Judge: Anne Richardson, Case: 23STCV08698, Date: 2023-11-20 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: 23STCV08698    Hearing Date: November 20, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Anthony Araujo sued Defendants Mercedes Benz USA, LLC and Does 1 through 10 pursuant to an April 19, 2023 Complaint alleging a single claim of Violation of the Song-Beverly Consumer Warranty Act, Civil Code Section 1790 et seq.

The claim arises from allegations that on December 12, 2021, Plaintiff Araujo purchased or leased a 2022 Mercedes Benz GLE350W and that during the warranty period, the vehicle exhibited or developed significant nonconformities—e.g., electrical and body issues—which Mercedes Benz USA was not able to conform to warranty within a reasonable number of attempts.

On August 31, 2023, Plaintiff Araujo filed a notice of settlement.

On September 1, 2023, the Court vacated all hearings and set an Order to Show Cause (OSC) re Dismissal (Settlement) for December 14, 2023.

On October 26, 2023, Plaintiff filed a motion for attorney’s fees and costs. The motion was set for hearing on November 20, 2023.

On November 6, 2023, Mercedes Benz USA opposed the motion.

On November 13, 2023, Plaintiff Araujo replied to the opposition.

Mercedes Benz USA’s motion is now before the Court.

Evidentiary Objections

Opposition Objections to Motion Evidence

Objection Nos. 1-12: OVERRULED.

Motion for Attorney’s 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 Awarding Fees and Costs: GRANTED, in Part.

Plaintiff seeks an award of $21,775 in fees, $5,443.75 as a 1.25 multiplier, and $553.80 in costs as the prevailing party in this action. Plaintiff argues that this motion resulted from Mercedes Benz USA “lowballing” Plaintiff and refusing to accept Plaintiff’s $15,000 demand for fees and costs. Plaintiff argues that fees are merited based on counsel’s six-month effort to settle this action through numerous letters, phone calls, written settlement demands, and emails to defense counsel (which totaled 20 hours, plus 13.5 hours on this motion, a reply, and attendance at this hearing). Plaintiff supports the $650 fee rate for counsel, a 36-year practitioner, by citing to her declaration and comparing counsel’s rates to attorneys at The Theta Firm (Mercedes Benz USA’s counsel). Plaintiff also argues for a 1.25 multiplier based on the risks (contingency fees) and results in this case and the delay of Mercedes Benz USA in settling. Plaintiff otherwise supports the $553.80 in costs sought by his motion. (Mot., pp. 5-9.)

Plaintiff’s motion is accompanied by a declaration from Susan A. Yeck, Esq., Plaintiff’s counsel. The declaration attaches verified billing records and a memorandum of costs as Exhibits 1 and 2. The declaration also breaks down the fees and costs, explaining that some but not all time expended by counsel was discounted. The declaration then details the time reasonably expended by counsel in this action, the grounds from which to determine the reasonableness of the fee rate, the contingency nature of representation, and additional fees to be incurred in replying to any opposition and attending this hearing. The verified billing records show 33.5 hours expended by counsel, billed at a rate of $650 per hour. The memo of costs itemizes a $452.15 fee for filing the Complaint, a $61.65 fee for filing this motion, and service of process costs of $40. (Mot., Yeck Decl., ¶¶ 1-2, 3-5, 6-10, 11-14, 15, 16-18 [indicating ten hours to file reply and attend hearing, contrasting the six hour estimate in the billing records that informs the award requested by Plaintiff Araujo], Exs. 1 [verified billing records; 7/10/23 entry miscalculates local total for 1.2 hours of work by counsel], 2 [costs].)

In opposition, Mercedes Benz USA argues that the fee request is unreasonable based on passing, block billing, and unnecessary work. Mercedes Benz USA also argues that the fee rate is not necessarily proper because the billing records are so unclear as to how time was expended, making the propriety of the $650 per hour rate for counsel, even as a 35-year practitioner, questionable. Mercedes Benz USA breaks down the entries in the billing records and explains how they are unreasonable. Mercedes Benz USA suggests that a two-thirds reduction in time expended by counsel and $400 per hour fee rate are reasonable, and that no multiplier is warranted. Mercedes Benz USA last argues that if the Court awards fees, they should not include recovery for block billing, the billing entries generally should be reduced, and counsel’s rate should be held at $400 per hour. (Opp’n, pp. 7-17.)

The opposition attaches a declaration from counsel, Donna Hooper. The Hooper declaration attaches a table that takes each of the billing record entries and explains how they are unreasonable, giving suggestions for a reasonable recovery, if any. The Hooper declaration also attaches copies of the vehicle’s lease agreement, the vehicle’s repair history, the Complaint and Answer, communications between counsel, and the 998 offer and acceptance in this action, among other things. (Opp’n, Hooper Decl., Exs. A-F.)

In reply, Plaintiff notes that costs are unopposed, and that defense counsel’s conduct has necessitated the additional time spent on this case, e.g., by refusing to negotiate fees in good faith, thus forcing litigation as to this unnecessary motion. Plaintiff also argues that the time expended by counsel in this action is properly supported and that Plaintiff only seeks recovery for earned fees. Plaintiff otherwise argues for the reasonableness of Plaintiff’s counsel’s fees, argues that block billing is not a complete bar on recovery but where the billing records are sufficiently clear as to tasks performed and reasonable in time, and argues that the 1.25 multiplier is warranted based on the delay, result, and risk raised in the moving papers. (Reply, pp. 2-7; see also Yeck Decl., ¶¶ 1-5 [responsive declaration].)

The Court finds that fees and costs are proper in part.

The fee rate of $650 per hour is generally reasonable for a 35-year practitioner in the Los Angeles area, and nothing in Mercedes Benz USA’s briefing compels a conclusion that the time expended by counsel in this litigation merits a lower fee rate.

Indeed, the Court finds that the 20 hours expended by counsel prior to filing this motion are reasonable and sufficiently clear as to the task performed as to justify the amount of time expended on each individual task. For example, while the April 4, 2023 entry in the billing records is for 4.6 hours, the description of the task explains how that time was expended: meeting with the client and reviewing Plaintiff’s documents. (Mot., Yeck Decl., Ex. 1; cf. Opp’n, pp. 10-11.) 2.2 hours drafting three sets of discovery and performing other tasks on May 10, 2023 is also reasonable. (Mot., Yeck Decl., Ex. 1; cf. Opp’n, pp. 11-12.) 48 minutes discussing settlement with Plaintiff and his wife, reviewing loan documentation, analyzing settlement options on June 12, 2023 also appears reasonable. Moreover, those billing records are entitled to deference. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 397 [“[T]rial court abused its discretion in rejecting wholesale counsels’ verified time records” where “verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous”].)

The Court finds, however, that 7.5 hours to draft this motion and 6 or 10 hours to review the opposition, draft a reply to an opposition and attend this hearing are excessive. The Court determines that four hours to draft this motion, three hours to draft a reply, and one hour to attend this hearing are reasonable, i.e., eight of the hours requested for that work. (Compare Opp., Yeck Decl., ¶ 16 [10 hours anticipated] with Exhibit 1 attached thereto at p. 4 [six hours anticipated and 7.5 hours to draft the motion].)

As to a multiplier, the Court recognizes the contingency nature of this case and the favorable result in Plaintiff Araujo’s favor, which may support a multiplier. However, the case does not appear to have been particularly complex, was settled after “six months of litigation” (thus not resulting in significant delay), and the Court has no information about whether Plaintiff’s counsel was foreclosed from performing other work based on this litigation. Accordingly, the Court determines that no multiplier is merited.

Last, the Court finds that the unopposed $553.80 in costs are reasonable.

This gives Plaintiff Araujo a recovery of $18,733.80, comprised of (1) 20 hours reasonably expended by Ms. Yeck from April 4, 2023 to August 31, 2023 at a rate of $650 per hour, for a subtotal of $13,000, (2) eight hours reasonably expended on the motion, reply and hearing for this motion at the same rate for a subtotal of $5,200, and (3) reasonable costs of $533.80. 

Conclusion

Plaintiff Anthony Araujo’s Motion for Attorney’s Fees and Costs is GRANTED, in Part, in the amount of $18,733.80.