Judge Robert B. Broadbelt, Case Number: 22STCV04929, Date: 2024-05-14 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV04929, Date: 2024-05-14 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

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

The court rules on plaintiff Virginia Zamora’s evidentiary objections, filed on May 7, 2024, as follows:

Plaintiff Virginia Zamora (“Plaintiff”) moves the court for an order awarding attorney’s fees and costs in her favor and against defendant General Motors LLC (“Defendant”) in the total amount of $57,995.36, consisting of $54,957 in attorney’s fees and $3,038.36 in costs.

First, the court finds that Plaintiff is entitled to recover attorney’s fees pursuant to the Song-Beverly Act and the Code of Civil Procedure section 998 Offer of Compromise served by Defendant and accepted by Plaintiff. (Barry Decl., Ex. 5, 998 Offer.)

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.”¿¿

Plaintiff has presented evidence showing, and Defendant does not dispute, that the parties settled this action when Plaintiff accepted and executed Defendant’s Code of Civil Procedure section 998 Offer of Compromise on June 27, 2023. (Barry Decl., Ex. 5, 998 Offer, p. 3 [Pl. Acceptance Statement]; Quezada Decl., ¶ 17.) Pursuant to the compromise, Defendant agreed to pay Plaintiff’s attorney’s fees, expenses, and costs that have been reasonably incurred pursuant to Civil Code section 1794, subdivision (d), as determined by the court on noticed motion. (Barry Decl., Ex. 5, 998 Offer, ¶ 3.)

Second, the court finds that Plaintiff has established, as to the attorney’s fees incurred to commence and prosecute this action and to prepare the pending fee motion, a lodestar amount of $50,602.

“[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 has submitted the declarations of David N. Barry, Elizabeth Quinn, Anna Galaviz, and Logan Pascal, all of whom have attested to his or her qualifications, experience, and skill. (Barry Decl., ¶¶ 42-45; Quinn Decl., ¶¶ 1, 4-11; Galaviz Decl., ¶¶ 1, 3-6; Pascal Decl., ¶¶ 1, 3-5.) Plaintiff has also included a chart setting forth the hourly rates for all her attorneys as follows: (1) David N. Barry ($525 hourly rate for work performed prior to January 2022; $600 hourly rate for work performed January 2022 to April 2023; and $625 hourly rate for work performed from April 2023 to the present); (2) Elizabeth Quinn ($500 hourly rate for work performed from January 2022 to April 2023; $550 hourly rate for work performed from April 2023 to the present); (3) Anna H. Galaviz ($515 hourly rate); (4) Logan G. Pascal ($300 hourly rate for work performed from January 2022 to April 2023; $350 hourly rate for work performed from April 2023 to the present); and (5) Allison Norder ($250 hourly rate). (Mot., p. 14:1-14.) The court finds that the hourly rates charged and requested by Plaintiff’s attorneys are reasonable. Moreover, the court notes that Defendant does not appear to argue that these rates are unreasonable in its opposition.

The court has reviewed Defendant’s opposition papers, including the chart summarizing the requested reductions, and its challenges to specific billing entries. (Opp., pp. 7:24-10:21, 11:16-12:15.) Based on its review of the billing entries and Defendant’s challenges, the court finds that the following 2.9 hours (amounting to $1,480 in attorney’s fees) expended in connection with entering and setting aside the default of defendant TPUSA, Inc. were not reasonably incurred in commencing and prosecuting this action against Defendant:

· 0.40 hours billed to draft the request for entry of default against defendant TPUSA, Inc. on April 11, 2022 ($100).

· 1.3 hours, total, billed in connection with the request to set aside defendant TPUSA, Inc.’s default on May 12, 2022 ($780).

· 0.10 hours billed to draft correspondence to counsel for defendant TPUSA, Inc. on May 13, 2022 ($50).

· 0.10 hours billed to review and respond to defendant TPUSA, Inc.’s correspondence on May 16, 2022 ($50).

· 0.30 hours billed for a conference with defendant TPUSA, Inc.’s counsel regarding the stipulation to set aside its default on May 16, 2022 ($150).

· 0.10 hours billed to confer about defendant TPUSA, Inc.’s default on May 19, 2022 ($50).

· 0.40 hours billed to draft stipulation to set aside defendant TPUSA, Inc.’s default on May 20, 2022 ($200).

· 0.10 hours billed to draft and send correspondence to defendant TPUSA, Inc. on May 20, 2022 ($50).

· 0.10 hours billed to review signed stipulation to set aside the default of defendant TPUSA, Inc. on May 24, 2022 ($50).

(Barry Decl., Ex. 6, Invoice, pp. 7, 15, 16, 17, 18, 19; Civ. Code, § 1794, subd. (d).)

The court further finds that (1) of the total 2.2 hours billed to review the discovery propounded by Defendant on April 20, 2022, 0.7 of those hours ($175) were not reasonably expended, and (2) of the 4 hours to prepare for, travel to, and attend the hearing on this motion dated May 13, 2024 and May 14, 2024, 3 of those hours ($1,875) were not reasonably incurred in connection with commencing and prosecuting this action. (Barry Decl., Ex. 6, p. 11, 55; Civ. Code, § 1794, subd. (d).) Thus, the court reduces the lodestar by 3.7 hours ($2,050).

Finally, Defendant has also requested that the court reduce the hours expended in connection with Plaintiff’s fraud claim. The parties agree that “‘[w]hen 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.’ [Citation.] 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.’ [Citation.] 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.’” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349 [internal citations omitted].)

The court agrees that, to the extent that Plaintiff incurred fees in litigating both her Song-Beverly Act claims and fraud cause of action jointly—for example, the fees incurred in drafting Plaintiff’s Complaint and First Amended Complaint, which asserts statutory causes of action and the fraud cause of action—apportionment would be impracticable and inappropriate. (Santana, supra, 56 Cal.App.5th at p. 349.) However, Plaintiff has not shown that the fraud and Song-Beverly Act causes of action were “so intertwined” that apportionment is impracticable as to the fees incurred only in litigating the fraud claim (i.e., the fees associated with opposing the demurrers and motions to strike, which were directed to the fraud cause of action and related request for punitive damages). (Ibid; Def. Dem. filed Apr. 20, 2022, p. 2:1-2 [demurring to fraudulent inducement-concealment cause of action]; Def. Mot. to Strike Punitive Damages filed Apr. 20, 2022; Def. Dem. filed Dec. 12, 2022, p. 2:8-16 [demurring to fraudulent inducement-concealment cause of action]; Def. Mot. to Strike Punitive Damages filed Dec. 12, 2022.)

Thus, the court finds that Defendant has shown that Plaintiff is not entitled to attorney’s fees in the total amount of $825 consisting of the following: (1) 0.10 hours billed by Norder to meet and confer regarding the demurrer on February 25, 2022 ($25); (2) 0.20 hours billed by Norder to respond to the demurrer meet and confer on February 28, 2022 ($50); (3) 0.20 hours billed by Barry in reviewing the declaration in response to the complaint on March 14, 2022 ($120); (4) 0.20 hours billed by Norder for the conference regarding the meet and confer process on the demurrer on April 3, 2022 ($50); (5) 0.20 hours billed by Norder to attend the telephonic meet and confer regarding the demurrer on April 12, 2022 ($50); (6) 0.20 hours billed by Barry to review the declaration in support of the demurrer and motion to strike on April 21, 2022 ($120); (7) 0.10 hours billed by Barry to review the proposed order on Defendant’s demurrer on April 21, 2022 ($60); (8) 0.10 hours billed by Barry to review the proposed order on Defendant’s motion to strike on April 21, 2022 ($60); (9) 0.4 hours billed by Barry to review the motion to strike on April 21, 2022 ($240); and (10) 0.10 hours billed by Quinn to review the notice of taking the demurrer and motion to strike off calendar on November 16, 2022 ($50).[1] (Barry Decl., Ex. 6, Invoice, pp. 3, 4, 6, 7, 8-9, 12, 37; Civ. Code, § 1794, subd. (d).) Thus, the court reduces the lodestar figure by 1.8 hours ($825).

Third, the court finds that Plaintiff is entitled to an award of costs in the amount of $2,913.36.

Plaintiff requested costs in this amount by filing her Memorandum of Costs on September 19, 2023. (Pl. Memo. of Costs, MC-010.) The court notes that, in reply, Plaintiff contends that, because Defendant did not file a motion to strike or tax costs, the court should award all the costs set forth in her cost memorandum. The court agrees that “[a]ny notice of motion to strike or 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).) However, Plaintiff did not file a proof of service of the cost memorandum. (Pl. Memo. of Costs, MC-010, p. 2 [incomplete proof of service].) Thus, the court has not been provided with the date of service on Defendant of the cost memorandum, such that the court can conclude that Defendant is not entitled to challenge Plaintiff’s requested costs pursuant to California Rules of Court, rule 3.1700.

The court finds that $125 in costs for service of process on TPUSA, Inc. were not reasonably necessary to the commencement and prosecution of this action against Defendant. (Pl. Memo. of Costs, MC-011, Worksheet, ¶ 5, subd. (b); Civ. Code, § 1794, subd. (d); Code Civ. Proc., § 1033.5, subd. (c)(2).) The court therefore grants Defendant’s request to tax the cost memorandum in that amount.

Thus, the court finds that Plaintiff is entitled to an award of costs in the amount of $2,913.36.

The court grants plaintiff Virginia Zamora’s motion for attorney’s fees and costs as follows.

The court orders that plaintiff Virginia Zamora shall recover a total of $53,515.36 from defendant General Motors LLC, consisting of (1) $50,602 in attorney’s fees and (2) $2,913.36 in costs.

[1] The court notes that Defendant did not request that the court reduce the fees charged in any other entry on this ground. (Opp., pp. 5:22-6:21.) The court also notes that (1) although Defendant asserted that Norder billed only 0.1 hours on February 28, 2022 to review availability and respond to the meet and confer conference, Norder actually billed 0.2 hours for a total of $50, and (2) although Defendant asserted that Barry billed 0.1 hours at $120 to review the proposed order on the motion to strike on April 21, 2022, Barry actually billed 0.1 hours for a total of $60. (Opp., p. 6:1-2, 6:13-14; Barry Decl., Ex. 6, Invoice, pp. 3, 12.)

virginia zamora ; Plaintiff, vs. general motors, llc , et al.; Defendants.	Case No.:	22STCV04929

	Hearing Date:	May 14, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: plaintiff’s motion for attorney’s fees and costs