Fallon Gutierrez v. Cardinale Protective Services, Inc., et al.

Civil Code section 1780(e) provides for an award of attorneys fees and costs to a prevailing plaintiff in consumer actions.

The legislative policy to allow prevailing plaintiffs reasonable attorney's fees is clear. Section 1780 provides remedies for consumers who have been victims of unfair or deceptive business practices. (Id., subd. (a); see also § 1770.) The provision for recovery of attorney's fees allows consumers to pursue remedies in cases as here, where the compensatory damages are relatively modest. To limit the fee award to an amount less than that reasonably incurred in prosecuting such a case, would impede the legislative purpose underlying section 1780. (Hayward v. Ventura Volvo (2003) 108 Cal.App.4th 509, 512.)

“[T]the trial court has broad authority to determine the amount of a reasonable fee.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM); EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 [trial court has broad discretion in determining the amount of a reasonable fee and is governed by equitable principles.]) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM, supra, at p. 1095.)

Moving party has the burden of proof in establishing its fees. (Code Civ. Proc., § 1033.5, subd. (c)(5).) However, “[i]n 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.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

“[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. California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] 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. [Citation.]” (PLCM, supra, 22 Cal.4th at p. 1095.)

II. Discussion

a. Fees

Dealer first challenges $4,518.50 in lodestar fees for work based on litigating this matter in Court.

Dealer objects that Plaintiffs should not recover fees or costs generated by their filings in this Court, as they should not have filed this action because the parties had a binding arbitration agreement. Dealer contends that Plaintiffs conditioned a stipulation to arbitrate on completion of third-party discovery and that Dealer was ultimately compelled to file a motion to compel arbitration. (Anim-Appiah Decl., ¶¶ 2--9; Ex. A.)

Plaintiffs respond that the arbitration provision in the form contract provides that “either you or we may choose to have any dispute between us decided by arbitration and not in court.” (Anim- Appiah Decl., Ex. A.) It further provides that “any claim or dispute...between you and us...shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.” (Ibid.) Plaintiffs contend that it was their right to file a court action as they did not choose to have the dispute decided by arbitration. Nor does Dealer show the fees would be different or less if the matter had been arbitrated.

Dealer further objects that Plaintiffs did not provide the 30-day safe harbor period under Civil Code section 1782(a-b), allowing an opportunity to resolve the dispute without litigation, instead sending their CLRA demand letter and filing their complaint on the same day. (Anim-Appiah Decl., ¶ 3.)

However, the safe-harbor period was not required here. Plaintiffs explain that under Civil Code section 1782(d), “[a]n action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without compliance with subdivision (a). Not less than 30 days after the commencement of an action for injunctive relief, and after compliance with subdivision (a), the consumer may amend his or her complaint without leave of court to include a request for damages.” Plaintiffs’ cause of action under the CLRA in their original complaint seeks injunctive relief but not damages. (Cmpl., ¶¶ 30, 31.) Plaintiffs filed a first amended complaint more than thirty days later, seeking damages on the basis that an appropriate correction was not provided in response to the CLRA notice.

The Court finds the fees incurred for litigating the action in this Court were reasonably incurred.

Dealer next objects to $8,783.50 in fees incurred for third-party deposition subpoenas served before any defendant had appeared or answered. (Anim-Appiah Decl. ¶ 5.) Dealer contends that the stated purpose of these subpoenas was to investigate the condition of the vehicle when it was recovered after being stolen, prior to their purchase, but that the Carfax report that Plaintiffs signed at the time of purchase already disclosed the vehicle had been reported stolen and recovered. (Anim-Appiah Decl. ¶¶ 4, 7.) Dealer contends that the information was unnecessary as there was no dispute the vehicle had been stolen and recovered.

Plaintiffs respond that not only could they not rely on the Carfax report at trial as it is hearsay, but that the report provides no information about the condition of the vehicle when recovered or what Dealer knew about the vehicle and its condition. Plaintiffs contend that their discovery was reasonable and necessary. (See Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473 [fees for discovery reasonably awarded because until the case actually settled, the

plaintiff had to conduct discovery and prepare to prove liability on her varied claims with their varied elements].)

The Court finds the fees incurred for discovery were reasonably incurred.

Dealer also objects to costs in the amount of $2,609.04 incurred for the third-party subpoenas and the filings in the Court on the grounds they were unnecessary. The Court finds those costs reasonably and necessarily incurred.

Dealer next contends that it was unreasonable to have partner Christopher Barry bill 9.2 hours solely to draft the fee motion, review the opposition, draft the reply, and attend the hearing at a rate of $750 per hour. Dealer contends that Fee motions in straightforward consumer fraud cases are routine, and that compiling billing records, calculating the lodestar, and citing wellestablished fee-shifting law is squarely within the competence of an associate. Dealer does not object to the hours expended on the fee motion, but to the rate charged for that work. Dealer contends that an associate rate of $315 per hour, that same work would cost $2,898, and therefore that the award should be lowered by $4,002 (reflecting the difference between $6,900 and $2,898.)

Dealer further objects to Barry’s estimated time of five hours for reviewing the opposition, drafting the reply, and appearing at the hearing. Dealer contends that the $3,750 in speculative fees should be disallowed. 2

Plaintiffs respond that Dealer cites no authority showing an associate should have drafted the fee motion, the reply, or attended the hearing. Mr. Barry declares that as the managing partner, he drafts his firm’s fee motions as the person most experienced with reviewing the time and determining what can and cannot be included in the bill. (Barry Decl., ¶ 3.) Plaintiffs dispute that it is unreasonable to have the more experienced partner prepare the fee motion, rather than an attorney that was just barred in California in September 2025.

Plaintiffs also contend that the Court should reject Dealer’s request to strike the time Plaintiffs’ counsel estimated would be necessary for reviewing the opposition, drafting the reply, and appearing for the hearing. “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. [Citation.]” (Fox v. Vice (2011) 563 U.S. 826, 838.)

2 The five estimated hours are included in the calculation for the total fees billed for the motion. If the five hours were to be disallowed entirely (rather than just reduced to an associate rate), the total amount subtracted from the award would be $5,577. This reflects the differential between partner and associate rate for 4.2 hours, or $1,827 (4.2 hours at $750 per hour minus 4.2 hours at $315 per hour), combined with the $3,750 in estimated fees. 4

The Court finds, given his declaration explaining his experience, process, and reason for drafting the fee motion, and the efficiency shown in drafting the motion in 1.4 hours, the Court finds it reasonable that Mr. Barry drafted the motion. A less experienced attorney would have required more time and counsel, and the Court is not convinced the total amount billed would be any less.

The Court also finds it reasonable to award estimated time for reviewing the opposition, drafting the reply, and attending the hearing.

The Court declines to reduce Plaintiffs’ requested fees.

III.

Conclusion

Plaintiffs’ motion for an award of fees and costs is granted in full. Plaintiffs are awarded $33,421.26 in fees and costs as against Cardinale Protective Services, Inc., including $30,399.50 in lodestar fees and costs and expenses of $3,021.76.

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