Memorandum Points AuthoritiesCal. Super. - 3rd Dist.July 31, 2017' o O B N D o T KR WH 10 11 12 13 14 15 16 17 18 19 20 21 92 23 24 25 26 27 28 ROSNER, BARRY & BABBITT, LLP s F Lt L. iS D Christopher P. Barry, SBN 179308 Ope pun ot ria Lacee B. Smith, SBN 284168 10085 Carroll Canyon Road, Suite 100 NOV 26 2018 San Diego, California 92131 Telephone: (858) 348-1005 it Sees - Facsimile: (858) 348-1150 By: O. Lucatuorto, Deputy hawk@rbblawgroup.com lacee@rbblawgroup.com Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER ANDREA FILIMON and EMANUELA Case No. SCV0039808 FILIMON, Memorandum in Support of Plaintiffs’ Plaintiffs, Motion for Attorneys’ Fees and Costs V. Date: December 20, 2018 ROSEVILLE TOYOTA, a California Time: 8:30 a.m. Corporation; TOYOTA FINANCIAL Judge: Hon. Charles Wachob SERVICES, a California Corporation; Dept: 42 RLI INSURANCE COMPANY, an Illinois Corporation; and DOES 1 through 75, Complaint Filed: July 31, 2017 inclusive, Trial Date: vacated Defendants. I. Introduction Plaintiffs Andrea Filimon and Emanuela Filimon purchased a used vehicle from Roseville Toyota in November 2016. Plaintiffs sued Roseville Toyota, its surety RLI Insurance Company, and Toyota Motor Credit Company, the holder of the purchase contract, for violations of California’s consumer protection statutes based on misrepresentations made during the sale of the vehicle. The parties reached a settlement in June 2018, after almost a year of litigation. The Settlement Agreement provided Roseville Toyota would reimburse Plaintiffs their down payment, monthly payments, and a repair cost, for a total settlement of $8,433.22. Defendants 1 Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs XV 4 Ad G a d N n oO ff WH N 10 be 12 13 14 15 16 17 18 19 20 21 a2 23 24 25 26 27 28 also agreed Plaintiffs could file a motion for attorney’s fees and costs, and that Plaintiffs would be deemed the prevailing party on all causes of action for purposes of this motion. The attorney’s fees sought by this motion are calculated using the lodestar method and were reasonably incurred in prosecution of this action. The costs requested were reasonably necessary to the litigation. Therefore, Plaintiffs seek their reasonable attorney’s fees of $34,455, and costs of $1,459.40, for a total of $35,914.40. II. Summary of the Case Plaintiffs purchased a 2012 Toyota Yaris from Roseville Toyota on December 8, 2016. Roseville Toyota failed to tell Plaintiffs the vehicle was previously used as a rental, packed them with over $5,000 in optional products like service contracts and theft deterrent devices, and overcharged them vehicle license fees. Plaintiffs attempted to find an attorney locally, but were unable to get anyone to take their case. Plaintiffs then hired their current attorneys. Plaintiffs filed this lawsuit on July 31, 2017. The Complaint included five causes of action: (1) Violation of the Consumers Legal Remedies Act; (2) Fraud and Deceit; (3) Negligent Misrepresentation; (4) Violation of Business and Professions Code § 17200; and (5) Violation of Vehicle Code § 11711. Plaintiffs’ Complaint mistakenly named Toyota Financial Services as the holder of Plaintiffs’ contract. Plaintiffs filed an amendment to the complaint to identify Toyota Motor Credit Corporation as the correct holder. Trial was set for December 2018. The parties engaged in extensive settlement discussions and ultimately reached a settlement in June 2018. It then took five months to get the agreement signed. Pursuant to the Settlement Agreement, Defendant Roseville Toyota agreed to pay Plaintiffs $8,433.22, plus payoff the outstanding balance on the contract for the vehicle, and Plaintiffs will return the vehicle to the dealership. The parties agreed Plaintiffs could file a motion for attorney’s fees and costs, and for purposes of the motion, Plaintiffs would be deemed the prevailing party on all causes of action against all defendants. (Compendium of Exhibits, Ex. 3.) /// /// 2 ; Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs N O Oo kh Ww to N 10 11 12 13 14 15 16 17 18 19 20 21 29 23 24 25 26 27 28 Ill. Plaintiffs Should Be Awarded a Lodestar of $34,455 in Reasonable Attorney’s Fees A. Plaintiffs Are the “Prevailing Party” for Purposes of this Motion In the Complaint, Plaintiffs’ claim under the Consumers Legal Remedies Act entitles prevailing consumers to recover their attorney's fees and costs. (See Civil Code § 1780(e).) The Settlement Agreement states Plaintiffs are “deemed the prevailing party in this case against all Defendants on all causes of action” for purposes of this motion. (COE, Ex. 3.) B. Under the Consumers Legal Remedies Act, Plaintiffs are Entitled to Reasonable Attorney’s Fees Based on Actual Time Expended Plaintiffs sued Defendants for violations of the Consumers Legal Remedies Act. The CLRA provides “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section.” (Civil Code § 1780(e) (emphasis added).) “Accordingly, an award of attorney fees to ‘a prevailing plaintiff in an action brought pursuant to the CLRA is mandatory....” (Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 178- 79.) In Broughton v. Cigna Healthplans of California (1999) 21 Cal.4th 1066, 1087, the Supreme Court noted the importance of the attorneys’ fees provision in the CLRA, Civil Code § 1780 and stated that without it there would be no attorneys representing consumers. The Court of Appeal in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, noted the legislative policy underlying the attorneys’ fees provision in the CLRA is clear: to provide «remedies for consumers who have been victims of unfair or deceptive business practices.” (Id., at 150 (citing Hayward v. Ventura Volvo (2003) 108 Cal.App.4th 509, 512).) The amount of attorney’s fees must not be tied to any percentage of the recovery. (/d., at 164.) Rather, fee awards under consumer statutes are to be based upon the actual time it took to achieve the consumer’s objectives. Cc. Plaintiffs’ Fees Should Be Calculated Using the “Lodestar” Method California law requires use of the “lodestar adjustment” method to determine attorney fee awards under California’s consumer protection statutes. (Press v. Lucky Stores (1983) 34 Cal.3d 3 Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs o O WO NI n o o o f Ww W 10 nt 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 311, 322 (fee awards “must be based on the lodestar adjustment method” and that it is “extremely important” and “fundamental” to use the lodestar method to fulfill the purposes of California’s fee-shifting statutes); Graciano, 144 Cal.App.4th at 154 (lodestar adjustment method should be used to determine attorney’s fees under the ASFA and the CLRA).) The Lodestar Adjustment method has three steps: (1) determine the number of hours reasonably spent litigating the case; (2) determine the reasonable hourly rate; and (3) consider the “adjustment factors” to determine whether a fee multiplier is warranted. (Serrano v. Priest (1977) 20 Cal.gd 25, 49.) As set forth in the following table, Plaintiffs seek recovery for 73.6 hours of attorney time, for a lodestar amount of $34,455: Timekeeper Hours Billed | Hourly Rate Total Fees Hawk Barry 124 $590 $7,139 Hal Rosner 1.6 $640 $1,024 Adriana Gutierrez 0.4 $305 $122 Mike Mixer 47.5 $460 $21,850 Lacee Smith 12.0 $360 $4,320 Total 73.6 ~$468.14 $34,455 D. The Requested Lodestar Is Reasonable i. Plaintiffs’ Counsel’s Actual Time was Reasonable Submitted in support of this motion is a detailed listing of the legal services performed in connection with the prosecution of this action by Plaintiffs’ counsel. (COE, Ex. 1.) The itemized fee bills show that none of the billed time was spent on tasks that were unnecessary, duplicative, or unreasonable, and included 73.6 hours from Rosner, Barry & Babbitt, LLP. (/d.) All the services Plaintiffs’ counsel rendered were necessary to competently and professionally litigate this case. (Barry Decl., {| 2-3.) Although the submission of such detailed time records is not necessary under California law (see Martino v. Denevi (1986) 182 Cal.App.3d 553, 559), if submitted, such records are “entitled to credence in the absence of a clear indication the records 4 Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs o O O N D H OT H R WH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) Given the excellent result obtained for Plaintiffs, the time spent by Plaintiffs’ counsel in prosecuting this action was reasonable and necessary. 2. Plaintiffs’ Counsel’s Hourly Rates and Billed Hours are Presumed to be Reasonable Absent a contrary showing, both (1) the number of hours that the prevailing party’s attorney spent litigating the case, and (2) his or her regular hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639 (counsel is entitled to all hours actually spent, absent a showing of “special circumstances” that would render such an award unjust); Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761 (an attorney’s regular hourly rate is entitled to a presumption of reasonableness); Pearl, California Attorney Fee Awards, at §§ 12.14A, 12.33 (2nd ed. 2005).) a, Plaintiffs’ Counsels’ Billing Rates are Reasonable Rosner, Barry & Babbitt, LLP, is dedicated to representing consumers who are cheated in car purchases or who purchase defective products. It is one of the most well-known firms in this practice area in the state of California. The partner assigned to this case, Christopher “Hawk” Barry, has been lead counsel in multiple trials and arbitrations and has been practicing in this area for over fifteen years. He focuses his work on dealership fraud and financial disclosure cases involving violations of the Consumers Legal Remedies Act, the Song-Beverly Consumer Warranty Act, the Automobile Sales Finance Act, the Vehicle Leasing Act, and the Unfair Competition Law. The experience and qualifications of the attorneys who worked on the case are set forth in the accompanying declarations of Mr. Barry, Mr, Rosner, and Ms. Smith. Rosner, Barry & Babbitt, LLP, is the most successful appellate firm in vehicle cases and related issues in the past decade for the State of California. Plaintiffs’ counsel has successfully litigated the following appellate cases that resulted in published decisions advancing consumer rights in this state: Medina v. South Coast Car Sales, Inc., et al. (2017) 5 Cal.App.5th 671; Gonzales v. CarMax Auto Superstores (9th Cir. 2017) 845 F.3d 916; Gonzales v. CarMax Auto D Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs n a BR Ww W N 10 11 i2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Superstores (9th Cir. 2016) 840 F.3d 644; Foreman v. National R.V., Inc. (1995) 34 Cal.App.4th 1072; Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140; Robertson v. Fleetwood Travel Trailers of California Ltd. (2006) 144 Cal.App.4th 785; Lewis v. Robinson Ford Sales, Inc. (2007) 156 Cal.App.4th 359; Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983; Fisher v. DCH Temecula Imports, LLC (2010) 187 Cal.App.4th 601; Joyce v. Ford Motor Company (2011) 198 Cal.App.4th 1478; Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832; Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997; Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138; Kuxhausen v. BMW Financial Services NA LLC (9th Cir. 2013) 707 F.3d 1136; Mondragon v. Capital One Auto Finance (9th Cir. 2013) 736 F.3d 880; and Munoz v. Express Auto Sales (2014) 222 Cal.App.4th Supp. 1. (Barry Decl., 19.) 4. California Courts and Arbitration Organizations Approve of Plaintiffs’ Counsel’s Hourly Rates Although Plaintiffs’ counsel usually resolves fee issues by negotiation, courts and arbitrators have consistently upheld Plaintiffs’ counsel’s hourly rates. (Barry Decl., {J 5-6.) In Medina, the trial court approved in full a fees and costs request based on the following: Medina supported his request with extensive backup information including detailed billing records; a 2013-2014 United States Consumer Law Attorney Fee Survey Report; a nine-page detailed declaration by Christopher Barry, in which he reviewed the hours billed by each attorney, the myriad cases handled by his firm including under the CLRA, the ASFA and other consumer statutory schemes; and the names of just a sampling of the more than 1000 cases his firm has handled in support of consumer protections laws. (Medina, 15 Cal.App.5th at 680.) In affirming the award, the Court of Appeal held “based on our own independent review of the record, it is clear the court properly exercised its discretion when it made this award.” (/d., at 685.) Plaintiffs’ counsel’s hourly rates have been approved around the state in numerous cases. (Barry Decl., {I 5-6.) 5. Plaintiffs’ Counsel Charges Competitive Market Rates A national survey of prevailing rates for consumer attorneys that included California was conducted for 2015-2016. (United States Consumer Law Attorney Fee Survey Report 2015-2016, COE, Ex. 5 (“USCL Survey - California Portions Only”).) The rates are examined by region, firm 6 Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs N n a KR WH to N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 size, and years of practice. The Average Attorney Rate in California is $465.00. That rate does not take into account years of practice or firm size, but simply averages the rates of all consumer attorneys in the state. (USCL Survey, COE, Ex. 5, at 41.) Courts have routinely accepted the survey as evidence of prevailing rates in consumer cases. (See, e.g., Medina v. South Coast Car Co., Inc. (2017) 15 Cal.App.5th 671; Bratton v. FCA US LLC, 2018 WL 5279581 (N.D. Cal. Oct. 22, 2018) (“A number of courts, including courts in this District, have also found that the United States Consumer Law Attorney Fee Survey Report may be used as evidence of prevailing rates.”).) Plaintiffs’ counsel’s hourly rates are set forth in the accompanying declarations, and range from $305-$460/hour for associates to $590/hour for Mr. Barry and $640/hour for Mr. Rosner for work performed in this case. The average blended rate for the work on this case was $468.14/hour. (Barry Decl., 2.) Based on Plaintiffs’ counsel’s years in practice, these rates are comparable to the market rates and are, therefore, reasonable and competitive. 6. Plaintiffs are Entitled to Their Fees in Litigating this Motion In Ketchum v. Moses (2001) 24 Cal.4th 1122, the Supreme Court held that attorney’s fees and costs should include all fees and costs expended, including those spent in the effort to recover attorney’s fees and costs. Otherwise, the purpose of statutory fee authorizations “will often be frustrated, sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee claim.” (/d., at 1133 (citations omitted); see also Downey Cares v. Downey Community Development Commission (1987) 196 Cal.App.3d 983, 997; Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368; Harbour Landing- Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 263.) Accordingly, Plaintiffs’ counsel is entitled to compensation for the time spent in litigating the issue of attorney’s fees which are included and itemized in the pending fee request. Plaintiffs’ counsel spent approximately 9.3 hours drafting this motion, which is included in the bill. Plaintiffs’ counsel also anticipates spending additional time reviewing Defendants’ opposition briefs, drafting the reply, and preparing for and appearing at oral argument, estimated to be an additional 5 hours, which is also included in Plaintiffs’ counsel’s bill. Z Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs No N n oa KR WH o OG NI 10 11 12 13 14 15 16 17 18 19 20 oi 22 23 ee 25 26 27 28 E. Because This Case Presented Challenging Facts and Specialized Legal Issues, Plaintiffs Were Unable to Find Local Counsel to Represent Them on Contingency This case presented serious risks and challenges, First, Plaintiffs allege they were “packed” with optional products and accessories they did not want or need. This means at trial, they would have had to prove they did not know about the optional products included on their written contract prior to purchase. This argument is very risky considering the multiple documents Plaintiffs signed that disclose the cost of these optional products. (Declaration of Andrea Filimon, { 2; COE. Ex. 6.) Plaintiffs also allege the vehicle’s rental history was not disclosed to them prior to sale. Again, this is a difficult position to take given that Roseville Toyota produced a CarFax Vehicle History Report allegedly signed by Plaintiffs prior to sale that shows the vehicle’s rental history. (COE, Ex. 7.) Finally, Plaintiffs were unable to locate local counsel willing to accept this case on contingency. (Filimon Decl., { 3.) F. Plaintiffs’ Costs and Expenses, Including Expert Fees, Should be Reimbursed The CLRA permit a prevailing party to recover her costs. (Civil Code §§ 1780(e).) The Settlement Agreement also permits Plaintiffs to recover their costs as the prevailing party. IV. Conclusion Plaintiffs respectfully request the Court award their reasonable attorney’s fees of $34,455.00 and costs and expenses of $1,459.40, for a total award of $35,914.40. DATED: November 26, 2018 ROSNER, BARRY & BABBITT, LLP vCal Dg CHRISTOPHER P. BARRY) LACEE B. SMITH Attorneys for Plaintiffs 8 Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs to o O P O N D O H K WH 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVI Filimon, Andrea & Emanuela v. Roseville Toyota, et al. Placer County Superior Case No.: SCV0039808 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, First Floor, San Diego, California 92131. On November 26, 2018, I served the foregoing document(s) described as: Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs on the interested parties in this action at San Diego, California, addressed as follows: John A. Britton, Esq. Abraham J. Colman, Esq. LAW OFFICES OF JOHN A. BRITTON, INC. | Raagini Shah, Esq. 1478 Stone Point Drive, Suite 400 REED SMITH LLP Roseville, California 95661 355 South Grand Avenue, Suite 2900 Tel: (916) 781-2050 / Fax: (916) 782-7560 Los Angeles, California 90071 Jbritton@jbrittonlaw.com Tel: (213) 457-8000 Fax: (213) 457-8080 acolman@reedsmith.com Attorney for Defendant rshah@reedsmith.com JOHN L. SULLIVAN INVESTMENTS, INC. dba ROSEVILE TOYOTA AND RLI Attorneys for Defendant INSURANCE COMPANY TOYOTA MOTOR CREDIT CORPORATION [X] BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the above addressed. I caused such envelope or package to be deposited in a regularly utilized drop box of the overnight delivery carrier. [X] STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 26, 2018 at San Diego, California. pyeyt---. c 7] } Nadine Hicks - 1 PROOF OF SERVICE
