Judge: Stephen P. Pfahler, Case: 21STCV09730, Date: 2024-03-19 Tentative Ruling

Case Number: 21STCV09730    Hearing Date: March 19, 2024    Dept: 68

Dept. 68

Date: 3-19-24 c/f 1-24-24

Case: 21STCV09730

Trial Date: N/A

ATTORNEY FEES

MOVING PARTY: Plaintiffs, Ricardo and Olga Heredia

RESPONDING PARTY: Defendant, General Motors, LLC

RELIEF REQUESTED

Motion for Attorney Fees

SUMMARY OF ACTION

On March 11, 2021, Plaintiffs Ricardo and Olga Heredia filed a “lemon law” complaint regarding their 2016 Chevy Malibu vehicle. On July 19, 2023, Plaintiffs filed a notice of settlement of the entire case.

RULING: Granted.

Evidentiary Objections: Overruled.

Request for Judicial Notice: Granted.

The court takes notice of the existence of other court orders, but declines to take notice for the truth of any matter asserted in any and all items. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The orders also constitute unpublished material, and therefore not citable for any reference. (Cal. Rules of Court, rule 8.1115(a); Rittiman v. Public Utilities Com. (2022) 80 Cal.App.5th 1018, 1043 (footnote 18).)

Plaintiffs Ricardo and Olga Heredia move for $51,351.75 in attorney fees. Defendant General Motors, LLC (GM) in opposition challenges the motion on grounds of excessive attorney fees and lack of any justification for a multiplier. Plaintiffs in reply acknowledges the lack of any opposition to the entitlement of fees, and reiterates the reasonableness of all entries as well as entitlement to a multiplier enhancement. Plaintiff also extensively challenges the objections of GM to the time entries.

The entitlement to fees pursuant to the statute is undisputed. Plaintiffs are also presumed prevailing parties for purposes of statutory recovery. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10)(B); Civ. Code, § 1794, subd. (d).) The 998 offer led to an $40,000 repurchase, with attorney fees to be determined via noticed motion before the court. [Declaration of Tionna Carvalho., ¶ 39, Ex. 4.]

The accepted offer specifically delegated determination of fees to the court, thereby entitling Plaintiffs to bring the subject motion. (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168–169.) As a prevailing party, Plaintiffs are entitled to recover post-offer costs as well. The court finds the provisions of Code of Civil Procedure section 998 not applicable, as the action settled rather than going to trial and leading to judgment. (Code Civ. Proc., § 998, subd. (e).) Nothing in the opposition to the motion otherwise establishes any right to a fee cut-off subsequent to the time of the offer, due to Defendant obtaining a better result via judgment. (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1114; Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 726; see Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 60; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 248.)

Plaintiffs have “the burden of showing that the fees incurred [are] “’allowable,’ [are] ‘reasonably necessary to the conduct of the litigation,’ and [are] ‘reasonable in amount.’” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34.) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) The lodestar method for determination of fees applies. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 819.)

“‘[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.] 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.’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court makes it determination based on the consideration of a number of factors, including, “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Ibid.) The court should apply an objective standard of reasonableness. (Id. at p. 1098.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) The court adheres to the “market rate” approach for contingency cases, and finds the “Laffey” charts general and only suggestive. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620.)

Counsel lists billable rates between $290 to $595 per hour over 75.40 hours for a total of $34,538.50, plus an additional $3,500 for the subject motion. [Declaration of Payman Shahian, ¶ 73, Ex. 18.] Plaintiff seeks a 1.35 times multiplier applied to the $34,538.50 base for an additional $12,088.48, as well as $1,224.77 in costs. [Id., ¶¶ 74-75.]

GM in opposition opens with a counteroffer of $9,782.50, a recovery with no multiplier enhancement, based on a challenge to the reasonableness of the fees given the straightforward, routine nature of the action and experience of counsel. GM also contends no entitlement to recovery of any costs.

GM otherwise offers no particular argument to the range of hourly rates, but in arguing for a reduction of fees GM effectively agrees to a collective hourly rate close to the requested amount: GM moves for a reduction of $24,756 based on the reduction of 55.7 hours, which approximates $445/hour, while the $34,538.50 in sought after fees divided by 75.40 hours equals approximately $458/hour. (The request for $3,500 in fees associated lists 8.2 hours at $375/hour by Zavig Mkrdech for a listed total of $3,075.) The court finds a collective rate of $450/hour reasonable.

The subject action was taken on a contingency basis, with statutory recovery a condition of prevailing on the action. Song-Beverly litigation constitutes a specialty, due to the extensive statutory guidelines and technical requirements in analyzing a vehicle. While the court cannot take notice of other courts approved billable rates, the court finds the collective billing represents a reasonable range of rates and blended rate structure. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247, 256; Center for Biological Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at pp. 619-620; see Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973) 487 F.2d 161, 167.)

The court next considers the listed entries. “In referring to ‘reasonable’ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Levy v. Toyota Motor Sales, U.S.A., Inc., supra, 4 Cal.App.4th at p. 817.)

The court finds no documented examples of unrelated work leading to the settlement, or redundant billing on items. (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) Plaintiff in reply emphasizes the lack of redundant billing or block billing . GM cites to no particularly unnecessary items as an entry in an of itself, and instead focuses on the reasonableness of hours listed for said tasks. (See Mikhaeilpoor v. BMW of North America, LLC, supra, 48 Cal.App.5th at pp. 255-256.) The court considers the individual contributions of each attorney rather engage in a categorical determination of entitlement. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 40; Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 280-281; Christian Research Institute v. Alnor, supra, 165 Cal.App.4th 1315, 1329.)

The court begins with the first entry—the complaint. The fee log lacks any entry for the drafting of the complaint itself. Thus, assuming a form complaint, the court finds the time spent revising, finalizing and incorporating supporting documents regarding the subject parties and vehicle over a period of 1.2 hour remains a justifiable entry. The court however finds the discovery entries, when considered in total from October 13, 2021, October 15, 2021, October 18, 2021, November 22, 2021, November 23, 2021, November 24, 2021, and November 30, 2021, for a total of 15.4 hours lacking any specific support in the declaration of moving counsel, including even a basic description of the discovery conducted. [See Declaration of Ryan Kay, ¶ 5, Ex. C.] The responses to discovery indicate boilerplate objections. [See Id., ¶ 9, Ex. G.] The court finds 8.1 hours for routine admissions, interrogatories and document production utilized by an experienced consumer/lemon law litigation firm, and 7.3 hours for objections lacking support. The court deducts 10 hours from this set, and reduces the total to 5.4 recoverable hours.

The court also finds the hours spent on the motion to compel the PMQ deposition excessive. The list shows entries on December 23, 2022, December 29, 2022, January 3, 2023, February 17, 2023, February 21, 2023, February 28, 2023, and March 27, 2023, for a total of 30 hours. The court conducted an Independent Discovery Conference, which led to a stipulated agreement for the deposition by a certain cutoff date. Nothing in the motion presented complicated subject matter, other than the scope of the deposition questions, and was apparently resolved following the IDC. The court therefore deducts 15 hours from this set of items, which includes recovery for motion prep and IDC appearance time. On the subject motion for recovery attorney fees and costs, the court reduces the sought after time spent to five (5) hours from the 7.2 hours listed, plus an additional three (3) hours for any reply and appearance for a total of eight (8) hours. The court declines to consider the declaration in reply from Dhara Patel requesting nine (9) hours of billing time just for the reply to the subject motion, especially given the prior entry by separate counsel, and the courts own determination of the reasonableness of the fee.

The court therefore deducts 25 hours from the 75.40 listed, adds in 0.8 hours into the instant motion for recovery of fees, leading to a total of 51.2 hours. Given the hours on the attorney fee motion only appeared billed at $375/hour by Zavig Mkrdech, the court therefore adheres to this for this particular item only, which equals $3,000. On the 43.2 remaining hours, the court multiplies the recovery by the collective rate of $450/hour for a total of $19,440. The combined amount adds up to $22,440.

The court declines to award a multiplier on the subject action. “The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in “ ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts” that the lodestar amount is unreasonably low or unreasonably high.” (Van Gerwen v. Guarantee Mut. Life Co. (9th Cir. 2000) 214 F.3d 1041, 1045.) The court finds the lodestar determination sufficiently addresses the fee. Nothing in the litigation over the subject vehicle which led to a pre-trial settlement demonstrates a rare or exceptional case showing a significant benefit beyond reimbursement for the vehicle and lost time, as well as a fee reflecting the contingency nature of the representation. (Blum v. Stenson (1984) 465 U.S. 886, 901; Hensley v. Eckerhart (1983) 461 U.S. 424, 434; see Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 844.)

On costs, the court appreciates the argument from GM regarding the lack of documentation, but finds no improperly listed item. The items appear reasonable, especially given the fixed fees for court costs, electronic filing, and video appearance, without or without documentation. The service of process fees in no way appears excessive. The court awards all costs.

The court therefore awards $22,440 in attorney fees plus $1,224.47 in costs for a total recovery of $23,664.47.

Because the amount of fees exceeds $5,000, the order is immediately appealable. (Code Civ. Proc., 904.1, subd. (a)(12); Doe v. Luster (2006) 145 Cal.App.4th 139, 146.)

Plaintiff to give notice.