonable and permissibly requested. Thus, the court finds that Plaintiffs have established a lodestar of $65,375. (Wirtz Reply Decl., Ex. 1, p. 25 [(4.9 hours x Chavez’s $400 hourly rate) + (4.2 hours x Henry’s $450 hourly rate) + (29 hours x Inscore’s $550 hourly rate) + (47 hours x Rotman’s $550 hourly rate) + (4.2 hours x Underwood’s $550 hourly rate) + (0.5 hours x Wirtz’s $750 hourly rate) + (5 hours x Beatty’s $250 hourly rate) + (0.8 hours x Bollenbacher’s $200 hourly rate) + (24.7 hours x Evans’s $300 hourly rate) + (1..4 hours x Goldson’s $300 hourly rate) + (6.8 hours x Hildebrand’s $250 hourly rate) + (11.2 hours x Vitanatchi’s $250 hourly rate) + (11 hours x Viviani’s $300 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. [Citation omitted.] 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. 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.”’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The court finds that Plaintiffs are not entitled to a lodestar enhancement. Although the court recognizes that this matter was taken on a contingency basis, and the attorneys displayed skill in litigating this action, there is no evidence that this lemon law matter involved novel or complex questions. (Wirtz Decl., ¶¶ 34, 37.)

Plaintiffs also request $8,465.03 in costs, consisting of (1) $120 in filing fees, (2) $150 in jury fees, (3) $691.36 in service of process fees, (4) $5,350 in court reporter fees, (5) $616.12 in electronic filing fees, and (6) $1,537.55 for legal research, copies, printing, arbitration, and download fees. (Memorandum of Costs, MC-010, MC-011.)

Plaintiffs filed their Memorandum of Costs on August 24, 2023. “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum[,]” which may be extended pursuant to Code of Civil Procedures sections 1013 or 1010.6 depending on the method of service. (Cal. Rules of Ct., rule 3.1700 subd. (b)(1).) Here, Plaintiffs served Defendants with the Memorandum of Costs on August 24, 2023, by electronic service. (Proof of Service filed Aug. 24, 2023, p. 2:10-15.) Thus, Defendants were required to serve their notice of motion to strike or tax costs by no later than September 13, 2023 (15 days + 2 court days for electronic service). (Cal. Rules of Ct., rule 3.1700, subd. (b)(1); Code Civ. Proc., § 1010.6, subd. (a)(3)(B).) Defendants did not file a notice of motion to strike or tax costs with the court.

Since Plaintiffs have filed their Memorandum of Costs, and Defendants did not file a motion to strike or tax costs, the court finds that Plaintiffs are entitled to an award of costs in the amount of $8,465.03. However, even if Defendants had not waived the right to strike or tax the Memorandum of Costs, the court would award the costs as requested by Plaintiffs as reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subd. (c)(2).)

The court grants plaintiffs Luciano Gauna and Sylvia Castillo Gauna’s motion for attorney’s fees and costs as follows.

The court orders that plaintiffs Luciano Gauna and Sylvia Castillo Gauna shall recover a total of $73,840.03, consisting of $65,375 in attorney’s fees and $8,465.03 in costs, from defendants Ford Motor Company and NGP Motors, Inc., d/b/a Sunrise Ford North Hollywood, pursuant to Civil Code section 1794, subdivision (d).

The court orders plaintiffs Luciano Gauna and Sylvia Castillo Gauna to give notice of this ruling.

[1] The court notes that the objections submitted by the defendants are not numbered. The court has ruled on the objections in numerical order.

[2] The court notes that Plaintiffs initially requested attorney’s fees in the amount of $105,322.50 ($70,215 lodestar + 1.5 multiplier in the amount of $35,107.50) but modified that amount in reply.

luciano gauna , et al.; Plaintiffs, vs. ford motor company , et al.; Defendants.	Case No.:	21STCV26090

	Hearing Date:	October 13, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiffs’ motion for attorney’s fees and costs