Motion for Attorney Fees
Defendant alternatively requests relief from the consequences of its untimely filings pursuant to Code of Civil Procedure section 473(b), arguing that the failure to calendar the correct deadline for a motion to compel was a mistake of counsel’s calendaring assistant. Defendant contends that the calendaring assistant did not receive Plaintiff’s responses until December 18 while reviewing a December 16 email from counsel for co-defendant Lake Mission Viejo Association (“LMVA”) and the calendaring assistant calculated the deadline using December 16 as the operative receipt date.
The court may relieve a party, “upon any terms as may be just, . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) “‘The inexcusable neglect of an attorney is usually not a proper basis for granting the client’s motion under section 473.’ [Citation.] ‘Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.’” (Huh v.
Wang (2007) 158 Cal.App.4th 1406, 1419.) “Relevant factors in assessing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’” (Id. at p.1423.) “‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.’” (Ibid.) “‘To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’” (Ibid.)
Here, the Court finds that Defendant’s failure to timely file its motion was not the result of any mistake, inadvertence, surprise, or excusable neglect. Defendant concedes that counsel was served with the responses on December 12. Counsel’s failure to ensure that the proper deadline to file a motion to compel was calendared fell below the professional standard of care and cannot constitute excusable neglect. Reasonable and ordinary prudence would have prevented the error. To the extent Defendant is arguing that the untimeliness of its motion was due to the calendaring assistant’s mistake of using December 16 as the date responses were served, this is also not excusable.
The calendaring assistant’s calculation based on the date an email from counsel for LMVA, not Plaintiff, is not reasonable, as clearly it was not LMVA’s counsel who served the responses. Further, simply glancing at the proofs of service attached to the responses would have revealed the true date of service.
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Based on the above, Defendant’s motion to find service of the responses defective is DENIED. Accordingly, Defendant’s motion to compel further responses is also DENIED as untimely.
Moving party to give notice.
6. 30-2024-01415577 1. Motion for Attorney Fees
Mejorado vs. General Plaintiffs Eric Mejorado and Elizabeth Mejorado formerly known as Elizabeth Aguilar Motors, LLC (“Plaintiffs”) move for an order awarding them attorney fees pursuant to Civil Code section 1794(d), in the total amount of $22,972.00, consisting of $19,972.00 and an additional $3,000.00 to review the opposition, prepare a reply, and attend the hearing against defendant General Motors LLC (“Defendant”).
Civil Code section 1794(d) 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.” “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.’ ” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247.) “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.’ ” (Ibid.)
This action was filed in July 2024. The parties engaged in written discovery, meet and confers, and discovery motion practice. No depositions were taken. Counsel billed a total of 45.40 hours over the span of the litigation.
Nancy Zhang is a former partner who was admitted to practice in 2013 and billed at an hourly rate of $525-540. Joseph Liu is a senior associate who was admitted to practice in 2008 and billed at an hourly rate of $500-515. Richard Ruiz is a paralegal with five years of experience in the automotive industry who billed at an hourly rate of $210-215.
Defendant does not object to these hourly rates.
Based on the Court’s experience with Song-Beverly actions and knowledge of the prevailing rates for similar cases in Orange County, the Court finds the rates to be reasonable.
As to the amount of time expended, the Court agrees with Defendant that the time spent drafting Plaintiffs’ cost memorandum and time requested for preparing a reply and attending the hearing on the fee motion is excessive. The Court finds that the time spent drafting the cost memorandum should be reduced from 0.60 hours to 0.10 hours (a reduction of $262.50) and the amount of fees requested for the reply and hearing should be reduced from $3,000.00 to $2,060.00 (with four hours of associate time being a reasonable amount of time incurred for the reply and hearing). This equals a total of $1,202.50 in reductions.
Defendant argues all prelitigation time before the Complaint was drafted and filed should be stricken as unrecoverable overhead. However, section 1794(d) expressly provides that a prevailing buyer may recover attorney’s fees that were reasonably incurred “in connection with the commencement and prosecution of such action.” The prelitigation time spent on intake of the case was incurred in connection with the commencement of this action and is therefore recoverable.
Defendant argues that time billed by counsel’s paralegal, Richard Ruiz, should be stricken because the work performed is clerical in nature. The Court agrees that entries for uploading documents to counsel’s filing system should be stricken, as this is a purely secretarial task. While it is impossible to determine the exact number of hours billed for this task, as many of the entries are block-billed, a reasonable estimate of the time spent for uploading documents to the file is 1 hour of Mr. Ruiz’s time, which reflects a reduction of $210.00. The Court finds the remaining tasks billed by Mr. Ruiz to be reasonably incurred and recoverable.
In light of the above, Plaintiffs’ Motion for Attorney Fees is GRANTED in the amount of $21,559.50.
Moving party to give notice.