Riar vs. Volkswagen Group of America, Inc.

argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”.] In addition, it is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. [DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566--“By failing to argue the contrary, plaintiffs concede this issue”; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529--“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot”; Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424-- issue is impliedly conceded by failing to address it.]

Here, no opposition to the Motion for Judgment on the Pleadings has been filed; and therefore, the Court deems the motion unopposed and construes the failure to oppose the Motion as an abandonment of Plaintiffs’ claims. While the Court notes Plaintiff is in Pro Per, Pro Pers must abide by the Civ. Pro. Code and Cal. Rules of Court: (See Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [“pro per litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure”].) Moreover, the fact that plaintiff is in pro per does not afford him special treatment. [Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246- 1247.] Therefore, the unopposed Motion for Judgment on the Pleadings is GRANTED in its entirety with 20 days leave to amend. Defendant to give notice.

2. Case Management Conference

109 Riar vs. Volkswagen Group of America, Inc.

1. Motion for Attorney Fees As corrected by a Notice of Errata, Plaintiff, Keerat Riar (“Plaintiff”), moves for an order awarding 24-01434242 Plaintiff attorney’s fees, costs and expenses from Defendant, Volkswagen Group of America, Inc. (“VWGOA”), in the total amount of $160,958.39 consisting of a lodestar in the sum of $114,637.38, a 0.25 multiplier of $28,659.35, and costs and expenses in the sum of $17,661.66. The Motion is GRANTED, in part, as follows.

Initially, the opposition was served and filed one day late. Despite this, the Court will consider the opposition.

Entitlement to Attorneys’ Fees and Costs 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.” (Civ. Code, § 1794(d).) “A prevailing party under [Code of Civil Procedure] section 1032 is not necessarily a prevailing party under a separate attorney fee statute. [Citation.]

As explained in Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 144 Cal.Rptr.3d 545, regarding the [Song-Beverly Consumer Warranty] Act: “[W]here (as here) a fee-shifting statute is concerned, a number of Courts of Appeal have taken the approach that attorney fees recovery is governed by the fee-shifting statute itself, rather than a rigid adherence to Code of Civil Procedure section 1032. Under this analysis, if the particular fee-shifting statute does not define prevailing party, then the trial court should simply take a pragmatic approach to determine which party has prevailed.

That is, the trial court would determine which party succeeded on a practical level, by considering the extent to which each party realized its litigation objectives. [Citations.] Section 1794(d) is likewise a remedial fee-shifting statute, and thus the same practical approach to the issue of prevailing party is applicable to section 1794(d).’ [Citation.]” (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047.)

Here, there is no dispute that Plaintiff is the prevailing party as having received a settlement in the amount of $50,000 to resolve this action. (Ex. 2 to Declaration of David A. Goldsmith (“Goldsmith Decl.”).)

Lodestar A court assessing a claim for attorney’s fees under Civil Code section 1794(d) uses the lodestar method to determine the reasonableness of such a claim. (Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240, 247-248 (“Mikhaeilpoor”).) “ ‘The plain wording of the statute requires the trial court 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 the time spent and the amount charged . . . . “It requires the trial court to make an initial determination of the actual time expended; and then to 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.

These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” . . . [The] prevailing party has the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.’ [Citation.]” (McKenzie v.

Ford Motor Company (2015) 238 Cal.App.4th 695, 698, 703; Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247 [same].) “ ‘[T]he [party] . . . seeking fees and costs “ ‘bear[s] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ [Citation.]” ’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320, 81 Cal.Rptr.3d 866.) “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v.

Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “...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.” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal. App. 4th 359, 396.)

Reasonableness of Hourly Rates “ ‘ “The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]” ’ [Citations.]” (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055.) “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 [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], 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].)

Plaintiff seeks fees for three attorney timekeepers: (1) David A. Goldsmith at $592.32 per hour; (2) Phuc Minh “Peter” Le at $437.80 per hour; (3) Theodore Swanson of the firm Resolute Trials who was associated to assist at trial at $665 per hour. (Goldsmith Decl., ¶¶ 8, 41; Declaration of Theodore Swanson (“Swanson Decl.”), ¶ 12.) The requested hourly rates are supported by each attorney’s experience and years of practice, as well as the approval of Mr. Goldsmith and Mr. Le’s prior rates in 2025 for $575 per hour and $425 per hour, respectively, and the approval of Mr.

Swanson’s rate of $665 in 2025. (Goldsmith Decl., ¶¶ 37-40, 44, 62; Swanson Decl., ¶¶ 3-13.) These rates are also supported by consumer fee surveys, the United States Consumer Law Attorney Fee Survey Report for “vehicle cases”, and the Real Rate Report. (Goldsmith Decl., ¶¶ 50-54, 57; Swanson Decl., ¶¶ 15-16.) Based on the foregoing, the Court finds the requested rates for attorneys David A. Goldsmith at $592.32 per hour, Phuc Minh “Peter” Le at $437.80 per hour, and Theodore Swanson at $665 per hour to be reasonable and commensurate with the prevailing rates charged by attorneys of similar experience specializing in lemon law in the community of Orange County.

Although VWGOA requests the Court reduce the requested $592.32 hourly rate for Mr. Goldsmith to $400 and the requested $437.80 hourly associate rate for Mr. Le to $300, VWGOA provides no evidence to support these reduced rates. VWGOA does not dispute the hourly rates sought by Mr. Swanson.

Plaintiff also seeks fees for paralegals and support staff as follows: Galyn Bradshaw (paralegal at $200 per hour), Lasha Alvarez (paralegal at $200 per hour), Elizabeth De Jesus Gutierrez (staff at $150 per hour), and Michelle Karpathy (paralegal at $150 per hour) (Goldsmith Decl., ¶¶ 43, 45-48.) Based on each paralegal’s experience, the Court finds the rates reasonably and commensurate with the prevailing rates charged by paralegals of similar experience and qualifications in the community of Orange County.

VWGOA does not dispute the hourly rates sought for the paralegals or staff. However, the Court finds that Elizabeth De Jesus Gutierrez for which Plaintiff requests $150 per hour (a paralegal rate) is not supported. Plaintiff’s counsel does not state that she is a paralegal and does not otherwise provide what role she held to warrant this billing rate. (Goldsmith Decl., ¶ 47.) The work performed totaling 0.7 hours for a total amount of $105 is not compensable. (See Ex. 1 to Goldsmith Decl.) 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.) Tasks that are purely clerical are 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.) The Court DEDUCTS $105 from the requested lodestar total of $114,637.38 for a total of $114,532.38.

Reasonableness of Time Expended A court has wide discretion in determining what constitutes reasonable attorney fees. The court typically makes this determination based upon declarations without live testimony. The value of legal services performed in a case is a matter in which the court has its own expertise and thus may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; Padilla v.

McClellan (2001) 93 Cal.App.4th 1100, 1107; Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698 [“experienced trial judge is the best judge of the value of professional services rendered in his court”].) To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “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 Med.

Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (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.” (Id. at p. 564.) “The party opposing the fee award can be expected to identify the charges it considers objectionable.

A reduced award might be fully justified by a general observation that an attorney over litigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)

Here, Plaintiff provides that each timekeeper expended the following time: 1. Attorney David A. Goldsmith (DAG) – 134.10 hours 2. Attorney Phuc Minh “Peter” Le (PL) – 34.65 hours 3. Attorney Theodore Swanson – 27.9 hours 4. Paralegal Galyn Bradshaw (GB) – 6.4 hours 5. Paralegal Lasha Alvarez (LA) – 0.35 hours 6. Paralegal Michelle Karpathy (MK) – 0.2 hours (Ex. 1 to Goldsmith Decl., Goldsmith Decl., ¶ 3; Swanson Decl., ¶ 22, Ex. 1.) In support of the hours expended, Plaintiff provides that the litigation began in October of 2024 and the case was not settled in principle until 3 days before trial, on March 6, 2026; and that there have been 12 motions in this case, 4 depositions, and substantial preparation for trial including preparation of trial documents and 13 motions in limine filed by Defendant and 8 filed by Plaintiff. (Goldsmith Decl., ¶¶ 17-18.)

Plaintiff’s counsel provides that aspects of litigation in this case were “unusually vigorous and increased the costs of litigation substantially” including that VWGOA cancelled the PMQ deposition less than an hour before start time, filed a motion to compel a vehicle inspection despite having rejected multiple offers by Plaintiff to produce the vehicle for inspection, filed an ex parte application to exclude Plaintiff’s expert witness testimony from trial, designated 4 separate expert witnesses for trial and refused to provide any dates for their depositions or to dedesignate any of them until 19 days before trial, moved to quash Plaintiff’s notices to appear at trial to the 4 designated experts and its PMQ and refused to produce its remaining expert witness until 4 days before trial. (Goldsmith Decl., ¶¶ 19-20, 72-73.)

Thus, Plaintiff’s counsel provides that they expended more than the usual time prosecuting a lemon law case, and that they expended time for more than 2 years, up through the eve of trial.

Duplicative, Excessive Billing Entries VWGOA contends that the billing record includes entries for routine work that should have been completed by an associate or paralegal, such as preparing a notice of ruling for a case management conference, renaming and organizing documents, and drafting notices in lieu of subpoenas such that, at the very least, the claimed 15 hours billed for $8,614.39 in relation to research should be reduced to 7.4 hours for $2,880.00, and the 36.5 hours billed for $19,640.33 in relation to work that should have been conducted by an associate or paralegal should be reduced to 30.25 hours for $8,675.00. (Declaration of Allison Yniguez (“Yniguez Decl.”), ¶¶ 5-6.)

With regards to the 15 hours billed for research, the amount of time expended for the 8 entries identified by VWGOA appear reasonably incurred and specific to the needs and requirements in the prosecution of this case. Therefore, the Court makes no deduction. As to the 36.5 hours in relation to work that VWGOA claims should have been conducted by an associate or paralegal, VWGOA first claims that the hours should be reduced to 30.25 but fails to specify what VWGOA requests be deducted and why 6.25 hours should be deducted. (Yniguez Decl., ¶ 6.)

Additionally, a review of the entries listed in this category are entries by associate, PL, and paralegal LA, totaling 4 hours. Therefore, VWGOA requests that the Court apply an associate or paralegal rate to work performed by DAG, which totals 32.5 hours. A trial court may reduce rates if it finds that partners did work that could have been done by lower-billing attorneys, or that attorneys did work that could have been done by paralegals. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [finding that even if plaintiff established that her attorneys’ rates were generally commensurate with other consumer law attorneys with the same level of experience and skill, the trial court may consider a number of other factors in determining that reductions in the attorneys’ hourly rates were warranted including “that the matter was not complex; that it did not go to trial, that the name partners were doing work that could have been done by lower-billing attorneys’ and that all the attorneys were doing work that could have been done by paralegals”].)

None of the entries VWGOA identified could have been performed by a paralegal. Upon review of the entries identified by VWGOA, the entries involving drafting the mediation brief (2/11/26 for 2.75 hours), attending mediation (2/13/26 for 4.25 hours), and appearing on the first day of trial to advise of settlement (3/9/26 for 1 hour), totaling 8 hours, are properly conducted and charged by a partner rate of $592.32. The remaining entries identified by VWGOA which relate to research, discovery, and reviewing, drafting, and opposing motions, totaling 24.5 hours (32.5 total hours - 8 hours), are properly charged at an associate rate of $437.80.

The Court therefore DEDUCTS $3,785.74 ((24.5 x $592.32) – (24.5 hours x $437.80)) from the aforementioned reduced lodestar total of $114,532.38, for a reduced total of $110,746.64.

Time Expended on Fee Motion Lastly, VWGOA also contends that fees for the instant motion are not authorized, and that assuming Plaintiff is entitled to recovery of fees incurred in connection with the instant fee motion, an unreasonable amount of time was spent on this motion. VWGOA also asserts that to the extent that recovery of any fees incurred in connection with this Motion is allowed, only the fees and costs actually incurred – not anticipated—should be awarded. Plaintiff properly seeks fees for the instant fee motion.

When attorney fees are recoverable by statute, the reasonable attorney fees incurred in bringing the motion are also recoverable. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 1002.) With regards to the attorney’s fees for the fee motion, the 9 hours expended and anticipated consisting of 2.75 hours for the motion, 1 hour for proofing, creating a table of contents and authorities, and bookmarks to exhibits to declarations, 3 hours to review the opposition and draft a reply, and 2 hours to prepare for and appear for the hearing appear excessive as the opposition is not detailed or extensive and in light of the time it took to draft the motion. (Ex. 1 to Goldsmith Decl.; Reply Declaration of David A.

Goldsmith, ¶ .) The Court DEDUCTS 2 hours from DAG for a total DEDUCTION of $1,184.64 from the lodestar total of $110,746.64 for final reduced total of $109,562. Based on the foregoing, the Court GRANTS Plaintiff attorney’s fees in the amount of $109,562 from VWGOA.

Multiplier “The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased.” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) “The trial court is neither foreclosed from, nor required to, award a multiplier. [Citations.]” (Ibid.) The lodestar may be adjusted based on factors including (1) the novelty of 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, (4) the contingent nature of the fee award. (Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1132.) “Such fee enhancements are intended to compensate for the risk of loss generally in contingency cases as a class. [Citation.]” (Id. at p. 1133.) “[F]or the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.” (Id. at pp. 1138–1139.)

Here, Plaintiff argues that all factors weigh in favor of a 0.25 enhancement. As to the first factor, while the case may have presented a new technical issue with regard to “ghost codes” or “ghost faults,” that was at the core of this case, this issue itself is not difficult simply because it required expert witnesses, took more time, or was an issue new to counsel. (Goldsmith Decl., ¶¶ 66-69.) There is no showing of particular skill by Plaintiff’s counsel simply because VWGOA tripled its highest previous settlement offer after Plaintiff’s expert witness was deposed.

There is no showing that Plaintiff’s counsel exhibited particular skill in selecting their expert witness. (Goldsmith Decl., ¶ 70.) In addition, Plaintiff’s counsel does not show that the litigation precluded employment by Plaintiff’s counsel; Plaintiff’s counsel only shows that there was increased work relating to expert witnesses and motions relating to trial such that the inability to work on other cases appears to have been limited to a time close to trial, which is not uncommon in any case. (Goldsmith Decl., ¶¶ 71-74.)

Lastly, the contingent nature of the fee award and delay in receipt of payment is applicable here but does not warrant a multiplier as any risk does not appear substantial, and the delay in this case is not unique or different from other lemon law cases. (Goldsmith Decl., ¶¶ 76, 81, 83.) Further, the outcome was not so “excellent” as to justify a multiplier. Based on the foregoing, the Court DENIES Plaintiff’s request for a lodestar enhancement.

Costs Plaintiff is also entitled to recover all costs and expenses that were reasonably incurred in prosecuting this case, in the amount of $17,661.66. (Goldsmith Decl., ¶ 105, Exs. 1 and 23; See ROA 235, Memorandum of Costs.) Defendant does not oppose the costs and has not filed a motion to tax costs. The Court GRANTS cost in the amount of $17,661.66. Plaintiff to give notice.

2. Order to Show Cause re: Dismissal on Settled Case

110 Martin vs. General Motors LLC

25-01488670 Motion for Attorney Fees Plaintiffs Maria L. Martin and Anthony Martin (“Plaintiffs”) move for an order granting Plaintiffs attorney fees and costs against defendant General Motors LLC in the amount of $11,127.36. To determine the appropriate fee award under Civil Code section 1794, the Court applies the loadstar method. Under the lodestar method, the base amount is calculated from a compilation of time reasonably spent and reasonable hourly compensation of each attorney. (Serrano v.

Priest (1977) 20 Cal.3d 25, 48.) Plaintiffs’ counsel spent 22.3 hours litigating this action, which involved initiating the action, initial disclosures, mediation, and facilitating settlement. The hourly rates for counsel range from $560 to $440 per hour and the rates for paralegals is $215 per hour. Based on the Court’s experience and knowledge of the prevailing rates in the Orange County area for similar services, the Court finds the number of hours expended, considering the work performed, and counsel’s hourly rates to be reasonable.

In light of the above, the Motion for Attorney Fees is GRANTED. Moving party to give notice.