Judge: Bruce G. Iwasaki, Case: 20STCV29081, Date: 2024-08-26 Tentative Ruling

Case Number: 20STCV29081    Hearing Date: August 26, 2024    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             August 26, 2024

Case Name:                Milton Aparicio v. Mercedes-Benz USA, LLC, et al

Case No.:                    20STCV29081

Matter:                        Motion for attorneys’ fees and costs

Moving Party:             Plaintiff Milton Aparicio       

Responding Party:      Defendant Mercedes-Benz USA, LLC

This is an action under the Song-Beverly Act.  In August 2020, Plaintiff Milton Aparicio (Plaintiff or Aparicio) sued Defendants Mercedes-Benz USA, LLC (Mercedes-Benz) and Keyes European (Keyes) (collectively, “Defendants”) alleging defects in the 2019 Mercedes-Benz (Vehicle) he leased from Keyes. The Complaint pleaded claims for (1) violation of Civil Code section 1793.2(d), (2) violation of Civil Code section 1793.2(b), (3) violation of Civil Code section 1793.2(a)(3), (4) breach of express written warranty, and (5) breach of implied warranty.

In May 2023, the Court summarily adjudicated against Plaintiff four statutory and express warranty causes of action.  The sole remaining claim was the fifth cause of action for breach of implied warranty.

The parties settled the case pursuant to Defendants’ offer under Code of Civil Procedure section 998 (998 offer) accepted on June 29, 2023.  The agreement included a provision permitting Plaintiff to seek fees and costs, with no admission of liability.

            Plaintiff seeks fees and costs under Code of Civil Procedure section 1794, subdivision (d) in the amount of $91,986.80, representing a lodestar total of $60,587.50; a 1.35 multiplier of $21,205.63; costs of $6,693.67; and $3,500 for reviewing the opposition, preparing the reply and attending the hearing. 

            Defendants’ rather choleric opposition urges that the motion be “denied outright” or reduced based on cutting both the hourly rate and the hours claimed.

            The Court awards Plaintiff a total of $54,225.17 in attorneys’ fees and costs.

Evidentiary objections

            Plaintiff requests judicial notice of numerous decisions by other courts in attorney fee requests of Plaintiff’s firm. Defendants object to the request for judicial notice. The Court overrules the objection and takes judicial notice of the orders.

            Defendants object to statements in the declaration of Tionna Carvalho.  Objections 1 through 13 are sustained.  Objections 14 and 15 are overruled.

            Plaintiff objects to statements in the declaration of Elham Hassantash.  Objections 8 and 9 are sustained.  Objections 1 through 7 are overruled.

Legal Standard

            A prevailing buyer in an action under Song-Beverly “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,¿subd. (d).)

            The prevailing party has the burden of showing that the requested attorney fees were “reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].’ ” (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the “time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿

¿¿

            A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”¿¿(Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.)

Discussion

            Attorneys’ Fees

            A calculation of attorneys’ fees for a Song-Beverly action¿begins with the “lodestar” approach, under which the Court fixes the lodestar¿at¿“the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com.¿(1982) 134 Cal.App.3d 999, 1004-1005.) “California courts have consistently held that 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.” (Ibid.)¿ “ ‘The reasonable hourly rate is that prevailing in the community for similar work.’ ” (Id.¿at p. 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.¿(Serrano v. Priest¿(1977) 20 Cal.3d 25, 49;¿PLCM Group, Inc. v. Drexler¿(2000) 22 Cal.4th 1084, 1095.) 

            “[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

            Hourly rate

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”¿¿(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿

Plaintiff’s time records reflect hourly rates from $335 to $595.  Defendants contend the rates should be no higher than $400.  The Court denies fees over $575.  In this case, that amounts to no more than 2.4 hours, and, as discussed below, the Court eliminates that request because it was unnecessary.  The Court reduces the hourly rate for Ms. Dolin’s (now, Ms. Carvalho’s) work in 2022 and 2023 to $525. Ms. Dolin passed the bar in 2014. Her hourly rate in 2021 was $450. Despite her duties in the firm, the Court concludes that an increase to $550 and $570 in 2022 and 2023 respectively are unreasonable. In so concluding, the Court notes the hourly rates of Mr. Berschauer and Ms. Deleon, who became lawyers in 1991 and 2000 respectively.

Reasonableness of expenditures

Defendants argue that no fees should be awarded after rejection of a 998 offer they made in 2021 because, in their view, the earlier offer was superior to the offer made and accepted in 2023. Plaintiff disputes this.  Without deciding between the dueling calculations, the Court concludes that the offers were different enough – the 2021 offer had three options for instance – that no apples-to-apples comparison can be made.   

Defendants also complain about excessive staffing and block billing. The Court does not find that for a lemon law case, the matter was overstaffed. In any case, the Court’s inquiry is whether expenditures were unreasonable because they were duplicative or unnecessary. That is discussed below.  Certain entries that reflect block billing are reduced, as discussed below. 

One issue arises from the Court’s order granting summary adjudication against Plaintiff on four of the five causes of action. Plaintiff expended more than 19 hours opposing the motion.  He cannot be said to be a prevailing party on the four causes of action that were dismissed. The issue is whether the matters dismissed were related to the remaining claim. Despite being based on a different theory of warranty liability, the claims that were dismissed arose from the same transaction, alleged the same defects, and alleged the same course of conduct by Defendants as the surviving implied warranty cause of action.  The causes of action asserted different legal theories as to related claims.  (Harman v. City & County of San Francisco (2007) 158 Cal.App.4^th 407, 423 [related claims “will involve a common core of facts”; “unsuccessful claim will be unrelated to a successful claim when the relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised”].)  Time spent on common work is fully compensable.  (Monterey/Santa Cruz County Bldg.. & Constr. Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4^th 1500, 1523 [defendant liable for fees for “common work…done on common issues”].)

But the court may consider whether plaintiff obtained all the results he sought. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249-250 [“trial court should take into consideration the limited success achieved by [plaintiffs]”]; Hensley v. Eckerhart (1983) 461 U.S. 424, 440 (“Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount that is reasonable in relation to the results obtained.”); Chavez v City of Los Angeles (2010) 47 Cal.4th 970, 989 (“Although fees are not reduced when a plaintiff prevails on only one of several factually related and closely intertwined claims, under state law as well as federal law, a reduced fee award is appropriate when a claimant achieves only limited success”].)  In this case, the elimination of Plaintiff’s statutory and express warranty claims curtailed the damages available and entitlement to a penalty under Civil Code section 1794, subdivision (c).

In determining the amount of fee adjustment because of the result obtained, the Court is not awarding fees in proportion to the amount of recovery. (Warren v. Kia Motors (2018) 30 Cal.App.5^th 24, 37-39.)   Rather the Court determines the hours reasonably expended in determining the lodestar. This method is more precise and transparent than applying a percentage adjustment to the lodestar. (Harman, supra, 158 Cal.App.4^th at p. 417, fn. 7.)   Here, in April and May 2023, Plaintiff expended at least 19 hours on the motion for summary judgment.  Plaintiff’s opposition to the motion for summary judgment, contained only six lines devoted to the fifth cause of action, the only count that survived.  In those circumstances, crediting Plaintiff with 36% of the hours claimed in opposing summary judgment is reasonable.

The Court makes the following adjustments to the hours for which Plaintiff seeks compensation.

            Accordingly, the Court reduces the lodestar Plaintiff claims ($60,587.50) by $15,066.00.  This results in an awardable lodestar for work done through the filing of the fee motion of $45,521.50.

            Fees for reply.

            Plaintiff seeks an award of $3,500 to review Defendants’ opposition, draft a reply, and attend the hearing on fees.  The Court concludes that a reasonable award is 6 hours at the rate of $335 per hour for a total of $2,010.

            Multiplier

            Plaintiff requests a 1.35 multiplier applied to the lodestar amount.

Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) 

            “ ‘The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’ ”  (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 351, quoting Ketchum v. Moses (2001) 24 Cal.4^th 1122, 1132.)  “Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation.”  (Ibid.) 

            Another factor considered by a court in applying a multiplier is the “result obtained.” 

“The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.”  (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582.)  “The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.”  (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.)  

            This was not an extraordinarily complex case and required no extraordinary skill.  It is a contingency fee case.  It did not go to trial. It settled when Plaintiff accepted Defendant’s 998 offer after the Court summarily adjudicated four of Plaintiff’s five causes of action. Plaintiff did not achieve all it sought in the Complaint.  The Court concludes that enhancing the lodestar with a multiplier is unwarranted.

Costs and expenses

            Plaintiff seeks costs and expenses in the amount of $6,693.67 primarily for transcripts of hearings and depositions, and filing fees.  Defendants have not objected to the these amounts.  Accordingly, the Court awards the claimed costs to Plaintiff in the sum of $6,693.67.

            In sum, the Court awards Plaintiff the following:

Conclusion

            Defendant Mercedes-Benz USA, LLC is ordered to pay to Plaintiff’s attorneys, Strategic Legal Practices, APC, as and for attorneys’ fees and costs, the sum of $54,225.17 on or before September 30, 2024.