Schwartz v. Brunswick Corporation

Plaintiff moves for attorneys’ fees pursuant to Civil Code section 1794, subdivision (d) which 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 April 25, 2025, the case settled “for $615,000, and a fee motion.” (Davis Decl., ¶ 15.) The parties do not dispute that Plaintiff is the prevailing party entitled to attorneys’ fees.

Amount of Attorneys’ Fees:

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then 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.” (Ibid. (citation omitted).)

“As the plain wording of section 1794, subdivision (d) makes clear, the trial court is ‘to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.’ [Citation.] In the case of contingency fee arrangements, ‘a prevailing buyer ... is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorneys.’ [Citation.] [¶] Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ‘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.’ [Citation.]

Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. [Citation.] The prevailing party and fee applicant bears ‘the burden of showing that the fees incurred were ... “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ [Citations.]” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 (Mikhaeilpoor).)

[T]rial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.) “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). “Counsel may not submit a plethora of noncompensable, vague, or block-billed attorney time entries and expect particularized, individual deletions as the only consequence.” (Guillory v. Hill, (2019) 36 Cal.App.5th

802, 815 (citing Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329.)

Plaintiff seeks an award of attorneys’ fees under the lodestar method in the amount of $430,038.75 for: (1) 400.4 hours billed by Jim Whitworth at $850 an hour; (2) 82.6 hours billed by Timothy Fatone at $800 an hour; (3) 68.1 hours billed by paralegal Christy Holliday at $225 an hour; (4) 6.0 hours billed by Fatone for paralegal work at $80 an hour; (5) costs totaling $941.50; and (6) an additional $6,860 in estimated fees and costs associated with preparing a reply to this opposition.

Defendants challenge both the hourly rate charged, and the total number of billable hours claimed by Plaintiff’s attorneys. The hourly rates of Whitworth and Fatone are excessive and reduced to $500. The hourly rate for Holliday is also excessive and reduced to $200.

Despite the court continuing the hearing to allow Plaintiff to submit billing records that provide detail as to what substantive work was performed, Whitworth’s billing records still contain vague entries. The court reduces the hours requested for Whitworth by 78.1 hours because the entries for these hours requested are so vague that the court cannot make a determination as to whether the time expended was reasonable.

Further, on 4-15-25, Whitworth billed 24.4 hours in one day. (Whitworth Decl. [ROA 393], Lines 59, 65, and 66). Since there are only 24 hours in a day, this is clearly an example of bill padding. The billing records also show excessive billing for trial preparation on other days. For example, Whitworth billed 12.0 hours on 4/6/25 (Id., line 93); 6.0 hours 4/7/25 (Id., line 92); 4.0 hours on 4/9/25 (Id., 18, line 80); 12.0 hours billed on 4/16/25 (Ex. 18, line 64); 12.0 hours billed on 4/17/25 (Id., line 63); 10.0 hours billed on 4/22/25 (Id., line 54); 19.0 hours billed on 4/23/25 (Id., line 53). The court reduces the hours billed by 52.5 hours.

Further, there is continued block billing such that the court cannot determine which tasks are compensable. Specifically, the court reduces the hours for block billing by 38 hours. (Whitworth Decl. [ROA 393], Lines 45, 52, 58, 60, 83, 95, 96, 106, 160, 216, 298, 301, 320).

Additionally, Whitworth billed 8.8 hours for clerical or administrative work. Purely clerical or secretarial tasks should not be billed at a lawyer or paralegal’s usual rate, regardless of who performs them. (Missouri v. Jenkins (1989) 491 U.S. 274, 288, fn. 10.) Calendaring, preparing proofs of service, internal filing, preparing binders for a hearing, and scanning are examples of tasks that have been found to be purely clerical and thus noncompensable or compensable at a reduced billing rate. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1187.)

Based on the foregoing, Whitworth’s hours are reduced to 223 and fees awarded in the amount of $111,500 ($500 x 223 hours).

Fatone’s billing records also continue to contain some vague entries. The court reduces Fatone’s hours by 1.1 for vague entries and 1.2 hours for administrative work performed by Fatone and billed at his regular rate and not his paralegal rate. Therefore, Fatone’s hours are reduced to 65.8 and fees awarded in the amount of $32,900 ($500 x 65.8 hours).

Further, Holliday’s billing records contain entries for 34.6 hours that are so vague that the court cannot determine whether the hours expended were reasonable. Therefore, Holliday’s hours are reduced to 33.5 fees awarded in the amount of $6,700 ($200 x 33.5 hours).

Lastly, Plaintiff seeks an additional $6,860 in estimated fees and costs associated with preparing a reply to the opposition. The amount requested is excessive and reduced to $1,500.

Accordingly, the court awards fees in the amount of $152,600.

Multiplier to the Lodestar:

“The Supreme Court has ‘set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.” ’ ” (Mikhaeilpoor, supra, 48 Cal.App.5th at 248.) “The trial court is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor, at p. 247.)

A multiplier to the lodestar is not warranted. This is a routine lemon law case, with no unusual facts or novel legal issues requiring exceptional skill. Further, the availability of statutory fees for Song- Beverly cases significantly reduced the risk associated with working on contingency. Therefore, the request for a multiplier is DENIED.

Costs: Plaintiff seeks $941.50 in costs which are reasonable. (Supp. Fatone Decl., Ex. A.) The court awards $941.50 in costs.

Plaintiff to give notice.