John Henao vs. FCA US LLC

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Tentative Ruling

NOTICE: Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure: To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below.

If no request for oral argument is made, the tentative ruling becomes the final order of the Court. Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED. Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/courtreporters/docs/crtrp-6a.pdf.

Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf. A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Plaintiff Henao’s motion for “attorneys’ fees, costs and expenses” is ruled upon as follows.

The moving papers fail to comply with CRC Rule 3.1110(b)(3)-(4).

Overview

This is a lemon law action arising from plaintiff’s purchase of a 2017 Chrysler Pacifica. Plaintiff, represented by Strategic Legal Practices (“SLP”) in Los Angeles, filed suit in

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2020 and ultimately agreed in September 2023 to settle this action by accepting defendant’s Code of Civil Procedure §998 offer to compromise.

According to the moving papers, plaintiff now seeks an award of attorney fees of roughly $196,384 (consisting of $141,766 for past attorney fees representing over 314 hours of attorney time; a multiplier of 1.35, amounting to $49,618; and $5,000 for anticipated attorney fees to be incurred with reviewing the opposition to this motion, preparing a reply and attending the hearing) plus “costs and expenses” of roughly $8,667.

Defendant opposes, arguing first that this motion should be denied as untimely insofar as plaintiff inexplicably waited 16 months after the August 2023 settlement and 10 months after the subject vehicle was surrendered before filing this motion. Additionally, in the event the Court entertains this motion, defendant maintains the amounts now sought by plaintiff far exceeds what should have been reasonably incurred in this case. Among other things, the opposition asserts that hourly rates claimed by plaintiff’s attorneys (including $385 for a “non-licensed attorney” and $595 for “non-partners”) are unreasonably excessive and should be reduced substantially, particularly when the moving papers offer no evidence plaintiff made any attempt to find counsel in the Sacramento area; the billing records submitted by plaintiff reveal that this case was not only “overstaffed” with 19 attorneys, resulting in inefficiencies, duplication and overbilling, but also indicate “unnecessary and improper” entries, citing a number of examples throughout the opposition.

The opposition further asserts that no multiplier is appropriate in this case which presented no unusual issues or risks and that the “costs and expenses” claimed should be disallowed or significantly limited. In the end, defendant maintains that the $146,766 attorney fees claimed should be reduced to no more than $28,353, no multiplier be awarded and the “costs and expenses” be denied outright or alternatively, reduced to no more than $5,816. The Court notes that unlike the opposition which defendant’s counsel filed in the other motion for attorney fees and costs also set on this 4/22/2025 calendar, the opposition to the present motion nowhere appears to argue that any or all fees billed by SLP related to plaintiff’s sixth cause of action for “fraud” should be denied.

In reply, plaintiff asserts that this motion is timely and the opposition cites no authority for a contrary conclusion. While defendant claims plaintiff’s attorneys’ billable rates are excessive, the opposition presents no evidence to substantiate its position but regardless, the moving papers demonstrate the rates are reasonable and acceptable, including a brief biography of the billing attorneys. The reply also disputes defendant’s characterization of excessive and duplicative billing entries and maintains the billing records were “carefully audited” to prevent duplicative tasks and billing. Plaintiff further maintains that the nearly 50 hours spent on a motion to compel compliance was reasonable and necessary in light of defendant’s refusal to comply with the Court’s

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discovery order. Additionally, the reply claims a multiplier is warranted here as SLP handled this case on a contingency basis and it was not a “routine” case, as confirmed by the fact it took three years to settle. Finally, plaintiff maintains that he is under the Song-Beverly Act entitled to recoup more than just those “costs” recoverably under Code of Civil Procedure §1033.5, including those “expenses ordinarily billed to paying clients” like filing fees, transcripts and the expert fees associated with the vehicle inspection in this case.

Filed with the reply papers was the Chandy Declaration but it was not considered by the Court because the general rule in California is that new arguments and/or evidence presented for the first time on reply are not permitted as the opposing party had no opportunity to address such new matters in the opposition papers. (See, e.g., Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 526, n.8.)

Legal Standard

“[The Song-Beverly Act] includes a fee-shifting provision allowing for prevailing buyers to recover attorney fees under [Civil Code] section 1794.” (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1111.) California courts have concluded the “lodestar” adjustment method of calculating attorney fees is appropriate” in awarding attorney fees under the Song-Beverly Act. (Id., at 1112.) A trial court assessing attorney fees using the lodestar adjustment method begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.” (Id., at 1111.)

Under §1794, the trial court is tasked with calculating attorney fees based on actual hours expended that were reasonably incurred for the particular litigation. (Id., at 1113; see also, 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.’ [Citation.]”].) “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.” (Morris v.

Hyundai Motor America (2019) 41 Cal.App.5th 24, 34.) The party moving for statutory attorney fees has the burden of proof. (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

Time records are generally the starting point for the “lodestar” determination. (Horsford v. Board of Trustees of CSU (2005) 132 Cal.App.4th 359, 397.) The “lodestar” is the number of hours reasonably expended multiplied by the reasonable hourly rate. (See,

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e.g., Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393- 1394; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) However, a trial court is vested with discretion to decide which of the hours expended by the attorneys were ‘reasonably spent’ on the litigation.” (Meister v. Regents of Univ. of Cal. (1998) 67 Cal.App.4th 437, 449.) “A trial court may not rubberstamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v.

Donahue (2010) 182 Cal.App.4th 259, 271.) “In evaluating whether the attorney fee request is reasonable, the trial court should consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Morris, supra, 41 Cal.App.5th at 38.) In other words, “[r]easonable compensation does not include compensation for ‘padding’ in the form of inefficient or duplicative efforts.” (Id.)

“Reasonable hourly compensation is based on ‘prevailing hourly rates’ in the community, thereby ‘anchoring the calculation’ to an objective standard. [Citation.]” (Reynolds, supra, 47 Cal.App.5th at 1112.) However, “[i]n 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, supra, 41 Cal.App.5th at 41.)

Affidavits of the moving attorney(s) and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the moving attorney(s), are satisfactory evidence of the prevailing market rate. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The amount of a fee award is within the trial court’s discretion, as “the trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” (Ketchum, supra, 24 Cal.4th at 1132 [citing Serrano v. Priest (1977) 20 Cal.3d 25, 49]; see also, PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court may reduce the hours it determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [party seeking attorney's fees has “burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount’”]; Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-1329.)

Once the court has fixed the “lodestar,” it may increase or decrease that amount by applying a positive or negative “multiplier” after taking into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Lealao v. Beneficial

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Calif., Inc. (2000) 82 Cal.App.4th 19, 26; see also, Bernardi v. County of Monterey, supra, 167 Cal.App.4th at 1399.) An attorney’s incivility and/or personal embroilment in the litigation may also be considered. (Snoeck v. Exak Time Innovations, Inc. (2023) 96 Cal.App.5th 908, 925 [discussing factors used for applying ‘negative’ multiplier].)

Existing California precedent confirms a fee enhancement or multiplier is not awarded as a matter of right but may, in the court’s discretion, be granted where exceptional skill, novelty of the questions involved, or other factors warrant such relief. (See, e.g., Rey v. Madera Unified School District (2012) 203 Cal.App.4th 1223, 1242.) According to the California Supreme Court, “[A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience.” (Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1138-1139 [underline added for emphasis].) In the end, the award of a fee multiplier or enhancement is a discretionary matter largely left to the trial court. (See, e.g., Hogar v. Community Development Comm. of City of Escondido (2007) 157 Cal.App.4th 1358, 1371.)

Request for Judicial Notice

Plaintiff’s request for judicial notice of various court orders granting SLP’s motions for attorney fees in other cases filed in California state and federal courts is granted but only for those limited purposes appropriate for judicial notice. (See, Evid. Code §451, subd. (a); §452, sub. (b)-(d); see also, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569-70.) It should also be noted that none of these other trial court orders is binding on this Court, thereby limiting the legal significance of these orders.

Objections to Evidence

Defendant’s written objections to evidence are overruled. The Court finds that the moving papers adequately establish the necessary evidentiary foundation for billing records attached as Exhibit 25 to the Shahian Declaration and the various court orders granting SLP’s motions for attorney fees in other cases (which are the subject of plaintiff’s request for judicial notice) are not inadmissible on the specific grounds advanced by defendant. Defendant’s objection Nos. 3-5 are overruled because (1) defendant failed to set forth the specific statements to which the objections are asserted (see, e.g., CRC Rule 3.1354) and (2) the multiple statements otherwise referenced in objection Nos. 3-5 are not inadmissible on the specific grounds advanced by defendant. Still, it should be noted that a different ruling on objection Nos. 2-5 would not materially alter the outcome of this motion.

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Plaintiff filed no written objections to evidence.

Discussion

As noted above, the moving papers seek an award of substantial fees, costs and expenses, while the opposition advances an array of arguments about why the amounts awarded should be substantially reduced, if not denied outright. Under these circumstances, the Court will primarily focus its discussion on the specific items defendant has placed in dispute and unless noted otherwise, generally construes the remainder of the fees, costs and/or expenses which were not explicitly addressed in the opposition as being reasonable and recoverable here. However, it is worth adding here that largely generic arguments which are not tethered to specific billing entries claimed by defendant to be objectionable do little to aid the Court in its task of calculating those fees which defendant believes should not be allowed and ultimately, the total amount to be awarded.

Timeliness of Motion. Although troubled by what certainly appears to be an unreasonably excessive delay in bringing the present motion, the Court will not deny this motion outright on this ground since the opposition offers no legal authority for such a determination. (See, e.g., People v. King (1991) 1 Cal. App. 4th 288, 297, Fn. 12 [“Failure to argue the matter and to cite to authority is deemed a waiver of the point” (citing Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228)].)

Hourly Rates. The Court declines to reduce or otherwise limit the hourly rates claimed by plaintiff’s attorneys in this case because it has frequently made awards based on substantially similar hourly rates in other similar lemon law cases litigated in Sacramento Superior Court and because these hourly rates are in this Court’s view reasonable under the circumstances.

Discovery Requests. On 1/6/2021, SLP billed over $1,650 in attorney fees, representing 4.4 hours, for preparation of discovery requests and a letter regarding electronically-stored information (“ESI”), tasks which SLP performs in virtually every case it handles and for which there is insufficient justification to incur this amount of hours. Therefore, this Court will reduce the fees sought for these tasks by $850.

Motion to Compel and Protective Order. Based on the Court’s review of the billing records, SLP billed over 8.5 hours, representing over $4,300 in attorney fees, on 5/28/2021 and 7/27/2021 to draft a meet-and-confer letter relating to defendant’s discovery responses as well as a proposed protective order. As these are tasks which SLP performs in a majority of lemon law cases and there is insufficient justification for why this substantial amount of fees was incurred in this specific action, the Court shall

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reduce these fees by $3,000.

The billing records indicate SLP spent over 24 hours in connection with a motion to compel further responses filed in or about August 2021, representing fees in excess of $11,800. Again, SLP files the substantially same motion to compel in these lemon law cases and there is insufficient justification for why this substantial amount of fees was incurred here. Thus, the Court will reduce these fees by $8,500.

Motions to Compel Compliance with 9/30/2021 Discovery Order. According to defendant, SLP billed nearly 98 hours, representing nearly one-third of the hours billed in this litigation and amounting to over $40,300 in attorney fees, in late 2021 and early 2022 to prepare and finalize two separate motions to compel compliance with the Court’s 9/30/2021 discovery order, with both motions ultimately being denied. (Opp., p.2:6-p.3:1; p.10:3-13.) More specifically, the first of the two motions was denied without prejudice due to plaintiff’s failure to include the requisite separate statement, while the second motion was denied for several reasons including but not limited to plaintiff’s reliance on impertinent statutory provisions and plaintiff’s failure to demonstrate any material non-compliance with the Court’s 9/30/2021 discovery order.

Under these circumstances, this Court finds that a substantial portion of the fees incurred in connection with these two motions were neither necessary nor reasonably incurred and accordingly, the total amount of fees claimed by plaintiff shall be reduced by $20,300.

Motion to Compel Deposition. The billing records indicate that SLP billed 15 hours, amounting to $6,900, between 3/15/2022 and 3/17/2022 to prepare a motion to compel the deposition of defendant’s PMQ. Because SLP routinely files such motions and there is insufficient justification for why this substantial amount of fees was specifically billed in this action, the fees incurred for this motion will be reduced by $5,500.

It also appears SLP billed an additional 15 hours between 4/12/2022 and 6/23/2023 in connection with preparing a reply, preparing for and attending the hearing and follow-up meet-and-confer with opposing counsel, but the fees for these tasks shall similarly be reduced by $5,500.

“Class Action Document Review.” Defendant takes issues with the 30 hours billed, amounting to $12,000, between 10/23/2022 and 10/23/2022 for “class action document review.” (Opp., p.10:26-p.11:1.) Because the Court is not persuaded these fees were reasonably or necessarily incurred in connection with this particular lawsuit which did not include any class action allegations and did not otherwise require SLP to review such documents, the $12,000 in fees incurred for this “class action document review” shall not be recoverable here. The Court finds that there is insufficient justification for this substantial amount of fees billed in this case.

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Motion for Attorney Fees. The billing records reflect that SLP spent 13.5 hours, representing over $8,000 in attorney fees at an hourly rate of $595, to prepare the present motion for attorney fees and as already noted, SLP expects to incur another $5,000 in connection with reviewing the opposition, preparing the anticipated reply papers and attending the hearing for this motion (i.e., $13,000 in total). However, the Court finds that preparation of the moving papers by an attorney billing $595 per hour should not have exceeded 3.5 hours given the multitude of other similar motion SLP has clearly filed in the past and the time needed to prepare the reply papers and attend the hearing also should not exceed 3.5 hours. Thus, using the $595 hourly rate at which the moving papers were billed, the total fees awarded for the present motion shall be reduced by $8,835.

Multiplier. The moving papers request a multiplier of 1.35, which would add another $49,618 to the fee award. This Court does not find that a multiplier is warranted under the circumstances here, as this case appears to be a fairly typical lemon law case which SLP frequently handles, it presented no unusual issues or risks for SLP or its client, and SLP has not demonstrated that it handled this case with “exceptional skill” or that other factors warrant such relief. (See, e.g., Rey v. Madera Unified School District, supra, 203 Cal.App.4th at 1242.)

As noted above, the California Supreme Court has clarified that a trial court should award a multiplier only where the quality of representation far exceeds the quality of representation which would have been provided by an attorney of comparable skill and experience.” (See, e.g., Ketchum v. Moses, supra, 24 Cal.4th at 1138-1139.) Since the award of a fee multiplier or enhancement is purely a discretionary matter (see, e.g., Hogar v. Community Development Comm. of City of Escondido, supra, 157 Cal.App.4th at 1371), this Court declines to award a multiplier in this matter.

Costs and Expenses. As noted above, plaintiff claim “costs and expenses” of roughly $8,667. In response, defendant contends that plaintiff have provided “nothing more than an unsubstantiated spreadsheet purporting to identify costs incurred throughout the litigation of this case,” offering “no invoices, receipts, bills, or other documentary evidence to support the[se] costs” and therefore, there is no evidentiary basis on which the Court may find that these costs were actually incurred. (Opp., p.12:24-p.13:4.)

Moreover, defendant not only objects to the present motion on the ground plaintiff failed to file and serve a Memorandum of Costs as required by CRC Rule 3.1700 but also objects to four specific “expenses” claimed by plaintiff as not authorized or recoverable under Code of Civil Procedure §1033.5. (Opp., p.13, Fn.26; p.13:5-p.14:4.) According to the opposition, the “costs and expenses” should be denied outright or alternatively, reduced to no more than $5,816. (Id., at p.14:5-6.)

Civil Code §1794(d) provides that a buyer who prevails in an action under this section

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“shall be allowed to recover a sum equal to the aggregate amount of costs and expenses determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Underline added for emphasis.) Given this express language, plaintiff in this case is not necessarily limited to recovering only those costs permitted pursuant to the provisions of Code of Civil Procedure §1033.5. Indeed, under existing case law, the general interpretation of §1794(d)’s term “expenses” is that it includes all expenditures which are not part of overhead and which are ordinarily billed to paying clients regardless of whether they are recoverable under §1033.5. (See, e.g., Bussey v.

Affleck (1990) 225 Cal.App.3d 1162; Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 [litigation “expenses” far broader than “costs”].)

Although Civil Code §1794(d) provides for an award of “costs and expenses” not subject to the limitations found in Code of Civil Procedure §1033.5, the Court agrees that the moving papers (and the reply papers too) fail to satisfy plaintiff’s burden of showing that the $8,667 in “costs and expenses” being claimed were not only reasonably necessary to the prosecution of this action but also actually incurred. Moreover, regardless of whether any Memorandum of Costs must be filed, had one been filed by plaintiff, it would constitute prima facie evidence of the claimed costs’ propriety (see, e.g., Jones v.

Dumrichob (1998) 63 Cal.App.4th 1258, 1266), but again, plaintiff has not filed any Memorandum of Costs in this action or otherwise provided sufficient evidence to support the claimed costs and expenses. Finally, once defendant objects to the costs and expenses claimed by plaintiff, the burden shifts to plaintiff to demonstrate the “costs and expenses” claimed were both reasonably necessary and actually incurred (Id.) but plaintiff’s reply papers fail to adequately demonstrate both of the perquisites for the recovery of $8,667 in “costs and expenses” under §1794(d).

Accordingly, to the extent plaintiff’s current motion seeks recovery of costs and/or expenses under Civil Code §1794(d) and/or Code of Civil Procedure §1033.5, it is denied. This ruling, however, is without prejudice to plaintiff’s right to file a Memorandum of Costs (as well as defendant’s right to timely challenge same by appropriate means).

Disposition

For the reasons explained above, plaintiff is entitled to recover attorney fees of no more than $82,281 (i.e., $141,766 past fees + $5,000 “anticipated” fees – $850 – $3,000 – $8,500 – $20,300 – $5,500 – $5,500 – $12,000 – $8,835) but the Court declines at this time to determine whether any of the “costs and expenses” claimed by plaintiff are recoverable.

As noted above, plaintiff remains free to file and serve a Memorandum of Costs and

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defendant remains free to timely challenge same by appropriate means.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)