Judge: Stephen P. Pfahler, Case: 22STCV17637, Date: 2025-03-24 Tentative Ruling

Case Number: 22STCV17637    Hearing Date: March 24, 2025    Dept: 68

Dept. 68

Date: 3-24-25 c/f 1-15-25

Case 22STCV17637

Trial Date: 2-27-24 c/f 2-20-24

ATTORNEY FEES

MOVING PARTY: Plaintiff, Fernando Gonzalez

RESPONDING PARTY: Defendant, General Motors, LLC

RELIEF REQUESTED

Motion for Attorney Fees

SUMMARY OF ACTION

On November 23, 2018, plaintiff Fernando Gonzalez purchased a 20218 Chevrolet Camaro vehicle manufactured by Defendant General Motors, LLC. Plaintiff alleges the vehicle suffers from defects.

On May 27, 2022, Plaintiff filed a complaint for Violation of the Song-Beverly Consumer Warranty Act. On February 14, 2024, Plaintiff filed a notice of settlement. On April 9, 2024, the court entered judgment.

RULING: Granted.

Evidentiary Objections to Declaration of Matthew Dobson

·         Paragraph 12, Exhibit B: Sustained.

·         Paragraph 12: Overruled.

Plaintiff Fernando Gonzalez moves for $79,642.50 in attorney fees. The amount is based on a base amount of $53,095 with a “modest” multiplier enhancement of one- and one-half times the amount for an additional $26,547.50. Defendant General Motors, LLC (GM) in opposition challenges the motion as untimely, and the fees as exorbitant, with an entitlement at most to $18,132.20 in fees. Plaintiff in reply objects to the opposition exceeding the 15 page limit, and reiterates the reasonableness of the request, the lack of specific challenge to any particular entry. The reply lacks any particular address to the challenge of the timeliness of the motion.

The total number of pages in the opposition exceeds 15 pages. The court acknowledges the single spaced sections on pages 10 & 11, but even doubling the line spacing, the court concludes the actual points and authorities still totals less than 15 pages. The court therefore considers the full opposition. (Cal. Rules Ct., rule 3.113(d).)

A motion for attorney fees must be served and filed within the time for the filing of a notice of appeal in a civil case. (Cal. Rules Ct., rule 3.1702(b)(1).) The time for the filing of a notice of appeal in an unlimited action is 60 days if a “Notice of Entry” of Judgment was served by the court clerk or a party to the action, or within 180 days of entry of judgment. (California Rules of Court rule 8.104.) Judgment was entered on April 9, 2024, and the motion filed on September 13, 2024—157 days or five months and four days following entry of judgment. The court shows no “notice of entry of judgment” served, thereby triggering the 60 day notice deadline. The motion was filed less than 180 days from entry of judgment, and is therefore timely under California Rules of Court rule 3.1702(b)(1).

The court otherwise declines to find the motion untimely on the basis of the “legal” equivalence of a judgment based on the settlement. First, nothing in the court docket indicates the notice of settlement was in any conditioned on any 998 offer. The judgment itself also lacks any acknowledgment of a 998 offer. The court declines to consider the impact of a term not presented on the record. (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, 399-403.)

The judgment itself delegates determination of statutorily recoverable fees and costs to the court, thereby entitling Plaintiffs to bring the subject motion. (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168–169.) Plaintiff is the 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).) Plaintiff also filed a memorandum of costs on August 6, 2024. GM neither filed a separate motion to tax, nor challenges any items on the memorandum of costs. The court considers all costs, including the subject motion to recovery fees and costs.

Plaintiff has “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.)

The 18-page statement lists a total of 116.8 hours broken down as follows: Alana Mellgren by Associate Attorney 5.5 @ $450/hour for a total of $1,035; 22 hours by Amy Rotman Senior Attorney @ $550/hour for a total of $10,835; 35.7 hours by Laura Rose Schwartz Associate Attorney at $450/hour for a total of  $14,760; 17.2 hours by Jessica Underwood Senior Trial Attorney @ $550/hour for a total of $7,425.00; 8.5 hours by Rebecca Evans Senior Managing Paralegal @ $300.00/hour for a total of $2,340.00; 9.3 hours by Andrea Lizarraga Paralegal @ $250.00/hour for a total of $975.00; Dalia Zaki Non-Attorney 18.6 hour @ $250/hour for a total of $3,125. The billable rates range from $250 to $550 per hour and indicate a total of $40,495, as opposed to the amount sought in the motion for $53,095 with an indicated 134.8 hours of work. [Declaration of Richard Wirtz.] The 18 hours and $12,600 difference is accounted for by co-counsel Susan Yeck. [Declaration of Susan Yeck, Ex. 1.] Yeck bills at a rate of $700/hour.

GM offers a general challenge to the billable rates and an “across the board” cut of 10% for each and every billing person. GM also maintains the paralegal billable rate of $300/hour is excessive given the represented market rate of $75/hour. Plaintiff challenges the GM suggested $75/hour rate for the paralegals and maintains their work constituted more than “clerical” tasks.

The subject action was taken on a contingency basis, with statutory recovery of attorney fees an assumed condition for any recovery fees by counsel. Song-Beverly litigation constitutes a specialty, due to the extensive statutory guidelines and technical requirements in analyzing a vehicle. The billable rates represent various ranges of experience well within the rates for a consumer advocate litigator in Los Angeles County. The court finds the billing rates for the attorneys reasonable. (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 however agrees that paralegal billable rates of $250-$300 per hour exceeds generally observed market rates, and appears more at levels of an associate attorney for consumer litigation. The court appreciates the appearance of managing costs with lower billable rate personnel, but the subject rates render any such represented illusory. The court therefore reduces the paralegal rates to $125 to $150 per hour.

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 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 (2008) 165 Cal.App.4th 1315, 1329.)

GM takes issue with certain entries, such as the “hours” spent on counsel auditing their own fees and billing and the preparation of the subject motion, excessive law and motion and client meeting hours, and trial preparation on a trial that never occurred, including motions in limine. GM seeks to deduct 78.5 hours at the equivalent of $31,891. The court finds no specific documented examples of unrelated work leading to the settlement, but questions the recovery of certain discovery related items given the withdrawal of the motion to compel the Person Most Knowledgeable deposition and lack of any hearing on the filed but now unscheduled motion to tax/strike costs also justifies scrutiny. (See Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) The court acknowledges the multiple non-billable entries, but also questions certain multiple entries on singular or similar tasks, including redundancy with co-counsel.

The court as a matter of policy reduces or eliminates pre-trial entries for items related to law and motion work not presented to the court. The court therefore deducts all entries related to the motion to strike costs, and motion to compel PMK deposition, including the notice of withdrawal of said motion, including entries on January 5, 19, 22, 23, 24, 25 26, 30, 31, 2024, February 7, 9, 13, 2024, September 12, 2024, and (“anticipated”) entry on January 9, 2025. The court also finds deducts the January 23, 2024, entries regarding initial responses to the Request for Production of Documents (set one). On the subpoena for business records beginning on January 22, 2024, the court cannot determine the necessity such discovery on the eve of trial, and therefore also removes the subject items from consideration. The court allows all initial discovery, including efforts to schedule the PMK deposition, as part of early case preparation.

Given the February 20, 2024, trial date however, which was continued to February 27, 2024, on January 30, 2024, pursuant to the ex parte order, and notice of settlement only filed on February 14, 2024, the court considers the pre-trial preparation entries reasonable. Plaintiff was required to prepare the case for trial up until the time of any agreement for settlement. Whether trial posture encouraged settlement or constituted a retroactively superfluous act remains outside the scope of consideration in regards to determining the reasonableness of the billing.

The court acknowledges the numerous non-billed “internal communication” and “co-counsel” items, though counsel maintains 19.2 hours over 68 “vague entries” for a total of $9,585 appears “throughout” the statement. The court cannot determine any actual billed statements both fitting this category and amount. The January 17, February 16, March 8, April 4, April 15, May 7, 8, 13, 24, and 29, 2024, client communications for $50, $60, $30, $30, $60, $60, $30, $240, $120, $30, otherwise appears reasonable.

GM also specifically challenges the fees for the subject motion to be cut by approximately one-third, the entries for trial preparation and motions in limine reduced by one-half, and the “auditing” of the subject fees be disallowed in entirety. A single entry on June 11, 2024, appears, but again, another “audit” entry on September 12, 2024, remains unbilled. The court declines finds the broken out statements by individual in no way represent duplicative or additional billing from the main statement presented in Exhibit 1. The court however agrees that the June 11, 2024, audit fees of $660 appear unnecessary. The court therefore strikes this item. As for the 4.6 hours in trial documents and 2.6 hours for motions in limine, the court finds all entries reasonable, and declines to reduce the items by 50%. The court also finds the 9.6 hours in total for the subject motion is reasonable, and declines to reduce the amount by one-third. The conclusive demand for a reduction depends on the assumption of reliance on pre-existing work, a template, thereby conclusively constituting an excessive demand. The court also assumes some redundancy for an experienced firm, but cannot discount the necessity of still compiling the required information and addressing whatever positions may be presented in the opposition. GM otherwise offers no challenge to the declaration of Susan Yeck. It appears Yeck was extensively involved in settlement negotiations, to which the entries from co-counsel indicate no redundant billing.

As articulated above, the court therefore deducts 28 total hours from the 116.8 presented in the Wirtz declaration. The court also adjusts the remaining billed paralegal hours (three hours deducted) to $1,675 and $1,170 based on rates of $125 and $150 per hour. Total fees in the Wirtz declaration therefore amounts to $25,580 ($7,200 (LRS) + $6,435 (LJR) + $8,470 (AR) + $630 (AM) $1,675 (paralegal) + $1,170 (paralegal), plus the unchallenged $12,600 bill from Yeck.

On costs, GM submits no apparent opposition to any costs. The August 6, 2024, Memorandum of Costs clearly articulates each and every item. The court finds no improperly listed items. The items appear reasonable, with or without supporting documentation. The court awards all unchallenged costs.

When considering a lodestar enhancement request, the court must consider a series of factors. “[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.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “Contingency and delay factors” apply in consideration of the application of a lodestar enhancement in order to reflect the ‘semiguaranteed’ recovery of fees upon a successfully prevailing party, but any consideration must still acknowledge the “contingency” nature of representation in general. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 400 (footnote 11).)

“In Serrano IV, applying the same principles to the statutory fee award under Code of Civil Procedure section 1021.5, we reiterated that fee awards should be fully compensatory. We approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type. (Citation.) [¶] We held in Serrano IV that, absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee. (Citation.) We explained that the purpose behind statutory fee authorizations—i.e., encouraging attorneys to act as private attorneys general and to vindicate important rights affecting the public interest—'will often be frustrated, sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee claim.’ (Citation.) [¶] We acknowledged the discretion of the trial court in setting attorney fees, but emphasized that because the determination of the lodestar figures is so fundamental to arriving at an objectively reasonable amount, ‘the exercise of that discretion must be based on the lodestar adjustment method.’ (Ibid.) We also reiterated that the lodestar figure may be increased by application of a fee enhancement, or reduced as appropriate, after the trial court has considered other factors concerning the lawsuit, including the contingent nature of the fee award.” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1133–1134.)

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 demonstrates a rare or exceptional case showing a significant benefit beyond compensation under the consumer remedies, 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.)

Subtracting the hours from the total, adjusting the paralegal hours, and adding in attorney Yeck, leads to an unenhanced total of $38,180, plus all costs.

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.