Judge: Anne Richardson, Case: 21STCV41810, Date: 2024-03-06 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV41810    Hearing Date: March 6, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff William Davis sued Defendants BMW of North America, LLC (BMW) and Does 1 through 50 pursuant to a December 9, 2021 First Amended Complaint (FAC) alleging claims of (1) Breach of Implied Warranty of Merchantability [Song-Beverly Act], (2) Breach of Express Warranty [Song-Beverly Act], and (3) Failure to Comply with Civ. Code § 1793.2(b).

On January 24, 2022, the action was noticed as removed to federal court.

On February 25, 2022, the Court ordered dismissal of the action.

On March 28, 2022, the action was noticed as remanded from federal court.

On April 5, 2022, the Court set aside and vacated the February 25, 2022 dismissal.

On November 3, 2022, the Court held a status conference regarding alternative dispute resolution ordering the parties to make at least one good faith settlement attempt.

On December 11, 2023, the Court set an order to show cause (OSC) hearing regarding dismissal by way of settlement and advanced and vacated all previously scheduled hearings.

On December 18, 2023, Plaintiff Davis executed a settlement agreement between the parties.

On December 26, 2024, BMW executed the settlement agreement.

On February 7, 2024, Plaintiff Davis filed a motion for attorneys’ fees and costs and expenses as the stipulated prevailing party in this action by way of settlement. The copy of the settlement agreement filed with the Court redacts the amount of monetary compensation to be paid to Plaintiff Davis.

On February 22, 2024, BMW opposed Plaintiff Davis’s motion.

On February 29, 2024, Plaintiff Davis replied to BMW’s opposition.

Plaintiff Davis’s motion is now before the Court.

Motion for Attorneys’ Fees and Costs

I.

Order Granting Attorneys’ Fees: GRANTED, in part.

A.

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 (PLCM Group).) 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.)

For purposes of determining a lodestar, absent a contrary showing, both the number of hours that the prevailing party’s attorney spent litigating the case and his or her regular hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621, 633-634, 639 (Serrano) [within context of Lab. Code, § 1021.5 private attorney general theory, absent a showing of “special circumstances” that would render such an award unjust, litigant was entitled to all hours actually spent, including those connected to fee-related matters, and those necessary to establish and defend the fee claim]; Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761 [“The value of an attorney’s time generally is reflected in his normal billing rate”], disapproved on other grounds in Serrano, supra, 32 Cal.3d at p. 630, fn. 12 [relating to whether term “antecedent litigation” was applicable between Mandel I and Mandel II].)

“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn (2008) 163 Cal.App.4th 550, 564.)

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]; see Yu v. Superior Court of Los Angeles County (2020) 56 Cal.App.5th 636, fn. 6 [disapproving dictum In re Marriage of Demblewski re: whether motions may be filed before a referee’s decision is entered].)

Moreover, the Court is considered “an expert in the matter of attorney fees” since “[t]he value of attorney’s services is a matter with which a judge must necessarily be familiar.” (Excelsior Union High Sch. Dist. of L.A. Cnty. v. Lautrup (1969) 269 Cal.App.2d 434, 448.) Accordingly, “[w]hen the court is informed of the extent and nature of such services, its own experience furnishes it with every element necessary to fix their value.” (Ibid.)

It follows that 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.)

B.

Discussion

Plaintiff Davis seeks $74,611.46 in attorneys’ fees and costs, comprised of $56,376.25 in lodestar fees, $5,009.96 in costs and expenses, a 1.2 multiplier enhancement award of $11,275.25, and $1.950 in additional expenses related to this motion for fees and costs. (Mot., Notice, p. ii.) Costs are discussed below in Section II.

1.

Reasonable Fees

The lodestar calculation begins with a determination of the “reasonable hourly rate,” i.e., the rate “prevailing in the community for similar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095; see, e.g., Stratton v. Beck (2017) 9 Cal.App.5th 483, 496 [finding no abuse of discretion in court setting attorney’s hourly rate based on comparison of rates from similarly experienced attorneys in same field and area].) The general rule is “[t]he relevant ‘community’ is that where the court is located. [Citations.]” (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71; accord Marshall v. Webster (2020) 54 Cal.App.5th 275, 285.) The determination is instead framed around the reasonable market value of the services. (See, e.g., Serrano, supra, 32 Cal.3d at pp. 640-643 [discussing arguments and determining trial court did not abuse discretion by applying fee rates for public interest counsel according to reasonable market value, not the “normal billing rate” for public interest attorneys suggested by defendants].)

After review, the Court determines that the billing rates for counsel of $650-$500 (depending on the year) for Nicholas Bravo and $500-600 for Adam Zolonz are reasonable, based on the background, education, experience, reputation in the community, and based on the Court’s own experience with billing rates in the Los Angeles community.

2.

Reasonable Hours

“Under the lodestar method, a party who qualifies for a fee should recover for all hours reasonably spent unless special circumstances would render an award unjust.” (Vo v. Las Virgenes Mun. Water Dist. (2000) 79 Cal.App.4th 440, 446, citing Serrano, supra, 32 Cal.3d at pp. 632-633.) Time spent relating solely to the fee award is also compensable. (Ketchum, supra, 24 Cal.4th at p. 1133.)

“‘Reasonably spent’ means that time spent ‘in the form of inefficient or duplicative efforts is not subject to compensation.’” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394 (Horsford), quoting Ketchum, supra, 24 Cal.4th at pp. 1132-1133.) In assessing the reasonableness of the hours spent, “[t]he court can look to how many lawyers the other side utilized in similar situations as an indication of the effort required.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272, citation omitted.)

After review, the Court determines that the increments of time expended by counsel on the tasks identified in the moving papers’ billing records are facially reasonable.

The Court makes this determination after an examination of these records. (Mot., Exs. B-C.) These records are entitled to credence. (Horsford, supra, 132 Cal.App.4th at pp. 395-397 [verified time records entitled to credence absent clear indication they are erroneous]) and mostly show increments of time under one hour, with tasks taking greater amounts of time being sporadic and involving (1) discussions regarding depositions, vehicle inspections, or preparing filings (e.g., for mediation) for Nicolas Bravo and (2) a single entry for 3.9 hours by Adam Zolonz regarding document review. (Mot., Exs. B-C.)

While the opposition characterizes this litigation as a simple one without sufficient procedure to justify the hours claimed here (Opp’n, pp. 5-6)—76.95 for Nicolas Bravo and 20.90 for Adam Zolonz (Mot., Exs. B-C.)—the Court finds that less than 100 hours of total work expended by counsel is facially reasonable in a more than two-year litigation, billed by two attorneys, where the action was removed to and remanded from federal court, and only settled on the eve of the previously scheduled January 31, 2024, trial date. (Mot., Exs. A [settlement agreement finalized Dec. 26, 2023], B-C [time records].)

Moreover, the hours billed by Adam Zolonz between July and October 2021 reasonably related to the pre-dispute demand, and his work in relation to the federal court proceedings was also reasonable in time and in its connection to this action. The other hours challenged by BMW simply involve litigation decisions by Bravo and Zolonz—communications between counsel and review of deposition transcript after settlement—that the Court finds are reasonable. (See Opp’n, pp. 4-5 [challenging these entries].) The Court notes that approximately 16 items were billed as “no charge,” or “$0.00” to reduce de minimis or duplicative charges.

The Court does not see a basis to depart from deference to the amount of fees requested and supported by the invoices.

3.

Multiplier Enhancement Award

The “lodestar figure may … 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, supra, 24 Cal.4th at p. 1132.)

The court may also consider other factors, including the results obtained and whether a party continues to litigate after a reasonable settlement offer. (Greene v. Dillingham Constr. N.A. (2002) 101 Cal.App.4th 418, 426-427 (Greene) [trial court has discretion to consider a variety of factors, including the results obtained]; Meister v. Regents of Univ. of Cal. (1998) 67 Cal.App.4th 437, 452 (Meister) [trial court may consider that a party continued to litigate after a reasonable, albeit informal, settlement offer], disagreed with in Greene, supra, at p. 426 [disagreement as to whether to consider informal settlement offer in reasonable hours determination].)

In addition, when an attorney’s hourly rate is in the low range of the community standard, the trial court may increase the lodestar. (See Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 627-628 [finding the trial court had discretion to add 0.25 lodestar multiplier when rate was “in the low range of fair and reasonable”].)

After review, the Court determines that a multiplier enhancement award is not warranted.

First, any contingency risk here is mitigated by the fact that fees are mandatory pursuant to the Song-Beverly Consumer Warranty Act. (Ketchum, supra, 24 Cal.4th at pp. 1141-1142 [error for trial court to award multiplier enhancement based on contingency nature of representation because risk of contingency representation ended once fees became mandatory under statute].) Second, it is error to use counsel’s qualifications both in arguing for a top billing rate and for a multiplier. These points were raised in the opposition and not addressed in the reply. (Compare Opp’n, p. 7, with Reply, p. 5; see Mot., pp. 10-12 [contingency arguments].) Third, the case was not so complex as to justify a multiplier.

Finally, the Court notes that the settlement agreement does not explain how much money Plaintiff recovered and merely details that Plaintiff will retain the subject vehicle and continue making payments under contract, with BMW agreeing to pay an undisclosed amount of money to Plaintiff in return, upon receipt of which Plaintiff would dismiss the case. (Mot., Ex. A, § 1.) This makes is impossible to rely on the element of skill and results to award a multiplier because although Plaintiff’s counsel did achieve a settlement, the favorability of that settlement is unclear, particularly where there was no repurchase, as originally demanded by Plaintiff on July 15, 2021. (Mot., Ex. D [initial demand]; see Mot., p. 13 [arguments re: favorable results].)

4.

Fees Conclusion

Fees are GRANTED, in part, in the amount of $56,376.25 plus an additional three hours for reviewing the opposition, preparing the reply, and appearing at oral argument (or $1,950), for a total of $58,326.25.

II.

Order Granting Costs: DENIED, without prejudice.

A.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The term “prevailing party” for costs purposes is defined by statute to include:  

(1) The party with a net monetary recovery;  

(2) A defendant who is dismissed from the action;  

(3) A defendant where neither plaintiff nor defendant recovers anything; and  

(4) A defendant as against those plaintiffs who do not recover any relief against that defendant.

(Code Civ. Proc., § 1032, subd. (a)(4).)

If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105 (Lincoln).)

A party that fails to apply for costs within the time prescribed by rule 3.1700 waives those costs because the deadline for applying for costs, though not jurisdictional in the fundamental sense, is mandatory. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.)

A costs memorandum appears to be required where costs relate to items “allowable as costs” listed in subdivision (a) of Code of Civil Procedure section 1033.5. (See Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016 [rule 3.1700 and 15-day constraint for costs memo did not apply to expert witness fees where these costs are outside of allowable costs under section 1033.5 and the most sensible construction of rule 3.1700 is that it should apply to those costs that the clerk can immediately enter as provided in Cal. Rules of Court, rule 3.1700(b)(4)].)

However, the time to file a costs memorandum is not triggered until judgment is entered (see Cal. Rules of Court, rule 3.1700(a)(1)), and a costs memorandum filed prior to this time is not premature and is instead considered timely filed. (Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 221.)

B.

Discussion

The Court finds that a determination on costs is not appropriate at this time.

The opposition challenges costs on the sole ground that costs must be sought pursuant to the requirements in California Rules of Court, rule 3.1700, which this motion fails to do by failing to attach a memorandum of costs. (Opp’n, p. 1, fn. 1; cf. Reply, pp. 1-6 [failing to raise a rebuttal argument].)

A review of Plaintiff’s motion’s costs shows that they relate to, among other things, e-filing, advanced costs, and processing fees. (Mot., Exs. B-C [attaching receipts and/or summarizing costs].)

These costs may fall within allowable costs under section 1033.5. (See Code Civ. Proc., § 1033.5, subds. (a)(1) [filing and motion fees], (a)(4) [service of process].)

As a result, it appears that a memorandum of costs should have been filed by Plaintiff, regardless of whether costs are awardable based on the Song-Beverly Consumer Warranty Act. (See Anthony, supra, 166 Cal.App.4th at p. 1016.)

However, because judgment has not been entered in this action, the time period for filing that memo has not been triggered. (See Cal. Rules of Court, rule 3.1700(a)(1).)

The Court adds that because the settlement agreement and papers before the Court fail to clarify what net monetary was achieved by Plaintiff Davis, the costs may not be properly supported as filed. (Mot., Ex. A, § 1 [redacting monetary figure in settlement]; cf. Code Civ. Proc., § 1032, subd. (a)(4) [prevailing party includes plaintiff that obtains net monetary recovery].)

Costs are thus DENIED, without prejudice.

Conclusion

Plaintiff William Davis’s Motion for Attorney’s Fees, Costs, and Expenses as the Stipulated Prevailing Party is GRANTED in part and DENIED in part as follows:

(1) GRANTED, in part, as to attorneys’ fees, in the amount of $58,326.25; and

(2) DENIED as to costs, without prejudice.