Judge: Armen Tamzarian, Case: 21STCV38219, Date: 2023-02-27 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 21STCV38219 Hearing Date: February 27, 2023 Dept: 52
Plaintiff Aviv Nevo’s Motion for
Attorneys’ Fees, Costs, and Expenses
Plaintiff Aviv Nevo moves for $40,582.50
in attorney fees and $2,179.01 in other expenses from defendant Bentley Motors,
Inc.
Hours Spent
Plaintiff claims a lodestar of $27,055 for a total of 44.5
hours of work by three attorneys. In
calculating the lodestar, the court must determine whether the tasks performed
by an attorney were necessary and whether the amount of time billed for each
task was reasonable. (Baxter v. Bock (2016) 247 Cal.App.4th
775, 793.) The moving party has the
burden of proof on these issues. (Ibid.)
The number of hours billed may be unreasonable if the case is
“overstaffed” with too many lawyers, resulting in redundant or unnecessary
work. (Hensley v. Eckerhart (1983) 461 U.S. 424, 434).
Nearly all of plaintiff’s counsel’s work was reasonable and
necessary. After carefully reviewing the
detailed billing records (Rosenstein Decl., Ex. A), the court finds defense
counsel did not bill for unreasonably duplicative or inefficient work. Almost all billing entries are for discrete
tasks that took under an hour. Any
duplicative work was minimal and reasonable.
While plaintiff’s lawyers occasionally billed to review each other’s
work, this billing was reasonable. By
editing each other’s work and collaborating on legal arguments, lawyers present
a better work product. Reasonable
charges for such work are recoverable.
(See Dragu v. Motion Picture
Industry Health Plan for Active Participants (N.D. Cal. 2016) 159 F.Supp.3d
1121, 1129 [“collaboration and brainstorming are an important aspect of legal
practice”]; Building a Better Redondo,
Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 872, fn. 14
[“some conferences between counsel might be expected, particularly in a case of
some complexity”].) Plaintiff’s counsel
did not overstaff the case.
The largest purportedly block-billed entry was three hours to
“Review client file, client’s purchase documents, and client’s repair orders;
Analyze client’s claim relative to Song-Beverly Act causes of action; Draft
Complaint and initiating documents for lawsuit: on October 20, 2021. (Id., p. 2.) Three hours was a reasonable amount of time
to spent on those tasks.
The court will reduce plaintiff’s lodestar only by fees for
clerical or administrative work billed at attorney rates. “[P]urely
clerical or secretarial tasks should not be billed at a paralegal rate, regardless
of who performs them.” (Missouri v.
Jenkins by Agyei (1989) 491 U.S. 274, 288, fn. 10.)
On January 27, 2022, Brian T. Shippen-Murray billed 0.2 hours
for: “Accessed the Court’s Docket to identify future hearing dates and to
assure compliance with all deadlines; updated the litigation calendar and
personal notes regarding the same; coordinated with paralegal regarding
reservation of remote appearance at the initial case management
conference.” (Rosenstein Decl., Ex. A,
p. 3.) These are clerical tasks.
Similarly, on February 2, 2022, Shippen-Murray billed 1 hour
for “Reviewed and analyzed client file in preparation to attend the Case
Management Conference; reviewed and analyzed pleadings; reviewed and analyzed
personal notes and repair order summary; accessed the Court's Docket to confirm
future dates and to assure compliance with all deadlines; confirmed the
accuracy of the litigation calendar; confirmed remote appearance reservation.” (Rosenstein Decl., Ex. A, p. 3.) The court will reduce this entry by 0.3 hours
to account for the clerical tasks included.
Across seven entries from September 15 to September 27, 2022,
Shippen-Murray billed a total of 1.2 hours for tasks such as “Reviewed and
analyzed the litigation calendar and personal notes to confirm mediation
deadline; audited emails regarding settlement status; coordinated with managing
attorney regarding mediation scheduling” and “Accessed proposed mediator’s
calendar; met and conferred with opposing counsel regarding mediation
scheduling.” (Rosenstein Decl., Ex. A, pp.
4-5.) These 1.2 hours amount to bills
for the clerical task of scheduling a mediation. The court will not award fees for them.
Defendant also objects to a related entry of 0.1 on September
27, which included reviewing and analyzing the mediation agreement, along with
some administrative tasks. Reviewing and
analyzing a mediation agreement reasonably took 0.1 hours and is sufficiently
substantive enough to justify billing at the attorney’s rate.
Finally, on December 5, 2022, Shippen-Murray billed 0.3 hours
for “Reviewed and analyzed managing attorneys notes from mediation; updated the
litigation calendar, personal notes, discovery plan and client management
software regarding settlement status; organized person client file for
retention following settlement; directed responsible paralegal regarding filing
of Notice of Settlement.” (Rosenstein
Decl., Ex. A, p. 6.)
The court will therefore reduce the lodestar by 2.0 hours of
work by Shippen-Murray.
Defendant argues plaintiff should not recover the $6,010 in
fees incurred for making this motion because he could have avoided this motion
(or at least narrowed its scope) by negotiating in good faith with
defendant. Defendant relies on an
unpublished federal court case, Boden v. Ford Motor Co. (C.D. Cal., Apr.
6, 2022, No. SACV2100973CJCDFMX) 2022 WL 2163849. Even assuming the court would follow this
nonbinding authority, this case is distinguishable. There, plaintiff demanded a specific amount
for fees and costs, and in response defendant “requested ‘invoices or summaries
of those invoices’ supporting the fee request.”
(Id. at p. *3.) Plaintiff
replied, “You have my fees and demand. I do not produce my invoices unless they
accompany a fee motion. If you wish to go down that road simply reject our
demand and we will proceed accordingly.”
(Ibid.)
The court stated, “It was Plaintiff's counsel, not
Defendant's counsel, who imposed an unnecessary barrier to resolution.
Plaintiff's counsel's position in the email chain is a head-scratcher: the
Court can think of no reasonable reason as to why Plaintiff’s counsel was so
intent on not providing invoices, or even a simple summary of the invoices,
when, as Defendant’s counsel pointed out, Plaintiff clearly would have to do so
to support a motion for fees and when it seemed that Defendant would have been
willing to work with Plaintiff on the attorneys’ fees issue if only it could
see some semblance of proof of the fees incurred.” (Ibid.)
Here, however, after plaintiff sent a demand to defendant, defense
counsel replied, “I [will] discuss Plaintiff’s fee demand with my client and
get back to you.” (Kim Decl., ¶ 8, Ex.
D, p. 2.) A few days later, defense
counsel wrote, “BMI has authorized to me to convey a counter for $12,500 for
the outstanding fees/costs. Please let
me know if you agree.” (Id., p.
1.) Defendant never asked plaintiff to
provide or summarize the billing invoices.
Plaintiff never refused such a request.
Neither side bears greater blame for not informally resolve this dispute. Both sides negotiated over these fees at the
same superficial level—plaintiff demanded one amount, defendant made a
counteroffer, and plaintiff rejected it.
Hourly Rates
For hourly rates, “the trial court is
in the best position to value the services rendered by the attorneys.” (569 East County Boulevard LLC v. Backcountry
Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436.) Courts may rely on their “own knowledge and
familiarity with the legal market, as well as the experience, skill, and
reputation of the attorney requesting fees, the difficulty or complexity of the
litigation to which that skill was applied, and affidavits from other attorneys
regarding prevailing fees in the community and rate determinations in other
cases.” (Id. at p. 437, citations omitted.)
Based on its knowledge of the legal
market, its review of the credentials and experience of plaintiff’s attorneys,
the routine nature of this Song-Beverly Consumer Warranty Act case, and the
particular tasks performed by counsel, the court reduces Sepehr Daghighian’s
rate from $625 to $550 hourly, Brian T. Shippen-Murray’s rate from $550 to $450
hourly, and Michael H. Rosenstein’s rate from $700 to $650 hourly.
Multiplier
Plaintiff seeks a 1.5 multiplier to
the lodestar. The court finds no
multiplier is appropriate. Multipliers
may be awarded based on factors including “(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, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132.)
This case did not involve novel or
difficult questions. Plaintiff’s counsel
achieved a successful result but did not demonstrate exceptional skill in
litigating the case. Counsel’s hourly
rates adequately account for representation on contingency. (See Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 395.)
Adjusted Lodestar
Based
on the adjusted rates and hours as discussed above, the court calculates the
lodestar as follows: 16.0 hours by Daghighian at $550 hourly ($8,800), 17.3
hours by Shippen-Murray at $450 ($7,785), and 9.2 hours by Rosenstein at $625
($5,750) for a total of $22,335.
Other Expenses
Plaintiff moves for
$2,179.01 in other expenses. Civil Code
§ 1794(d) provides that a plaintiff may recover “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.”
Defendant opposes these
expenses on the grounds that plaintiff cannot them because he did not file a
verified memorandum of costs as required under California Rules of Court, rule 3.1700. Defendant cites no authority holding that
rule applies to expenses under Civil Code § 1794(d). As Warren v. Kia Motors America, Inc. (2018)
30 Cal.App.5th 24, 42 explained, “[T]he Legislature intended the phrase ‘costs
and expenses’ to cover items not included in ‘the detailed statutory definition
of “costs” ’ set forth in Code of Civil Procedure section 1033.5.” (Warren v. Kia Motors America, Inc. (2018)
30 Cal.App.5th 24, 42.) In addition,
strict compliance with procedural rules on costs and fees is not required,
particularly when any deviation from the rules does not prejudice the opposing
party. (See Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1305 [affirming award of
attorney fees claimed via memorandum of costs instead of noticed motion].)
Although plaintiff did not file a verified memorandum of
costs under rule 3.1700(a)(1), attorney Michael H. Rosenstein’s sworn
declaration states, “The total amount of expenses incurred by my office to
litigate this case was $2,179.01. A true
and correct copy of the billing incurred in prosecution of this matter by my
firm is attached as EXHIBIT A.”
(Rosenstein Decl., ¶ 9.) Exhibit
A includes itemized expenses totaling $2,179.01. (Id., Ex. A, pp. 7-8.) Any procedural error caused no prejudice. Defendant’s argument elevates form over
substance.
The court finds plaintiff reasonably incurred all $2,179.01
in expenses.
Disposition
Plaintiff Aviv Nevo’s motion for
attorney fees and expenses is granted in part. Plaintiff Aviv Nevo shall recover $24,514.01
in attorney fees and expenses from defendant Bentley Motors, Inc.