Judge Bruce G. Iwasaki, Case Number: 20STCV47133, Date: 2024-01-19 Tentative Ruling

Tentative Ruling: The Motion for Attorney’s Fees is granted in part for a total of $76,636in attorney fees. The request for costs is granted in the amount of $15,194.30.

This is an action under the Song-Beverly Act in which Jerome Fein (Plaintiff) alleged defects in a 2017 Mercedes S550 (Vehicle). Plaintiff sued Keyes European, LLC and Mercedes-Benz, LLC (Defendant) for breach of express and implied warranties.

The parties settled this Song-Beverly matter except as to the issues of attorneys’ fees and costs.

Plaintiff now argues that, as the prevailing party, he is entitled to fees and costs under Civil Code section 1794, subdivision (d). He seeks lodestar attorneys’ fees of $85,036, plus a 1.5 multiplier – in the amount of $42,518 – and costs of $15,194.30. The total requested in attorney fees and costs is $142,748.30.

Defendant Mercedes filed an opposition arguing the amounts requested in fees and costs are excessive and unreasonable.[1] Plaintiff filed a reply.

The Court grants the motion for attorneys’ fees in a reduced amount. The request for costs is granted.

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.)

Plaintiff seeks $85,036 in attorneys’ fees for Knight Law Group, LLP (Knight Law), plus a 1.5 multiplier enhancement, and costs of $15,194.30., for a total $142,748.30.

Defendant Mercedes does not dispute that Plaintiff is the prevailing party under the settlement agreement. Instead, Defendant argues the that hours incurred to litigate this routine, non-complex case that settled before trial is unreasonable.

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.)

Defendant Mercedes first contends that Plaintiff’s attorneys’ hourly rates – which range from $250 to $550 – are unreasonable.

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” ’ ”].)¿

In challenging the hourly rates, Defendant requests that the Court reduce all hourly rates to, “at most,” $250. However, Defendant does not submit evidence specifically addressing Plaintiff’s attorneys’ hourly rates. Instead, Defendant points to several Los Angeles Superior Court cases where attorney hourly rates were reduced. (Opp., p. 10:3-26.) These cases are not controlling on this Court.

Defendant also cites the holding in Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240 – where the Court of Appeal upheld a trial court’s reduction of a firm’s hourly rate to $350. While this case does suggest that the nature and complexity of the underlying litigation are factors in determining whether attorney’s fees are reasonable (id. at p. 255), it does not definitively hold that the rates requested in this case are unreasonable. That is, under the applicable standard of review, the court of appeal only found that the trial court’s decision to reduce the hourly rate was not “clearly wrong.” (Id. at p. 246.) Thus, Mikhaeilpoor is of only limited help to Defendant.

Here, a review of the Kirnos Declaration in support of the motion for attorney’s fees – which contains a description of each attorneys’ education and experience – supports finding Plaintiff’s attorneys’ hourly rates ranging from $250 to $550 were reasonable; the rates are supported by substantial evidence under the present circumstances. (Kirnos Decl., ¶¶ 29-54.)

Based on the Court's familiarity with the current local market, and Plaintiff’s evidence of the experience and skills of the various attorneys – the Court finds that Plaintiff's requested rates per hour are reasonable.

Defendant Mercedes also challenges the hours incurred, arguing that the amounts sought by Plaintiff are the result of overstaffing, overbilling, and vague entries.

Mercedes’s opposition challenges several specific entries. (Opp., p. 2:25-8:5.)

Duplicative Billing: Defendant contends that, as result of overstaffing, Plaintiff billed for duplicative entries of the same task. However, Defendant’s assertion of duplicative billing appears overstated as Defendant has only identified three of entries as duplicative. Moreover, in reviewing these entries, these tasks have already been reduced based on the Court’s ruling that these discovery related entries were excessive, as discussed below.

Vague Billing: Defendant Mercedes also argues that numerous billing entries are vague, arguing that they do not clearly delineate tasks billed by Plaintiff’s counsel. (Opp., 2:1-5 [“They provide no information as to (1) whether counsel was billing for the same task, (2) whether counsel made repetitive entries, or (3) any indication as to the substantive nature of Plaintiff’s counsel’s tasks during the duration of this litigation.”].)

Vague entries obscure a court’s ability to assess the reasonableness of a fee request, justifying a reduction of the fees. (See e.g., Maughan v. Google Technology (2006) 143 Cal.App.4th 1242, 1251 [affirming trial court’s reduction of fees and costs from $112,288 to $23,000, in part because the time sheets submitted were “somewhat vague in their descriptions of what precisely defense counsel was doing for the claimed amount of time”].)

Admittedly, there are a number of billing entries that would benefit from greater detail in the description; however, the billing entries are not too vague to make a determination of its reasonableness. That is, the Court can generally understand the nature of the work described in the context of the litigation. Counsel “is not required to record in great detail how each minute of his time was expended” but “should identify the general subject matter of his time expenditures.” (Hensley v. Eckerhart (1983) 461 U.S. 424, 437 n.12; see also Acevedo v. City of Los Angeles, No. CV 14-5661-GHK (PJWx), 2016 WL 11525321, at *9 (C.D. Cal. Dec. 2, 2016) [“An entry is not considered too vague if it identifies the general subject matter of time expenditures.”].)

Excessive Billing: Defendant also argues that the hours claimed in this case are excessive.

First, Plaintiff seeks numerous hours for time incurred on propounding and responding to discovery and preparing for depositions. Given Plaintiff’s counsel’s experience in this type of litigation and the simple lemon law issues at matter here, the Court agrees that the time incurred on such tasks are excessive and unreasonable under the circumstances. The Court will reduce fees by $6,125 for excessive hours incurred on discovery related tasks.

Second, as to Defendant’s remaining challenged entries, the Court also agrees that many of these entries need to be reduced. For example, on June 9, 2022, Plaintiff billed 3.5 hours to “Attend hearing on TRC and draft results email re appearance” and “roundtrip travel.” On October 12, 2022, Plaintiff incurred another 3.6 hours to “attend hearing on Trial Readiness Conference; Draft results.” On October 12, 2022, there was also an entry for 2.2. hours for “research law re out of state depositions and sent correspondence to defense counsel re same.” These fees are excessive. Additionally, as another example, the time incurred to draft the motions in limine (4.3) was excessive. Based on these and other excessive entries, Court will reduce fees by $2,275.

As noted, it is Plaintiff that “has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ ” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5^th 24, 34.) But in its reply brief, Plaintiff appears to turn this burden on its head. Plaintiff argues that attorney fee bills are “presumptively credible,” and the burden is on the party opposing the bills to make specific objections to particular time entries based on evidence. In making this argument, Plaintiff selectively quotes from several cases. None of these cases undermine the Court’s determination that portions of Plaintiff’s claimed fees were unreasonable.

First, Hadley v. Krepel (1985) 167 Cal.App.3d 677 stands for the proposition that a moving party’s verified cost bill is prima facie evidence that costs, expenses, and services listed were necessarily incurred. (Id. at p. 682.) Moreover, while plaintiff's attorney's verified billing records are “prima facie evidence” that the services were “necessarily incurred,” a court is not limited in its determination of reasonable attorney's fees “by the sufficiency of [the opposing] motion to rebut the presumption” that the fees were necessary. (Id. at pp. 682–683.)

In Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, the appellate court found that the trial court's conclusion some of the hours billed were duplicative was not grounds for “rejecting wholesale counsels’ verified time records.” (Horsford, supra, 132 Cal.App.4th at p. 396.) Rather, “the 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.” (Ibid.) If the trial court believed some hours billed by multiple attorneys were overlapping, duplicative, or excessive, it could have exercised its discretion to reduce the award accordingly. (Id. at pp. 396-397.) The court concluded “the trial court abused its discretion in failing to use counsels’ time records as the starting point for its lodestar determination.” (Id. at p. 397.) Thus, Horsford stands for the proposition that an attorney’s verified time records, indicating the hours actually devoted to the particular litigation, are entitled to credence, and are only a starting point to be used in calculating the lodestar for purposes of determining a fee award, in the absence of evidence indicating the records are erroneous or inaccurate.

Finally, with respect to McGrath v. County of Nevada (1995) 67 F.3d 248, the court held that the party challenging the reasonableness of the hours billed “bears the burden of providing specific evidence to challenge the accuracy and reasonableness of the hours charged.” (McGrath v. County of Nevada (1995) 67 F.3d 248, 255.) Notably, this case pertained to attorney fees under 42 U.S.C. § 1988 and its holding is not cited in any California authority for attorney fees. (See also Blum v. Stenson (1984) 465 U.S. 886, 892, fn. 5 [applying to 42 U.S.C. § 1988].)

More importantly, however, other federal cases citing McGrath, have held that notwithstanding this burden shifting, the “Court also has an independent duty to review the evidence of hours worked and tasks undertaken to determine the reasonableness of the fees requested for the case.” (Scalia v. County of Kern (E.D. Cal., Apr. 27, 2023, No. 117CV01097AWICDB) 2023 WL 3124385, at *1 [citing the proposition in McGrath and then citing Hensley v. Eckerhart (1983) 461 U.S. 424 [“It remains for the district court to determine what fee is ‘reasonable.’”].)

Thus, deficiencies in Defendant’s opposition paper – including a lack of evidence – does not deprive this Court of its responsibility to determine “reasonable” fees here.

Finally, Plaintiff seeks a 1.5 lodestar multiplier based on the risk of taking on the case on contingency and the substantial delay in payment of attorney fees.

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.)

Although this matter was taken on contingency (Kirnos Decl., ¶ 9), none of the other factors support the application of a multiplier. This was a garden variety Song-Beverly case; there were no novel or difficult questions presented. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.) Further, the¿contingent risks, skill, and difficulty¿Plaintiff’s attorneys¿assert are absorbed by¿their¿already high (albeit reasonable) hourly rates. (See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.)

	Reductions	Total
Original Lodestar Amount		$85,036
Excessive Billing	$8,400

Reduced Lodestar Amount	$8,400	$76,636

The Court grants Plaintiff’s motion for attorneys’ fees in the sum of $76,636.

Defendant also challenges Plaintiff’s claimed costs of $15,194.30. Defendant does not challenge any specific costs but only argues that “Plaintiff has not submitted any evidence of the reasonableness of the costs incurred.” (Opp. 12:15.) Defendant asks the Court to either deny costs outright or “continue the hearing on this Motion for a period of time sufficient for Plaintiff to submit documentation substantiating his request for recovery of costs, and for Defendant to respond.” (Opp. 12:27-13:2.)

In awarding costs under section 1033.5, the trial court has broad discretion to determine what costs were reasonably necessary to the conduct of the litigation and whether they were reasonable in amount. (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 541; Code Civ. Proc., § 1033.5, subd. (c)(2).)

Once a verified cost memorandum is submitted and the costs sought appear facially proper, the memorandum is prima facie evidence the costs were reasonable and necessary, and the party objecting to those costs bears the burden of proving they are not. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Upon a proper objection in a motion to tax, the burden of proof will shift back to the party seeking costs to provide evidence and documentary support that the costs were reasonable and necessarily incurred. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [“[I]f the [cost] items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”].)

However, mere conclusory statements and arguments contained in the motion to tax costs are generally not proper objections sufficient to shift the burden. (Nelson v. Anderson, supra, 72 Cal.App.4th at p. 131 [quoting Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698–699].) To be proper, an objection to a facially reasonable and awardable cost item must be accompanied by evidence or supporting documentation. (Nelson, supra, at p. 131.) Conversely, facially improper costs, despite verification, may be challenged without submitting additional evidence to prove they are unreasonable or not awardable and will be sufficient to shift the burden to the party seeking costs. (Ibid.)

Here, Defendant does not object to any specific cost or argue any specific cost incurred was unreasonable. Rather, Defendant simply argues that the Plaintiff has not substantiated the costs sought. This argument misstates the burden shifting where Plaintiff has filed a facially valid memorandum of costs. That is, Defendant’s opposition argument is not a proper objection to the facially valid costs memorandum and, therefore, has not triggered Plaintiff’s burden to substantiate his costs.

Defendant Mercedes-Benz USA, LLC is ordered to pay to Plaintiff’s counsel the sum of $91,830.30 ($76,636 + 15,194.30) for attorneys’ fees and costs. This amount shall be paid on or before February 20, 2024.

[1] On January 9, 2024, Plaintiff filed a notice of non-opposition. On January 10, 2024, Defendant filed its opposition. The opposition was due on January 3, 2024. (Code Civ. Proc., § 1005, subd. (b).) The Opposition provides no explanation for its untimeliness. The Court has discretion to refuse to consider the late opposition. (Cal. Rules of Court, rule 3.1300; Rancho Mirage Country Club Homeowners Ass’n v. Hazelbaker (2016) 2 Cal.App.5^th 252, 262 [affirming refusal to consider tardy opposition to plaintiff’s motion for attorney’s fees].) In this instance, the Court prefers to determine this issue on the merits with the benefit of an opposition and reply. The Court cautions counsel to adhere to statutory time deadlines.

Department 58