Tyler Powell v. General Motors, LLC

Case Number

23CV01453

Case Type

Hearing Date / Time

Wed, 12/18/2024 - 10:00

Nature of Proceedings

Plaintiff’s Motion For Attorneys’ Fees, Costs, And Expenses

Tentative Ruling

For Plaintiff Tyler Powell: Tionna Dolin, Ebony Randolph, Strategic Legal Practices

For Defendant General Motors LLC: Mary Arens McBride, Arash Yaraghchian, Erskine Law Group, APC

                       

RULING

For all reasons discussed herein, the motion of Plaintiff for attorney’s fees, costs, and expenses is granted, in part. The Court awards to Plaintiff attorney’s fees in the amount of $98,964, and costs in the amount of $9,247.78. Except as herein granted, the motion is otherwise denied.

Background

On April 6, 2023, Plaintiff Tyler Powell filed a complaint against Defendant General Motors LLC (GM) alleging five causes of action: (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of the implied warranty of merchantability; and (5) violation of the Magnuson-Moss Warranty Act. As alleged in the complaint:

On December 7, 2022, Plaintiff entered into a warranty contract with GM regarding a 2019 Chevrolet Suburban 1500 vehicle (the vehicle) manufactured and distributed by GM. (Complaint, ¶ 6.) The warranty included bumper-to-bumper, powertrain, and emission warranties. (Id. at ¶ 7 & Exh. A.) During the express warranty period, transmission defects, engine defects, electrical defects, infotainment defects, and nonconformities manifested in the vehicle which impair its use, value, and safety. (Id. at ¶¶ 11-12.) After a reasonable number of repair attempts, GM failed to conform the vehicle to the terms of the express warranty, to replace the vehicle, or make restitution in accordance with the Song-Beverly Consumer Warranty Act and the Magnuson-Moss Act. (Id. at ¶¶ 14 & 15.)

GM filed its answer to Plaintiff’s complaint on May 8, 2023, generally denying its allegations and asserting twenty-five affirmative defenses.

A trial confirmation conference was set in this matter on April 24, 2024, at which the parties notified the Court that the matter had settled and that a notice of settlement would be filed within 30 days. (See Apr. 24, 2024, Minute Order.) On April 26, 2024, Plaintiff filed a notice of conditional settlement of the entire case stating that a request for dismissal would be filed no later than August 26, 2024. (Apr. 26, 2024, Notice Of Settlement.)

On September 12, 2024, the Court issued an order to show cause directing Plaintiff and his attorney of record to appear and show cause why sanctions should not be imposed for Plaintiff’s failure to timely file a request for dismissal pursuant to the notice of the conditional settlement. On October 23, 2024, in response to the order to show cause, Plaintiff filed a declaration of his counsel, James L. Carroll, who declared that though Plaintiff had received a settlement check from GM, the issue of attorney’s fees had not yet been resolved and that Plaintiff would file a fee motion. (Oct. 23, 2024, Carroll Decl., ¶¶ 5-6.)

On October 30, 2024, the Court entered an order directing Plaintiff to file any motion for attorney’s fees by November 15, 2024, and set a hearing on the motion for December 18, 2024. (Oct. 30, 2024, Minute Order.)

On November 1, 2024, Plaintiff filed a motion (the fee motion) for an order awarding Plaintiff’s attorney’s fees in the amount of $138,601.40, and costs in the amount of $9,247.78. The fee motion is made on the grounds that Plaintiff is the prevailing party under both the terms of an offer made in writing by GM under Code of Civil Procedure section 998 (the 998 Offer), and Civil Code section 1791 et seq. (the Song-Beverly Consumer Warranty Act or Song-Beverly).

In support of the fee motion, Plaintiff submits the declaration of his counsel, Christian R. Castro (Castro). In the Castro declaration, Castro recites the allegations of the underlying litigation with respect to Plaintiff’s purchase of the vehicle pursuant to a Retail Installment Sale Contract, a copy of which is attached to the Castro declaration as exhibit 1, the warranties received by Plaintiff in connection with the purchase of the vehicle, defects that manifested in the vehicle during the warranty period, and dates on which Plaintiff presented the vehicle to GM’s authorized repair facility and reported the alleged defects in the vehicle. (Castro Decl., ¶¶ 3-10.)

Castro also describes the efforts expended by Plaintiff’s counsel in this litigation which include filing the complaint, propounding discovery requests to GM, serving responses and producing documents in response to discovery requests served on Plaintiff by GM, attending case management conferences, filing and attending hearings on various discovery motions filed by Plaintiff in this action, filing and attending a hearing on an ex parte application to continue the trial date, opposing and attending the hearing on a motion for summary judgment filed by GM, attending a mandatory settlement conference, filing pretrial motions and responding to pretrial motions filed by GM, and attending the deposition of the person most knowledgeable of GM. (Castro Decl., ¶¶ 11-37.)

Castro states that GM made the 998 Offer on April 24, 2024, in which GM offered to pay to Plaintiff the amount of $120,000 for the vehicle, to pay “attorney’s fees, expenses and costs that have been reasonably incurred pursuant to” Civil Code section 1794, subdivision (d), and agreed that Plaintiff is the prevailing party. (Castro Decl., ¶¶ 38-39 & Exh. 3, ¶¶ 1-2.) On the same day, Plaintiff accepted the 998 Offer. (Id. at ¶ 39.)

Castro contends that, had it not been for the efforts of Plaintiff and his counsel as further described above and in the Castro declaration, Plaintiff would not have received the damages and attorney’s fees to which Plaintiff allegedly is entitled, and that these efforts, which Castro describes as “unwavering”, were justified because they caused GM to acknowledge that Plaintiff was ready, willing, and able to pursue this matter through trial. (Castro Decl., ¶ 42.)

Plaintiff also submits the declaration of his counsel Payam Shahian (Shahian), who is the managing partner of Strategic Legal Practices, APC (SLP), counsel of record for Plaintiff in this action. (Shahian Decl., ¶ 1.) Shahian declares that all SLP attorneys track their time contemporaneously and enter it into the billing software of SLP. (Id. at ¶¶ 2 [second] & 19.) Shahian further declares that the computerized billing records of SLP, copies of which are attached as exhibit 24 to the Shahian declaration (erroneously referred to as exhibit 23), show that Plaintiff has accrued attorney’s fees in this action totaling $98,964. (Id. at ¶¶ 1 [second], 19 & Exh. 23.) Shahian states that, as a matter of practice, Shahian has removed or reduced any entry that Shahian believes may be unnecessary, duplicative, or excessive. (Id. at ¶¶ 2 [second] & 19.)

Shahian also asserts that Plaintiff incurred costs in the amount of $9,247.78, and will incur additional attorney’s fees in the amount of $5,000 for time Shahian expects will be expended to review any opposition of GM to the fee motion, to prepare a reply, and to attend the hearing on the fee motion. (Shahian Decl., ¶¶ 1 [second] & 20.)

Shahian states that the hourly rates for the six SLP attorneys who performed the bulk of the work in this litigation range between $360 and $625. (Shahian Decl., ¶ 1 [third] & 3.) Though Shahian does not request reimbursement for time he expended in this action, Shahian supervised the efforts of the SLP attorneys who performed work in this litigation and was exclusively responsible for an appeal and the fee motion. (Id. at ¶¶ 1-2 [third], 3-4 & 19.) Shahian also describes his background and experience with claims brought under Song-Beverly, among other things, and states that he has practiced in Los Angeles County for “decades”. (Id. at ¶¶ 2 [third] & 5-8.)

Shahian also describes the background and experience of each of the SLP attorneys who assisted in this case, identifies other actions in which California and federal courts approved the hourly rates of SLP attorneys, sets forth a “Laffey Matrix” for fees accrued between 2024 through 2025 to show that the hourly rates of SLP attorneys are lower than similarly experienced attorneys in the region, and declares that he believes the hourly rates charged by SLP in this litigation are within or lower than the hourly rates charged by comparable attorneys in the region. (Shahian Decl., ¶¶ 2 [third], 4, 9(a)-(r) & 12.)

In addition, Shahian contends that because SLP took this case on a contingent basis, and considering the risks involved and the results achieved, a multiplier of. (Shahian Decl., ¶ 14.) For this reason, and because of what Shahian contends are the risks involved and results achieved, Shahian argues that a fee multiplier of 1.35 is justified. (Shahian Decl., ¶¶ 14-16.)

The motion is opposed by GM.

Analysis

“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278.) If authorized by contract, statute, or law, reasonable attorney’s fees are allowable costs, and may be awarded upon a noticed motion. (Code Civ. Proc § 1033.5, subd. (a)(10), (c)(5)(A).) Attorney’s fees which are allowable as costs under Code of Civil Procedure section 1033.5, subdivision (a)(10), shall be fixed by the Court. (Code Civ. Proc. § 1033.5(c)(5)(A).)

The undisputed record before the Court shows that in the 998 Offer which Plaintiff accepted on August 24, 2024, GM agreed that Plaintiff is the prevailing party in this action and is entitled to an award of “reasonably incurred” attorney’s fees and costs pursuant to subdivision (d) of Civil Code section 1794, under which a buyer who prevails 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, subd. (d).)

In its opposition to the fee motion, GM does not dispute that Plaintiff is entitled to an award of attorney’s fees and costs pursuant to the terms of its 998 Offer. The opposition of GM is directed solely to whether or not the attorney’s fees and costs requested by Plaintiff in the fee motion are reasonably incurred, excessive, or compensable.

The lodestar:

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The first step in determining the amount of a reasonable attorney’s fee involves calculating the “lodestar”, which is based on the number of hours reasonably expended multiplied by a reasonable hourly rate. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134-1135 (Ketchum); Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 448-449.) The lodestar method vests the court with discretion to determine what constitutes a reasonable fee, and “anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 41; PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  

The court generally begins its lodestar analysis by reviewing the attorney’s time records which, if verified, are “entitled to credence in the absence of a clear indication the records are erroneous[.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (Horsford); see also Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562-563 [if a fee request is supported by sufficient declarations and documentation, a challenge to the request requires similar proof].) Though “the predicate of any attorney fee award … is the necessity and usefulness of the conduct for which compensation is sought”, the court must exercise its discretion so as to fully compensate the attorney for the services provided to the client, which may also include fees incurred to pursue a claim for attorney’s fees. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846 (Thayer), italics omitted; Horsford, supra, 132 Cal.App.4th at pp. 395-396; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580.)

Plaintiff has provided a copy of the billing records of SLP for this litigation and a summary of the hours expended in this litigation from 2022 through 2024 by attorneys Mani Arabi, Christopher Campbell, Christian Castro, Joy Deleon, Ian McCallister, Anna Weiser, Olivia Avelino, James Carroll, Tionna Carvalho, Mark Gibson, Xylona Northern, Maro Orte, Rosy Stoliker, Hannah Theophil, Rabiya Tirmizi, Albert Villaneda, and Ellen Zakharian, and by law clerks Steven Alarcon, Eve Canton, and Ebony Randolph. (Shahian Decl., Exh. 24.) The hourly rates for the attorneys identified above and in exhibit 24 to the Shahian declaration range from $340 to $595. (Ibid.) The hourly rates for the law clerks identified above and in exhibit 24 range from $195 to $395. (Ibid.)

As noted above, Shahian attests to the educational and professional background, training, and experience of each attorney and law clerk identified above who expended time in connection with this litigation, and to the accuracy of the information appearing in the billing records as to each attorney and law clerk. (Shahian Decl. ¶¶ 2, 3 [second], 5-11, 19.)

GM offers no reasoned factual or legal argument to demonstrate why the hourly rates charged by attorneys and law clerks at SLP who performed services in this litigation are not reasonable. Based on its own familiarity with the relevant legal market and information provided by Shahian regarding the skill and relevant experience of each attorney and law clerk, the Court finds the hourly rates charged by SLP to be reasonable for the Los Angeles area. (In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587-588 (In re Tobacco Cases I) [the trial court may also rely on its own experience and knowledge to determine the reasonable value of the attorney’s services].)

The hours expended by SLP in connection with this litigation at the hourly rates further described above total 207.1. (Shahian Decl., Exh. 24.) Available information and evidence indicates that the billing records submitted by Plaintiff reflect the actual time billed by each attorney and law clerk identified above and recorded contemporaneously with the described services, and have been audited to remove fees which may be unnecessary, duplicative, or excessive. (Id. at ¶ 19.) Because there is no information appearing on the face of the billing records submitted by Plaintiff which would suggest that the records are erroneous or inaccurate, they are entitled to credence. (Horsford, supra, 132 Cal. App. 4th at p. 396.)

In its opposition to the fee motion, GM advances several arguments to challenge the reasonableness of the hours expended by SLP in this litigation. First, GM asserts that SLP has utilized in this action what GM describes as virtually identical “templated” documents which are also used to litigate other Song-Beverly actions brought by SLP against GM, and for which SLP has been compensated. To support this argument, GM submits the declaration of its counsel, Gregory Gruszecki (Gruszecki), who identifies billing entries that purportedly include time expended to prepare what Gruszecki contends are identical “templates” typically utilized by SLP in Beverly-Song litigation, and motions filed by SLP in other actions brought against GM and in which SLP requested an award of attorney’s fees for preparing these same templates. (Gruszecki Decl., ¶¶ 3, 9-10, 15-16, 18, 21, 30 & Exh. V.)

GM argues that the use of virtually identical “templates” for which SLP has already recovered attorney’s fees demonstrates the existence of multiple inefficiencies and “padded” billings. For this reason, GM argues, the attorney’s fees requested in the fee motion are excessive and unreasonable, and should be reduced by the hours set forth in pages 6 through 8 of the opposition.

Even if the Court were to credit GM’s arguments and assume their truth, and considering that Shahian asserts that the primary focus of SLP is consumer warranty and fraud cases, the use of templates or forms already prepared by SLP in similar litigation rather than creating new documents or forms in each case would suggest to the Court that the time expended by SLP attorneys in this action was efficient. Further, the Court would expect counsel to expend time to review and modify any forms or templates to conform each document to the facts and specific theories alleged in each case, including this action. For these reasons, the Court does not find that the entries identified by GM reflect excessive or unreasonable hours to prepare documents in this action, or warrant the time reductions proposed by GM.

GM further contends that certain “block-billed” entries are too vague to convey the time spent on each task. “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) Several of the entries identified by GM as “block billed” are sufficiently itemized. (See Shahian Decl., Exh. 24 [entries dated Oct. 25, Nov. 16 & Nov. 28, 2023 & Jan. 2, Feb. 20, Mar. 28, Apr. 19, & Apr. 21-22, 2024]; Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279 [block billing occurs when time spent on multiple tasks is not itemized].) As to entries which describe multiple tasks, these entries are not so vague that the Court is unable to determine whether the tasks are compensable or whether hours expended on these tasks is unreasonable or excessive.

The Court is also not persuaded by the remaining arguments offered by GM with respect to the manner in which SLP staffed this case, whether tasks could or should have been completed by a legal secretary or paralegal, or whether any delay by SLP increased the time expended in this litigation. There is no evidence to show that a legal secretary or paralegal could have completed tasks in a more efficient manner. Moreover, available evidence and information suggests that the bulk of the hours billed in this action reflect time expended by fewer than 18 attorneys, and that tasks were apportioned among different attorneys at SLP. Further, as this case did not settle until the trial confirmation conference, GM fails to sufficiently explain why time expended by SLP attorneys to prepare for the trial confirmation conference, or trial, is not compensable. The redactions which appear in the billing records also ostensibly relate to privileged material and do not prevent the Court from determining whether the time expended on these tasks is compensable.

Regarding Plaintiff’s request for an additional $5,000 in fees for time to review the opposition of GM to the fee motion, to prepare a reply, and to attend a hearing on the fee motion, wholly absent from the fee motion and the supporting declarations is any information to enable the Court to determine the identity of the attorney who will perform these tasks, the hourly rate of that attorney, and the number of hours that attorney expects to expend on each of these tasks. For these reasons, Plaintiff has failed to meet its burden to prove the reasonableness of these additional fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.) Therefore, the Court will deny Plaintiff’s request for an additional $5,000 in attorney’s fees for time counsel expects to expend in connection with these tasks.

Subject to the exception noted above, the record before the Court does not show or suggest that the hours expended by Plaintiff’s counsel in this litigation were excessive, duplicative, or unreasonable. For these and all reasons further discussed above, the Court finds that an award of attorney’s fees in the total amount of $98,964 is reasonable based on the hours spent by Plaintiff’s counsel on this matter, counsel’s hourly rates, the nature of this litigation, Plaintiff’s success, and counsel’s experience in the type of work demanded. (See In re Tobacco Cases I, supra, 216 Cal.App.4th at pp. 581-582, 587.) Therefore, the Court will grant the fee motion as to Plaintiff’s request for an award of attorney’s fees in the amount of $98,964.

Plaintiff’s request for a fee multiplier:

Plaintiff requests a multiplier of 1.35 based on the contingent nature of the representation and the results achieved. Once the court arrives at the lodestar figure, it may consider a fee enhancement based on “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. [Citation.] The ‘necessity for and the nature of the litigation’ are also factors to consider. [Citation.]” (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; see also Thayer, supra, 92 Cal.App.4th at p. 833.)

Though the representation of Plaintiff by SLP was of a contingent nature, the Court has already determined that, for all reasons further discussed above, the lodestar constitutes a reasonable fee for this matter. (Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1333.) In addition, there is nothing in the record before the Court to show or suggest that this action involved difficult, complex, or novel issues of law or fact, or that the quality of Plaintiff’s representation by SLP “far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.” (Ketchum, supra, 24 Cal.4th at p. 1139.) For these reasons, and under the circumstances present here, the Court finds that a fee enhancement is not appropriate, necessary, or justified to achieve a reasonable fee for this matter. Therefore, the Court will deny the motion as to the request of Plaintiff for a fee multiplier.

Costs:

Plaintiff requests an award of costs in the amount of $9,247.78, for items appearing in a table attached to the Shahian declaration as part of exhibit 24. The parties here do not dispute that the 998 Offer expressly provides that the costs “reasonably incurred” by Plaintiff in this action may be determined by “noticed motion.” (Castro Decl., Exh. 3, ¶ 2.) GM contends that information appearing in the table of costs submitted by Plaintiff is insufficient to permit it or the Court to determine whether the costs were actually incurred, reasonable, or necessary.

A prevailing buyer under Song-Beverly may recover both “costs and expenses”. (Civ. Code, § 1794, subd. (d).) The express language of the statute shows that “the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs.’” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137, disapproved on another ground in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189.) The prevailing buyer seeking an award of costs under Song-Beverly bears the burden to show that the costs were reasonably incurred. (Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 512–513

Information appearing in the Shahian declaration is sufficient to permit the Court to infer that the costs appearing in the table attached as exhibit 24 were recorded in the computerized billing records of SLP and incurred in this action. Based on information appearing in the table of costs submitted by Plaintiff, the Court is able to determine that Plaintiff incurred in this litigation costs and expenses relating to service and filing fees, court appearances, court reporter fees for the deposition of GM’s person most qualified, and costs ostensibly incurred in connection with counsel’s attendance at the April 24, 2024, trial confirmation conference, including costs to prepare and deliver binders and other trial materials, as well as hotel, parking, and meal costs. (Shahian Decl., Exh. 24.)

There is no information or evidence to suggest that the costs and expenses claimed by Plaintiff were not incurred in this litigation. In addition, in the context of this action, the information and evidence appearing in the Shahian declaration and on the face of the table of costs attached to that declaration is sufficient to enable the Court to conclude that the costs and expenses claimed by Plaintiff were reasonably incurred and reasonably necessary to the conduct of the litigation. The arguments advanced by GM do not persuade the Court otherwise. Therefore, the Court will also grant the fee motion as to Plaintiff’s request for an award of costs in the amount of $9,247.78.

Plaintiff’s request for judicial notice:

Plaintiff requests that the Court take judicial notice of 22 orders approving awards of attorney’s fees in unrelated actions in state and federal courts. The isolated written trial court rulings for which Plaintiff requests judicial notice have “no precedential value” and “cannot properly be cited in support of a legal argument, absent exceptions not applicable here.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831; San Diego County Employees Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184.) Furthermore, court orders issued in cases which are not in any way related to the present action have no relevance to the question of whether the attorney’s fees, costs, and expenses incurred and sought in this case are compensable. (Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) For these reasons, the Court will deny Plaintiff’s request for judicial notice of the 22 orders.