Judge: Barbara M. Scheper, Case: 23STCP03465, Date: 2023-10-19 Tentative Ruling

Case Number: 23STCP03465    Hearing Date: March 15, 2024    Dept: 30

Dept. 30

Calendar No.

Packard vs. OC Auto Exchange, et. al., Case No. 23STCP03465

Tentative Ruling re:  Petitioner’s Motion for Attorney’s Fees

Petitioner IIeska Packard moves for an award of attorney’s fees based on the successful petition to confirm the arbitration award in her favor.  The motion is granted in part.  The Court awards Petitioner $5,830 in attorney’s fees and $496.58 in costs for a total of $6,326.58.

Civ. Code § 1780(e) provides that “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.”  

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “The reasonable hourly rate is that prevailing in the community for similar work.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.)  

“[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Regional Planning Com., supra, 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, 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. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar 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.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) “[T]he burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) “[A]n award of attorney fees may be based on counsel’s declarations, without production of detailed time records.” (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1365.)

Where a party is challenging the reasonableness of attorney’s fees as excessive that party must attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.)  “[I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence and arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Id. at p. 564.)  It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) 

A “court should defer to the winning lawyer’s professional judgment as to the tasks completed in an action because he won, and might not have, had he been more of a slacker.” (Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, 1111.) A losing party cannot litigate tenaciously then be heard to complain about the time spent or tasks performed by the prevailing party in response. (City of Riverside v. Rivera (1986) 477 U.S. 561, 580, fn.11.)  Where a defendant does not produce evidence contradicting the reasonableness of counsel’s hourly rates, the Court will deem an attorney’s hourly rate as reasonable. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473.)

In support of the motion, Petitioner’s counsel, Colin S. Welsh (“Welsh”), declares that on

April 26, 2021, he filed a demand for arbitration with AAA on behalf of Petitioner. (Welsh Decl., ¶ 3.) On March 1 and 23, 2023, an arbitration of Petitioner’s claims was held before Arbitrator Jeffrey Dasteel. (Welsh Decl., ¶ 4.) On April 17, 2023, Mr. Dasteel issued an Interim Award, which found that Respondent had violated the CLRA, Penal Code § 496, and the Rosenthal Act, and awarded Petitioner $7,948.00. (Welsh Decl., ¶ 6.) On June 2, 2023, Mr. Dasteel issued a Final Award which, in addition to the damages awarded in the Interim Award, also included an award of attorney fees and costs totaling $44,621.01. (Welsh Decl., ¶ 7; Exh. 2.) Respondent has submitted no payment towards the satisfaction of the Final Award. (Welsh Decl., ¶ 8.)

            Welsh states that the total hours that he reasonably and necessarily incurred over the period of time from the due date of the arbitration award to the present is 16.6 hours. (Welsh Decl., ¶ 14.) Welsh has provided time entries which he declares “were recorded contemporaneously with the work performed and are well-documented.” (Welsh Decl., ¶ 14; Exh. 3.) Welsh states that Petitioner has spent 16.6 hours to advance her Petition to Confirm the Arbitration Award in this matter and requests a total lodestar amount of $9,130.00 based on a reasonable hourly rate of $550.00. (Welsh Decl., ¶ 17.) Counsel requests a multiplier of 2.0 to account for the contingency risk of nonpayment, delay in payment, Respondent’s refusal to pay, and measure of Petitioner’s success, as well as to reflect the fair market rate considering the recent high rise of inflation. (Welsh Decl., ¶ 19.) Counsel states that for work done preparing the instant motion, he requests “8 hours or $4,400.00 for all work preparing this motion, memorandum of costs, declaration, and exhibits [5.5 hours]; time to review Respondent’s opposition to [the] fee motion and prepare a Reply [2.5 hours]. In total, $4,400.00 is requested.” (Welsh Decl., ¶ 20.) Petitioner is requesting fees and costs in the amount of $23,299.23, of which costs and expenses represent $639.33. (Welsh Decl., ¶¶ 18, 21; Exh. 8.)

Respondent does not dispute that Petitioner is the prevailing party and does not

dispute that Petitioner is entitled to reasonable attorneys’ fees. Rather, Respondent contends that the Court should deny or significantly reduce Petitioner’s fee request given that they are unreasonable and exorbitant.

Respondent contends that counsel’s hourly rate of $550.00 is unreasonable. The Court

finds that Respondent has not supported such assertion. While the Court notes that the Arbitrator did not see justification to exceed the median hourly rate of consumer law attorneys in California of $450.00 per hour, the Court is not bound by the Arbitrator’s assessment of what constitutes a reasonable hourly rate. (Welsh Decl., Exh. 2.) Petitioner’s counsel has set forth his experience practicing law over a 21-year period in various jurisdictions, has set forth his experience in various practice areas of law, and has provided evidence of his hourly rate of $550.00 being approved in other cases.

            Respondent has not met its burden in challenging the reasonableness of counsel’s hourly rate therefore the Court finds that Petitioner’s counsel’s hourly rate of $550.00 is reasonable.

            The Court notes that Respondent takes issue with various billing entries presented by Petitioner’s counsel in support of the motion. Petitioner has presented a declaration from her counsel along with billing records. Petitioner’s counsel has declared that the fees incurred were necessary and reasonably incurred. Respondent, however, has not presented any evidence to show that the tasks done by Petitioner’s counsel were unnecessary or unreasonable as required by Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra,163 Cal.App.4th 550, 563-564. Respondent has not met its burden in showing the unreasonableness of Petitioner’s claimed attorney’s fees with two exceptions.  Petitioner’s counsel spent 3 hours to personally serve the petition on Respondent.  Although the Court believes personal service was necessary and proper, there is no reason an attorney, rather than a process server, should undertake service and bill at the attorney billing rate.  The Court will deduct 3 hours.  The Court also believes that 8 hours for the instant motion is excessive.  The Court will reduce the compensable time to 5 hours. 

            Accordingly, the Court finds that the lodestar is $5,830.

Petitioner requests a lodestar multiplier of 2.0. While the Court finds that Petitioner’s counsel took this matter on a contingency basis, the instant motion for attorneys’ fees is only concerned with fees incurred as to the Petition to Confirm Arbitration Award. Petitioner has already been awarded attorneys’ fees in the underlying arbitration. The Court does not see how the filing of a Petition to Confirm Contractual Arbitration Award warrants a multiplier of 2.0. The Court does not find that any extraordinary skill was required to file and argue the Petition to Confirm Contractual Award. Moreover, the instant motion bears striking similarities to Petitioner’s motion for attorneys’ fees filed in the underlying arbitration. Moreover, Welsh’s declaration in support of the motion does not indicate whether representing Petitioner precluded other employment.

            The Court therefore denies Petitioner’s request for a multiplier.

Petitioner’s Entitlement to Costs

Petitioner argues that she is entitled to costs and expenses. Respondent argues that

Petitioner’s requested costs should be reduced in the amount of $85.15 for “mileage to [the] OC office.”

            “[I]tems on a verified cost bill are prima facie evidence the costs, expenses, and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Items not mentioned in CCP § 1033.5 may be allowed or denied by the Court in its discretion. (Code Civ. Proc., § 1033.5, subd. (c)(4).) Filing and motion fees are allowable as costs. (Code Civ. Proc., § 1033.5, subd. (a)(1).)

            Attached as Exhibit 8 to Welsh’s declaration in support of the motion is a memorandum of costs, which states that total costs are $639.33, which represent the following items: (1) filing and motion fees in the amount of $496.58, (2) other costs for mileage in the amount of $117.90; (3) “pking” costs in the amount of $12.00, and (4) “doc purchases DMV/OC” in the amount of $12.85.

Mileage costs, costs for parking, and DMV document purchases are not explicitly allowed or prohibited as costs under CCP § 1033.5. Petitioner has failed to substantiate such items which are set forth in Item 16 of Petitioner’s memorandum of costs. The Court therefore reduces Petitioner’s costs by $142.75. The Court will only award Petitioner costs for filing and motion fees in the amount of  $496.58.