Levy v. Toyota Motor Sales, U.S.A., Inc., B050684

• Decision Date: 17 March 1992
• Docket Number: No. B050684,B050684
• Citation: 4 Cal.App.4th 807,5 Cal.Rptr.2d 770
• Court: California Court of Appeals Court of Appeals
• Parties: Salomon LEVY, Plaintiff and Appellant, v. TOYOTA MOTOR SALES, U.S.A., INC., et al., Defendants and Respondents.

Page 770

5 Cal.Rptr.2d 770

4 Cal.App.4th 807

Salomon LEVY, Plaintiff and Appellant, v. TOYOTA MOTOR SALES, U.S.A., INC., et al., Defendants and Respondents.

No. B050684.

Court of Appeal, Second District, Division 3, California.

March 17, 1992.

Review Denied June 11, 1992.

Norman F. Taylor and Michael Charles Jochum, Glendale, for plaintiff and appellant.

Bronson, Bronson & McKinnon, Ralph S. LaMontagne, Jr., Sheldon J. Warren and Eric A. Amador, Los Angeles, for defendants and respondents.

DANIELSON, Associate Justice.

Plaintiff and appellant Salomon Levy (Levy) appeals from the order granting the motion to tax costs brought by defendants and respondents Toyota Motor Sales U.S.A., Inc. and Hollywood Toyota, following entry of judgment in favor of Levy and against respondents in the amount of $22,619.52, in an action for breach of express and implied warranties, violation of the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act (15 U.S.C. § 2301 et seq.) (Magnuson-Moss Act), violation of the Song-Beverly Consumer Warranty Act (Civ.Code, § 1790 et seq.) (Song-Beverly Act), and rescission of contract. Levy sought costs in the amount of $142,002.95; he was granted $33,412.54. The trial court also denied his request for additional attorney's fees incurred in conjunction with the motion to tax costs. We affirm.

FACTS

In his complaint, Levy alleged that in November 1987, he purchased a 1988 Toyota from Hollywood Toyota for $17,448.00. The vehicle was distributed by Toyota, and was expressly warranted to be free from defects. After driving the vehicle for 4277 miles, Levy discovered the brake components were defectively manufactured, designed or assembled. His attempts to revoke the purchase contract and obtain reimbursement of the money he paid for the vehicle, or in the alternative to obtain a replacement vehicle, were refused by the defendants. Levy claimed this refusal constituted a breach of the express warranty, and that he was consequently damaged in the sum of $17,448.00. He named as defendants both of the present respondents, as well as Tokai Credit Corporation (Tokai), who financed his purchase.

In December 1989, following a two day arbitration hearing, an award was entered in favor of respondents; Levy requested a trial de novo in the superior court.

Prior to trial, Levy and Tokai entered into a settlement agreement providing, inter alia, that each was to bear its own costs and fees.

Trial of the action against the remaining defendants, respondents herein, commenced before a jury on March 7, 1990. On March 16, 1990, judgment was entered awarding Levy $17,619.52 in actual damages, plus a $5,000 civil penalty for willful failure to comply with the obligations of the Song-Beverly Act (Civ.Code, § 1794, subd. (c), for a total award of $22,619.52.

In his memorandum of costs, Levy sought $114.00 for filing and motion fees, $991.14 in jury fees, $975.40 in deposition costs, $75.00 for service of process, $282.00 for models, blow-ups and photocopies of exhibits, $2,106.41 for "other" costs, and $137,459.00 as attorneys' fees.

Respondents filed a motion to tax costs, requesting the trial court to strike or substantially reduce several items. They requested reduction of (1) the claimed $75.00 for service of process to $50.00, on the ground that $25.00 was incurred in prosecuting the action against Tokai, who was dismissed as a defendant; (2) the $137,459.00 claimed for attorneys' fees to not more than $25,000.00, on the grounds that the fees were unconscionable, unreasonably incurred, based on unrealistic billing rates, and inflated by improper application of the "private attorney general" theory; (3) the $282.00 claimed as costs for models, blow-ups, and photocopies of exhibits, and (4) $2,106.41 claimed as "other" expenses, on the ground these items appeared to reflect certain costs that are not provided for under Code of Civil Procedure section 1033.5. Respondents urged that only $122.16 should be awarded with respect to these items.

At the hearing on the motion to tax costs, the trial court reduced Levy's claim of attorneys' fees to $30,000, his costs for service of process to $50, and the other disputed costs to $1,000, allowing him costs in the total amount of $33,412.54. ¹

CONTENTIONS

Levy contends the court erred in (1) disallowing the costs of service of the summons and complaint on Tokai; (2) failing to determine the actual time expended, and the appropriate hourly rate to be applied, to the various personnel rendering legal services to Levy, and comparing the fee request with the award of damages in the underlying case; (3) reducing the amount awarded for "other" costs; and (4) denying an additional award of attorney fees incurred in opposing the motion to tax costs.

DISCUSSION

In his brief on appeal, Levy relies on the costs provisions of both the Song-Beverly Act and the Magnuson-Moss Act. While the Acts contain similar provisions for recovery of costs and expenses, in our case the jury found only that respondents "wilfully failed to comply with the obligations of the Song-Beverly Act or the terms of any express warranty."

The Song-Beverly Act provides, in Civil Code section 1794, subdivision (d): "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." (Emphasis added.)

It is true, as Levy contends, that the language of the Act is mandatory, providing the buyer "shall" recover costs, including attorney's fees. However, the statute requires payment only of those costs and fees "determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution" of the underlying action. ² We therefore review the trial court's order taxing costs under the abuse of discretion standard. (E.g., Posey v. State of California (1986) 180 Cal.App.3d 836, 852, 225 Cal.Rptr. 830.)

Service of Summons and Complaint on Tokai

Levy complains of the trial court's deduction of $25.00, attributable to service of the summons and complaint on Tokai, from the costs he claimed for service of process. The record indicates only that Tokai was dismissed from the action prior to trial pursuant to a settlement agreement with Levy providing that each of the parties thereto was to bear his own costs. "[O]ne unsuccessful defendant has been held not liable for costs incurred by a second defendant who was successful against the plaintiff, where the unsuccessful defendant neither brought the successful one into the case, nor was responsible for the plaintiff having named the successful defendant as a party. [Citations.]" (Transamerica Title Ins. Co. v. Green (1970) 11 Cal.App.3d 693, 704, 89 Cal.Rptr. 915.) Although our case involves settlement of the action against Tokai, under the foregoing standard respondents are responsible only for those costs reasonably incurred by Levy in connection with the commencement and prosecution of the underlying action against them.

Attorney's Fees

With respect to the award of attorney's fees, Levy relies on Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, in urging that the trial court was obligated to determine a "touchstone" or "lodestar" figure based on a compilation of the time spent and reasonable hourly compensation for each attorney and paralegal involved in the presentation of the case, and then increase or reduce that figure by application of a "multiplier" after taking into consideration other factors concerning the lawsuit. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321-324, 193 Cal.Rptr. 900, 667 P.2d 704.) Serrano had to do with the procedure to be followed in awarding attorney's fees under the private attorney general doctrine. (Code Civ.Proc., § 1021.5.) ³ To obtain an award of fees under the doctrine, "one must be a successful party in an action resulting in the enforcement of an important right affecting the public interest." (Crawford v. Board of Education (1988) 200 Cal.App.3d 1397, 1405, 246 Cal.Rptr. 806.) The doctrine "was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest." (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114, 212 Cal.Rptr. 485.)

While the Song-Beverly Act is obviously designed to protect the public interest, it does not follow that every action brought thereunder will meet the standard set forth in Code of Civil Procedure section 1021.5. We find nothing in the present record to indicate that Levy is entitled to an award of attorney fees pursuant to the private attorney general doctrine.

Levy contends the "touchstone" or "lodestar" method must be applied to all attorney fee awards regardless of the statute or theory upon which the award is based. For example, in Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 216 Cal.Rptr. 831, the court considered the propriety of an award of fees in an inverse condemnation case. Code of Civil Procedure section 1036 provides for an award in such a case of "such sum as will, in the opinion of the court ... reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding." Citing Serrano v. Priest, supra, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, the court stated: "The reasonableness of attorney fees is generally determined by consideration of, among other things, the number of hours spent on the case, reasonable hourly compensation for the attorney, the novelty and difficulty of the questions involved, the skill...