Judge: Anne Richardson, Case: 21STCV32228, Date: 2023-11-03 Tentative Ruling

Case Number: 21STCV32228    Hearing Date: November 3, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Ahmad Chiha sued Defendants Aston Martin Lagonda of North America, Inc. (Defendant) and Does 1 through 100 pursuant to an August 31, 2021 Complaint alleging three lemon law claims: (1) Breach of Implied Warranty; (2) Breach of Express Warranty; and (3) Violation of the Song Beverly Consumer Warranty Act [Failure to Refund or Replace After Reasonable Number of Attempts].

The claims arose from allegations that Plaintiff Chiha purchased a new 2021 Aston Martin DB 11 (Vehicle) subject to an express warranty from Defendant Aston Martin Lagonda but that at the time the Vehicle was delivered to Plaintiff, it was not in merchantable condition, was not safe, and did not conform to the quality and safety guidelines for a new motor vehicle—i.e., had multiple manufacturer defects, defects in assembly, design defects, and other defects—and that, despite a reasonable number of attempts, Aston Martin Lagonda was unable to conform the Vehicle to express warranty.

On July 25, 2023, the court held a jury trial, at which time counsel represented that the case was settled and that the settlement agreement was signed. The Court advanced the trial and other hearings, vacated them, and scheduled an Order to Show Cause (OSC) re: Dismissal (Settlement) for August 23, 2023.

On August 23, 2023, the Court held the OSC and was informed that the only issues remaining are fees and costs, which counsel jointly requested be continued to resolve these issues, with the OSC continued by stipulation to October 27, 2023.

On October 10, 1023, Plaintiff brought a motion for attorneys’ fees and costs. The motion was set for hearing on November 3, 2023.

On October 23, 2023, the Court signed a joint stipulation by the parties to continue the OSC hearing from October 27, 2023 to November 3, 2023.

Later that day, Defendant opposed the motion.

On October 27, 2023, Plaintiff replied to the opposition.

Later that day, Plaintiff filed a nearly identical copy of the opposition, which for the most part changes lower case lettering to upper case lettering and changes the word attorneys to counsel.

The motion for attorney fees and costs and the OSC are now before the Court.

Motion for Attorneys’ Fees and Costs

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).) A prevailing buyer in a Song-Beverly Act action is entitled to recover their attorney’s fees and costs under the Act’s express terms. (Civ. Code, § 1794, subd. (d); see Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 464, 471.)

The Court begins 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.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) 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.)

Order Granting Fees and Costs: GRANTED, in Part, as to fees [no determination of costs].

Plaintiff Chiha seeks $86,001.20 in fees and costs as the prevailing plaintiff in this SBA action, a figure comprised of $82,804.50 in attorneys’ fees and $3,196.70 in costs. (Mot., p. 2.)

I. Reasonable Fees and Costs, Multiplier

Plaintiff seeks attorneys’ fees on the grounds that recovery from Defendant went from none, to $23,610.30 with fees and costs to be determined by the Court, and then, to an offer to settle the case in exchange for agreeing (1) to pay Plaintiff $25,000 without Plaintiff being in possession of the Vehicle, (2) that Plaintiff is the prevailing party, and (3) to pay the attorneys’ fees, costs, and expenses incurred by Plaintiff pursuant to Civil Code Section 1794, subdivision (d) in an amount determine by the Court. Plaintiff otherwise argues in favor of the requested fee recovery regardless of the settlement amount recovered by Plaintiff, the reasonable hours expended by Plaintiff’s senior and junior counsel on this litigation as well as their hourly rates, and other arguments in favor of reasonability in fee and hours sought. (Mot., pp. 4-12.)

Declarations from Plaintiff’s counsel and one from a practitioner opining on reasonable rates support the fee rates for counsel here and/or provide the academic and/or professional backgrounds for counsel. (Mot., Barry Decl., ¶¶ 18-27 [David Barry, Erik Whitman, Anna Galaviz, Elisabeth Quinn, Debora Rabieian, and Logan Pascal], Exs. 5 [verified time records], 6 [United States Consumer Law Attorney Fee Survey Report, 2017-2018]; Quinn Decl., ¶¶ 4-11 [academic and professional background]; Galaviz Decl., ¶¶ 2-7 [same]; Mot; Rabieian Decl., ¶¶ 3-6 [same]; Mot., Pascal Decl., ¶¶ 3-5 [same]; Mot., Rosner Decl., ¶¶ 1-11 [opinion declaration].)

The attorneys’ fees Plaintiff requests seek compensation for:

(1) 30 hours expended by David N. Barry, Esq. at a rate of $600 per hour prior to April 2023 and $625 per hour thereafter for 79.6 hours, with 23 years of experience as a legal practitioner;

(2) 4.7 hours expended by former associate Erik Whitman, Esq., a nine-year practitioner, at a rate of $550 per hour;

(3) 12.8 hours expended by Anna H. Galaviz, Esq., a nearly ten-year practitioner, at a rate of $515 per hour;

(4) 4.5 hours expended by Elisabeth Quinn, Esq., a more than 20-year practitioner, at a rate of $475 per hour;

(5) 6.1 hours expended by Debora Rabieian, Esq., a seven-year practitioner, at a rate of $435 per hour; and

(6) 4.2 hours expended by Logan Pascal, Esq., a four-year practitioner, at a rate of $350 per hour.

In opposition, Defendant argues that a flat fee rate of $350 per hour should be applied and that the reasonable number of hours should be reduced to 98.5 hours, for a total fee recovery of $34,475. Defendant otherwise argues that specific verified billing record entries involved excessive hours, makes various arguments for why the fees sought are not proper, and advances other reasons why the fees sought are unreasonable and excessive. (Opp’n, pp. 1-10.)

In reply, Plaintiff argues reasons for why certain billing entries are compensable, justifying hours expended on discovery, litigating this motion, and travel time. Plaintiff also contends that Defendant makes arguments about excessiveness or unreasonableness without support, that the cited declarations and national fee surveys support the requested fee rates, and that costs are justified. (Reply, pp. 1-6.)

The Court finds in favor of Plaintiffs, but for a reduced amount.

As to reasonable fee rates, the Court is satisfied that the skill displayed by Plaintiff’s counsel in this action and their years of experience practicing law support the requested fee rates, as does the Attorney Fee Survey Report (p. 229). The increase in rate from $600 to $625 per hour for David N. Barry seems reasonable to the Court for a more than 23-year practitioner like Mr. Barry. Plaintiff’s counsel also displayed skill in securing a settlement from Defendants where no liability was initially admitted. The Court also does not find that the fee rates are unreasonable based on excessive time or slight modification of boilerplate responses as to merit a wholesale reduction of fee rates to $350 per hour.

However, as to reasonable hours, the Court agrees that Plaintiffs’ counsel overlitigated this case, meriting a reduction in hours. (Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744 [“A trial court is not required to state each charge it finds reasonable or unreasonable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case”].)

The Court concludes that a recovery for 141.9 hours expended by counsel in litigating this action is excessive, as are the number of hours expended on different stages in the litigation cycle. (See Opp’n, pp. 3-6.) The Court agrees that fees relating to travel were unnecessary in the modern-day remote litigation setting. The time spent on generating, reviewing, and responding to discovery, including depositions, was also excessive based on the needs of the case and ability to recycle templates for these purposes. Moreover, the hours expended on motion work and attending hearings in this case involved more hours than reasonably should have been required from the nature of the tasks performed, e.g., nearly ten hours of preparation for the final status conference and for an order to show cause hearing regarding dismissal.

Moreover, the excessiveness of these hours is also supported by the number of attorneys that were involved in litigating this action. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38 (Morris) [“Just as there can be too many cooks in the kitchen, there can be too many lawyers on a case”].) Though five of the six attorneys for whose work Plaintiff seeks fees only expended between four and 13 hours on this action, the need to bring in new counsel, familiarize them with the subject matter, and produce work product prosecuting the action needlessly added to the number of hours it took to prosecute this action.

Based on these conclusions, and because the verified time records confront this Court with a 46-page voluminous record for billing, the Court makes an across-the-board percentage cut of 30% from the reasonable hours sought by Plaintiff. (Morris, supra, 41 Cal.App.5th at p. 40 [“‘[W]hen a voluminous fee application is made, the court may make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure” quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 (Warren), internal quotation marks and ellipses omitted]; see Warren, supra, at p. 41 [“[T]he court must clearly explain its reasons for choosing the particular negative multiplier that it chose; otherwise, the reviewing court is unable to determine that the court had valid, specific reasons for its across-the-board percentage reduction”].)

No multiplier enhancement award is requested by Plaintiff Chiha.

The Court thus GRANTS Plaintiff’s motion, in part, in the amount of $58,231.60 in reasonable attorneys’ fees as the prevailing plaintiff in this SBA action. The fees are broken down as follows, with a 30% reduction in reasonable hours across the board:

(1) 21 hours reasonably expended by David N. Barry, Esq. at a reasonable rate of $600 per hour prior to April 2023 ($12,600) and $625 per hour thereafter for 55.72 hours ($34,825), for a local total of $47,425;

(2) 3.29 hours reasonably expended by former associate Erik Whitman, Esq. at a reasonable rate of $550 per hour, for a local total of $1,809.50;

(3) 8.96 hours reasonably expended by Anna H. Galaviz, Esq. at a reasonable rate of $515 per hour, for a local total of $4,614.40;

(4) 3.15 hours reasonably expended by Elisabeth Quinn, Esq. at a reasonable rate of $475 per hour, for a local total of $1,496.25;

(5) 4.27 hours reasonably expended by Debora Rabieian, Esq. at a reasonable rate of $435 per hour, for a local total of $1,857.45; and

(6) 2.94 hours reasonably expended by Logan Pascal, Esq. at a reasonable rate of $350 per hour, for a local total of $1,029.

II. Costs

Because a motion to strike or tax costs in the October 10, 2023 memorandum of costs is set for hearing on November 27, 2023, the Court defers a determination on costs to that date, at which time the Court will consider arguments related to that relief.

However, the Court will seek argument on the issue of timeliness. A motion to strike or tax costs “must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700, subd. (b)(1).) Here, the memo of costs was served and filed on October 10, 2023. (Mot., POS [service on paralegal at Plaintiff’s counsel’s firm].) Defendants’ motion to strike was served on Friday, October 27, 2023, seventeen days later, and filed with the Court on Monday, October 30, 2023, twenty days later. The motion thus appears untimely.

A declaration from defense counsel dated October 30, 2023 explains that the final date for filing the memo was October 27, 2023. (10/30/23 Haroutunian Decl., ¶ 3.) However, the declaration is unclear as to the basis for this representation, e.g., extension of time to file motion based on service by particular means (mail, overnight delivery, fax, email).

It thus appears that the motion could be denied on that ground and costs granted here pursuant to the Rules of Court. (Cal. Rules of Court, rule 3.1700, subds. (b)(1) [15-day requirement to file notice of motion from time of service of the costs memorandum], (b)(4) [requirement that clerk enter costs on the judgment immediately after the 15-day timeframe to serve notice of motion to strike or tax costs has passed].) However, the Court will seek a response as to the issue of timeliness at the next hearing. 

Conclusion

Plaintiff Ahmad Chiha’s Motion for Attorneys’ Fees and Costs is GRANTED, in Part, as to an award of $58,231.60 in reasonable attorneys’ fees.

The Court defers a determination on the propriety of costs to November 27, 2023.