Judge Bruce G. Iwasaki, Case Number: 23STCV10288, Date: 2024-09-13 Tentative Ruling

Tentative Ruling: The motion for attorneys’ fees is granted. Plaintiff is awarded $14,509. The request for court costs is denied without prejudice.

This is a motion for attorneys’ fees and costs under the Song Beverly Act. Plaintiff Nicholas Pugh seeks an award of $31,852.02 in attorneys’ fees and costs. The Court grants the motion for attorneys’ fees subject to adjustments in the hourly rate and reduction in unnecessary hours. The Court awards Plaintiff fees in the amount of $14,509. The Court denies without prejudice the request for court costs.

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.)

This case settled when Plaintiff accepted Defendant Ford’s offer under Code of Civil Procedure section 998. It appears no discovery was done. Defendant removed the case to federal court, from whence, on Plaintiff’s motion, it was promptly remanded. Plaintiff accepted an offer by which he kept the vehicle and accepted $5,000.

Plaintiff’s motion states that attorney Isaac Kohen worked 50 hours and is entitled to a rate of $525 per hour for a total of $26,250. Additionally, the motion states that attorney Tamara Imber worked 5.5 hours at $295 per hour, totaling $1,622.50, for a total lodestar of $27,872.50. The motion also seeks a 1.1 multiplier, adding $2,787.25. Plaintiff claims costs of $1,192.27. Plaintiff seeks a total award of fees and costs of $31,852.02.

Ford’s 998 offer included a provision that Plaintiff may request an award of fees and costs recoverable under Civil Code section 1794, subdivision (d). The Court finds, and Defendant does not dispute, that Plaintiff is a prevailing party for purposes of the Song Beverly Act.

Plaintiff argues that the attorneys’ hourly rates are reasonable, based on what has been awarded in other cases. He also summarizes the work done and includes a table of time and services.

Defendant Ford states that before the suit was filed, it offered Plaintiff $5,000, which was not accepted. After suit was filed, Plaintiff accepted Defendant’s 998 offer of $5,000 which, as noted, also included a right to seek fees. Ford argues that much of the fee request was for work unreasonably incurred. Defendant also argues against a multiplier, as well as fees for bringing this motion.

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.)

The hourly rates to be used in computing the lodestar must be “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children's Hospital & Medical Center v. Bonta´ (2002) 97 Cal.App.4th 740, 783; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (“The reasonable hourly rate is that prevailing in the community for similar work”). Particularly where it is difficult to obtain evidence of market based rates for the same type of work, the courts look at fees charged for cases requiring similar skills. (The Utility Reform Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, 536–537; Prison Legal News v. Schwarzenegger (9th Cir.2010) 608 F.3d 446, 454–455 (“all attorneys in the community engaged in ‘equally complex Federal litigation,’ no matter the subject matter”).

In determining the reasonable rate and reasonable hours, the Court looks to that “prevailing in the community for similar work.” (PLCM Group, Inc., supra, 22 Cal.4th at 1095; Ketchum, supra, 24 Cal.4th at 1132 (“the lodestar is the basic fee for comparable legal services in the community”). “A reasonable trial court might determine that the ‘similar work’ or ‘comparable legal services’ related to insurance defense litigation, rather than to civil litigation in general. Were the court to so conclude, it could view the relevant ‘market’ to be that of insurance defense litigation and litigators, rather than general civil litigation. The “market rate” for such services might be limited accordingly. Again, we emphasize that such determinations lie within the broad discretion of the trial court.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702–703.)

The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar work. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The trial court is not required to adopt counsel’s opinion as to the “market rate” for services of the type performed. (Syers Properties III, supra, 226 Cal.App.4th at 702.) The trial court may accept the actual rate charged as the reasonable rate. (Id.)

Attorney Kohen attended University of La Verne and North Western California University Schools of Law. He was admitted to practice in 2012 and has focused on lemon law litigation. The Court finds that the reasonable hourly rate for Mr. Kohen is $475. Tamara Imber has been practicing lemon law litigation since 2021. The Court finds that the reasonable hourly rate for Ms. Imber is $295.

The Court has examined in detail Plaintiff’s counsel’s time records. The Court finds that many of the entries in the time records Plaintiff submits were inadequately described, unnecessary, or excessive. The Court eliminated all entries regarding client communications that did not disclose the general subject matter of the communication. In the Court’s view, a general description fulfills the moving party’s burden of demonstrating that the time is for legal services that are reasonable and necessary while not disclosing attorney-client communications. Therefore, entries on 12/23/22, 1/10/23, 3/8/23, 3/20/23, 6/9/23, and 6/30/23, were discounted in whole or in part.

The Court reduced or eliminated all entries for work that was generic or clerical. The Court reduced the entry on 3/15/23 to 1.5 hours. The Court reduced the complaint drafting to .5 hours, because beyond pasting in a summary of repair notes, and altering the paragraphs that describe the subject vehicle, it is a form pleading.

The Court eliminated clerical functions, such as email with Legal Courier, reviewing a proof of service, and drafting the summons and civil cover sheet. The Court also reduced or eliminated entries such as reviewing notices and messages from the federal court clerk and drafting and reviewing case management statements. The nine hours claimed for drafting the fee motion is reduced to five hours.

The Court concludes that the lodestar amount that is appropriate here is as follows:

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.)

“Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation.” (Id.) The court may not consider the contingent nature of the representation in both setting the lodestar and applying a modifier. (Id.)

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.)

Plaintiff fails to present any facts that would require a multiplier to compensate counsel for their services at fair market value. The lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. The cases did not involve any novel legal issues. The amount the client obtained was offered before litigation. There is no justification to apply a multiplier.

Plaintiff seeks court costs of $1,192.27. This amount was tallied in exhibit 2 to Mr. Kohen’s declaration filed as part of the fee motion. It does not appear, however, that Plaintiff has filed and served a memorandum of costs. (Cal. Rules of Court, rule 3.1700.) Defendant did not contest the amount of costs Plaintiff seeks. Still, absent a memorandum of costs, the award of court costs is not properly before the Court. In reviewing exhibit 2, it appears that most of the costs – for filing fees, service fees, etc. – are appropriate. Some others are doubtful, such as postage and photocopying expenses. (Code. Civ. Proc., § 1033.5, subd. (b)(3).) There are two ways this gets resolved: (1) Plaintiff files the cost memorandum and Defendant files a motion to tax costs, which is then opposed and heard by the Court with an adjustment of a few hundred dollars, but with the expenditure of perhaps several thousand dollars in fees by each side. (2) The parties can confer and reach agreement on costs. The Court is confident the parties will take the approach that is in their mutual interests, because they settled the merits of this case.

Accordingly, the Court denies Plaintiff’s request for court costs without prejudice to further proceedings under the Code of Civil Procedure and the Rules of Court, or voluntary resolution by the parties.

The Court awards Plaintiff attorney’s fees in the sum of $14,509. Defendant shall pay to Plaintiff’s counsel this sum on or before November 12, 2024.

Attorney	Hourly rate	Reasonable Hours	Total
Kohen	$475	29.8	$14,155
Imber	$295	1.2	354
Lodestar			$14,509

Judge Bruce G. Iwasaki

Department 58