Kenneth Jocewicz et al vs FCA US, LLC et al

A. TIMELINESS OF THE MOTION California Rule of Court, Rule 3.1702(b)(1) provides: “A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court-including attorney's fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case[.]” Further, “Unless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment.” (Cal.

Rule Court, rule 8.104(a)(1)).

A voluntary dismissal is “effectively a ‘judgment’” within the meaning of the rule prescribing the time to appeal. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 427 [111 Cal.Rptr.2d 837] (Sanabria); accord, Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 781 [288 Cal.Rptr.3d 773] (Catlin).) Thus, “the clock starts to run [on the time to move for attorney fees] from either the service of notice of entry of judgment or dismissal (starting a 60-day clock), or if no such notice is given, the entry of judgment or dismissal (starting a 180- day clock).” (Catlin, at p. 781).

In Hatlevig v. General Motors LLC (2026) 118 Cal.App.5th 644, 648, the main issue in dispute was regarding what even triggered the clock. Plaintiff Hatlevig argued it was the entry on June 17, 2024, of the signed minute order that dismissed the operative complaint without prejudice. That order, he says, triggered the right to appeal and the corresponding time to move for attorney fees. Hatlevig further averred that the notice the clerk mailed to the parties stating the case would be deemed dismissed on August 15, 2023, was not appealable and thus did not start the clock on the time to file a notice of appeal or to move for attorney fees.

General Motors countered that an appealable order or judgment is not required to start the clock running on the time to serve and file a motion for attorney fees and time “was triggered by the conclusion of the litigation on the merits on August 15, 2023, when, pursuant to the trial court’s notice of dismissal, the case was deemed dismissed without prejudice.” The Hatlevig Court found that General Motors had the better argument.

Defendant FCA opposes the motion and seeks an order denying the plaintiffs’ motion on the grounds that it is time barred as the motion for fees and costs was filed 492 days after the case was dismissed and filed on August 6, 2024. (Opposition, p. 5).

Plaintiff asserts that Hatleving does not render the motion untimely and conflicts. (Reply, p. 1). Plaintiff argues that a notice of dismissal was requested, but never entered. (Id., at p. 2). Plaintiff argues that Rule 3.1702 deadline does not run following a 998 settlement that produces a non-appealable dismissal. (Id., at p. 4). Even if the motion was untimely, plaintiff seeks a finding of good cause on reasonable grounds and good faith for the motion to be considered on the merits. (Waters v. Superior Court of Los Angeles County (1962) 58 Cal.2d 885, 893; Malouf Bros. v. Dixon (1991) 230 Cal.App.3d 280; Wackeen v. Malis (2002) 97 Cal.App.4th 429).

B. DISMISSAL WITH PREJUDICE The Court notes that the stipulated motion filed on August 6, 2024 was to dismiss the case was with prejudice, albeit retaining jurisdiction under Code of Civil Procedure 664.6.

California law is clear that “[a] dismissal with prejudice is considered a judgment on the merits preventing subsequent litigation between the parties on the dismissed claim.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91; Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065 [“‘“A judgment entered . . . by consent or stipulation, is as conclusive a . . . bar as a judgment rendered after trial.”’”]). When an action is dismissed “with prejudice” following a settlement—a step known in the parlance of res judicata as “retraxit” (Torrey Pines Bank v.

Superior Court (1989) 216 Cal.App.3d 813, 820)—“‘[t]he statutory term “with prejudice” clearly means the plaintiff's right of action is terminated and may not be revived. . . . [A] dismissal with prejudice . . . bars any future action on the same subject matter.’” (Boeken v. Philip Morris USA, 48 Cal.4th 788, 793). One exception is when a court is dealing with a collateral issue, such as sanctions, (In re Marriage of Blake & Langer (2022) 85 Cal.App.5th 300, 309): Whether a court has jurisdiction to hear a motion after a dismissal or judgment depends on whether the motion concerns a “collateral proceeding” as opposed to one directly based on the merits. (Day v.

Collingwood (2006) 144 Cal.App.4th 1116, 1125).

Here, the Court notes that while the case was dismissed with prejudice, the intent was to retain jurisdiction under Code of Civil Procedure section 664.6 and expressly stated in the stipulation and Order, “ . . .enforce settlement including Plaintiffs’ attorneys’ fees, costs, and expenses and funding of such.” (Stipulation and Order of Dismissal on August 6, 2024). Further the Offer to Compromise also included a section that if parties were unable to resolve

attorney’s fees and costs, the plaintiff may seek reasonable costs and expenses. (Offer to Compromise, ⁋ 3; Exhibit 3 to Declaration of Angel).

III. LEGAL ANALYSIS

A. ATTORNEY’S FEES Pursuant to Code of Civil Procedure section 1033.5(a)(1), a prevailing party is entitled to recover its attorney’s fees when authorized by contract, statute, or law. (See also, Civ. Code § 1717(a)). “A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178).

The Song-Beverly Act provides, “[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(d)).

Thus, the statute includes a “reasonable attorney’s fees” standard. The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5)). This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559). “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Ibid.).

In determining a reasonable attorney fee, the trial court considers the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 36). The lodestar may then be adjusted based on factors specific to the case in order to fix the fee at the fair market value of the legal services provided. (Ibid.) The lodestar amount “may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Bernardiv.

County of Monterey (2008) 167 Cal.App.4th 1379, 1399, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132). The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Id.). “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72).

“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. 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. 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.

It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up]). “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.

In making its calculation, 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.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437, citations omitted).

“‘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.’ ” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564). The court will exercise its discretion in determining if the Plaintiff’s attorney’s fees request is reasonable by considering the following factors: the nature of litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623).

Here, Plaintiff seeks 106 hours of attorney’s fees in the amount of $49,565.50 for seven clerks and attorneys at Strategic Legal Practice: (1) Rebecca Neubauer; (2) Muky Dai; (3) Nino Sanaia; (4) Scott Friedman; (5) Tyson Smith; (6) Rabiya Timizi; and (7) Jefferey Yin with hourly rates ranging from $295.00 to $635.00. (Declaration of Baker ⁋⁋7-9, 16, and 19; Motion at p. 10). Plaintiffs’ counsel assert that a total of 21 attorneys and clerks staffed the case, but are limiting fees to the above staff. (Id.).

Attorney Baker does not seek reimbursement for time spent on this matter. (Declaration of Baker ⁋ 7). Plaintiff avers that FCA initially denied all liability, requiring plaintiffs’ counsel to file a complaint, propound written discovery, file a motion to compel further responses to request for production of documents, set one5; defend the deposition of the plaintiff, prepare and file trial documents, attend a mandatory settlement conference, and evaluate defense’s offer to compromise. (Motion, at p. 4).

Plaintiff counsel emphasizes that its work resulted in a successful settlement of the case for $60,000.00. (Id.).

Additionally, Plaintiffs’ counsel seeks additional anticipated fees in the amount of $4,000.00 for filing a reply brief and appearing for the hearing. (Declaration of Shahian ⁋ 27).

Defendant FCA opposes fees on two main grounds: (1) time-barred and (2) excessive, unsupported, cumulative, unnecessary on a standard lemon law case. First, FCA asserts that the plaintiffs motion is extremely untimely and thus time barred as the motion for fees and costs was filed 492 days after the case was dismissed and filed on August 6, 2024. (Opposition, p. 5). Even if the plaintiffs’ motion was timely filed, FCA argues that the attorney’s fees sough is excessive and grossly inflated due to “extreme overstaffing, over-billing, and ‘block billing,’ resulting in a grossly inflated demand for attorney’s fees and costs of $75,728.45.” (Id.).

Defense emphasizes that the hourly rate of unlicensed law clerks at $295.00 is unreasonable. (Id.). Defendants argue that the demand for $49,565,50 is inflated, offensive, and the additional request for $4,000.00 is fees is “purely speculative fees not incurred.” (Id.).

The Court finds the motion was untimely. The stipulation to file dismiss the case with prejudice was executed by Plaintiffs and Defendant on July 29, 2024, authorized by the Honorable Shella Deen on July 31, 2024, and filed on August 6, 2024. Even if this Court takes the latest date when the case was dismissed on August 6, 2024, the motion was filed 492 days later. There is no good cause for such a delay under Rule of Court, rule 3.1702(b)(1) and rules 8.104 and 8.108.

B. MULTIPLIER The lodestar amount “may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132]). The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Id.). “The purpose of a fee enhancement is not to reward attorneys for

5 The Court notes that on Plaintiff filed a motion to compel further responses to request for production of documents, set one on November 4, 2021, but withdrew its motion on February 2, 2022. The motion substantively the same was refiled on June 16, 2022, which the Honorable Socrates Manoukian denied. 13

litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72).

“The trial court is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 citing Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297.)

Plaintiffs’ counsel seeks a 1.35 multiplier enhancement, which amount to $17,347.93 and argues that “[p]laintiffs’ counsel obtained an excellent outcome” and that there were substantial risks of non-recovery or delayed recover in a contingency case. (Declaration of Shahian ⁋⁋ 21 and 28; Motion at p. 11).

The plaintiff has not met its burden of showing that a multiplier is merited under Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. In applying a multiplier for contingent risk, “the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment . . . ” (Id.).

Defendants argue that a multiplier is unwarranted in this matter as no novel legal strategy was required, rather the case is formulaic of standard lemon law cases. (Opposition, p. 18). FCA states that a negative multipliers should apply given the untimeliness of the motion. (Id.).

There is no evidence that this case involved anything novel, difficult, or required exceptional skill. The case appears to be a standard lemon law action. Plaintiffs’ counsel’s law firm Strategic Legal Practices also handles a large volume of Song-Beverly cases on a contingency basis so the risk in this specific case is not high or unusual. Additionally, the motion is untimely. The request for a multiplier is DENIED.

C. COSTS The prevailing party who claims costs must serve and file 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 664.6 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. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (California Rule of Court, rule 3.1700(a); see also Hydratec, Inc. v.

Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927–928). The Song-Beverly Act allows a prevailing party to recover all expenses, including those not traditionally allowed. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112.)

Plaintiffs’ counsel seeks costs in the amount of $4,815.02 and asserts that FCA has agreed to pay the plaintiffs’ litigation costs. (Motion, at p. 12). The costs compromise of filing and motions fees, jury fees, deposition costs, process service fees, electronic filing service fees, and court appearance professionals and courtesy copies. The memorandum of costs included exhibits with breakdown for costs along with invoices.

Defendant FCA opposes any costs being awarded on the grounds that the motion is untimely, vague, and unsupported. (Opposition, at p. 17). FCA asserts that the plaintiffs failed to submit a memorandum of costs, receipts, invoices, documentation, and failed to make any attempts to categorize costs to establish reasonably necessary costs. (Id., at p. 17-18). In the alternative, FCA seeks a reduction of costs to $1,852.25. (Id.; Exhibit 3 to Declaration of Cronin).

Here, the Court notes that no memorandum of costs or motion to strike or tax costs were timely filed in accordance to Code of Civil Procedure section 1010.6 and Rule of Court, rule 3.1700. The Court DENIES the request for costs as untimely.

III. CONCLUSION Based on the foregoing, the Plaintiffs’ motion for attorney’s fees, enhancer and cost is DENIED. The Court will prepare the formal Order.

Calendar Line # 4 Case Name Von Raesfeld Family Partnership LP et al vs Bennet Stafford et al