2017-00212701-CU-BC

Kimberly Lopez vs. FCA US, LLC

Nature of Proceeding: Motion for Attorney Fees

Filed By: Gomez, Ryan H.

Plaintiff Kimberly Lopez’s Motion for an Order Determining the Amount of Reasonable Attorney Fees and Expenses to Be Paid by Defendant FCA US LLC is GRANTED, as set forth below.

On May 18, 2017, plaintiff filed her complaint in this consumer protection action, against FCA US LLC (“FCA”) alleging violations of the Song-Beverly Consumer Warranty Act and the federal Magnuson-Moss Warranty Act, and relating to the purchase of a 2015 Jeep Cherokee, VIN: 1C4PJLAB4FW762010 (“Vehicle”), which was manufactured and warranted by FCA.

Almost immediately after filing of the complaint, FCA made an offer to repurchase the vehicle. Following the filing of an Answer and the conduct of discovery, on Sept. 5, 2017, defendant served a C.C.P., sec. 998 offer.

On Sept. 13, 2017, the action was resolved by plaintiff’s acceptance of Defendant FCA LLC’S Offer to Compromise, pursuant to C.C.P. § 998. That offer to compromise included the following language:

“In addition, FCA US offers to pay reasonable costs, expenses and attorney’s fees based on actual time expended pursuant to Code of Civil Procedure Section 1794(d) as stipulated by the parties or, if the parties cannot agree, upon motion to the court having jurisdiction over this action.” (Gomez Dec., ¶ 4, Exh. A)

A prevailing buyer in a Song-Beverly action is entitled 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).)

The parties have been unable to agree upon the amount of reasonable costs, expenses and attorney’s fees based on actual time expended pursuant to Code of Civil Procedure Section 1794(d).

Plaintiff requested that Defendant pay $10,496.50 in attorneys’ fees and costs. Defendant declined and counter-offered $3,000. Plaintiff agreed to accept $9,250.00 to avoid a fee motion, which was not accepted. This motion followed.

Plaintiff now requests that this Court award reasonable attorneys’ fees of $10,801.50 and costs in the amount of $580.00.

Plaintiffs’ counsel represent that they take 100% of their cases, including this one, on a contingency fee basis. If their clients do not prevail, they do not get paid. Both a neutral arbitrator and defendant told them that this case lacked merit, yet they obtained the desired results. The attorneys’ fees charged are $495/hr., $300/hr. and $155/hr. depending on the experience and qualifications of the attorneys and paralegal.

In opposition, defendants assert that plaintiff’s counsel failed to cooperate in producing supporting documentation for the repurchase price for the vehicle and failed to provide supporting documentation for the plaintiff’s initial claim (before filing this motion) to document their for attorneys’ fees and costs. When invoices were later provided, they included billings for non-licensed office personnel, neither attorneys nor paralegals, who are routinely included as part of office overhead. Although the plaintiff has removed the amounts billed by the non-attorney, non-paralegal office staff, defendant contends it required a rewrite of the invoices for services performed, adding unnecessarily to the fees for this motion.

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 (I994) 31 CalApp4th 99,104.) “A reduced award might be fully justified by a general observation that an attorney litigated a case or submitted a padded bill, or that the party has stated valid objections.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.)

The Song-Beverly statute is interpreted with all of the case law that came before it. In the case of Goglin v. BMW of North America. LLC, (2016) 4 Cal.App.5th 462, 47-471, the court held that the prevailing buyer bears the burden of proving that the fees incurred were “allowable,” “necessary to the conduct of the litigation,” and were “reasonable in amount.” If the time expended is not reasonable, the court must take that into account and award less than requested. (Id.)

Here, the action is a garden variety lemon law case, not complex, and did not require exceptional skill.

Defendant asserts that the plaintiff’s invoices are vague and cryptic, lacking the detail necessary to determine the reasonableness of the task. The firm also charges a minimum amount of .2 hours (12 minutes) for every task, constituting a$99 minimum per task, which is excessive according to defendant. Nonetheless, a global claim of excessiveness is unwarranted; while a 30 second phone call should not be charged at $99, other tasks may justify .2 hours, and beyond; a scrutiny of the task(s) is required.

Attorney Gomez has only been practicing law since Dec. 2015, yet charged $300/hr. for 30.8 hours in this matter. The Court agrees that this hourly rate is excessive for a new attorney in the Sacramento area and is therefore awarding only $225 for 30.8 hours. Having reviewed the evidence, the Court finds that the time spent on the

various tasks was reasonable and the Court is not reducing the hours spent, only the hourly rate. Therefore the fees awarded for Gomez’ work are $6,930.

The Court is awarding $350 per hour for Jacobs, and $125 per hour for the paralegal. The Court is subtracting $390 from the paralegal charges which represents a .1 reduction in the minimum billing of .2 for each task. Thus, the amount awarded for Jacobs is $245 and the amount for the Geottman the paralegal is $1,012 minus the $390 reduction which is $622.50.

Thus, the total attorneys fees awarded are $7,797.

The only costs stricken are the postage, which is not permitted under CCP 1033.5(b).

The remainder of the costs, including the discovery and the demurrer, are allowed.