Arcos vs. General Motors LLC

4 Arcos vs. General Motors Motion for Attorney’s Fees LLC Plaintiff Juliana Arcos’ Motion for Attorney’s Fees, Costs, and Expenses is GRANTED in part and DENIED in part.

Defendant General Motors LLC is ORDERED to pay to Plaintiff Juliana Arcos reasonable attorney’s fees in the amount of $17,075.50 and costs in the amount of $798.80 within 30 days of service of the notice of ruling.

Plaintiff Juliana Arcos’ evidentiary objections to the Declaration of Brian Whittemore in Support of General Motors, LLC’s Opposition to Plaintiff’s Fee Motion are OVERRULED as to the first sentence of objection number 1, and SUSTAINED as to the second sentence of objection number 1 and the entirety of objection number 2.

Pending Motion

Plaintiff Juliana Arcos moves for an award of attorney’s fees and costs in the amount of $21,869.80 pursuant to the Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790, et seq.

Standard for Motion for Attorney’s Fees

Generally, attorney’s fees are borne by the party that incurred them. (See Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 978-79).

Therefore, a party may recover attorney’s fees only if provided for by contract or statute. (See Code Civ. Proc., § 1033.5, subd. (a)(10); see also LNSU # 1, LLC v. Alta Del Mar Coastal Collection Community Association (2023) 94 Cal.App.5th 1050, 1081 [“Each party to an action must pay its own attorney fees unless a statute or contract requires the opposing party to pay them.”].)

For example, the Song-Beverly Consumer Warranty Act (Song-Beverly Act), Civil Code section 1790 et seq., states that:

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.

(Civ. Code, § 1794, subd. (d).)

The legislature understood that “the prospect of having to pay attorney fees even if one wins a lawsuit can serve as a powerful disincentive to the unfortunate purchaser of a malfunctioning automobile.” (Murillo v. Fleetwood Enter., Inc. (1998) 17 Cal.4th 985, 994.)

Thus, by allowing an award of attorney’s fees to the prevailing plaintiff in a Song-Beverly Act case, “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.” (Ibid.)

On a motion for attorney’s fees, the moving party has the burden of establishing entitlement to an award. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

Prevailing Buyer

The Song-Beverly Act does not define the term “prevailing buyer”.

However, there is no dispute in this case that Plaintiff is the prevailing buyer and is entitled to attorney’s fees.

Lodestar Calculation of Attorney’s Fees

The calculation of attorney’s fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)

When using this method, the court begins by determining the reasonable hours the prevailing party’s attorney spent on the case and multiplying that number by the reasonable hourly rate. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1134; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

However, the prevailing party should not receive a “windfall” through an award of reasonable attorney’s fees. (Ketchum vs. Moses, supra, 24 Cal.4th at p. 1132.)

Thus, a prevailing buyer under the Song-Beverly Act 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.” (Levy v.

Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.)

“To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’ The court also may properly reduce compensation on account of any failure to maintain appropriate time records.” (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437, fn.12.)

However, once an attorney has presented evidence of her or his actual time spent and hourly rate charged, the time and hourly rate are presumed to be reasonable. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761; see Horsford v Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous."]; Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel are "sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements”].)

“As the trial court ‘is in the best position to value the services rendered by the attorneys in his or her courtroom,’ we leave it in the trial court's discretion to determine the amount of reasonable attorney fees and costs to award . . . under the lodestar method.” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 622, quoting 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437; see also Ketchum v. Moses, supra, 24 Cal.4th at p. 1132 [“The trial judge is ‘the best judge of the value of professional services rendered in his court.’”].)

Reasonable Hourly Rate

The reasonable hourly rate is based on the reasonable market value of the attorney’s services. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094- 1095 or PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1094-1095.)

This standard applies regardless of how much the attorney actually charged the client. (See ibid.) Thus, the same reasonable hourly rate will apply whether the attorney charged nothing for their services, charged below-market or discounted rates, represented the client on a contingent fee basis, or are in-house counsel paid a

fixed salary.

To determine the reasonable market value of the legal services provided, the court must look to the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783; see also PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095 [“[The] reasonable hourly rate is that prevailing in the community for similar work.”].)

The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.)

If the moving party meets its burden, the burden shifts to the opposing party to produce admissible evidence sufficient to show that the rates requested are not reasonable. (See Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 155 [finding court erred in reducing rates where evidence of reasonableness of rate requested was undisputed].)

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, citations omitted; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The value of legal services performed in a case is a matter of which the trial court has its own expertise. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)

Plaintiff’s Counsel billed at a rate of $215 per hour for paralegals and a range of $470-$560 per hour for attorneys.

Based on its own knowledge and familiarity with the legal

market, and the experience, skill, and reputation of Plaintiff’s Counsel, the court finds that the rates requested are somewhat high and reduces them as follows:

Name Rate Jordan G. Cohen $500 Bobby C. Walker $400 Jasmine Song $375 Mark Noel $425 Paralegals $150

These reduced rates reflect the reasonable market rate for an attorney or paralegal with similar experience and background doing similar work.

Hours Reasonably Expended

“An award of attorney fees ‘should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.’” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 619, quoting Ketchum v. Moses, supra, 24 Cal.4th at p. 1131 [award of attorney’s fees “may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees.”].)

The prevailing party has the burden to present verified time records showing the hours spent on the case.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.)

However, once they are properly admitted, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Ibid.)

In addition, the declarations of counsel are “sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements." (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367.)

Nonetheless “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.)

Therefore, prevailing parties should be compensated only for hours reasonably spent on fee-related issues. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

As the Court of Appeal has explained:

Although [] billing statements in support of a fee request form the “’starting point’” for determining the “‘hours reasonably expended’” in a lodestar calculation, the trial court is not bound to accept these hours and may reduce them if it concludes the attorneys performed work unrelated to the anti-SLAPP motion, or represented work that was unnecessary or duplicative or excessive in light of the issues fairly presented.

(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th at p. 441, quoting Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1324, 1326; see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580 [court need not include inefficient or duplicative efforts when awarding attorney’s fees].)

In addition, the court may reduce the hours it determines were excessive or not supported. (See Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-29 [affirming award for 71 hours of attorney’s time in case where attorney sought fees for over 600 hours].)

For example, the court may reduce the number of hours based on considerations of “whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)

The amount of attorney’s fees awarded lies within the sound discretion of the trial court. (See Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

Here, Plaintiff’s Counsel have produced their billing records and Defendant challenges several categories of billings:

• Clerical work: Defendant challenges 3.8 hours of clerical work and asks the court to either strike all clerical work or reduce the time by 5-10%. The court has reviewed these time entries and finds that the time spent was reasonable. Further, paralegals, who are billed at a lower rate performed all of these tasks, rather than attorneys. The court will not reduce any time related to clerical work.

• Duplicate work: Defendant challenges time entries by multiple timekeepers as duplicative in May 2025, June 2025, October 2025, and November 2025. Defendant does not identify any specific time entry, but suggests a 10-15% reduction.

The party opposing an attorneys’ fee motion bears the burden of proof and can either “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563–564.)

“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.” (Ibid.)

Here, Defendant’s general arguments that the attorney’s fees requested are duplicative without reference to any specific billing entries is not sufficient. The court will not reduce any time that Defendant describes as duplicative.

• Unreasonable Entries: Defendant identifies five entries by Counsel Jasmine Song and contends that these entries are unreasonable. The court has reviewed these time entries and does not find that the time spent on these five entries was unreasonable. The court will not reduce any of the time that Defendant describes as unreasonable.

• Fees related to the Motion: Defendant contends that the amount of fees that Plaintiff incurred in relation to the request for attorney’s fees and costs is excessive. The court agrees and will reduce 0.6 hours of Counsel Jasmine Song’s time related to preparation of the memorandum of costs.

Based on the court’s analysis above, the court finds the following to be reasonable:

Name Rate Hours Total Billed

Jordan G. Cohen $500 5.3 $2,650 Bobby C. Walker $400 1.8 $720 Jasmine Song $375 27.9 $10,463 Mark Noel $425 0.2 $85 Alexis Valdovinos $150 1.6 $240 Destiny Olvera $150 4.6 $690 Araceli Alatorre $150 2.4 $360 Jonathan Avalos $150 2.0 $300 Bessy Salazar $150 1.0 $150 Maria Chavarin $150 0.7 $105

Total 47.5 $15,763

Defendant also objects to anticipated fees related to the drafting of the reply to this motion. The court agrees that the amount of time is excessive and reduces 1.5 hours of Counsel Jasmine Song’s time.

Accordingly, Plaintiff is entitled to recover an additional 3.5 hours of work by Jasmine Song related to the drafting of the reply for this motion and appearing at the hearing for an additional $1,312.50.

Therefore, the court will award Plaintiff $17,075.50 in reasonable attorney’s fees for a straightforward Song- Beverly action resolved with limited law and motion, no expert discovery, and no trial preparation.

Costs

Generally, the prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (See Code Civ. Proc., § 1032, subd. (b); Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

In addition, the Song-Beverly Act specifically states that “[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.” (Civ. Code, § 1794, subd. (d).)

To recover costs, the prevailing party must file and serve a memorandum of costs “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment

or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).)

The nonprevailing party then has 15 days after service of the memorandum of costs to file a motion to strike a cost altogether, or to tax the cost and reduce it. (Cal. Rules of Court, rule 3.1700, subd. (b).)

If the items on a memorandum of costs appear to be proper on their face, the verified memorandum of costs is prima facie evidence of their validity and the burden is on the party seeking to strike or tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass’n, supra, 19 Cal.App.4th at p. 774.; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.”].)

Here, Plaintiff timely filed its memorandum of costs prior to the date on which judgment was entered. (See Cal. Rules Court, rule 3.1700(a)(1) [deadline to file and serve memorandum of costs is earlier of 15 days after service of notice of entry of judgment or 180 days after entry of judgment].)

Plaintiff seeks $798.80 in costs.

Defendant did not file a motion to strike or costs and in its opposition to the motion, Defendant did not object to any of Plaintiff’s claimed costs.

Thus, Defendant has waived any arguments regarding the costs. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)

The court will awards Plaintiff costs of $798.80.

Plaintiff shall give notice of this ruling.

5 Lemus vs. BluKey Motion to Set Aside

Defendant Hung Nguyen’s Motion to Vacate and Set Aside 30-2023-01303205 Entry of Default and Default Judgment is GRANTED.