LISA FAY VS FCA US LLC

Tentative Rulings

Case Number: BC697073    Hearing Date: February 21, 2020    Dept: 32

BACKGROUND

Plaintiff Lisa Fay (“Plaintiff”) commenced this lemon law action against Defendant FCA US LLC (“FCA”) on March 8, 2018. The Complaint asserts causes of action for (1) breach of the implied warranty of merchantability under the Song-Beverly Act and (2) breach of express warranty under the Song-Beverly Act.

On the first day of trial, April 23, 2019, the parties informed the Court that a settlement had been reached. Pursuant to the terms of the settlement, FCA agreed to pay Plaintiff approximately $93,000 and his reasonable attorney fees and costs. (Barry Decl. ¶ 10, Ex. 4.)

LEGAL STANDARD

A prevailing buyer in a lawsuit under the Song-Beverly Act is entitled to recover reasonable attorney fees: “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).)

In determining a reasonable amount of attorney fees, the trial court begins with 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.) These factors include (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. (Ibid.)

DISCUSSION

Plaintiff moves for an award of attorney fees and costs in the total amount of $118,699.67. This amount consists of (1) a lodestar of $73,097.50, (2) a 1.5 multiplier of $36,548.75, and (3) costs of $9,023.42.

A. Entitlement to Attorney Fees

The parties’ settlement agreement provides in pertinent part: “FCA US LLC agreed to pay reasonable costs, expenses and attorneys’ fees based on actual time expended pursuant to Civil Code Section 1794(d) as stipulated by the parties or, if the parties cannot agree, upon Motion to the Court …. Plaintiff shall be deemed the prevailing party for purposes of a fee motion only.” (Barry Decl. Ex. 4.) Per this settlement agreement, Plaintiff is the prevailing party in this action entitled to attorney fees and costs.

B. Reasonableness of Fees

1. Reasonableness of Hourly Rate

According to the billing records of Plaintiff’s counsel, three attorneys spent a cumulative 171.7 billable hours working on this case. The hourly billing rates claimed by the three attorneys are $525 for David N. Barry (“Barry”), $375 for Richard J. Uss (“Uss”), and $300 for Sarah Jane Norris (“Norris”).

FCA claims that the hourly rates requested are unreasonably high. The Court agrees. For purposes of this motion, the Court concludes that the reasonable hourly rates for these attorneys is $475 for Barry, $350 for Uss, and $250 for Norris.

2. Reasonableness of Number of Hours Billed

FCA claims that the number of hours billed by Plaintiff’s counsel is grossly unreasonable. Most of FCA’s points miss the mark.

Specifically, FCA claims that Plaintiff’s counsel unreasonably billed over two hours to draft a meet and confer correspondence that was mostly copied and pasted from identical letters sent by counsel in the past. However, FCA acknowledges that Plaintiff’s counsel “likes to write lengthy letters” and has failed to supply the Court with the meet-and-confer correspondence in question or the allegedly identical correspondence previously sent. Thus, this claim is unpersuasive.

FCA argues that numerous billing entries are vague and thus preclude a meaningful examination of whether certain hours were reasonably incurred. The Court disagrees. The Court has examined the billing entries provided by Plaintiff’s counsel and concludes that they are sufficiently detailed to apprise FCA of the hours billed.

FCA notes that the time records feature six billing entries for a total of 6.2 hours for the review of discovery and drafting of a meet-and-confer letter in mid-September 2018. FCA claims that these billable hours are unreasonable. The Court is unpersuaded. The billing records reflect that Plaintiff’s counsel spent a reasonable amount of time reviewing discovery and fulfilling its meet-and-confer obligations after receiving supplemental responses.

FCA notes that Plaintiff’s counsel billed collectively 22 hours for several motions to compel further. According to FCA, these motions contained a significant amount of overlap and should have been a “mostly cut-and-paste job.” The Court agrees that 22 billable hours is excessive and reduces the number of hours billed by five on this basis.

FCA notes that Plaintiff’s counsel billed an additional 20.5 hours reviewing opposition briefs to the motions to compel further and drafting four reply briefs to the same. FCA claims that this billing is extravagant. The Court partly agrees and reduces the number of hours billed by five on this basis.

This billable hour reduction results in a total lodestar reduction of $4,750.

Applying the hourly billing rate reduction, Plaintiff is entitled to a lodestar of $66,515.[1]

C. Multiplier

Plaintiff requests application of a positive lodestar multiplier of 1.5 because her counsel (1) took this case on a contingency basis, (2) displayed skill in advancing the issues of this case, and (3) achieved a commendable outcome for their client — nearly $40,000 more than the vehicle’s purchase price. (Barry Decl. ¶ 21.) FCA requests application of a negative lodestar multiplier on the grounds that this case (1) involved no novel issues, (2) required no special skill to litigate, and (3) carried little true contingent risk.

The Court concludes that both parties’ arguments have merit. An upward adjustment to the lodestar is not warranted because this is a straight-forward lemon law case which did not present any novel or difficult issues; conversely, a downward adjustment to the lodestar is not warranted because the Barry Law Firm took this case on contingency and achieved an excellent result.

CONCLUSION

Plaintiff’s motion for attorney fees and costs is GRANTED. Plaintiff is awarded attorney fees and costs in the total amount of $75,538.42.[2]