Judge Theresa M. Traber, Case Number: 22STCV08673, Date: 2024-01-11 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV08673, Date: 2024-01-11 Tentative Ruling

Case Number: 22STCV08673 Hearing Date: January 11, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 11, 2024 TRIAL DATE: NOT SET

CASE: Lincoln Austin Sanabria Perez v. FCA US, LLC, et al.

CASE NO.: 22STCV08673

MOTION FOR ATTORNEY’S FEES, COSTS, AND EXPENSES

MOVING PARTY: Plaintiff Lincoln Perez

RESPONDING PARTY(S): Defendant FCA US, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was a lemon law action filed on March 10, 2022. Plaintiff purchased a new 2018 Jeep Wrangler which developed serious defects in the electrical and ventilation systems. Plaintiff alleges multiple violations of the Song-Beverly Consumer Warranty Act as to the manufacturer and negligent repair as to Defendant Glendale Dodge Chrysler Jeep.

Plaintiff now moves for an award of attorney’s fees pursuant to a settlement.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees is GRANTED in part in the amount of $41,244 in fees.

DISCUSSION:

Plaintiff moves for an award of attorney’s fees in the amount of $77,754.75 pursuant to a settlement.

Defendant’s Evidentiary Objections to Declaration of Richard M. Wirtz

Defendant raises evidentiary objections to Exhibits 2 through 6 attached to the declaration of Richard M. Wirtz in support of the motion. None of the materials to which the Defendant objects are material to the Court’s ruling. The Court therefore declines to rule on these objections.

Defendant’s Evidentiary Objections to Declaration of Norman Taylor

Defendant also raises evidentiary objections to Exhibits 2 through 5 attached to the Declaration of Norman Taylor in support of the motion. These exhibits are likewise immaterial to the Court’s ruling. The Court therefore declines to rule on these objections as well.

Plaintiff’s Evidentiary Objections to Declaration of Mark W. Skanes

Plaintiff raises several evidentiary objections to the Declaration of Mark W Skanes and attached exhibits in opposition to the motion. The Court rules on these objections as follows.

Objection No. 1: OVERRULED. This evidence is not hearsay because the statements in the proffered documents are not offered for the truth of the matters asserted within them. Remaining objections go to weight, not admissibility.

Objections Nos. 2-9: OVERRULED. Objections go to weight, not admissibility.

Objections Nos. 10-11: OVERRULED. This evidence is not hearsay because the statements in the proffered documents are not offered for the truth of the matters asserted within them. Remaining objections go to weight, not admissibility.

Entitlement to Fees

Plaintiff seeks an award of attorney’s fees pursuant to a settlement agreement reached by the parties. Plaintiff brought claims for violation of the Song-Beverly Consumer Warranty Act (Civ. Code § 1790 et seq.) and for fraudulent omission.

Civil Code section 1794(d) states:

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.

On July 21, 2023, Plaintiff signed an offer to compromise under Code of Civil Procedure section 998 to repurchase Plaintiff’s vehicle for $85,000. (Declaration of Richard M. Wirtz ISO Mot. Exh. 7 ¶ 1.) The offer provided for an award of reasonable attorney’s fees to Plaintiff by noticed motion pursuant to Civil Code section 1794(d), with the award to be paid by Defendant FCA. (Id. ¶ 3.) The parties agree that Plaintiff is the prevailing party for the purposes of this motion. (Id.)

Reasonableness of Fees

Plaintiff requests a total fee award of $77,754.75, based on a total of $17,976.50 in fees accrued by Norman Taylor & Associates, $30,395 in fees accrued by Wirtz Law APC, plus $3,465 in anticipated fees to prepare a reply brief and attend the hearing on this motion, plus an additional $25,918.25 resulting from a 1.5x multiplier. (See Notice of Motion; Wirtz. Decl. Exh. 25 [anticipated fees].)

Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10), (c)(5)(B).) In actions that are based on a contract, “where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract… shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civil Code § 1717(a) [emphasis added].) A recovery of attorney’s fees is authorized even in noncontractual or tort actions if the contractual provision for fee recovery is worded broadly enough. (See Code Civ. Proc § 10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993 [agreement to award fees based on outcome of “any dispute” encompasses all claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155, 160.)

Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney’s fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[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….” (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

1. Base Fee Requests

Plaintiff has provided an itemized list of the attorney and paralegal time billed in connection with this case by both NTA and Wirtz Law. (Declaration of Norman Taylor ISO Mot. Exh. 1; Wirtz Decl. Exh. 1.) NTA billed a total of 34.3 hours in connection with this case at hourly rates ranging from $250 to $645 per hour. (Taylor Decl. Exh. 1.) Wirtz reportedly billed a total of 119.4 hours at rates ranging from $250 to $550 per hour, including 11 hours not charged. (Wirtz Decl. Exh. 1.) Attorney Thomas attests to the skills, training, experience, and hourly rates of NTA’s paralegals and his former associate as their supervisor, as well as his own, and to the veracity of SLP’s time entries. (Taylor Decl. ¶¶ 4-14.) Similarly, Attorney Wirtz attests to the skills, training, and hourly rates of the attorneys and paralegals in his firm as their supervisor. (Wirtz Decl. ¶¶ 15-23.) The Court also observes that, notwithstanding the length of time spent on this case, that Plaintiff’s counsel has exercised billing judgment, assigning research and drafting tasks to associates and junior partners and clerical tasks to paralegals, while reserving more strategic and editing pursuits to senior partners charging higher rates. (See generally Wirtz Decl. Exh. 1.) Wirtz Law has also declined to bill or seek fees for attorney time spent on communication within the firm or with co-counsel, amounting to 11 hours billed at an effective rate of $0. (Id.)

Defendant first argues that Plaintiff’s counsel improperly combined billing for work done in service of Plaintiff’s Song-Beverly claims and work done in service of the separate negligence claim. Defendant contends that Plaintiff’s negligence claim is wholly distinguishable from the other causes of action, such that Plaintiff should not recover fees incurred on that claim. The Court is not persuaded. Although it is true that the Complaint, as Defendant contends, alleges that the fourth cause of action for negligence “is independent from Plaintiff’s Song-Beverly Act causes of action” (Complaint ¶ 59), closer examination of the pleadings reveals that the negligence claim arose out of Glendale Dodge Chrysler Jeep’s inability, as an authorized service and repair facility, to correct the defects identified in the subject vehicle. (See Complaint ¶¶ 14-16.) Thus, the negligence claim concerns a subset of the facts that are material to the Song-Beverly claims against FCA, that is, Defendants’ inability or unwillingness to repair the subject vehicle. The Court therefore finds that, because these claims arise from a common nucleus of facts, it would be impractical to separate the fees incurred between Song-Beverly and common law tort claims. The Court therefore does not find that the fees sought are unreasonable on this basis.

Defendant also identifies instances of duplicate billing and excessive hours. The billing records show that NTA billed 5.3 hours for a total of $2,273 to review the case and the repair history before the Complaint was filed, but that Wirtz billed a further 2.5 hours and $935 in fees to do the same. (Taylor Decl. Exh. 1 p. 1; Wirtz Decl. Exh. 17.) Defendant contends that these fees should be reduced by half. Defendant also offers evidence that Attorney Taylor billed excessive hours for the preparation of template discovery requests, for which Attorney Taylor billed 10.2 hours and $6,036 in fees despite their substantial similarity to other discovery requests. (Taylor Decl. Exh. 1. p.1.; Skanes Decl. Exhs. B-E.) Defendant argues these fees should be reduced by 7.2 hours and the rate reduced to $300 per hour for the remainder, but provides no justification for the reduction in hourly rate. Finally, Defendant states that Attorney Taylor and his staff routinely billed in excess of half an hour for routine matters such as preparation of a 170.6 challenge and service and filing of documents. (See Taylor Decl. Exh. 1. Dates Mar. 10, 2022, Mar. 21, 2022, May 3, 2022; Chart p.1.) Defendant sums this total to 6.8 hours and a total of $2,835, which it contends should be reduced by half. Plaintiff offers no justification for any of these fees save a conclusory assertion that they are reasonable.

The Court agrees that these entries are not reasonable based on the considerable experience of Plaintiff’s counsel. It should not take an attorney of Mr. Taylor’s years 10 hours to draft discovery responses based on templates he already possesses, nor should service and filing of form documents routinely take more than half an hour. The Court will therefore reduce the requested fees by $1,609, reflecting half of the time billed to review the case pre-filing; an additional $4,101, reflecting all but 3 hours incurred preparing Plaintiff’s template discovery at Attorney Taylor’s stated rate, and by a further $1,417.50, reflecting half of the fees incurred on the unreasonably inflated routine matters identified by Defendant, for a total reduction of $7,127.50.

Defendant also asserts that the hourly rates of Plaintiff’s counsel, especially paralegals, are excessive and unreasonable, and that Plaintiff’s counsel billed excessively for unspecified client communications. Unlike the other specific items to which Defendant objects, Defendant offers no evidence to support the contention that these fees are unreasonable beyond the conclusory assertion that they are so. (See generally Declaration of Mark. W. Skanes ISO Opp.) Moreover, these billing entries are not facially unreasonable, as were the entries identified supra. The Court therefore is not persuaded that the fee request should be further reduced on this basis.

As a final matter regarding the base fee request, the Court declines to award the anticipated fees in the amount of $3,465 because they have not been actually incurred. The Court therefore finds that the base fee request should be reduced by a total of $10,592.50.

2. Fee Multiplier

Plaintiff requests that the lodestar be enhanced by a multiplier of 1.5x, which would result in an additional award of $25,918.25. Plaintiff contends that this multiplier is reasonable considering the contingent nature of this action, Plaintiff’s counsel’s experience and knowledge, the difficulty of this litigation, and the favorable result achieved for Plaintiff.

Multipliers for successful representation on a contingency basis have frequently been awarded. (See, e.g., Santana v. FCA US LLC (2020) 56 Cal.App.5th 334, 352.) Here, however, nothing in the record demonstrates that such a multiplier is warranted. Plaintiff has not proven any substantial risks undertaken. Prosecuting a case through discovery disputes, motions practice, and preparations for trial shows legal representation that embraces risk despite the contingent character of receiving fees. A Song-Beverly action where the case sat idle on the Court’s docket for eighteen months—notwithstanding negotiations and mediation to which the Court was not privy—and where there was no substantive motion practice before settlement and no trial preparation does not demonstrate risk. Nor were there any novel, difficult, or complicated issues confronted in this case. The level of expertise exhibited by Plaintiff’s counsel in securing this favorable settlement is amply accounted for in the substantial hourly rates sought as their market rates. The Court cannot conclude that a multiplier should be applied to the sue-and-settle approach adopted here.

The Court therefore concludes that an award of $41,244 is reasonable and appropriate in this case.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Attorney’s Fees is GRANTED in part in the amount of $41,244 in fees.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 11, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.