Judge: Alison Mackenzie, Case: 24STCV09983, Date: 2025-06-05 Tentative Ruling
Case Number: 24STCV09983 Hearing Date: June 5, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Plaintiff's Motion
for Attorney Fees
Plaintiff's Motion for Attorney Fees is granted in the
reduced amount of $26,295.00. The Court
awards costs in the reduced amount of $1,693.26.
BACKGROUND
Plaintiff Hedieh Aminian
(Plaintiff) filed this lemon law action against Volkswagen
Group of America, Inc. (Defendant).
Plaintiff filed a Motion for Attorney Fees. Defendant filed an
Opposition.
LEGAL STANDARD
A prevailing party is entitled to recover costs as a matter
of right. Code Civ. Proc., § 1032, subds. (a)(4), (b). Attorney’s fees are also
recoverable as costs when authorized by contract, statute, or law. Code Civ.
Proc., § 1033.5, subd. (a)(10). The moving party bears the burden of
establishing entitlement to attorney fees. Christian Research Institute v.
Alnor (2008) 165 Cal.App.4th 1315, 1320. Civil Code section 1794(d)
provides that a buyer who prevails in an action under that section, “shall be
allowed by the court to recover as a 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 the prosecution of such
action.”
Courts begin this inquiry “with the ‘lodestar,’ i.e., the
number of hours reasonably expended multiplied by the reasonable hourly rate.” PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar
figure may then be adjusted [according to a multiplier enhancement] based on
consideration of factors specific to the case, in order to fix the fee at the
fair market value for the legal services provided.” Ibid. Relevant
multiplier factors include “(1) the novelty and difficulty of the questions
involved, (2) the skill displayed in presenting them, (3) the extent to which
the nature of the litigation precluded other employment by the attorneys, [and]
(4) the contingent nature of the fee award.” Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132.
The Court has broad discretion to determine the amount of a
reasonable attorney’s fee award, which will not be overturned absent a “manifest
abuse of discretion, a prejudicial error of law, or necessary findings not
supported by substantial evidence.” Bernardi v. County of Monterey
(2008) 167 Cal.App.4th 1379, 1393-1394.
ANALYSIS
Plaintiff requests Lodestar Fees of $31,877.50, costs of
$1,828.26, and a multiplier of $3,187.75 for total attorney’s fees and costs of
$36,884.51.
I. Unnecessary Litigation
Defendant argues that Plaintiff
engaged in unnecessary litigation, which improperly increased the number of
hours billed.
The record does not support this
assertion.
Plaintiff, through her counsel, made a formal written
statutory repurchase demand dated March 20, 2024. On April 22, 2024, Defendant
informed Plaintiff’s counsel that it had received the March 20, 2024,
repurchase request and was evaluating it. Sivasangary Decl. ¶ 3. Defendant requested
Plaintiff’s counsel send “necessary documents” to ensure Defendant has all
necessary information. Ibid.
Defendant objects to Kohen scheduling a consultation with
Plaintiff’s expert on April 22, while waiting to hear back from Defendant. This
objection is without merit. Plaintiff was not required to refrain from working
on the litigation while Defendant evaluated its desire to settle.
On May 13, 2024, Defendant offered to pay the outstanding
loan and repurchase the subject vehicle for $20,193.79, plus an additional $3,500
to cover attorney fees and costs “as a gesture of goodwill.” Reply, Kohen Decl.
Ex. 9. In contrast, the final Settlement Agreement provides for Defendant to
pay off the loan of the subject vehicle and pay Plaintiff $24,518.94, plus
reasonable attorney fees and costs. Kohen Decl. Ex. 3.
In emails exchanged on September 23, 2024, Plaintiff’s
counsel indicated that the repurchase offer “was rejected … because it is not
compliant with the mandate of the Song-Beverly Consumer Warranty Act, which
requires the manufacturer to pay the consumer’s reasonably incurred fees and
costs.” He further stated that, “if your client makes a code compliant
repurchase offer, then I would recommend that my client
accepts it.” Sivasangary Decl. ¶ 4.
On November 11, 2024, Defendant
reiterated its standing offers to repurchase the vehicle. Plaintiff’s counsel,
Kohen, responded that same day, indicating he was authorized to settle for a
repurchase. Sivasangary Decl. ¶ 17. Defendant’s counsel called Kohen and
informed him that he could send a breakdown of the repurchase offer once he
received the financial documents he needed to calculate the repurchase, as
Defendant had never received the document production. Sivasangary Decl. ¶ 18.
Kohen did not provide the requested
documents, but on December 9, 2024, reached out to Defendant’s counsel, stating
he never received the breakdown of the Defendant’s repurchase offer. Sivasangary
Decl. ¶ 19. Defendant’s counsel called Kohen, again informing him that he never
received the financial documents. Sivasangary Decl. ¶ 20. On December 19, Kohen
provided some of the relevant documents for repurchase calculation. Sivasangary
Decl. ¶ 22. Defendant’s counsel.
Defendant does not argue that the May 13, 2024,
repurchase offer was a Code of Civil Procedure section 998 offer of settlement,
and does not dispute that the final settlement agreement was more favorable to
Plaintiff. Instead, it argues that after the parties indicated their mutual
willingness to settle the case in November 2024, Plaintiff’s counsel delayed production
of the documents necessary for the finalization of a settlement agreement.
Defendant offers no authority for the
proposition that work done during settlement negotiations, in the event such
negotiations fell through, is not reasonably incurred. While the delay in receiving
documents may have delayed the settlement date, it is unclear what costs would
have been avoided had the Plaintiff produced those records sooner.
II. Excessive Billing
Defendant argues that Plaintiff’s counsel engaged in
excessive billing.
A. Pre-Litigation work
Kohen bills 8.8 hours for tasks done prior to filing the
complaint.
A party may recover statutory attorney’s fees for work done
before the complaint. See Hogar Dulce Hogar v. Community Development
Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1370 (noting “pre-complaint
attorney fees have been permitted”). However, because “in most cases the
connection between such pre-complaint litigation activity and the outcome of
the litigation will not be as strong as the connection between the result and
post-complaint activity… a successful litigant … will, as a practical matter,
bear a heavier burden of demonstrating how that activity contributed to the
success of the litigation.” Ibid.
Defendant objects to 1 hour of Kohen's time billed on March
3, 2024, on the basis that it constitutes block billing.
“Block billing occurs when ‘a block of time [is assigned] to
multiple tasks rather than itemizing the time spent on each task.’” Mountjoy
v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279 (quoting Heritage
Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010).
“Blockbilling, while not objectionable per se in our view, exacerbates [s] the
vagueness of counsel's fee request…” Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1325.
Here, the billing entry description states Kohen spent the
hour to “Review and analyze Retail Installment Sale Contract (‘RISC’), ROs,
photos, and videos; draft retainer agreement and review with client for
signing, and open up case file.” Kohen Decl., ¶ 36, Ex. 1.
The Court agrees that this entry constitutes block billing. Some
of this work, such as drafting the retainer agreement and opening the case
file, is clerical and not properly billed at the attorney’s rate. Because the
Court cannot properly evaluate the time spent on each task, it reduces the time
billed for this entry by 0.5 hours.
Defendant objects to 4.9 hours spent on the National Highway
Safety Transportation Administration’s database researching, reviewing, and
analyzing technical service bulletins, engineering and safety investigations,
customer complaints, and safety recalls. Defendant similarly objects to 0.5
hours spent consulting with a mechanical expert. It argues that because
Plaintiff was not required to prove the cause of the defect in the vehicle, this
research was unnecessary and excessive. The Court disagrees that the research
was unnecessary, as it speaks not only to the cause of the defect but also to the
presence of the defect.
Defendant objects to the .08 hours spent drafting the demand
letter, arguing that it was largely boilerplate. Kohen’s time records reflect
that the demand letter included the following sections “I. Notice of Violation
of Statutes; II. Repair Records Summary (w/ comprehensive summarized repair
record history, TSB and recalls relevant to the subject Vehicle); III.
Plaintiff’s Rights Under the Song- Beverly Warranty Act; IV. Preservation of
Evidence Warning; and, V. Demand for Repurchase and Refund….” Only the repair
records summary requires case-specific facts. Based on the amount of time
already billed for researching, the Court finds that the demand letter should
have taken no longer than 0.5 hours and reduces the requested hours
accordingly.
B. Litigation/Settlement Work
Defendant objects to Plaintiff's counsel’s duplicative
billing.
The Court agrees that the 0.2 hours Kohen billed on September
4, 2024, for reviewing and analyzing an email, are duplicative because he had
previously reviewed and analyzed the same email on April 22, 2024.
Defendant objects to 0.2 hours Kohen billed for “Email
communication thread with OC re extension for discovery responses” because it
was Imber, not Kohen, who wrote those emails Plaintiff’s counsel concedes that
the timesheet mistakenly attributed 0.2 hours to Kohen that should have been
attributed to Imber. Reply at p. 6:6-7. The Court adjusts the reported billable
hours accordingly.
Defendant argues that Plaintiff’s counsel billed for
unsubstantiated work. This includes 0.2 hours of Kohen's time billed for
reviewing and emailing signed verifications to opposing counsel, when no such
verifications were actually emailed. Sivasangary Decl. ¶¶ 14, 15. Similarly,
Imber billed for 1.3 hours spent drafting responses to Defendant’s requests for
production and preparing production of documents, but failed to email them to
Defendant. Sivasangary Decl. ¶¶ 14, 15, Ex. E. Therefore, the Court declines to
award attorney fees for these activities.
Finally, Defendant objects to several time entries that it
categorizes as “purely administrative or clerical in nature.” Opp. at pp. 14:
22-15:7. However, Defendant appears to have mistakenly reviewed billable hours
from another case, as the disputed entries do not match either the descriptions
or dates listed in the timesheet attached to the motion. Opp. at pp. 14:
22-15:7; Kohen Decl. Ex. 3.
C. Fee Motion
Defendant objects to the amount of time billed for working
on the fee motion.
Kohen bills 5 hours for drafting the fee motion and
timesheet, and 3 hours for reviewing and revising the motion, as well as
drafting declarations in support of the motion. Plaintiff also anticipates
spending 3 hours preparing the Reply, and 1 hour to appear at the hearing. This
totals 12 hours of work related to the fee motion. Kohen Decl. ¶ 40. This is
excessive. For an attorney of Plaintiff’s experience, drafting the motion and
reply and attending the hearing should take no more than 5 hours.
Because, as explained below, Plaintiff did not need to
prepare a memorandum of costs, the Court deducts the 1 hour Kohen billed in
anticipation of drafting the memorandum of costs.
After the Court’s adjustments, Kohen’s billable hours total
41.4 and Imber’s total 9.4.
III. Hourly Rate
Defendant objects to Plaintiff’s counsel’s requested hourly
rates.
Plaintiff’s counsel bills Isaac Kohen at $550.00 per hour
and Tamara R. Imber at $375 per hour. Kohen has been practicing law since 2012
and has focused his practice primarily on California Consumers Legal Remedies
Act (CLRA) and lemon law litigation. Kohen Decl. ¶ 16. Tamara Imber has been
practicing law since 2021 and similarly focuses on CLRA and lemon law cases. Id.
at p. 19.
The requested hourly
rates are commensurate with counsel’s experience and typical of the rates Court
has granted in similar lemon law cases. Accordingly, the Court awards attorney’s
fees in the reduced amount of $26,295.00.
IV. Lodestar Multiplier
Plaintiff requests a lodestar multiplier of 1.1.
This case is not unusually complex and is typical of the
cases that Plaintiff’s counsel handles. Moreover, the contingent nature of the
work is already reflected in the hourly rate. Therefore, the Court declines to
award a multiplier.
V. Costs
Plaintiff seeks costs and expenses totaling $1,828.26.
Under Code of Civil Procedure section 1033.5, subdivision
(c)(1), certain items are allowable costs, including filing and motion fees,
service of process fees, and deposition costs. Costs must be both reasonable in
amount and reasonably necessary to the conduct of the litigation. Code Civ. Proc.,
§ 1032; § 1033.5(c)(2) and (3).)
Civil Code § 1794(d) of the Song-Beverly Act authorizes a
prevailing buyer to recover “costs and expenses … determined by the court to
have been reasonably incurred by the buyer in connection with the commencement
and prosecution of such action.” The additional term “expenses” was included in
CCP § 1794(d) to cover items that would not otherwise be included in the
detailed statutory definition of “costs” under CCP § 1033.5. Jensen v. BMW
of North America (1995) 35 Cal.App.4th 112, 137-138 (disapproved in part on
other grounds in Rodriguez v. FCA US LLC, 17 Cal. 5th 189, 326). In Jensen,
the court reversed the trial court’s denial of an award of expert witness fees under
CCP § 1794(d) (which, unless ordered by the court, are not permitted under CCP
§ 1033.5), finding that the legislative intent with the addition of an award of
“costs and expenses” to the statute, is to permit the recovery of expert
witness fees by prevailing buyers under the Song-Beverly Act. Ibid.
However, the term “expenses” is not so broadly construed to allow automatic
recovery of all expenditures upon the filing of a memorandum of costs. Rather,
the prevailing buyer continues to bear the burden of showing that costs or
expenses were (1) reasonably necessary to the conduct of litigation and (2)
reasonable in amount. Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4
Cal.App.4th 807, 816; see also Civil Code § 1794, subd. (d).
A. Alternative Procedure
Here, Defendant argues that
Plaintiff was required to file a separate memorandum of costs, and Plaintiff
argues that Defendant is required to file a separate motion to tax cost, rather
than state objection in the Opposition. Opp. at p. 17:12-17; Mot. at p. 11.
“There is no statute requiring the
filing of a motion to tax costs. Section 1034, subdivision (a) provides that
‘costs allowable under this chapter shall be claimed and contested in
accordance’ with the California Rules of Court.” Gorman v. Tassajara
Development Corp., 178 Cal. App. 4th 44, 69 (Gorman). Generally, to obtain a costs
award, the prevailing party must serve and file a memorandum of costs, and a
party contesting costs must file a motion to strike or tax costs. Cal. Rules of
Court, rule 3.1700(a), (b). However, “[Code of Civil Procedure s]ection 1032,
subdivision (c) states in part: ‘Nothing in this section shall prohibit parties
from stipulating to alternative procedures for awarding costs … .’” Id.
at p. 70. In Gorman, “the parties ‘agreed to forego the usual procedure
for determining costs, and agreed to resolve the issue by way of a motion filed
by’ plaintiffs.” Ibid. The plaintiff filed a single motion requesting
attorney fees and costs. Id. at p. 53. Because “the parties had
stipulated to an alternative procedure for awarding costs, dispensing with the
usual formalities of a complete cost memo and a motion to tax costs …the trial
court was justified in considering the merits of [defendant]’s objections to
plaintiffs’ cost claims.” Id. at p. 70.
Here, section A paragraph 3 of the Settlement Agreement
provides, “If the parties are unable to agree on attorney fees and costs to be
paid in this action within 30 days after Plaintiff surrender [sic] the
Subject Vehicle, VWGoA will pay Plaintiff's attorney fees and litigation costs
in an amount determined by the Court, on Plaintiff's noticed motion, to have
been reasonably incurred by Plaintiff in connection with the commencement and
prosecution of the Subject Lawsuit.” Kohen Decl. Ex. 3.
Similarly, section H of the Settlement Agreement, states,
“if the parties are unable to agree on attorney fees and costs to be paid in
this action within 30 days after Plaintiff signs this agreement, VWGoA will pay
Plaintiff attorney fees and litigation costs in an amount determined by the
Court, on Plaintiff noticed motion, with Plaintiff designated as the prevailing
party for the purpose of the motion, to have been reasonably incurred by
Plaintiff in connection with the commencement and prosecution of the Subject
Lawsuit to its conclusion.” Kohen Decl. Ex. 3.
Based on the plain language of the Settlement Agreement, the
parties intended the court to determine the amount of attorney’s fees and
litigation costs “on Plaintiff’s noticed motion.” Kohen Decl. Ex. 3; see Khavarian
Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 320 (“[I]n
negotiating a settlement, parties to litigation are free to agree to the
standards and procedures to which they wish to adhere regarding recovery of
attorney fees and costs.”)Therefore, Plaintiff was not required to file a
separate memorandum of costs, and Defendant was not required to file a motion
to tax costs. See Gorman, supra,178 Cal. App. 4th at p.
70.
B. Reasonable Costs
Defendant argues Plaintiff failed to show evidence that the
costs were actually incurred.
“If items on their face appear to be proper charges, the
verified memorandum of costs is prima facie evidence of their propriety, and
the burden is on the party seeking to tax costs to show they were not
reasonable or necessary. ‘On the other hand, if items are properly objected to,
they are put in issue and the burden of proof is on the party claiming them as
costs.’ However, whether a cost item was reasonably necessary is still a
question of fact to be decided by the trial court.” Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1266 (Jones) (quoting Ladas v. California
State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. Supporting documentation,
such as bills or invoices, is not required, unless costs are put in issue. Id.
at p. 1267. “The burden of proof that [an expense] was unnecessary or that
the costs … were unreasonable is on the party seeking to have that item taxed
or reduced.” County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113. “‘[M]ere
statements in the points and authorities accompanying its notice of motion to
strike cost bill and the declaration of its counsel are insufficient to rebut
the prima facie showing [that the costs were necessarily incurred].’” Jones,
supra, 63 Cal.App.4th at p. 1266.
Here, Plaintiff provides the declaration of his attorney,
Isaac Kohen, who testifies “Plaintiff reasonably incurred court costs and
litigation expenses total approximately $1,828.26 including estimated future costs
and expenses.” Kohen Decl. ¶ 41. Attached to his declaration, Kohen provides a
list of the litigation costs and expenses incurred in prosecuting this case.
Kohen Decl. ¶ 12, Ex. 2. While the parties agreed to forgo the necessity of a
memorandum of costs, in favor of a noticed motion, the Court sees no reason why
this should change Plaintiff’s evidentiary burden. Therefore, like a verified
memorandum of costs, Kohen’s declaration and attached exhibit are prima facie
evidence of Plaintiff’s reasonably incurred litigation costs and expenses. See
Jones, supra, 63 Cal.App.4th at p. 1266.
Defendant objects to the lack of supporting evidence showing
why the claimed costs were required and whether the costs were actually
incurred and paid. Opp. at p. 18: 3-6. However, Defendant provides no evidence
rebutting the necessity of Plainiff’s expenses or showing that they were not
actually incurred. Because conclusory allegations are not enough to rebut
Plaintiff’s prima facie evidence of costs, Defendant fails to put the costs at
issue, and Plaintiff is not required to produce invoices or receipts.
Except for $135 spent on “Messenger Services (Delivery of
Courtesy Copy of Fee Motion and Reply to Court),” the Court finds each of the submitted
costs was reasonably incurred. Kohen Decl., Ex. 2. The posted Courtroom
Information for Department 55 states, “[t]he Court does not need courtesy
copies of filings unless it makes a specific request.” Because the Court did
not request any courtesy copies, the cost of delivering them to the Court was
not reasonably incurred. Accordingly, the Court awards costs in the reduced
amount of $1,693.26.
CONCLUSION
Plaintiff's Motion for Attorney Fees is granted in the
reduced amount of $26,295.00. The Court
awards costs in the reduced amount of $1,693.26.