Judge Andrew E. Cooper, Case Number: 22CHCV01007, Date: 2023-11-03 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Los Angeles Superior Court Case # 22CHCV01007

RESPONDING PARTY: Defendants Mercedes-Benz USA, LLC, and Mercedes-Benz of Valencia (collectively, “Defendants”)

RELIEF REQUESTED: A judgment in favor of Plaintiff and against Defendants, and an order granting Plaintiff his attorney fees and costs in the amount of $23,846.23.

TENTATIVE RULING: The motion is granted in part. Plaintiff is awarded $15,666.23 in attorney fees and costs. The request for a “judgment” is denied. The parties or party may file a separate request for a judgment, or the parties may file a stipulated judgment consistent with the Court’s ruling.

Plaintiff is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.¿When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

On 4/26/23, the parties entered into a settlement agreement. (Decl. of Michael Saeedian ¶ 19.) On 8/11/23, Plaintiff filed the instant motion. On 10/25/23, Defendants filed their opposition. On 10/27/23, Plaintiff filed his reply.

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).)

Moreover, Plaintiff bases his instant motion on the settlement agreement wherein Defendants agreed to pay “‘attorney’s fees and costs reasonably incurred by Plaintiff’ by way of Plaintiff’s ‘single noticed motion, unless the parties agree on the amount of fees, costs, and expenses to be paid absent such a motion.’” (Saeedian Decl. ¶ 18.) The Court notes that Plaintiff has not attached a copy of the agreement to his moving papers for the Court’s corroboration. Nevertheless, the Court finds that the Song-Beverly Act affords Plaintiff the right to recover reasonable attorney fees.

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 $22,890.00 in attorney fees, encompassing 44.6 hours of his attorneys’ time, billed at the following rates:

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.)

In his moving papers, Plaintiff asserts that “the rates charged by The Lemon Pros, LLP are commensurate with the experience and skill of the attorneys involved and the general rates of attorneys in Los Angeles California that handle consumer protection lawsuits on a contingency basis.” (Pl.’s Mot. 9:1–3.) Counsel declares that these rates are commensurate with the Laffey Matrix, an attorney fee billing matrix for attorneys in the Washington, D.C. metro area, which California courts have applied to attorney fee awards in the Los Angeles area. (Saeedian Decl. ¶ 12, citing Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057, fn. 5; Tukes v. Richard (2022) 81 Cal.App.5th 1; 569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 248 Cal.App.4th 125; Gutierrez v. Chopard U.S. Ltd. (2022) 82 Cal.App.5th 383; Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691; Nemecek v. Horn (2012) 208 Cal.App.4th 641.)

In opposition, Defendants present several cases where the court elected to reduce hourly billing rates of plaintiff’s counsel in similar cases. (Defs.’ Opp. 9:22–10:21.) Defendants assert that Plaintiff’s attorneys’ hourly rates should be reduced to a blended rate of $350.00 per hour, because “no evidence is presented that these attorneys actually bill any clients at those rates (because they do not).” (Id. at 11:6–8.) Defendants further argue that “Plaintiff’s Counsel claims rates that are almost triple actual market rates for the same kind of work,” as “defense firms typically charge approximately $250/hour in warranty defense litigation.” (Id. at 11:8–10.)

In reply, Plaintiff argues that lawyers who work on a contingency fee basis may seek heightened attorney fees because of the inherent contingent risk associated with their cases. (Pl.’s Reply 8:27–9:2, citing 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.”) Additionally, Plaintiff argues that “the fact that MBUSA’s attorneys are willing to work for rates comparable to what many firms charge for their paralegals is of no import in determining the actual or reasonable ‘market’ rate for attorneys.” (Id. at 7:15–17, citing Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473–474 “although BMW North America and BMW San Diego presented evidence they paid their counsel much lower hourly rates, the trial court was not obliged to accept this evidence as conclusive of the appropriate hourly rate for the work performed by Goglin's counsel.”)

The Court finds that Plaintiff’s attorney’s hourly rates exceed the range of reasonable rates charged by attorneys in these types of cases and judicially awarded in similar cases. The Court reduces the hourly rates as follows:

Plaintiff seeks to recover attorney fees for the 44.6 hours expended by his attorneys on this matter, totaling $22,890.00. Plaintiff proffers an itemized list of time entries detailing his attorneys’ work on this matter. (Ex. A to Saeedian Decl.)

In addition to the attorney hourly billing rate, Defendants challenge the following specific entries in Plaintiff’s attorneys’ proffered time log: (1) 2 hours communicating with Plaintiff to obtain sales and service records; (2) 1.8 hours drafting the attorney-client agreement; (3) 2.9 hours drafting and filing Plaintiff’s complaint; (4) 2.3 hours spent drafting discovery requests; (5) 5 hours spent reading and opposing Defendants’ motion to compel arbitration; (6) 7.6 hours drafting the instant motion, reading Defendant’s opposition to the instant motion, drafting a reply, and preparing for the hearing; and (7) time spent on clerical tasks.

Defendants argue that “there is no reason [why communicating with Plaintiff to obtain sales, service and repair records] should take 2 hours and seven separate communications,” and this amount should be reduced to 0.5 hours. (Defs.’ Opp. 5:24–6:4.) Plaintiff argues in reply that the time incurred is reasonable because for plaintiffs like himself, these records are not readily available and require more time to locate and obtain than those kept by such corporate entities as Defendants. (Pl.’s Reply 2:2–14.) Based on the foregoing, the Court declines to grant Defendants’ request to reduce the fee demand for these tasks by 1.5 hours.

Defendants further argue that the attorney fees incurred by Plaintiff’s attorneys in client intake, drafting the attorney-client agreement, and clerical fees for preparing, filing, and serving the complaint are not recoverable. (Defs.’ Opp. 6:5–25.)

As Plaintiff observes in reply, 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) [emphasis added].) Based on the foregoing, the Court finds that Plaintiff is entitled by statute to seek attorney fees in relation to the time his attorneys incurred for the tasks in question. Accordingly, the Court declines to grant Defendants’ request to reduce the fee demand for such tasks by 3.7 hours.

Defendants further argue that the attorney fees incurred by Plaintiff in drafting discovery requests to defendant Mercedes-Benz USA, LLC must be stricken, where “only one set of discovery was served, and that was to MB of Valencia. Because of this, these entries are twice as long as supported by the documents that were served.” (Defs.’ Opp. 7:2–3.)

On reply, Plaintiff proffers the signed proofs of service for discovery requests propounded on both Defendants. (Ex. A to Pl.’s Reply.) “While it is certainly possible that staff for Plaintiff failed to actually serve the discovery to MBUSA, it is also unlikely that such a mistake would be made given that the proof of service is signed and saved in the case file.” (Pl.’s Reply 4:1–4.)

Based on the foregoing, the Court finds that the above fees were reasonably incurred and declines to grant Defendants’ request to reduce the fee demand for the discovery requests by 2.3 hours.

Defendants further argue that the attorney fees incurred by Plaintiff in reviewing Defendants’ motion to compel arbitration and reply in preparation for the hearing on the same was excessive. (Defs.’ Opp. 7:9–14.) On reply, Plaintiff concedes that 1.5 hours of time billed for these tasks were duplicative. (Pl.’s Reply 4:15–19.) Accordingly, the Court reduces the fee demand for these tasks by 1.5 hours, billed at the Court imposed rate of $400.00 per hour, for a total reduction of $600.00.

Defendants further argue that the attorney fees incurred by Plaintiff in preparing the instant fee motion are excessive and not recoverable. (Defs.’ Opp. 7:25–8:9.) On reply, Plaintiff provides authority allowing for the recovery of anticipated post-settlement attorney fees, including anticipated time spent on motions for attorney fees. (Pls.’ Mot. 5:8–15, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 638–639.) Based on the foregoing, the Court finds that the above fees were reasonably incurred and declines to grant Defendants’ request to reduce the fee demand for the time incurred in relation to the instant motion by 2.1 hours.

Defendants argue generally that “throughout the billing records, there are countless examples of paralegals billing for tasks that are clerical and routinely found to be general overhead of running a law firm.” (Defs.’ Opp. 8:10–12.) As Plaintiff observes, Defendants fail to identify or cite any specific time entries challenged to this extent. (Pl.’s Reply 6:5–7.) Accordingly, the Court declines to reduce the fee demand for any such unspecified tasks.

Defendants assert that “on January 30, 2023, MBUSA served a CCP 998 offer to compromise offering to repurchase the Subject Vehicle for $37,500 and offering $8500 in attorney’s fees, costs and expenses or to be determined by noticed motion.” (Defs.’ Opp. 3:4–6.) “There is no mention of the CCP 998 offer in the billing records and no communication with Plaintiff for the entire time (30 days) the CCP 998 offer was open.” (Id. at 9:5–6.) Defendants argue that such an omission “appropriately calls into question the need for the fees incurred after the CCP 998 offer was served,” therefore the Court should not grant Plaintiff’s attorney fees incurred after the offer was tendered. (Id. at 9:17–18.)

Plaintiff argues on reply that Defendants’ contention “is entirely irrelevant to any award of reasonable attorney fees and whether Plaintiff billed for this time or not, it provides zero legal support that attorney fees are cut off because of a lack of a billing entry.” (Pl.’s Reply 6:16–18.) Moreover, “it is an error of law for the trial court to reduce or deny an award of attorney fees in a civil rights or public interest case on the basis of a plaintiff's rejection of a Code of Civil Procedure section 998 offer when the ultimate recovery has exceeded the rejected offer.” (Id. at 6:18–21, quoting Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 697.) Here, as Plaintiff notes, the ultimate settlement amount exceeds that offered in Defendants’ rejected section 998 compromise. (Id. at 6:13–15.)

Based on the foregoing, the Court finds that the above fees were reasonably incurred and declines to grant Defendants’ request to reduce the fee demand for the time after they tendered their section 998 offer to compromise.

Plaintiff asserts that he incurred costs and expenses totaling $956.23, which encompasses: (1) $61.65 in filing and motion fees; (2) $147.19 in process server fees; (3) $497.39 in electronic filing/service fees; and (4) $250.00 in other unspecified costs. (Ex. B to Saeedian Decl.)[1] The Court notes that Defendants do not challenge the purported costs incurred by Plaintiff in this action. Nevertheless, the Court finds that Plaintiff has not specified what “Other” costs he has incurred totaling the $250.00 he seeks to recover. (Id. at ¶ 16.) Accordingly, the Court reduces the cost award by $250.00.

Based on the foregoing, the Court finds it reasonable to award Plaintiff $15,666.23 in attorney fees and costs.

The motion is granted in part. Plaintiff is awarded $15,666.23 in attorney fees and costs.

The Court is not requesting oral argument on this matter. Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required. Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue. “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”

Notice may be given either by email at CHAdeptF51@LACourt.org or by telephone at (818) 407-2233.

[1] The Court notes that Plaintiff has failed to separately file and serve his memorandum of costs, and instead includes the memorandum as an exhibit to the Declaration of Michael Saeedian. (Cal. Rules of Ct., rule 3.1700(a)(1).)

Name	Title	Hourly Rate	Hours	Total
Michael Saeedian	Partner	$695.00	21.5	$14,942.50
Chrisopher Urner	Managing Attorney	$525.00	7.9	$4,147.50
Jorge Acosta	Certified Law Clerk	$250.00	15.2	$3,800.00
Total			44.6	$22,890.00

Name	Title	Hourly Rate	Hours	Total
Michael Saeedian	Partner	$400.00	21.5	$8600.00
Chrisopher Urner	Managing Attorney	$400.00	7.9	$3160.00
Jorge Acosta	Certified Law Clerk	$250.00	15.2	$3800.00
Total			44.6	$15,560.00