Preview
DAVID N. BARRY, ESQ. (SBN 219230) Electronically Filed
THE BARRY LAW FIRM by Superior Court of CA,
11845 W. Olympic Blvd., Suite 1270 County of Santa Clara,
Los Angeles, CA 90064 on 3/19/2020 4:30 PM
Telephone: 310.684.5859 Reviewed By: R. Burciaga
Facsimile: 310.862.4539 Case #19CV343967
Envelope: 4190629
Attorneys for Plaintiff, LEONARDO GONZALEZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA —- DOWNTOWN SUPERIOR COURT
Case No. RGt89+4544
10 LEONARDO GONZALEZ, an individual, 19CV343967
11 PLAINTIFF LEONARDO GONZALEZ’S
Plaintiff, REPLY BRIEF IN SUPPORT OF
12 PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES AND COSTS;
13 DECLARATION OF DAVID N. BARRY,
ESQ.
14
FCA US, LLC, a Delaware Limited Liability Date: March 26, 2020
15 Time: 08:30
Company; NORMANDIN’S dba Dept: Dept. 20
16
NORMANDIN CHRYSLER JEEP DODGE, Action Filed: March 1, 2019
17
A California Corporation; and DOES 1 Assigned for all purposes to the Hon. Socrates
18 Manoukian
through 20, inclusive, in Dept. 20
19
Defendants.
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Defendant FCA’s (“Defendant” or “FCA”) Opposition is full of misstatements and
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omissions which all highlight the lengths Defendant and its counsel will go to misrepresent the
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truth. First, FCA blames Plaintiff for the delay in returning the Subject Vehicle (despite Plaintiff
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having nothing to gain from a delay in receiving compensation). A simple review of the record
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reveals this to be a blatant misrepresentation:
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On September 23, 2019, Plaintiff follows up on the status of the settlement and inquires
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“[L]et me know if you need anything else to finalize this settlement.” No response from FCA.
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Please see, Exhibit “1”.
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
On September 27, 2019, Plaintiff follows up again: “Please advise if you need anything else
from us to complete this settlement.” Please see, Exhibit “2”.
On January 14, 2020 (4 months later), FCA says the vehicle cannot be returned until it
is“‘damage free per FCA guidelines”. As the Court is aware this case resolved pursuant to an Offer
to Compromise. The Offer to Compromise is silent as to vehicle condition. Assuming arguendo
that vehicle condition was a term of the settlement, the Vehicle’s condition was fine-it was simply
in need of mechanical repairs, which is why the lawsuit was filed in the first place. Please see,
Exhibit “3”.
Thus, it is without any doubt that they delay in resolving this matter was solely due to the
10 actions of the Defendant, not Plaintiff.
11 I. FCA WAS WELL AWARE OF THE DEFECTS IN THE VEHICLE BECAUSE OF
12 THE
WARRANTY
NUMEROUS CLAIMS FCA PAID
13 FCA claims that it had no knowledge that Plaintiff was unhappy with his vehicle prior to
14 the lawsuit being filed. Again, this is another misstatement by FCA and its counsel. FCA requires
15 dealerships to submit claims along with supporting documentation each time warranty work is
16 performed on a vehicle. Simply put, without providing this documentation, dealerships do not get
17 paid for repairing a vehicle under warranty. This case was no different. Thus, at all times FCA
18 was aware of the stalling concerns, the lack of power and the air conditioner not working. Despite
19 knowledge of these serious safety concerns, FCA failed to offer any assistance to Plaintiff.
20 A. There is No Requirement a Consumer Contact FCA Prior to Filing Suit
21 California Civil Code of Procedure §17932.2(d)(2) expressly states: “if the manufacturer
22 or its representative in this state does not service or repair the goods to conform to the applicable
23 express warranties after a reasonable number of attempts, the manufacturer shall either replace the
24 goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that
25 amount directly attributable to use by the buyer prior to the discovery of the nonconformity.”
26 Thus, there is no obligation for Plaintiff to contact Defendant to trigger FCA’s obligations
2 under The Act.. To the contrary, the only affirmative step the Act imposes on consumers is to
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
permit the manufacturer a reasonable opportunity to repair the vehicle. Oregel v. American Isuzu
Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103.
II. FCA’S OPPOSITION IS LIMITED TO ITS SPECIFIC OBJECTIONS
Defendant FCA US, LLC has the burden of showing that the requested hours are
unreasonable or unnecessary. Gates v. Rowland (9tn Circuit 1994) 39F 3d 1439, 1449. As such,
Defendant is limited to the specific objections it raises. Defendant has not met its burden for the
reasons set forth below.
A. Time Spent Communicating with One’s Client is Reasonable and Necessary
FCA appears to take umbrage with the detail contained within the time entries as it pertains
10 to communications between Plaintiff's counsel and Plaintiff. First and foremost, the contents of
11 these communications are confidential and protected by the attorney-client privilege.
12 Further, California courts do not require detailed time records. Trial courts have discretion
13 to award fees based on declarations of counsel describing the work they have done and the court’s
14 own view of the number of hours reasonably spent. See, PLCM Group, Inc. v. Drexler (2000) 22
15 Cal. App. 4th 1084, 1095 (claim based on detailed reconstructed records upheld; court noted that
16 maintaining contemporaneous records by in-house counsel would “facilitate accurate calculation of
17 the lodestar and minimize possible inaccuracies in reconstructing time spent on a matter months or
18 even years after the fact”); Stratton v Beck (2017) 9 Cal. App. Sth 483, 496 (under PLCM,
19 contemporaneous records preferred but not required); Gonzalez v. Santa Clara Dep’t of Soc. Servs.
20 (2017) 9 Cal. App. 5th 162, 173 (fee opponent failed to object to declaration stating time expended
21 by prior attorneys, but trial court denied some attorney fees and reduced others based on finding of
22 inadequate documentation; court of appeal reversed, holding that fee claimant should have been
23 given opportunity to cure defects not raised by opponent); East W. Bank v. Rio Sch. Dist. (2015)
24 235 Cal. App. 4th 742, 750 (upholding fee award where counsel submitted only estimates of time
25 but trial court conducted own review and analysis of time reasonably spent); Lunada Biomedical v.
26 Nunez (2014) 230 Cal. App. 4th 459, 487 (time records not required; counsel’s declaration
2 sufficient); Syers Props. III v. Rankin (2014) 226 Cal. App. 4th 691, 698 (citing this book); Sutter
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
Health Uninsured Pricing Cases (2009) 171 Cal. App. 4th 495, 512; Chavez v. Netflix, Inc. (2008)
162 Cal. App. 4th 43, 64.
B. Time Spent Preparing and Reviewing Discovery is Reasonable and Necessary
FCA next attacks the time spent reviewing and preparing responses to discovery with FCA
propounded. FCA incredulously attacks a .4 time entry for reviewing discovery requests. It goes
without saying that this request is reasonable. Reviewing and responding to discovery is a staple
of litigation.
As for the discovery propounded by Plaintiff, likewise these time entries were reasonable.
Billing a .2 to propound form interrogatories is entirely permissible. Plaintiff had to conduct
10 discovery and prepare to prove liability on his varied claims with his varied elements. Plaintiff also
11 had to prepare to counter the numerous affirmative defenses raised in the answer to the complaint.
12 Goglin v. BMW
of North America, LLC (2016), 4 Cal.App Sth 464.
13 C. Defendant Attacking Plaintiff's Counsel’s Time Entries Regarding Court Ordered
14 Hearings are Without Merit
15 First, Defendant attacks Plaintiff's preparation for the Order to Show Cause hearings
16 regarding Dismissal by claiming that Defendant “should not be required to pay for done due to
17 Plaintiffs failure to appear” at a prior hearing. (See, Defendant’s Opposition, Page 9, line 24:26).
18 Defendant completely leaves out the fact that the Order to Show Cause was not solely for
19 Plaintiffs failure to appear, but for status regarding dismissal, to which an attorney who is not
20 assigned to this case like Mr. Matera would need to review the file and prepare for.
21 Ill. THE DECLARATIONS OF MESSRS. BARRY AND ROSNER, AS WELL AS THE
22 NATIONAL FEE SURVEY, ARE ADMISSIBLE EVIDENCE FOR PURPOSES
23 OF DETERMINING THE MARKET RATE
24 FCA incorrectly argues that the declarations submitted in Plaintiff's moving papers
25 regarding the reasonableness of hourly rates are incompetent to prove reasonableness of the fees. A
26 declaration of Plaintiff's counsel is sufficient evidence of the market rates charged in the legal
2 community, especially where no evidence is presented to the contrary. Davis v. City of San Diego,
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4.
PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
(2003) 106 Cal.App.4th 893, 902-904; Graciano v. Robinson Ford Sales, Inc., (2006) 144
Cal.App.4th 140, 154; MBNA America Bank, N.A. v. Gorman, (2006) 147 Cal.App.4th Supp. 1, 13.
Further, in PLCM Group, Inc. v. Drexler (2000) 22 C4th 1084, 1096, the court affirmed a
fee award based on the rate prevailing in the market where counsel’s office was located (San
Francisco), rather than where the case was litigated (Los Angeles). See also, Cordero-Sacks v.
Housing Auth. of the City of Los Angeles (2011) 200 CA4th 1267, 1286, 134 CR3d 883 (citing
forum rule and PLCM).
In fact, a review of Plaintiff's moving papers indicates that Plaintiff has met all of the
factors to determine the reasonableness of his hourly rate, including other instances where courts
10 have awarded Mr. Barry his previous hourly rate of $475, his current hourly rate of $525, rates
11 awarded to attorneys of comparable experience in other cases in the same market, as well as the
12 survey of billing rates. See, Center for Biological Diversity v. County of San Bernardino (2010)
13 185 Cal.App.4th 866, 900, (holding that relevant surveys of billing rates may be considered as
14 evidence of market rates).
15 IV.A
MULTIPLIER
LODESTAR IS WARRANTED
16 Case law is clear that the lodestar method and the multiplier are appropriate in Song-
17 Beverly cases. The multiplier is meant to increase or decrease the fee award based on factors not
18 already taken into account when setting the hourly rate, such as the risk of taking a case on a
19 contingency basis, and the outcome achieved. Horsford v. Board of Trustees of California State
20 University (2005) 132 Cal. App. 4th 359, 394-5.
21 Plaintiff requests a modest multiplier of 1.2 in this action because of the risk of taking this
22 matter on a contingency basis, and the results achieved. Indeed, in the two plus years since the
23 Complaint was filed, Plaintiff received a buyback of the Subject Vehicle. Multipliers based on the
24 “quality of representation” are often considered together with other factors, including the results
25 obtained. Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 582 (noting that “results
26 obtained” multiplier may be appropriate “where an exceptional effort produced an exceptional
2 benefit”).
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
Further, even Defendant cannot deny that an attorney who takes such a risk expects and
deserves a higher fee than an attorney paid a market-rate fee, win or lose. Contingent risk is the
most important enhancement factor. In fact, the California Supreme Court has expressly recognized
that contingent risk is one of the “most common” fee enhancers: “One of the most common fee
enhancers, and one used by the trial court in the present case, is for contingency risk.” Graham v.
DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 579. Indeed, the court’s two most recent decisions
on lodestar multipliers both focus extensively on the contingent risk factor above all others.
See Graham, 34 Cal. 4th at 579; Ketchum, 24 Cal. 4th at 1132 (“The adjustment to the lodestar
figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive
10 payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is
11 neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation
12 for such services, which typically includes a premium for the risk of nonpayment or delay in
13 payment of attorney fees”).
14 Likewise, in Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157, the trial court
15 applied a 1.65 lodestar enhancement in a case challenging the Defendant’s failure to comply with a
16 local wage ordinance, based primarily on contingent risk: “Most important
to the Court’s
17 determination on the question of a multiplier, however, are the contingent risks inherent in this
18 litigation, wherein a number of issues of first impression were presented and were largely resolved
19 in Plaintiffs’ favor.” Amaral, 163 Cal. App. 4th at 1217 (emphasis added).
20 The California rule is similar. Requested rates are reasonable if they are “within the range
21 of reasonable rates charged by and judicially awarded comparable attorneys for comparable
22 work.” Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal. App. 4th 740, 783. See also Ketchum
23 v. Moses (2001) 24 Cal. 4th 1122, 1136; Serrano v. Unruh (Serrano IV) (1982) 32 Cal. 3d 621,
24 634.
25 This market rate standard is intended to be a more objective method than the method
26 occasionally used by the courts, which employs a long list of factors, some of which go
2 to hourly rates, some to hours spent, and some to other factors. See, e.g., PLCM Group, Inc. v.
28 Drexler (2000) 22 Cal. 4th 1084, 1096 (describing the standard as follows: “‘The trial court makes
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
its determination after consideration of a number of factors, including the nature of the litigation,
its difficulty, the amount involved, the skill required in its handling, the skill employed, the
attention given, the success or failure, and other circumstances in the case, a9 quoting Melnyk v.
Robledo (1976) 64 Cal. App. 3d 618, 623); Ketchum v. Moses, 24 Ca. App. 4th at 1139
(hourly rate used to calculate lodestar “is the product of a multiplicity of factors ... [, including] the
level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s
reputation, and the undesirability of the case”; internal quotations and citation omitted); Kerr v.
Screen Extras Guild, Inc. (1975) 526 F. 2d 67, 70 (listing 12 factors). See, e.g., Building a Better
Redondo Beach, Inc. v. City of Redondo Beach (2012) 203 Cal. App. 4th 852.
10 Vv. OTHER COURTS HAVE PREVIOSULY APPROVED THE HOURLY RATE OF
11 MR. BARRY
12 FCA attempts to challenge the hourly rate of Mr. Barry but ignores previous instances
13 where Mr. Barry’s hourly rate has been approved against this very Defendant.
14 Most recently, on February 25, 2020, the Honorable Yolanda Orozco approved my hourly
15 rate of $525 in the case of Gonzalez v. FCA US, LLC, Los Angeles Superior Court Case No.
16 BC712425.
17 Furthermore, on February 28, 2020, the Honorable Teresa A. Beaudet approved my hourly
18 rate of $525 in the case of Shan, et. al. v. General Motors, LLC, Los Angeles Superior Court Case
19 No BC698152.
20 ‘//
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
1 VI. CONCLUSION
2 FCA”s opposition is full of demonstrable misstatements of the facts of this case. FCA has
3 not met its burden of establishing that time entries were not reasonably and necessarily incurred.
4 || As such, Plaintiffs motion should be granted. \
5 Date: March 19, 2020 THE BARRY LAW FIRM
i\}
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B
DAVID N-BARRY, ESQ.
Attorneys for Plaintiff,
LEONARDO GONZALEZ
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PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
DECLARATION
DECLARATION OF DAVID N. BARRY, ESQ.
I, David N. Barry, declare as follows:
1 J am an attorney duly licensed to practice law before all the courts of the State of
California and am the attorney of record for Plaintiff, Leonardo Gonzalez. If called upon as a
witness, I could and would competently testify to the facts contained herein.
2. I make this declaration to the best of my knowledge, information, and belief of the
stated herein in support of Plaintiff's Motion for Attorneys’ Fees and Costs.
3 On September 23, 2019, Plaintiff follows up on the status of the settlement and
inquires “[L]et me know if you need anything else to finalize this settlement.” No response from
10
FCA. Attached is a true and correct copy of this correspondence as Exhibit “1”.
11
4 On September 27, 2019, Plaintiff sends a follow up correspondence stating: “Please
12
advise if you need anything else from us to complete this settlement.” Attached is a true and
13
orrect copy of this correspondence as Exhibit “2”.
14
5 On January 14, 2020, FCA claimed the vehicle could not be returned until “damage
15
free per FCA guidelines”. The Offer to Compromise is silent as to vehicle condition. Assuming
16
arguendo that vehicle condition was a term of the settlement, the Vehicle’s condition was fine-it
17
was simply in need of mechanical repairs, which is why the lawsuit was filed in the first place.
18
Attached is a true and correct copy of this correspondence as Exhibit “3”.
19
6 I have litigated lemon law cases for over 15 years. I am familiar with how
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dealerships seek reimbursement for worked performed under warranty. I am also familiar with
21
how manufacturers keep track of warranty costs incurred on a vehicle. Thus, there is simply no
22
merit to FCA’s argument that they had no knowledge that Plaintiff was dissatisfied with the vehicle
23
until receiving this lawsuit.
24
I declare under penalty of perjury under the laws of the State of California that the foregoing
25
is true and correct.
26 Executed on 19th day of March, 2020 in Los Ahgeles, California.
2
_~*
28 DA N. BARRY, ESQ.
-l-
DECLARATION OF DAVID N. BARRY, ESQ.
EXHIBIT 1
The Barry Law Firm Mail - Re: Gonzalez, Leonardo v FCA 3/19/20, 12:39 PM
Gmwane
il
Re: Gonzalez, Leonardo Vv FCA
~
Heber Bernal Mon, Sep 23, 2019 at 9:24 AM
To: Nejla Nassirian
Ce: David Barry , Jon Universal , James Mayo
, Brett Wanner
Hello Nejla:
Following up on this. Let me know if you need anything else to finalize this settlement.
Thank you.
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain
confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended
recipient of this message or their agent, or if this message has been addressed to you in error, please immediately
alert the sender by reply email and then delete this message and any attachments. If you are not the intended
recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments
is strictly prohibited.
On Fri, Aug 16, 2019 at 1:54 PM Ryan Alexander wrote:
Attached please find the remaining Payment History.
We will send in the tow receipt and additional RO receipts once obtained.
Thank you.
Best,
Ryanb
On Thu, Aug 15, 2019 at 4:23 PM Ryan Alexander wrote:
Counsel:
It was assumed you were going to read what was attached initially (apologies, so | relabeled it again this time for
you.)
We are sending the receipt for tow in to you, soon.
The car is still in the shop and will have an additional Ro receipt, which we will provide then.
The additional Payment History will hopefully be in by Monday the 19th.
If you have any more questions, please feel free to let us know.
Have a wonderful rest of your day.
https://mail.google.com/mail/u/1?ik=a75fae6ca0&view=pt&search=...f%3A1645484048711226318&simpl=msg-f%3A1645484048711226318&mb=1 Page 1 of 7
EXHIBIT 2
The Barry Law Firm Mail - Re: Gonzalez, Leonardo v FCA 3/19/20, 12:40 PM
Gmly ale
Re: Gonzalez, Leonardo v FCA
—— ens _
Heber Bernal Fri, Sep 27, 2019 at 9:56 AM
To: Nejla Nassirian
Ce: David Barry , Jon Universal , James Mayo
, Brett Wanner , Samantha Spamer
Nejla:
Please advise if you need anything else from us to complete this settlement.
Thank you
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain
confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended
recipient of this message or their agent, or if this message has been addressed to you in error, please immediately
alert the sender by reply email and then delete this message and any attachments. If you are not the intended
recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments
is strictly prohibited.
On Mon, Sep 23, 2019 at 9:24 AM Heber Bernal wrote:
| Hello Nejla:
Following up on this. Let me know if you need anything else to finalize this settlement.
Thank you.
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain
https://mail.google.com/mail/u/1?ik=a7
5fae6ca0 aview=pt&search=...%3A1645848469240122601&simpl=msg-f%3A1645848469240122601&mb=1 Page 10f 8
EXHIBIT 3
The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM
Gm le
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—=
Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONAR DO - GH221278
eine ee
Heber Bernal Tue, Jan 14, 2020 at 1:35 PM
To: "Coffman, Darcee"
Cc: David Barry
The vehicle is not damaged, it is being repaired for mechanical defects. Furthermore, this case was resolved via an
offer to compromise, which did not have any guidelines for the vehicle return. Since the dealership is being paid for
the repairs, we expect the surrender to occur ASAP.
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain
confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended
recipient of this message or their agent, or if this message has been addressed to you in error, please immediately
alert the sender by reply email and then delete this message and any attachments. If you are not the intended
recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments
is strictly prohibited.
On Tue, Jan 14, 2020 at 1:31 PM Coffman, Darcee wrote:
Understood. The vehicle must be surrendered damage free per FCA guidelines. The meeting will not be able to take
place until the repairs have been completed.
Regards,
Danrcee Coffman
Warranty Litigation Specialist
8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180
Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com
https://mail.google.com/mail/u/1?ik=a7
Sfae6ca0 &view=pt&search=al...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 1of 5
The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM
www.stericycleexpertsolutions.com
°,
Stericycle
Expert Solutions
From: Heber Bernal [mailto:hbernal@mylemonrights.com]
Sent: Tuesday, January 14, 2020 3:29 PM
To: Coffman, Darcee
Cc: David Barry
Subject: Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278
No, the dealership just received authorization from the extended warranty to repair the vehicle.
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain
confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended
recipient of this message or their agent, or if this message has been addressed to you in error, please immediately
alert the sender by reply email and then delete this message and any attachments. If you are not the intended
recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its
attachments is strictly prohibited.
On Tue, Jan 14, 2020 at 1:27 PM Coffman, Darcee wrote:
Has the vehicle been repaired?
Regards,
https://mail.google.com/mail/u/1?ik=a7
5fae6ca0 &view=pt&search=a...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 2 of 5
The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM
Dancee Coffman
Warranty Litigation Specialist
8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180
Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com
www.stericycleexpertsolutions.com
“° Stericycle
Expert Solutions
From: Heber Bernal [mailto:hbernal@mylemonrights.com]
Sent: Tuesday, January 14, 2020 3:26 PM
To: Coffman, Darcee
Cc: David Barry
Subject: Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278
Darcee:
We are trying to get a hold of the agent to schedule the signing of the documents. She has not called us back
Heber Bernal
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
310.684.5859 tel
310.862.4539 fax
www.mylemonrights.com
CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may
contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the
intended recipient of this message or their agent, or if this message has been addressed to you in error, please
immediately alert the sender by reply email and then delete this message and any attachments. If you are not the
intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its
attachments is strictly prohibited.
https://mail.goo
Sfae6ca0 &view=pt&search=a...-f%3A
gle.com/ 1655741111614519598&simpl
mail/u/1 =msg-f%3A1655741111614519
?ik=a7 598&mb=1 Page 3 of 5
The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM
On Tue, Jan 14, 2020 at 1:23 PM David Barry wrote:
Darcee:
It is my understanding the issue has been resolved and we can reschedule.
| am including Heber on this email as | believe he also has information.
Thank you
David
On Tue, Jan 14, 2020 at 1:22 PM Coffman, Darcee wrote:
Mr. Barry,
Please catch me up on what is happening with the repairs of this vehicle. FCA’s counsel said something
about the dealership and the client working something out? Please advise if there is an ETA for completion
of repairs.
Thank you.
Regards,
Darcee Coffman
Warranty Litigation Specialist
8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180
Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com
www.stericycleexpertsolutions.com
Stericycle
Expert Solutions
CONFIDENTIALITY NOTICE: The information in this Email is confidential and may be privileged. This Email
is intended solely for the named recipient or recipients. If you are not the intended recipient, any use,
disclosure, copying or distribution of this Email is prohibited. If you are not the intended recipient, please
https://mail.google.com/mail/u/1?ik=a75fae6ca0&view=pt&search=a...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 4 of 5
PROOF
OF SERVICE
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
GONZALEZ V. FCA US LLC, ET AL.
CASE # 19CV343967
I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen (18) years and not a party to the within action; my business address is: 11845 W. Olympic
Boulevard, Suite 1270, Los Angeles, CA 90064.
On March 19, 2020, I served the following described as:
PLAINTIFF LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S
10 MOTION FOR ATTORNEYS’ FEES AND COSTS; DECLARATION OF DAVID N.
BARRY, ESQ.
11
Service was made in the below ascribed manner, on the interested parties in this action by
12 placing a true copy thereof enclosed in a sealed envelope addressed to:
13 PLEASE SEE ATTACHED SERVICE LIST
14
f] (MAIL) I am "readily familiar" with the legal department’s practice for collection and
15 processing of correspondence for mailing. It is deposited with the U.S. postal service on
that same day in the ordinary course of business. I am aware that on motion of the party
16 served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one day after the date of deposit for mailing in affidavit.
17
0) (OVERNIGHT DELIVERY MAIL) I caused the above described document to be served on
18 the interested parties noted below by GSO Delivery Service in an envelope or package
designated by the express service carrier in a facility which is deposited with the GSO
19 Delivery Service in our building on the same day, in the ordinary course of business with
delivery fees paid or provided for.
20
21 0) (PERSONAL SERVICE) I caused the above described document to be personally served
on the interested parties noted below.
22
x] (BY E-MAIL) I caused such document to be delivered by electronic service (e-
23 mail) to the offices of the addressee: akhan@uswlaw.com
24 IX] (STATE) I declare under penalty of perjury under the laws of the State of California
c
ny~
that the above is true and correct. =
25
{)
/
Executed on the 19: of March 2020, at Los Angeles, California.
he (4
26
Valerie Salazar
27
NAME a
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PROOF OF SERVICE
SERVICE LIST
GONZALEZ V. FCA US LLC, ET AL.
CASE # 19CV343967
Jon D. Universal, Esq. Attorneys for Defendant,
Universal & Shannon, LLP FCA US LLC and NORMANDIN’S dba
2240 Douglas Boulevard, Suite 290 NORMANDIN CHRYSLER JEEP DODGE
Roseville, CA 95661
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PROOF OF SERVICE
Preview
DAVID N. BARRY, ESQ. (SBN 219230) Electronically Filed THE BARRY LAW FIRM by Superior Court of CA, 11845 W. Olympic Blvd., Suite 1270 County of Santa Clara, Los Angeles, CA 90064 on 3/19/2020 4:30 PM Telephone: 310.684.5859 Reviewed By: R. Burciaga Facsimile: 310.862.4539 Case #19CV343967 Envelope: 4190629 Attorneys for Plaintiff, LEONARDO GONZALEZ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA —- DOWNTOWN SUPERIOR COURT Case No. RGt89+4544 10 LEONARDO GONZALEZ, an individual, 19CV343967 11 PLAINTIFF LEONARDO GONZALEZ’S Plaintiff, REPLY BRIEF IN SUPPORT OF 12 PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS; 13 DECLARATION OF DAVID N. BARRY, ESQ. 14 FCA US, LLC, a Delaware Limited Liability Date: March 26, 2020 15 Time: 08:30 Company; NORMANDIN’S dba Dept: Dept. 20 16 NORMANDIN CHRYSLER JEEP DODGE, Action Filed: March 1, 2019 17 A California Corporation; and DOES 1 Assigned for all purposes to the Hon. Socrates 18 Manoukian through 20, inclusive, in Dept. 20 19 Defendants. 20 21 Defendant FCA’s (“Defendant” or “FCA”) Opposition is full of misstatements and 22 omissions which all highlight the lengths Defendant and its counsel will go to misrepresent the 23 truth. First, FCA blames Plaintiff for the delay in returning the Subject Vehicle (despite Plaintiff 24 having nothing to gain from a delay in receiving compensation). A simple review of the record 25 reveals this to be a blatant misrepresentation: 26 On September 23, 2019, Plaintiff follows up on the status of the settlement and inquires 2 “[L]et me know if you need anything else to finalize this settlement.” No response from FCA. 28 Please see, Exhibit “1”. -l- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS On September 27, 2019, Plaintiff follows up again: “Please advise if you need anything else from us to complete this settlement.” Please see, Exhibit “2”. On January 14, 2020 (4 months later), FCA says the vehicle cannot be returned until it is“‘damage free per FCA guidelines”. As the Court is aware this case resolved pursuant to an Offer to Compromise. The Offer to Compromise is silent as to vehicle condition. Assuming arguendo that vehicle condition was a term of the settlement, the Vehicle’s condition was fine-it was simply in need of mechanical repairs, which is why the lawsuit was filed in the first place. Please see, Exhibit “3”. Thus, it is without any doubt that they delay in resolving this matter was solely due to the 10 actions of the Defendant, not Plaintiff. 11 I. FCA WAS WELL AWARE OF THE DEFECTS IN THE VEHICLE BECAUSE OF 12 THE WARRANTY NUMEROUS CLAIMS FCA PAID 13 FCA claims that it had no knowledge that Plaintiff was unhappy with his vehicle prior to 14 the lawsuit being filed. Again, this is another misstatement by FCA and its counsel. FCA requires 15 dealerships to submit claims along with supporting documentation each time warranty work is 16 performed on a vehicle. Simply put, without providing this documentation, dealerships do not get 17 paid for repairing a vehicle under warranty. This case was no different. Thus, at all times FCA 18 was aware of the stalling concerns, the lack of power and the air conditioner not working. Despite 19 knowledge of these serious safety concerns, FCA failed to offer any assistance to Plaintiff. 20 A. There is No Requirement a Consumer Contact FCA Prior to Filing Suit 21 California Civil Code of Procedure §17932.2(d)(2) expressly states: “if the manufacturer 22 or its representative in this state does not service or repair the goods to conform to the applicable 23 express warranties after a reasonable number of attempts, the manufacturer shall either replace the 24 goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that 25 amount directly attributable to use by the buyer prior to the discovery of the nonconformity.” 26 Thus, there is no obligation for Plaintiff to contact Defendant to trigger FCA’s obligations 2 under The Act.. To the contrary, the only affirmative step the Act imposes on consumers is to 28 -2- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS permit the manufacturer a reasonable opportunity to repair the vehicle. Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103. II. FCA’S OPPOSITION IS LIMITED TO ITS SPECIFIC OBJECTIONS Defendant FCA US, LLC has the burden of showing that the requested hours are unreasonable or unnecessary. Gates v. Rowland (9tn Circuit 1994) 39F 3d 1439, 1449. As such, Defendant is limited to the specific objections it raises. Defendant has not met its burden for the reasons set forth below. A. Time Spent Communicating with One’s Client is Reasonable and Necessary FCA appears to take umbrage with the detail contained within the time entries as it pertains 10 to communications between Plaintiff's counsel and Plaintiff. First and foremost, the contents of 11 these communications are confidential and protected by the attorney-client privilege. 12 Further, California courts do not require detailed time records. Trial courts have discretion 13 to award fees based on declarations of counsel describing the work they have done and the court’s 14 own view of the number of hours reasonably spent. See, PLCM Group, Inc. v. Drexler (2000) 22 15 Cal. App. 4th 1084, 1095 (claim based on detailed reconstructed records upheld; court noted that 16 maintaining contemporaneous records by in-house counsel would “facilitate accurate calculation of 17 the lodestar and minimize possible inaccuracies in reconstructing time spent on a matter months or 18 even years after the fact”); Stratton v Beck (2017) 9 Cal. App. Sth 483, 496 (under PLCM, 19 contemporaneous records preferred but not required); Gonzalez v. Santa Clara Dep’t of Soc. Servs. 20 (2017) 9 Cal. App. 5th 162, 173 (fee opponent failed to object to declaration stating time expended 21 by prior attorneys, but trial court denied some attorney fees and reduced others based on finding of 22 inadequate documentation; court of appeal reversed, holding that fee claimant should have been 23 given opportunity to cure defects not raised by opponent); East W. Bank v. Rio Sch. Dist. (2015) 24 235 Cal. App. 4th 742, 750 (upholding fee award where counsel submitted only estimates of time 25 but trial court conducted own review and analysis of time reasonably spent); Lunada Biomedical v. 26 Nunez (2014) 230 Cal. App. 4th 459, 487 (time records not required; counsel’s declaration 2 sufficient); Syers Props. III v. Rankin (2014) 226 Cal. App. 4th 691, 698 (citing this book); Sutter 28 3- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS Health Uninsured Pricing Cases (2009) 171 Cal. App. 4th 495, 512; Chavez v. Netflix, Inc. (2008) 162 Cal. App. 4th 43, 64. B. Time Spent Preparing and Reviewing Discovery is Reasonable and Necessary FCA next attacks the time spent reviewing and preparing responses to discovery with FCA propounded. FCA incredulously attacks a .4 time entry for reviewing discovery requests. It goes without saying that this request is reasonable. Reviewing and responding to discovery is a staple of litigation. As for the discovery propounded by Plaintiff, likewise these time entries were reasonable. Billing a .2 to propound form interrogatories is entirely permissible. Plaintiff had to conduct 10 discovery and prepare to prove liability on his varied claims with his varied elements. Plaintiff also 11 had to prepare to counter the numerous affirmative defenses raised in the answer to the complaint. 12 Goglin v. BMW of North America, LLC (2016), 4 Cal.App Sth 464. 13 C. Defendant Attacking Plaintiff's Counsel’s Time Entries Regarding Court Ordered 14 Hearings are Without Merit 15 First, Defendant attacks Plaintiff's preparation for the Order to Show Cause hearings 16 regarding Dismissal by claiming that Defendant “should not be required to pay for done due to 17 Plaintiffs failure to appear” at a prior hearing. (See, Defendant’s Opposition, Page 9, line 24:26). 18 Defendant completely leaves out the fact that the Order to Show Cause was not solely for 19 Plaintiffs failure to appear, but for status regarding dismissal, to which an attorney who is not 20 assigned to this case like Mr. Matera would need to review the file and prepare for. 21 Ill. THE DECLARATIONS OF MESSRS. BARRY AND ROSNER, AS WELL AS THE 22 NATIONAL FEE SURVEY, ARE ADMISSIBLE EVIDENCE FOR PURPOSES 23 OF DETERMINING THE MARKET RATE 24 FCA incorrectly argues that the declarations submitted in Plaintiff's moving papers 25 regarding the reasonableness of hourly rates are incompetent to prove reasonableness of the fees. A 26 declaration of Plaintiff's counsel is sufficient evidence of the market rates charged in the legal 2 community, especially where no evidence is presented to the contrary. Davis v. City of San Diego, 28 4. PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS (2003) 106 Cal.App.4th 893, 902-904; Graciano v. Robinson Ford Sales, Inc., (2006) 144 Cal.App.4th 140, 154; MBNA America Bank, N.A. v. Gorman, (2006) 147 Cal.App.4th Supp. 1, 13. Further, in PLCM Group, Inc. v. Drexler (2000) 22 C4th 1084, 1096, the court affirmed a fee award based on the rate prevailing in the market where counsel’s office was located (San Francisco), rather than where the case was litigated (Los Angeles). See also, Cordero-Sacks v. Housing Auth. of the City of Los Angeles (2011) 200 CA4th 1267, 1286, 134 CR3d 883 (citing forum rule and PLCM). In fact, a review of Plaintiff's moving papers indicates that Plaintiff has met all of the factors to determine the reasonableness of his hourly rate, including other instances where courts 10 have awarded Mr. Barry his previous hourly rate of $475, his current hourly rate of $525, rates 11 awarded to attorneys of comparable experience in other cases in the same market, as well as the 12 survey of billing rates. See, Center for Biological Diversity v. County of San Bernardino (2010) 13 185 Cal.App.4th 866, 900, (holding that relevant surveys of billing rates may be considered as 14 evidence of market rates). 15 IV.A MULTIPLIER LODESTAR IS WARRANTED 16 Case law is clear that the lodestar method and the multiplier are appropriate in Song- 17 Beverly cases. The multiplier is meant to increase or decrease the fee award based on factors not 18 already taken into account when setting the hourly rate, such as the risk of taking a case on a 19 contingency basis, and the outcome achieved. Horsford v. Board of Trustees of California State 20 University (2005) 132 Cal. App. 4th 359, 394-5. 21 Plaintiff requests a modest multiplier of 1.2 in this action because of the risk of taking this 22 matter on a contingency basis, and the results achieved. Indeed, in the two plus years since the 23 Complaint was filed, Plaintiff received a buyback of the Subject Vehicle. Multipliers based on the 24 “quality of representation” are often considered together with other factors, including the results 25 obtained. Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 582 (noting that “results 26 obtained” multiplier may be appropriate “where an exceptional effort produced an exceptional 2 benefit”). 28 -5- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS Further, even Defendant cannot deny that an attorney who takes such a risk expects and deserves a higher fee than an attorney paid a market-rate fee, win or lose. Contingent risk is the most important enhancement factor. In fact, the California Supreme Court has expressly recognized that contingent risk is one of the “most common” fee enhancers: “One of the most common fee enhancers, and one used by the trial court in the present case, is for contingency risk.” Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 579. Indeed, the court’s two most recent decisions on lodestar multipliers both focus extensively on the contingent risk factor above all others. See Graham, 34 Cal. 4th at 579; Ketchum, 24 Cal. 4th at 1132 (“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive 10 payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is 11 neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation 12 for such services, which typically includes a premium for the risk of nonpayment or delay in 13 payment of attorney fees”). 14 Likewise, in Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157, the trial court 15 applied a 1.65 lodestar enhancement in a case challenging the Defendant’s failure to comply with a 16 local wage ordinance, based primarily on contingent risk: “Most important to the Court’s 17 determination on the question of a multiplier, however, are the contingent risks inherent in this 18 litigation, wherein a number of issues of first impression were presented and were largely resolved 19 in Plaintiffs’ favor.” Amaral, 163 Cal. App. 4th at 1217 (emphasis added). 20 The California rule is similar. Requested rates are reasonable if they are “within the range 21 of reasonable rates charged by and judicially awarded comparable attorneys for comparable 22 work.” Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal. App. 4th 740, 783. See also Ketchum 23 v. Moses (2001) 24 Cal. 4th 1122, 1136; Serrano v. Unruh (Serrano IV) (1982) 32 Cal. 3d 621, 24 634. 25 This market rate standard is intended to be a more objective method than the method 26 occasionally used by the courts, which employs a long list of factors, some of which go 2 to hourly rates, some to hours spent, and some to other factors. See, e.g., PLCM Group, Inc. v. 28 Drexler (2000) 22 Cal. 4th 1084, 1096 (describing the standard as follows: “‘The trial court makes -6- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case, a9 quoting Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 623); Ketchum v. Moses, 24 Ca. App. 4th at 1139 (hourly rate used to calculate lodestar “is the product of a multiplicity of factors ... [, including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case”; internal quotations and citation omitted); Kerr v. Screen Extras Guild, Inc. (1975) 526 F. 2d 67, 70 (listing 12 factors). See, e.g., Building a Better Redondo Beach, Inc. v. City of Redondo Beach (2012) 203 Cal. App. 4th 852. 10 Vv. OTHER COURTS HAVE PREVIOSULY APPROVED THE HOURLY RATE OF 11 MR. BARRY 12 FCA attempts to challenge the hourly rate of Mr. Barry but ignores previous instances 13 where Mr. Barry’s hourly rate has been approved against this very Defendant. 14 Most recently, on February 25, 2020, the Honorable Yolanda Orozco approved my hourly 15 rate of $525 in the case of Gonzalez v. FCA US, LLC, Los Angeles Superior Court Case No. 16 BC712425. 17 Furthermore, on February 28, 2020, the Honorable Teresa A. Beaudet approved my hourly 18 rate of $525 in the case of Shan, et. al. v. General Motors, LLC, Los Angeles Superior Court Case 19 No BC698152. 20 ‘// 21 ‘Tf 22 //1 23 ‘T/ 24 ‘11 25 ‘Tf 26 ‘if 2 /T1 28 ‘tl aTe PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS 1 VI. CONCLUSION 2 FCA”s opposition is full of demonstrable misstatements of the facts of this case. FCA has 3 not met its burden of establishing that time entries were not reasonably and necessarily incurred. 4 || As such, Plaintiffs motion should be granted. \ 5 Date: March 19, 2020 THE BARRY LAW FIRM i\} 6 7 ie ~ Z B DAVID N-BARRY, ESQ. Attorneys for Plaintiff, LEONARDO GONZALEZ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 -8- PLAINTIFF’S LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS DECLARATION DECLARATION OF DAVID N. BARRY, ESQ. I, David N. Barry, declare as follows: 1 J am an attorney duly licensed to practice law before all the courts of the State of California and am the attorney of record for Plaintiff, Leonardo Gonzalez. If called upon as a witness, I could and would competently testify to the facts contained herein. 2. I make this declaration to the best of my knowledge, information, and belief of the stated herein in support of Plaintiff's Motion for Attorneys’ Fees and Costs. 3 On September 23, 2019, Plaintiff follows up on the status of the settlement and inquires “[L]et me know if you need anything else to finalize this settlement.” No response from 10 FCA. Attached is a true and correct copy of this correspondence as Exhibit “1”. 11 4 On September 27, 2019, Plaintiff sends a follow up correspondence stating: “Please 12 advise if you need anything else from us to complete this settlement.” Attached is a true and 13 orrect copy of this correspondence as Exhibit “2”. 14 5 On January 14, 2020, FCA claimed the vehicle could not be returned until “damage 15 free per FCA guidelines”. The Offer to Compromise is silent as to vehicle condition. Assuming 16 arguendo that vehicle condition was a term of the settlement, the Vehicle’s condition was fine-it 17 was simply in need of mechanical repairs, which is why the lawsuit was filed in the first place. 18 Attached is a true and correct copy of this correspondence as Exhibit “3”. 19 6 I have litigated lemon law cases for over 15 years. I am familiar with how 20 dealerships seek reimbursement for worked performed under warranty. I am also familiar with 21 how manufacturers keep track of warranty costs incurred on a vehicle. Thus, there is simply no 22 merit to FCA’s argument that they had no knowledge that Plaintiff was dissatisfied with the vehicle 23 until receiving this lawsuit. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing 25 is true and correct. 26 Executed on 19th day of March, 2020 in Los Ahgeles, California. 2 _~* 28 DA N. BARRY, ESQ. -l- DECLARATION OF DAVID N. BARRY, ESQ. EXHIBIT 1 The Barry Law Firm Mail - Re: Gonzalez, Leonardo v FCA 3/19/20, 12:39 PM Gmwane il Re: Gonzalez, Leonardo Vv FCA ~ Heber Bernal Mon, Sep 23, 2019 at 9:24 AM To: Nejla Nassirian Ce: David Barry , Jon Universal , James Mayo , Brett Wanner Hello Nejla: Following up on this. Let me know if you need anything else to finalize this settlement. Thank you. Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited. On Fri, Aug 16, 2019 at 1:54 PM Ryan Alexander wrote: Attached please find the remaining Payment History. We will send in the tow receipt and additional RO receipts once obtained. Thank you. Best, Ryanb On Thu, Aug 15, 2019 at 4:23 PM Ryan Alexander wrote: Counsel: It was assumed you were going to read what was attached initially (apologies, so | relabeled it again this time for you.) We are sending the receipt for tow in to you, soon. The car is still in the shop and will have an additional Ro receipt, which we will provide then. The additional Payment History will hopefully be in by Monday the 19th. If you have any more questions, please feel free to let us know. Have a wonderful rest of your day. https://mail.google.com/mail/u/1?ik=a75fae6ca0&view=pt&search=...f%3A1645484048711226318&simpl=msg-f%3A1645484048711226318&mb=1 Page 1 of 7 EXHIBIT 2 The Barry Law Firm Mail - Re: Gonzalez, Leonardo v FCA 3/19/20, 12:40 PM Gmly ale Re: Gonzalez, Leonardo v FCA —— ens _ Heber Bernal Fri, Sep 27, 2019 at 9:56 AM To: Nejla Nassirian Ce: David Barry , Jon Universal , James Mayo , Brett Wanner , Samantha Spamer Nejla: Please advise if you need anything else from us to complete this settlement. Thank you Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited. On Mon, Sep 23, 2019 at 9:24 AM Heber Bernal wrote: | Hello Nejla: Following up on this. Let me know if you need anything else to finalize this settlement. Thank you. Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain https://mail.google.com/mail/u/1?ik=a7 5fae6ca0 aview=pt&search=...%3A1645848469240122601&simpl=msg-f%3A1645848469240122601&mb=1 Page 10f 8 EXHIBIT 3 The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM Gm le rt 2} il —= Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONAR DO - GH221278 eine ee Heber Bernal Tue, Jan 14, 2020 at 1:35 PM To: "Coffman, Darcee" Cc: David Barry The vehicle is not damaged, it is being repaired for mechanical defects. Furthermore, this case was resolved via an offer to compromise, which did not have any guidelines for the vehicle return. Since the dealership is being paid for the repairs, we expect the surrender to occur ASAP. Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited. On Tue, Jan 14, 2020 at 1:31 PM Coffman, Darcee wrote: Understood. The vehicle must be surrendered damage free per FCA guidelines. The meeting will not be able to take place until the repairs have been completed. Regards, Danrcee Coffman Warranty Litigation Specialist 8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180 Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com https://mail.google.com/mail/u/1?ik=a7 Sfae6ca0 &view=pt&search=al...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 1of 5 The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM www.stericycleexpertsolutions.com °, Stericycle Expert Solutions From: Heber Bernal [mailto:hbernal@mylemonrights.com] Sent: Tuesday, January 14, 2020 3:29 PM To: Coffman, Darcee Cc: David Barry Subject: Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 No, the dealership just received authorization from the extended warranty to repair the vehicle. Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited. On Tue, Jan 14, 2020 at 1:27 PM Coffman, Darcee wrote: Has the vehicle been repaired? Regards, https://mail.google.com/mail/u/1?ik=a7 5fae6ca0 &view=pt&search=a...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 2 of 5 The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM Dancee Coffman Warranty Litigation Specialist 8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180 Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com www.stericycleexpertsolutions.com “° Stericycle Expert Solutions From: Heber Bernal [mailto:hbernal@mylemonrights.com] Sent: Tuesday, January 14, 2020 3:26 PM To: Coffman, Darcee Cc: David Barry Subject: Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 Darcee: We are trying to get a hold of the agent to schedule the signing of the documents. She has not called us back Heber Bernal THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 310.684.5859 tel 310.862.4539 fax www.mylemonrights.com CONFIDENTIALITY NOTICE: The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited. https://mail.goo Sfae6ca0 &view=pt&search=a...-f%3A gle.com/ 1655741111614519598&simpl mail/u/1 =msg-f%3A1655741111614519 ?ik=a7 598&mb=1 Page 3 of 5 The Barry Law Firm Mail - Re: CUSTOMER OWES FOR REPAIRS - GONZALEZ LEONARDO - GH221278 3/19/20, 12:56 PM On Tue, Jan 14, 2020 at 1:23 PM David Barry wrote: Darcee: It is my understanding the issue has been resolved and we can reschedule. | am including Heber on this email as | believe he also has information. Thank you David On Tue, Jan 14, 2020 at 1:22 PM Coffman, Darcee wrote: Mr. Barry, Please catch me up on what is happening with the repairs of this vehicle. FCA’s counsel said something about the dealership and the client working something out? Please advise if there is an ETA for completion of repairs. Thank you. Regards, Darcee Coffman Warranty Litigation Specialist 8555 Airport Freeway, Suite 100, North Richland Hills, Texas 76180 Direct Phone #: (214) 583-2197 | Fax #: (972) 652-3590 | darcee.coffman@stericycle.com www.stericycleexpertsolutions.com Stericycle Expert Solutions CONFIDENTIALITY NOTICE: The information in this Email is confidential and may be privileged. This Email is intended solely for the named recipient or recipients. If you are not the intended recipient, any use, disclosure, copying or distribution of this Email is prohibited. If you are not the intended recipient, please https://mail.google.com/mail/u/1?ik=a75fae6ca0&view=pt&search=a...-f%3A1655741111614519598&simpl=msg-f%3A1655741111614519598&mb=1 Page 4 of 5 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF SANTA CLARA GONZALEZ V. FCA US LLC, ET AL. CASE # 19CV343967 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action; my business address is: 11845 W. Olympic Boulevard, Suite 1270, Los Angeles, CA 90064. On March 19, 2020, I served the following described as: PLAINTIFF LEONARDO GONZALEZ’S REPLY BRIEF IN SUPPORT OF PLAINTIFF’S 10 MOTION FOR ATTORNEYS’ FEES AND COSTS; DECLARATION OF DAVID N. BARRY, ESQ. 11 Service was made in the below ascribed manner, on the interested parties in this action by 12 placing a true copy thereof enclosed in a sealed envelope addressed to: 13 PLEASE SEE ATTACHED SERVICE LIST 14 f] (MAIL) I am "readily familiar" with the legal department’s practice for collection and 15 processing of correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of the party 16 served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 17 0) (OVERNIGHT DELIVERY MAIL) I caused the above described document to be served on 18 the interested parties noted below by GSO Delivery Service in an envelope or package designated by the express service carrier in a facility which is deposited with the GSO 19 Delivery Service in our building on the same day, in the ordinary course of business with delivery fees paid or provided for. 20 21 0) (PERSONAL SERVICE) I caused the above described document to be personally served on the interested parties noted below. 22 x] (BY E-MAIL) I caused such document to be delivered by electronic service (e- 23 mail) to the offices of the addressee: akhan@uswlaw.com 24 IX] (STATE) I declare under penalty of perjury under the laws of the State of California c ny~ that the above is true and correct. = 25 {) / Executed on the 19: of March 2020, at Los Angeles, California. he (4 26 Valerie Salazar 27 NAME a 28 PROOF OF SERVICE SERVICE LIST GONZALEZ V. FCA US LLC, ET AL. CASE # 19CV343967 Jon D. Universal, Esq. Attorneys for Defendant, Universal & Shannon, LLP FCA US LLC and NORMANDIN’S dba 2240 Douglas Boulevard, Suite 290 NORMANDIN CHRYSLER JEEP DODGE Roseville, CA 95661 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE