In this Song-Beverly Act case, the plaintiff car buyer recovered $17,000 in damages.  His lawyers sought a $351,000 lodestar of attorney fees.  The trial court awarded only a third of the lodestar.  This decision reverses the award.  When a trial court applies a substantial negative multiplier to a presumptively accurate lodestar attorney fee amount, the court must clearly explain its case-specific reasons for the percentage reduction.  The trial court abuses its discretion if the reasons for the reduction include tying the fee award to some proportion of the buyer’s damages.  Limiting fees to a proportion of damages would make it difficult for consumers to find attorneys willing to take their cases, thwarting the purpose of consumer protection statutes like the Song-Beverly Act.  Although the trial court also stated other, proper reasons for the negative multiplier, it did not specify how much it reduced fees for the improper reason of proportionality to damages, so the fee award had to be reversed and remanded for recalculation. Under the Song-Beverly Act, a prevailing consumer can recover costs “and expenses.”  (Civ. Code 1794(d).)  “Expenses” allows recovery of costs that are not listed in CCP 1033.5.  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.)  So, in this case, the prevailing consumer could recover the cost of daily trial transcripts for the eight-day trial since obtaining them was reasonably necessary to defend the jury verdict against post-trial motions.  However, the trial court properly denied the consumer prejudgment interest since the amount he recovered was not certain or capable of being made certain at any point before the jury verdict since the jury had to decide a number of issues about the nature and severity of the car’s defects as well as when the consumer had first notified the manufacturer of them.  (See Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 729.)  And the manufacturer could not have calculated the consumer’s $2,500 in incidental and consequential damages before the jury verdict.  And the trial court did not abuse its discretion in denying a discretionary award of prejudgment interest under Civ. Code 3287(b).

California Court of Appeal, Fourth District, Division 2 (Fields, J.); December 12, 2018; 30 Cal. App. 5th 24