Judge: Andrew E. Cooper, Case: 22CHCV00559, Date: 2024-04-23 Tentative Ruling

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Case Number: 22CHCV00559    Hearing Date: April 23, 2024    Dept: F51

MOTION FOR ATTORNEY FEES

Motion Filed: 2/20/24

MOVING PARTY: Plaintiff Oswaldo Barrera Rivera (“Plaintiff”)

RESPONDING PARTY: Defendants Second Motor Group of Valencia, LLC; Mercedes-Benz USA, LLC; and Mercedes-Benz Financial Services USA, LLC (collectively, “Defendants”) 

NOTICE: OK

RELIEF REQUESTED: An order awarding Plaintiff attorney fees and costs in the amount of $20,074.29.

TENTATIVE RULING: The motion is granted. Plaintiff is awarded $20,074.29 in attorney fees and costs.

BACKGROUND

Plaintiff brings this action under the Song-Beverly Consumer Warranty Act (Civil Code § 1790 et seq.) for a vehicle he purchased from defendant Second Motor Group of Valencia, LLC on or around 4/2/22, financed by defendant Mercedes-Benz Financial Services USA, LLC, and for which defendant Mercedes-Benz USA, LLC issued the manufacturer’s express warranty. (Compl. ¶¶ 1, 6.)

On 7/26/22, Plaintiff filed his complaint, alleging against Defendants a sole cause of action for Violation of the Song-Beverly Consumer Warranty Act. On 8/25/22, Defendants filed their answers.

On 8/10/23, the parties executed a settlement offer pursuant to Code of Civil Procedure section 998, settling entire lawsuit by Defendants paying Plaintiff $62,321.35, plus attorney fees, costs, and expenses under Civil Code section 1974, subdivision (d), either by agreement or by noticed motion. (Ex. B to Decl. Of Robert B. Mobasseri.) On 4/4/24, Plaintiff filed a Notice of Conditional Settlement of the entire case. 

On 2/20/24, Plaintiff filed the instant motion. On 4/10/24, Defendant filed its opposition. On 2/13/24, Plaintiffs filed their reply.

ANALYSIS

A.    Right to Recovery

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, the Song-Beverly Act authorizes a buyer “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.” (Civ. Code § 1794, subd. (d).)

Additionally, here, the parties stipulated that “attorney fees, costs and expenses as allowed by California Civil Code Section 1794(d) will either be agreed upon or by motion. For the purposes of attorney’s fees, costs and expenses as outlined in Section 1794(d) Defendant agrees that Plaintiff is the prevailing party.” (Ex. B to Mobasseri Decl., 1:28–2:3.) Accordingly, the Court finds that Plaintiff is entitled to recover reasonable attorney fees, costs, and expenses as authorized by both statute and contract.

B.     Attorney Fees Incurred

A buyer prevailing under the Song-Beverly Act may recover “reasonable” attorney fees and costs as determined by the Court. (Civ. Code § 1794, subd. (d).) “The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.¿(Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095–1096.)

Here, Plaintiff seeks to recover $17,627.00 in attorney fees, encompassing 42.8 hours of his attorneys’ time, billed at the following rates:

(Ex. A to Mobasseri Decl., p. 3.)

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1.      Counsel’s Hourly Rate

When determining a reasonable hourly rate, courts consider whether the stated rates “are within the range of reasonable rates charged by and judicially awarded [to] comparable attorneys for comparable work.” (Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 783.) Lawyers who work on a contingency fee basis may seek heightened attorney fees because of the inherent contingent risk associated with their cases. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [“a contingent fee contract, since it involves a gamble on the result, may properly provide for a larger compensation than would otherwise be reasonable.”].)

Here, Plaintiff asserts that counsel’s hourly rates are commensurate with The United States Consumer Law Practice & Attorney Fee Survey Report 2023, California Metro Edition, and attorney rates in similar cases in various Southern California districts, which Plaintiff attaches as exhibits to the instant motion. (Exs. C–D to Mobasseri Decl.)

In opposition, Defendants argue that Plaintiffs’ counsel’s hourly rates are unreasonably high, and that such “types of rates claimed by Plaintiff in Song-Beverly actions have recently been reduced by courts, because they do not reflect the reasonable rates for attorneys in the field.” (Def.’s Opp. 2:22–23, citing Exs. A–C to Decl. of Phil J. Montoya.) However, the Court notes that the relevant cases proffered by both parties are “not certified for publication or ordered published,” and therefore “must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Ct., rule 8.1115(a).)

Based on the foregoing, the Court finds that Plaintiff has sufficiently shown that his attorneys’ and paralegals’ hourly billing rates are commensurate with their experience and fall within the range of reasonable rates charged by similar attorneys and judicially awarded in similar cases.

2.      Hours Expended

Plaintiff seeks to recover attorney fees for the 42.8 hours expended by his attorneys on this matter and proffer an itemized list of time entries detailing his attorneys’ work on the matter. (Ex. A to Mobasseri Decl.)

In addition to the attorney hourly billing rate, Defendants challenge the following specific entries in Plaintiffs’ attorneys’ proffered time log: (1) block-billed entries; and (2) time entries Defendants find excessive and unreasonable. (Def.’s Opp. 3:9–4:20.)

a.                  Block-billed Entries

Defendants argue that Plaintiff’s counsel’s following time entries were impermissibly block-billed, thereby rendering them “vague and ambiguous as it is unclear how long each task took and what was billed:” (Id. at 3:11–12.)

·         7/18/22: “Review client's file; conference with client; research vehicle-model defects on Alldata and NHTSA; draft Complaint.” (5.60 hours)

·         10/25/22: “Review defendants' responses to initial written discovery; notes to file for meet-and-confer letter.” (1.80 hours)

·         8/10/23: “Telephone call with client, Receipt and Review propose settlement agreement, draft edits.” (1.00 hours)

Plaintiff argues in opposition that “‘block-billing’ is not merely combining related tasks within one entry. It is doing so in a manner which leaves the court unable to reasonably determine the time spent on particular items and the relevance of the tasks performed. (Pl.’s Opp. 2:3–5, citing Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 487.) Plaintiff further argues that here, the Court is able to determine what tasks were performed for the time entries at issue. The Court agrees.

Based on the foregoing, the Court finds no basis to conclude that Plaintiff’s counsel’s time entries for 7/18/22, 10/25/22, and 8/10/23 are impermissibly block-billed. Therefore, the Court declines to grant Defendants’ request to reduce the fee demand for these tasks.

b.                  Remaining Time Entries

Defendants further argue that the fees for the aforementioned time entries, as well as the following time entries, should be reduced because “the time it took this experienced attorney to complete this task is excessive and unreasonable:” (Def.’s Opp. 3:23–24.)

·         11/4/22: “Review file and determine witnesses to depose.” (0.60 hours.)

·         4/10/23: “Finalize motion to compel depositions of defense witnesses.” (0.80 hours)

·         5/5/23: “Prepare for and take two dealer-employee depositions of Derek Google (Service Advisor) and Derek Beltran (Technician #4210); conference with client after depositions.” (4.20 hours)

·         10/17/23, 10/19/23, 11/2/23, 12/8/23: “Follow up e-mail to opposing counsel regarding settlement.” (0.30 hours each)

·         11/7/23: “Receipt and Review correspondence from opposing counsel regarding settlement and surrender.” (0.30 hours)

·         11/9/23: “Draft Motion to Enforce CCP 998 settlement, including file review, exhibits, draft notice and memorandum of points and authorities; declaration of counsel.” (4.20 hours)

·         2/15/24: “Draft motion for attorney's fees and costs after settlement.” (2.80 hours)

·         2/19/24: “Review and final edits to fee motion.” (0.80 hours)

The Court notes that Defendants do not provide further explanation or argument as to how or why the time incurred by Plaintiff’s counsel for these items is excessive and/or unreasonable. In opposition, Plaintiff maintains that the time billed was reasonable based on the circumstances of the case. (Pl.’s Reply 2:12–3:24.)

Based on the foregoing, the Court finds no basis to conclude that the subject time entries are unreasonable or excessive. Therefore, the Court declines to grant Defendants’ request to reduce the fee demand for these tasks.

C.    Costs

Plaintiff asserts that he incurred costs and expenses totaling $2,447.29, which encompass: (1) $649.67 in filing fees; (2) $140.00 in process server fees; (3) $167.62 in jury deposit fees; and (4) $1,490.00 in deposition costs. (Ex. A to Mobasseri Decl., p. 3.) The Court notes that Defendants do not object to any of the costs claimed. Accordingly, the Court grants Plaintiff’s motion to recover $2,447.29 in costs and expenses.

CONCLUSION

The motion is granted. Plaintiff is awarded $20,074.29.in attorney fees and costs.