Motion for Attorney Fees in Granado v. United Automotive Inc. dba United AutoShopper, et al.| Trellis.Law

On October 16, 2017 a Motion-Secondary was filed involving a dispute between Cruz, Pedro, Granado, Estela, and Beneficial State Bank, Hudson Insurance Company, United Automotive Incorporated, for civil in the District Court of Fresno County.

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1 ROSNER, BARRY & BABBITT, LLP
Hallen D. Rosner, SBN 109740 E-FILED
2 David L. Herman, SBN 216469
a
10085 Carroll Canyon Road, Suite 100 7/25/2018 2:28 PM
J San Diego, California 92131
Telephone: (858) 348- 1 005 FRESNO COUNTY SUPERIOR COURT
4 Facsimile: (858) 348-1150 By: K Reeves, Deputy
hal@rbblawgroup.com
5 d avi d @r b b I aw gr
oup. co m

6 Attorneys for Plaintiffs
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF FRESNO _ B.F. SISK COURTHOUSE

10 ESTELA GRANADO, an individual; and Case No. 17CECG03578
PEDRO CRUZ, an individual,
ll REPLY IN SUPPORT OF PLAINTIFFS'
Plaintiffs, MOTION FOR ATTORIIEYSO FEES AND
l2 COSTS
v
13
I.INITED AUTOMOTIVE, INC., dbA Date: August 2,2018
t4 AUTOSHOPPER AMERICA, a corporation; Time: 3:30 p.m.
BENEFICIAL STATE BANK, a corporation; Judge: Hon. Donald Black
15 HUDSON INSURANCE COMPANY; ANd Dept: 502
DOES 1 through 75, inclusive,
I6 Complaint Filed: October 16, Z0l7
Defendants. Trial Date: None Set
t7

18 AND ALL RELATED CROSS-ACTIONS
t9

20 I. Introduction
2l Defendant Hudson Insurance Company ("Hudson") opposes Plaintiffs' fee motion primarily on

22 the basis that Plaintiffs should have looked harder for cheap attorneys in the Fresno area, rather than retain

23 the services of California's premier auto-fraud law firm. In so doing, Hudson ignores that Plaintiffs'

24 counsel's fee rates have been held by courts up and down California - including courts in the San Joaquin

25 Valley - to be reasonable. Hudson also ignores the facts of the case, namely that its principal on the bond,

26 Defendant AutoShopper America, had all but defaulted through the collapse of its attorney-client

27 relationship with its counsel of record, leaving Hudson as the last person standing to bear the responsibility

REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I for paying the fees and costs of Plaintiffs - including those incurred for the vehicle inspection on March

2 30, 2018 that Hudson complains about, which were reasonable and necessary for the case.

J The Song-Beverly Consumer Warranty Act expressly allows for plaintiffs to recover attorneys'

4 fees determined reasonable by the Court. Accordingly, Plaintiff scounsel litigate every case knowing that

5 if the plaintiff becomes the prevailing party, the defendant and the court will closely review its bills,

6 looking for unreasonable or unrecoverable entries, fees, or costs. Hudson's counsel operate under no such

7 limitation and are free to bill their client for any and all time spent on the case, knowing that no one will

8 ever see or judge their bills.

9 Tellingly, Hudson could have but did not present its own bill for attorney and staff time spent on

l0 this case. Hudson's Opposition attacks Plaintiffs for inflated bills, but Plaintiffs' counsel are the only

1l attorneys showing Hudson and this Court a single time entry in this case. Hudson's Opposition does not

12 even assert the total time it incurred in this case or what its lawyers spent on tasks it claims are excessive

l3 and unreasonable for Plaintiffs' lawyers.

t4 2, Hudson Fails to Rebut the Presumption Afforded Plaintiffs' Fee Bill

l5 A verified fee bill is prima facie evidence that the costs, expenses, and services listed were

r6 necessarily incurred. Hadley v. Krepel (1985) 167 Cal.App.3d 677,682.) A declaration attesting to the

t7 accuracy of the fee bill is entitled to a presumption of credibility. Horsford v. Board of Trustees of
18 California State University (2005) 132 Cal.App.4th 359,396 (holding that the "time statements of the

t9 attorneys, as officers of the court, are entitled to credence in the absence of a clear indication that the

20 records are effoneous"). Under California law, if a prevailing party presents an itemized fee bill, the

2l burden shifts to the opposing party to make specific objections to particular time entries. McGrath v.

22 County of Nevada (1995) 67 F3d248,255 (a fee opponent "bears the burden of providing specific

23 evidence to challenge the accuracy and reasonableness ofthe hours charged"). Hudson has the burden of
24 showing that the requested hours are duplicative, excessive or unnecsssary. Gates v. Rowland (9th Cir.
25 1994) 39 F.3d 1439, 1449. Failure to submit evidence on any specific aspect of a fee claim results in

26 waiver of any objection. Blum v. Stenson (1984) 465 U.S. 886, 892, fn. 5 [emphasis added]. Here,

27 Plaintiffs submitted itemized fee bills and declarations attesting to their accuracy, and the type of

28 itemization prepared by Plaintiffs' counsel is not even required for fee motions. Weber v. Langholz ( 1995)

2
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I 39 Cal.App .4th 1578,1587. Those fee bills are entitled to a presumption of reasonableness, and the burden

2 shifts to Hudson to rebut it with evidence. In response, rather than carry its burden and offer evidence
a
J disputing Plaintiffs' showing, Hudson incorrectly tries to place the burden on Plaintiffs. Hudson has failed

4 to submit any evidence that Plaintiff s fees were not incurred or were not reasonable. Hudson does not

5 even make ANY rough estimate as to what the justified fees would be.

6 Notably, Hudson refuses to disclose its own billing records, which would assuredly identify

7 additional attorneys and would show the Court the time that Hudson spent on the same tasks as Plaintiffs.

8 Why does Hudson conceal this relevant information? Instead of choosing the simple and transparent task

9 of providing their own billing records from this case to juxtapose with Plaintiffs' billing, Hudson chose to

l0 conceal their billing records and make a baseless blanket objection to Plaintiffs' billing time and hourly

ll rates. In contrast, Plaintiffs have presented voluminous evidence, not unsubstantiated opinions in support

l2 of the billing rates requested.

13 To oppose Plaintiffs' attorneys' fees request, Hudson was required to object or challenge specific

I4 billing entries: "[i]n challenging attorney fees as excessive because too many hours ofwork are claimed,

l5 it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument

l6 and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated

t7 do not suffice." Premier Medical Management Systems, Inc, v. Cal. Ins. Guarantee Assn. 163 Cal.App.4th

18 550,564 (2008). Hudson's general statement that Plaintiffs' attorney's fees are excessive are not enough.

r9 3. The Fees and Costs Associated With the Vehicle Inspection Are Reasonableo And Plaintiffs

20 Are Not Required to Hire the Cheapest Counsel to Obtain Justice; The Vehicle Inspection

2l Was Necessary
oonot
22 Hudson claims that the vehicle inspection was apart of the prosecution of this case" and that

23 Plaintiffs should have hired presumably-cheaper counsel in the Fresno area to litigate this case.

24 Opposition,3.:l-4:6.

25 Contrary to Hudson's assertions, all costs associated with the vehicle inspection are reasonable

26 AND necessary because the vehicle inspection was not done at Beneficial's request, but at Plaintiffs'.

27 Decl. of David L. Herman in Support of Reply ("Herman Decl. ISO Reply"), fl5. It was necessary to

28 conduct the inspection in order for Plaintiff s expert to formulate the basis for any testimony in deposition

J
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I or at trial that Plaintiffs' vehicle had suffered extensive accident damage, including frame damage, as

2 AutoShopper America vehemently denied that there was anything wrong with the vehicle. Herman Decl.
a
J ISO Reply, t|fl3-10.

4 Plaintiffs' counsel had an ethical duty to investigate all of Plaintiffs' potential claims and bring

5 them - and obtain potential evidence in support of those claims through investigation and discovery - or

6 else risk a malpractice claim. See Janik v. Rudy, Exelrod & Zieff, 119 Cal.App.4th 930, 934 (2004)

7 (plaintiff could state a claim for malpractice because class settlement did not include additional years for

8 recovery).

9 Furthermore, Hudson's assertion that "there are many competent attomey's [sic] in the Fresno area

10 that would not have to bill over $6,000.00 to appear at a simply vehicle inspection" (Opposition,4:4-6) is

11 ludicrous, not to mention wholly unsupported by evidence. Hudson does not present ANY documentary

l2 evidence of any kind to show (l) how many attorneys in the Fresno areapractice consumer law, (2) of

13 those, how many practice auto-fraud and lemon law, or (3) how much such attorneys would charge for a

t4 vehicle inspection (including the costs of retention of expert witnesses in the Fresno area). Furthermore,

15 it is not the custom to hire local counsel for purposes of appearance at vehicle inspections, because the

t6 nature of these cases requires the counsel of record to attend and help gather information. Herman Decl.

r7 ISO Reply, flfl 7-8. Thus, Hudson has not rebutted the presumption of reasonableness in Hadley and

18 Horsford. Hudson presents no legal precedent holding that Plaintiffs must hire only local counsel in order

t9 to get an award of fees and costs, nor could it. There is no legal requirement that Plaintiffs must hire only

20 local or inexpensive counsel. Plaintiffs sought the aid of the best in the field, and got it. Plaintiffs should

2T not be penalized for taking the best course to obtain justice.

22 4, Hudson Has Not Submitted Sufficient Evidence To Show Plaintiffs' Counsel's Rates are

23 Unreasonable, and A Lodestar Multiplier is Warranted

24 Hudson then claims that "this was a straightforward case" and therefore Plaintiffs' counsels'

25 hourly rates are unreasonable and no lodestar multiplier should be awarded. Opposition,4:20-6:23. Its

26 sole factual support consists of printouts from "Salary.com" that purport to show average rates for ALL

27 attorneys in the Fresno, San Diego, and Los Angeles areas. That purported evidence does not overcome

4
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I Plaintiffs' counsel's history of having its hourly rates approved as reasonable by courts throughout

2 Califomia, including the San Joaquin Valley.

3 First, Hudson's so-called "Evidence" is suspect because it appears to be an average of all attorneys

4 in the respective geographic areas, without regard to area of law practiced, etc. It appears to blend the

5 struggling sole practitioner with the wealthy big-firm senior partners. No methodology is given for how

6 those amounts are calculated. Furthermore, Hudson does not show that any courts have ever relied on the

7 Salary.com printouts in determining the reasonableness of hourly rates.

8 In contrast, Plaintiffs' fee motion relies on a national survey of consumer law attorneys, which has

9 been referenced in at least one published California appellate decision and has been relied upon in other

10 cases from Michigan to Florida. Herman Decl. ISO Motion, 122,Ex.3. Because Plaintiffs' supporting

ll evidence is specific to consumer attorneys - including Califomia attorneys - it carries more weight than

t2 Hudson's vaguo, generalized statements.

l3 Notably, Hudson's opposition does NOT dispute that:

t4 r the standard for determining fees in contingency cases is the prevailing rate in the community for

l5 comparable legal services, Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140

t6 Robertson v, Fleetwood Travel Trailers of Califurnia, Inc. (2006) 144 Cal.App.4th 785, 818

t7 (rejecting contention that attorneys working under contingent-fee arrangement do not incur legal

l8 fees);

t9 e evidence of Plaintiffs' counsel's hourlyrates in other cases, as well as counsel's experience, are

20 "obviously relevant" Margolin v. Reg. Planning Com. (1982) 134 CaL App. 3d 999, 1005-06;

2T r "affrdavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the

22 community, and rate determinations in other cases ... are evidence of the prevailing market rate,"

23 Heritage Pacifi.c Fin., LLC v. Monroy (2013) 215 CaL App. 4th 972, 1009; and

24 o multiple courts in similar lawsuits throughout California have found Plaintiffs' counsel's rates

25 reasonable (see Herman Decl. ISO Motion, flfl 10-11,18,24).

26 With regard to Hudson's objection to the requested multiplier, Hudson does not acknowledge that

27 Plaintiffs' counsel took this case on contingency, assuming the risk of never getting paid, and yet funding

28 the entire case from the beginning. Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 104 ("It must

5
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the

2 hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee.")

J (citation omitted). In determining whether to award a multiplier, a court considers, inter alia, (l) results

4 obtained and(2) risks presented. See In re Consumer Privacy Cases,175 Cal. App. 4th 545,556 (2009).

5 Here, Plaintiffs' counsel obtained a remedy Defendants had denied from the outset, including a

6 repurchase. Further, Plaintiffs' counsel prosecuted this case on a contingent basis, undertaking risk of non-

7 payment. Herman Decl. ISO Motion, n23-26.

8 The fee provisions in the CLRA and Song-Beverly were targeted at cases just like this one.
9 Plaintiffs' counsel represented Plaintiffs because they had a worthy claim, and enabled them to pursue

10 their rights anda remedy. Plaintiffs' counsel has been dedicated to the pursuit of consumer rights for over

ll 30 years. Herman Decl. ISO Motion, n 72, 13, 14, 19,20. Counsel has the experience to decide meritorious
l2 claims and would only risk pursuing such claims. The California Legislature has seen fitto protect
l3 consumers by compensating counsel such as the undersigned for furthering consumer protection.

t4 5. Plaintiffs'Were Not Required To File Their Action as a Limited Civil Caseo Because Plaintiffs

l5 Sued Under Fee-Shifting Statutes That Require the Award of Fees to a Prevailing Consumer

t6 Whether the Recovery Exceeds $250000 or Not

t7 Lastly, Hudson advances the absurd idea that because the value of the vehicle, including finance

l8 charges, was under $25,000 and Plaintiffs' rescission was considerably less than $25,000, Plaintiffs should

I9 have filed their action in limited civil court and therefore should not be awarded all of their requested fees

20 and costs.

2t Hudson fails to acknowledge that because this case involves fee-shifting consumer statutes where

22 the award of fees and costs is mandatory to a prevailing consumer, the amount of monetary recovery is

23 irrelevant.

24 "[B]ecause this matter involves an individual plaintiff suing under consumer protection statues

25 involving mandatory fee-shifting provision, the legislative policies are in favor of fplaintiff s] recovery of
26 all attorney fees reasonably expended, without limiting the fees to a proportion of her actual recovery."

27 Graciano v. Robinson Ford Sales, Inc. (2006) 144 CaL App. 4tn 140,164. The court must render an award

28 of reasonable attorney fees, without restriction as to the value of the underlying claim. Id. at 160.

6
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I The case Hudson relies on - Chavez v. City of Los Angeles (2010) 47 Cal.4th 97Q - is of limited

) application and has never been applied in any published appellate decision to consumer cases. Moreover,

J other courts have declined to extend Chavez beyond claims under the Fair Employrnent and Housing Act

4 (FEHA) because FEHA's fee provisions are discretionary and not mandatory, hence Chavez's reasoning

5 does not apply to fee-shifting statutes such as consumer statutes.

6 In Almanor Lakeside Viltas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761,778-779, a case

7 brought under the Davis-Stirling Act, the Court of Appeal held that Chavez did not apply because "unlike

8 the fee provision under FEHA fat issue in Chavez], the fee-shifting provision of the Davis-Stirling Act is

9 mandatory" and hence an award of $98,535.20 in fees was reasonable even though only $6,620 in damages

l0 was awarded." Citing to Graciano, which involved two fee-shifting statutes - the CLRA and ASFA - the

1l Almanor courf further supported its reasoning by stating "The circumstances in which a court might deny

l2 or reduce a fee award under a permissive statutory provision, like FEHA, such as because special

l3 circumstances 'would render an award unjust,' do not apply equally where a statute mandates attorney's

I4 fees to the prevailingparty." Id,

15 Here, we have fee-shifting statutes in this case that mandate attorney's fees to the prevailing party:

l6 CLRA and Song-Beverly. Hudson cannot contend that Plaintiffs are not the prevailing party, as it agreed

I7 that Plaintiffs are the prevailing party. Because Plaintiffs seek fees under fee-shifting statutes with

l8 mandatory award of fees, Chavez is inapplicable and Plaintiffs' fees and costs recovery cannot be limited

I9 by the recovery being under $25,000.

20 6, Plaintiffs are Entitled to Their Fees and Costs Incurred in Replying to Hudson's Opposition

2t Plaintiffs counsel billed 4 hours in preparing this reply to Defendants' opposition to this motion.

22 In addition, they estimate 4 hours to prepare for and attend the hearing on this matter. Thus, Plaintiffs seek

23 an additional $3,440 in attorneys'fees. (Herman Decl. ISO Reply, fl I l.)
24 ilt
25 ilt
26 ilt
27 t/t
28 l/t

7
REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
I 7, Conclusion

2 Based on the foregoing, Plaintiffs' motion should be granted, with the additional fees stated above

J to be included in the final award.

5 Dated: July 25, 2018 ROSNER, BARRY & BABBITT, LLP

7 By:
D. Rosner
8 David L. Herman
Attorneys for Plaintiffs
9

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REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS
1 PROOF OF SERVICE

2 Granado/Cruz v. United Automotive Inc. et al.
Case No. 17CECG03578
a
J

4 I am employed in the County of San Diego, State of California. I am over the age of 18 and not a
party to the within action. My business address is: 10085 Carroll Canyon Road, Suite 100, San Diego,
5 California 92131.

6 On July 25,2018,I served the following document(s) described as:

7 REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS

8 on the interested parties in this action addressed as follows:

9 John L. Fallat, Esq. I.INITED AUTOMOTIVE INCORPORATED
Mark A. Vaughn, Esq. 4414 N. Blackstone Avenue
10 LAW OFFICES OF JOHN L. FALLAT Fresno, California 93726
68 Mitchell Boulevard., Suite 135
11 San Rafael, California 94903-2046
Tel: (858) 348-1005 lFax: (415) 457-2667
I2 jfollat@fallat.com
mvaughn@fallat.com
13
Attomey for Defendant and Cross-Complainant
I4 HUDSON INSURANCE COMPANY
15

txl (BY EXPRESS COURIER, C.C.P. $$ 1013(c) and 2015.5): I enclosed the documents in an
T6
envelope or package provided by an overnight delivery carrier and addressed to the persons at the
addresses above. I placed the envelope or package for collection and overnight delivery at the
I7 proper drop box located at Business Park Way and Carroll Canyon Road, San Diego, California
92t3t.
18

tX] (STATE) I declare under penalty of perjury under the laws of the State of Califomia that the
t9 above is true and correct.
20 Executed on July 25,2018, at San Diego, Califomia.
21

22
N
23

PROOF OF SERVICE

Case Info

Judge

Black, Donald Track Judge’s New Case

Case No.

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Document Filed Date

July 25, 2018

Case Filing Date

October 16, 2017

County

Parties

Beneficial State Bank Defendant
Cruz, Pedro Plaintiff
Granado, Estela Plaintiff
Hudson Insurance Company Defendant
Hudson Insurance Company Plaintiff In 1st Cross Complaint
Pro Se Attorney
Pro Se Attorney for the Defendant
Rosner, Hallen D. Attorney for the Plaintiff
Saadeldin, Hadie Defendant In 1st Cross Complaint
United Automotive Incorporated Defendant
United Automotive Incorporated Defendant In 1st Cross Complaint
Vaughn, Mark A Attorney
Vaughn, Mark A Attorney for the Defendant
Douglas Thornton Attorneys for Defendants
David Herman Attorneys for Plaintiffs
John Fallat Attorney

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Motion-Secondary: Granado v. United Automotive Inc. dba United AutoShopper, et al.

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