Judge: Ashfaq G. Chowdhury, Case: 22GDCV00371, Date: 2023-09-15 Tentative Ruling
Case Number: 22GDCV00371 Hearing Date: September 15, 2023 Dept: E
Hearing Date: 09/15/2023 – 8:30am
Case No. 22GDCV00371
Trial Date: N/A
Case Name: HERMINE HOSSEPIAN v. MERCEDES-BENZ USA, LLC, a Delaware Limited
Liability Company; CALSTAR MOTORS INC., a California Corporation; and DOES 1-20
inclusive
[TENTATIVE
RULING– MOTION FOR ATTORNEYS’ FEES]
I.
RELIEF
REQUESTED¿
Plaintiff, Hermine Hossepian, moves
this Court for an award of $34,961.15 in attorneys’ fees and costs, pursuant to
the terms of the Code of Civil Procedure § 998 offer accepted by Plaintiff and
the terms of the Song-Beverly Consumer Warranty Act.
1. Plaintiff’s motion is based on
the Code of Civil Procedure § 998 offer accepted by Plaintiff Hermine Hossepian
on or about January 5, 2023 (the “Settlement”).
2. Page 2, lines 13 through 16, of
the Settlement states, “Defendant also offers to pay reasonable costs,
expenses, and attorneys' fees based on actual time extended pursuant to Civil
Code Section 1794(d) as stipulated by the parties or, if the parties cannot
agree, upon motion to the Court, having jurisdiction over this action.”
3. Over the course of litigation,
Plaintiff’s counsel, who undertook this case on a contingency basis, have
absorbed more than $31,240 in fees and $1,036.65 in costs.
4. Additional fees and costs not
included in these totals are anticipated but not presently known.
5. Plaintiff is also seeking a 10%
positive lodestar adjustment (multiplier), or $3,124.
6. The motion is based on this
Notice and Motion, the following Memorandum of Points and Authorities, the
accompanying declarations of Stephen Parnell, Adam Zolonz, and Sherri Rangel
filed herewith, along with exhibits thereto, all pleadings and records filed
herein, and such oral and documentary evidence as may be presented at the
hearing of this motion.
For
the reasons set out below, the Court will award $26,554 in attorneys’ fees and
$1,036.65 in costs to the plaintiff.
II.
BACKGROUND
Plaintiff
filed a Complaint against Defendants on 06/17/2022 titled “Complaint for
Damages” in the caption of its Complaint. The first cause of action was for
Breach of the Implied Warranty of Merchantability under the Song-Beverly Act,
and the second cause of action was for Breach of Express Warranty under the
Song-Beverly Warranty Act.
Plaintiff
states that it accepted the second CCP §998 offer made by MBUSA on January 5,
2023. Plaintiff brings this motion to recover fees, costs, and expenses in the
total amount of $34,961.15. Plaintiff arrives at this total by adding the
following: (1) Lodestar [$31,240.00]; plus (2) 10% of lodestar [$3,124]; plus
(3) Costs [$597.15].
Defendants
argue that the Court should reduce Plaintiff’s fees and costs to no more than
$14,365.00.
III.
DISCUSSION
A.
Civil Code 1794(d)
Under Civil Code section 1794, subdivision (d)
the prevailing party in an action that arises out of the Song-Beverly Consumer
Warranty Act is entitled to fees that were reasonably incurred: “If the
buyer prevails under this section, the buyer shall be allowed by the Court 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(d).)
Here, Plaintiff made this motion under CCP §998,
but it appears as if Plaintiff should have made this motion under Civil Code §1794(d). However, on page 2-3 of
Plaintiff’s motion, Plaintiff cites Civil Code §1794(d) and states that it is
the prevailing party pursuant to the Settlement. In Opposition, Defendants do
not seem to dispute that the parties signed a Settlement, nor do Defendants
seem to argue that Plaintiff is not the prevailing party pursuant to the
Settlement.
B. Legal
Standard
The determination of reasonable
amount of attorney fees is within the sound discretion of trial courts. (PLCM
Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise
Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “The determination of
what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly
rate….’” “[T]he lodestar is the basic
fee for comparable legal services in the community; it may be adjusted by the
court based on factors including, as relevant herein, (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….” (Graciano v. Robinson Ford Sales, Inc.
(2006) 144 Cal.App.4th 140, 154.)
In setting the hourly rate for
an attorney fees award, courts are entitled to consider the rate of “‘fees
customarily charged by that attorney and others in the community for similar
work.’” (Bihun v. AT&T
Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate
of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated
Indus. (1993) 6 Cal. 4th 644, 664.)
The burden is on the party seeking attorney fees to prove reasonableness
of the fees. (Center for Biological
Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)
The Court has broad discretion
in determining 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, 1393-94.) The
Court need not explain its calculation of the amount of attorney’s fees awarded
in detail; identifying the factors considered in arriving at the amount will
suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258,
274-75.)
C. Analysis
Plaintiff’s attorneys request a
total of $31,240 in attorney’s fees (putting aside the
requested multiplier). This request is
excessive for several reasons.
As an initial matter, the
billing rates of counsel is slightly high in consideration of the reasonable
market rates for such cases. Cases under
the Song-Beverly Consumer Warranty Act are not especially complicated,
especially cases that settle without any litigation. Also, the billing rates of the paralegals are
slightly high.
Second, some of the entries, as
Defendant notes, are vague and ambiguous, and appear to reflect some
inefficiencies. It is the Plaintiff’s
burden to justify an award of fees.
For these reasons, the Court
reduces the requested amount by 15 percent, from $31,240 to $26,554.
D. Costs
Defendant’s counsel argues that
Plaintiff’s counsel did not file an appropriate memorandum of costs. The Court finds that the omission is harmless
because the motion serves the same function, and plaintiffs’ attorneys in
Song-Beverly Consumer Warranty Act cases frequently simply file a motion for
costs.
Having considered this
argument, the Court awards the full amount of costs requested, $1,036.65.
E.
Multiplier
The lodestar
amount “may be adjusted by the court 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, [and] (4) the contingent nature of the fee
award.”¿ (Bernardi¿v. County of Monterey¿(2008) 167 Cal.App.4th 1379,
1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132].)¿ The
purpose of any lodestar and the increase thereto “is intended to approximate
market-level compensation for such services” and is entirely discretionary.¿
(Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for
litigating certain kinds of cases, but to fix a reasonable fee in a particular
action.”¿ (Weeks v. Baker & McKenzie¿(1998) 63 Cal.App.4th 1128,
1171-72.)
“The trial court is
neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor
v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 citing Montgomery
v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297.)
Here, Plaintiff’s counsel
requests a multiplier of 10% of the lodestar. Plaintiff’s arguments as to its
lodestar request can be seen on pages 8-10 of its motion. In summary, Plaintiff
bases its multiplier request off: (1) Plaintiff’s counsel’s assumption of risk;
(2) Delay in payment of Plaintiff’s counsel; (3) Defendant submitting an
opposition to the instant motion supports a multiplier; and (4) The multiplier
should be 10% of the lodestar.
Having
considered the parties’ arguments, the Court declines to award a multiplier in
this case.
IV.
TENTATIVE RULING OVERALL
The Court will award
$26,554 in attorneys’ fees and $1,036.65 in costs to the Plaintiff.
The Court also
1. Advances
and vacates all dates;
2. Dismisses
the case with prejudice, and
3. Orders
Plaintiff’s counsel to provide notice and file proof of such notice with the
Court.