Judge Upinder S. Kalra, Case Number: 22STCV33860, Date: 2024-07-19 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

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On October 19, 2022, Plaintiff Blanca Mazariegos (Plaintiff) filed a Complaint against Defendant General Motors, LLC (Defendant) with two causes of action for: (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer Warranty Act; and (2) Breach of Express Warranty under the Song-Beverly Consumer Warranty Act. The Complaint concerns Plaintiff’s purchase of a 2022 Chevrolet Silverado, VIN 1GCPWBEK2NZ117813.

On April 22, 2024, Plaintiff filed a motion for attorneys’ fees and costs. On April 23, 2024, Plaintiff filed an amended motion. On May 31, 2024, Defendant filed an opposition. On June 6, 2024, Plaintiff filed a reply.

A prevailing buyer in an action under Song-Beverly “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.” (Civ. Code, § 1794(d).) By permitting buyers who prevail under Song-Beverly to recover their attorneys’ fees, “our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994.)

The prevailing party has the burden of showing that the requested attorney fees are reasonable. (Robertson v. Fleetwood Travel Trailers of California Inc. (2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “is not necessarily entitled to the compensation of the value of attorney services according to [his or her] own notion or to the full extent claimed . . . .” (Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.) If the “time expended or the monetary charge being made for the time expended are not reasonable under all circumstances, then the court must take this into account and award fees in a lesser amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

A calculation of attorneys’ fees for a Song-Beverly action begins with the “lodestar” approach, under which the Court fixes the lodestar at “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005.) “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.” (Ibid.)

“It is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) It is also appropriate to reduce a fee award based on “inefficient or duplicative efforts” in the billing record. (Id. at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions about the fairness of the fee award. (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102.) Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 39.)

The lodestar figure may also 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. (Serrano v. Priest (1977) 20 Cal.3d 25, 49; PLCM Group, Inc. v. Drexler (2000) 22 Cal.App.4th 1084, 1095.) The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure,¿and other circumstances in the case. (EnPalm, LLC v.¿Teitler¿Family Trust¿(2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank,¿N.A.¿(2001) 92 Cal.App.4th 819.)¿

Plaintiff requests $31,875.00 in attorneys’ fees and $3,433.20 in costs for a total of $35,308.20. Defendant requests that the court reduce the attorneys’ fees to $12,863.50 and costs to $2,523.25.

Four attorneys were involved at various junctures in this case. (Barry Decl., ¶ 17.) C. Richard Lara was the handling attorney ($350 hourly rate). (Barry Decl., ¶ 17; Lara Decl., ¶ 6.) The involvement of David N. Barry ($600 hourly rate before 3/31/23, $625 thereafter) “became necessary given the facts and complexity of the case, the litigation posture of Defense, and given this case was approaching trial.” (Barry Decl., ¶¶ 17, 22.) Otis R. Hayes ($500 hourly rate) and Jeramy D. Templin ($350 hourly rate) also worked on the case. (Hayes Decl., ¶ 5; Templin Decl., ¶ 7.)

Here, the parties entered a Settlement Agreement that provided for GM to pay Plaintiff $54,000.00, inclusive of loan payoff, representing a full repurchase in exchange for the Subject Vehicle; that Plaintiff is the prevailing party; and that attorneys’ fees, costs, and expenses incurred by Plaintiff would be paid in compliance with Civil Code § 1794(d) by way of motion. (Barry Decl., Exh. 4.)

The lodestar method looks at the time spent on a matter multiplied by the reasonable hourly rate. (Serrano, supra 20 Cal.3d at 49). The two-step process begins with the lodestar method, which is the time spent on the matter multiple by the hourly rate. After the lodestar method, the second step is determining whether a multiplier should be applied. The factors that Courts look at to determine if a multiplier is reasonable are: 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 (2001) 24 Cal.4th 1122, 1132).

“In determining hourly rates, the court must look to the “prevailing market rates in the relevant community.” (Bell v. Clackamas County¿(9th Cir.2003) 341 F.3d 858, 868.) The rates of comparable attorneys in the forum district are usually used. (See¿Gates v. Deukmejian¿(9th Cir.1992) 987 F.2d 1392, 1405.) In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees.” (Heritage Pacific Financial, LLC v. Monroy¿(2013) 215 Cal.App.4th 972, 1009.)

Plaintiffs argue the hourly rates are reasonable. Here, the requested hourly rates are as follows according to the Motion, p. 14:

The court finds that these hourly rates are reasonable based on the hourly rate of similarly situated attorneys in the Los Angeles area. Based on the Laffey Matrix, attorneys with similar years of experience as Plaintiffs’ counsel as identified above have comparable, if not a higher hourly rate. However, billing at a high rate comes with the expectation that the attorney also works in an efficient manner that reflects the premium paid for his or her services. The court considers this fact in addressing the reasonableness of the hours expended, below.

To determine if the requested amount is reasonable, California courts utilize the lodestar method. The two-step process begins with the lodestar method, which is the time spent on the matter multiple by the hourly rate. After the lodestar method, the second step is determining whether a multiplier should be applied. The factors that Courts look at to determine if a multiplier is reasonable are: 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 (2001) 24 Cal.4th 1122, 1132.)

Although a verified fee bill is “prima facie evidence the costs, expenses and services listed were necessarily incurred,” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682), ultimately, Counsel still has the burden to demonstrate the reasonableness of charges. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) The court has reviewed the fee bill submitted by Counsel and the proposed reductions by Defendant.

Plaintiffs contend that the billable hours are reasonable. The total amount billed is 72.2 hours. While Plaintiff is to be commended for not billing for all work and assigning much of the work to a junior associate billing at $350 per hour, the hours billed for this unremarkable lemon law case with no dispositive motions and very little other motion work seems high. Upon further review of the billing, the Court questioned the reasonableness of some billing entries.

Boilerplate filings serve a useful purpose. They increase productivity by allowing for simple edits to existing documents. Thus, utilizing templates is to be commended when it results in efficiency. However, if templates are employed but attorneys are still billing significant time to make minor changes, such use of legal resources is unwarranted and any such bill is unreasonable, particularly if the attorney is billing at a high hourly rate. (Mikhaeilpoor, supra, at p. 250.) Here, the court found instances where the time spent for minor cut and paste edits to templates was unreasonable.

The Court reviewed the time spend for drafting discovery requests, reviewing discovery, responding to discovery, a motion to compel a deposition, preparing meet and confer letters, drafting an IDC statement and drafting memos to file. Drafting discovery motions and meet and confer letters, and memos to file for a sophisticated, highly practiced Lemon Law firm is template or clerical work. Responding and reviewing discovery is similar to cookie cutter work. An IDC Statement is to be a memorandum measured in pages that is supposed to concisely state the issue. The Court reviewed the IDC statement in this case. It could not have reasonably taken 3.5 hours of attorney time to write. The Court is mindful of the purpose of an IDC. It is supposed to save costs and not generate 3.5 hours of billable time. Accordingly, these fees are unreasonable.

Counsel billed 12.2 hors for a fee motion. This looks like many that this Court has reviewed. It is simply an accounting and a template. A seasoned Lemon Law firm should spend no more than 7 hours on this motion in this matter.

Counsel billed for 3.3 hours totaling $1,410 traveling to and from court. This Court agrees that this charges are unreasonable on their face.

As such, the Court reduces the requested lodestar by $8,410. In all other respects, the billings are proper and reasonable. To be clear, the Court finds the reasonable amount of fees, based upon its experience and knowledge of this type of litigation, the lack of novelty and complexity of this case, and the professed specialization of Plaintiff’s counsel is $23,465.

Plaintiffs request $3,433.20 in costs and expenses. The memorandum of Costs is attached to the Barry Decl. as Exhibit 7.[2] “Items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley, supra, 167 Cal.App.3d at 682). Under CCP § 1794(d) “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.”

Defendant argues that the Court should reduce the requested amount by $909.15. This is based on parking and mileage, filing fees, future estimated court reporter fees, and future jury fees.

The requested costs are appropriate. Moreover, while the reporter charge was estimated at the first hearing, the charge has been incurred as of this, the subsequent hearing. Thus, as of today, the $550 for a future hearing is an “incurred cost” However, the Court agrees that parking of 59.80 for attending the CMC and Post-Mediation status Conference was unnecessary. These were hardly critical appearances that required in person appearance as opposed to appearing remotely, which would have generated no costs. Thus, the Court reduces the costs by $59.80.

Motion for Attorneys’ Fees is GRANTED, in the amount of $23,465 and costs in the amount of $3,373.40 for a total of $26,838.40 payable within 45 days of service of this order.

[1]The Court will note, however, that the hourly rate for Mr. Barry requested in the motion is higher than the hourly rate Mr. Barry requests in his declaration. Barry Decl., ¶ 22: “Please note, I am only seeking an hourly rate of $600 for services rendered after January 13 1, 2022 through March 31, 2023. I am only seeking an hourly rate of $625 for services rendered 14 after April 1, 2023.”]

[2]Plaintiff contends that Defendant failed to bring a Motion to Tax Costs so the challenges should be overruled. The Court notes that Plaintiff, for their part, did not file a separate memorandum of costs but rather only attached cost as an Exhibit to this fee motion. As such, the time to file a Motion to Tax Costs may not have even commenced since the Costs Memorandum has yet to be filed.