Judge William A. Crowfoot, Case Number: 23AHCV01938, Date: 2024-11-21 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01938, Date: 2024-11-21 Tentative Ruling

On August 23, 2023, plaintiff Rami Ettlinger (“Plaintiff”) filed this action against defendant General Motors, LLC (“Defendant”) alleging violations of the Song-Beverly Consumer Warranty Act (“SBA”). On October 21, 2024, the parties filed a joint status report informing the Court that they have entered into a settlement agreement, exclusive of attorney fees and costs, after Plaintiff accepted Defendant’s offer for a full repurchase of Plaintiff’s vehicle.

This motion for fees and costs was filed on October 24, 2024. Plaintiff requests $17,087.57 for the time spent in this litigation. There is no request for a lodestar multiplier.

Pursuant to Civil Code section 1794(d), “[i]f 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.” “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.” (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462.) Some of these circumstances include, but are not limited to, the complexity of the case and procedural demands, the skill exhibited and the results achieved. (Ibid.) “A prevailing buyer has the burden of ‘showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” (Ibid [quoting Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103].) “The lodestar method is applicable to calculating attorney fees under section 1794, subdivision (d).” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.) The Court cannot tie the attorney fee award to the amount of plaintiff’s recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37 [“it is inappropriate and an abuse of a trial court's discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff's damages or recovery in a Song-Beverly Act action.”].)

“The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) “[A]n award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

Plaintiff attaches billing records and invoices to support his request for $15,952.50 in fee and $1,135.07 in costs. Plaintiff’s counsel, Justin N. Ibrahim, states that from January 2023 through January 1, 2024, his hourly billing rate was $375, then increased to $450 on January 1, 2024. (Motion, Ibrahim Decl., ¶ 3.) He has been practicing law for 7 years and since July 2019, has handled approximately 450 lemon law actions, in addition to other civil and criminal actions in both state and federal court. (Ibrahim Decl., ¶¶ 5-6.) In total, he has spent 37.4 hours on this matter, which includes drafting the summons and complaint and other filings, corresponding with opposing counsel, preparing discovery requests and reviewing discovery responses, preparing a nonparty deposition subpoena directed to the sole dealership that repaired Plaintiff’s vehicle and a motion to compel its deposition.

Defendant opposes the request for fees and argues that Plaintiff should only be reimbursed for 17.6 hours in fees because at least 19.8 of them were not actually and reasonably incurred. Defendant also contends that Plaintiff’s counsel’s hourly rate of $450 for 2024 is unreasonable and should be reduced to $400, without offering any rationale, other than to discount a recent Orange County Superior Court’s order approving a $450 hourly rate. Defendant does not challenge any of Plaintiff’s counsel’s credentials or offer to compare rates charged by other lemon law attorneys in the community. Therefore, the request to reduce Plaintiff’s counsel’s billing rate for hours worked in 2024 is rejected.

Next, Defendant identifies several categories of billing entries which it claims were padded:

- First, Defendant argues that Plaintiff’s counsel should not have billed 6 hours to conduct research and communicate with his client before the Complaint was drafted. Defendant provides no legal authority to support the claim that work performed in connection with a matter before a Complaint has been filed is not compensable. Therefore, the request to strike these 6 hours is rejected.

- Second, Defendant argues that Plaintiff’s 4 sets of written discovery requests should not have taken 4.5 hour to draft because Plaintiff relies on templates. Defendant argues that a more appropriate amount of time to spend on preparing template requests would be 0.5 hours because Plaintiff would only need to change the caption and the vehicle information in the case. Plaintiff’s counsel’s billing entry states (and Defendant does not dispute) that 82 interrogatories, 74 requests for admission, and 49 requests for production were propounded. Even if templates were used, an average of a little more than 1 hour per set of discovery is not unreasonable because counsel still must discern which discovery requests in the template are applicable or must be modified.

- Third, Defendant argues that Plaintiff’s counsel should not have billed 5.2 hours to review Defendant’s discovery responses and draft a meet and confer letter. Defendant contends it should have taken only 1 hour to review its discovery responses because defense counsel uses template responses and 0.5 hours to draft the meet and confer letter. Even if Defendant chooses to use template responses, that does not eliminate Plaintiff’s counsel’s professional obligations to review each one, and it is not unreasonable to spend 5.2 hours to review approximately 131 pages of responses and draft a meet and confer letter. (Valencia Decl., Ex. C.)

- Fourth, Defendant argues that the 5.6 hours of work related to Plaintiff’s deposition subpoena to Santa Monica Buick, a nonparty dealership, was unnecessary and that only 2 hours of work should be awarded. The Court disagrees that Santa Monica Buick was an unnecessary witness because it was the sole dealership which diagnosed, serviced, and repaired Plaintiff’s vehicle. The Court also notes that Defendant served multiple objections to this deposition, undercutting Defendant’s claim that no motion to compel was necessary. (Reply, Exs. K – Q.)

- Last, Defendant argues that Plaintiff’s fee motion would not have taken more than 4 hours to draft and should be reduced to 2 hours. The amount of work required for Plaintiff to prepare a reply and respond to the multiple arguments contained in Defendant’s opposition brief (which also included a 395-page declaration), Plaintiff’s request for 4 hours of work is reasonable.

Plaintiff requests $1,135.07 in costs consisting of filing fees, service fees, and fees associated with the subpoena directed to Santa Monica Buick and corresponding motion to compel deposition of Santa Monica Buick’s PMK. Defendant argues that any costs incurred for the subpoena and motion to compel were unnecessary. The Court disagrees because, as stated above, Santa Monica Buick was the only dealership which serviced Plaintiff’s vehicle and the subpoena and motion to compel was drafted in April 2024. Before Defendant extended a settlement offer in September 2024 there was no guarantee that Defendant would settle the matter and Plaintiff still had duty to prosecute this case. Therefore, the Court grants Plaintiff’s requests for costs in full.

Plaintiff’s motion is GRANTED in its entirety. The Court awards Plaintiff $17,087.57 in attorney fees and costs.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.