Judge: Cherol J. Nellon, Case: 24STCV13251, Date: 2025-04-02 Tentative Ruling
Case Number: 24STCV13251 Hearing Date: April 2, 2025 Dept: 14
#11
Case Background
This is a lemon law action.
On May 28, 2024, Plaintiff John Mikhail filed his
Complaint against Mercedes-Benz USA, LLC.
On July 24, 2024, Plaintiff filed a notice of
settlement.
On March 4, 2025, Plaintiff filed this motion for
attorney fees.
On March 19, 2025, Defendant filed an opposition.
On March 20, 2025, Plaintiff filed a reply.
Instant Pleading
Plaintiff moves for attorney fees and costs.
Decision
Plaintiff’s motion for attorney fees is GRANTED in the
reduced amount of $14,437.5 for 27.5 hours of attorney time at a rate of $525
per hour, as well as $1,143.74 in costs.
Legal Standard
“In determining the amount of reasonable attorney fees to be
awarded under a statutory attorney fees provision, the trial court begins by
calculating the ‘lodestar’ amount…[t]he ‘lodestar’ is ‘the number of hours
reasonably expended multiplied by the reasonable hourly rate.’ (Citation.) To determine the reasonable
hourly rate, the court looks to the ‘hourly rate prevailing in the community
for similar work.’ …Using the lodestar as the basis for the attorney fee award
‘anchors the trial court's analysis to an objective determination of the value
of an attorney's services, ensuring that the amount awarded is not arbitrary.’”
Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379,
1393-1394.
“Some federal courts require that an attorney maintain
and submit ‘contemporaneous, complete and standardized time records which accurately
reflect the work done by each attorney’ in support of an application for
attorney fees…[i]n California, an attorney need not submit contemporaneous time
records in order to recover attorney fees…[t]estimony of an attorney as to the
number of hours worked on a particular case is sufficient evidence to support
an award of attorney fees, even in the absence of detailed time records.” (Martino
v. Denevi (1986) 182 Cal.App.3d 553, 559.) “[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, 1375.) “‘“[P]adding’ in the form of inefficient or duplicative efforts is
not subject to compensation.’” (Premier Medical Management Systems, Inc. v.
California Insurance Guarantee Association (2008) 163 Cal.App.4th
550, 556.)
“[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. (Serrano III, supra, 20 Cal.3d at p. 49.) 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. The “ ‘experienced trial judge is the best
judge of the value of professional services rendered in his court, and while
his judgment is of course subject to review, it will not be disturbed unless
the appellate court is convinced that it is clearly wrong.’ ” (Ibid.)” (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1132.)
“[T]he contingent and deferred
nature of the fee award in a civil rights or other case with statutory attorney
fees requires that the fee be adjusted in some manner to reflect the fact that
the fair market value of legal services provided on that basis is greater than
the equivalent noncontingent hourly rate. (Ketchum, supra, 24 Cal.4th at pp. 1132–1133.) “ ‘A lawyer who both bears the
risk of not being paid and provides legal services is not receiving the fair
market value of his work if he is paid only for the second of these functions.
If he is paid no more, competent counsel will be reluctant to accept fee award
cases.’” (Id. at p. 1133, quoting with approval from Leubsdorf, The Contingency Factor in Attorney Fee
Awards (1981) 90 Yale L.J. 473, 480.) The contingency adjustment may be
made at the lodestar phase of the court's calculation or by applying a
multiplier to the noncontingency lodestar calculation (but not both). (Ketchum,
supra, 24 Cal.4th at pp. 1133–1134.)”
(Horsford v. Board of Trustees of California State University (2005) 132
Cal.App.4th 359, 394-395.)
Discussion
Plaintiff moves for attorney fees. The parties do not
dispute that Plaintiff is entitled to fees as the prevailing party. The parties
dispute the reasonableness of the attorney fees and costs requested.
Unreasonable Entries
Defendant argues some entries in Plaintiff’s counsel’s
billing records are unreasonable.
·
Research: 5.3 hours at $525/hour [$2,782.50] - Conduct
research on National Highway Safety Transportation Administration’s (“NHTSA”)
database to review and analyze one hundred sixty-eight (168) Technical Service
Bulletins (“TSB”), and/or Engineering and Safety Investigations, twenty-one
(21) Customer Complaint and seven (7) Safety Recall; AllData database. Review
and analyze documents including Recall Notice, Recall Campaign Bulletin, and/or
Recall Reports (including one hundred sixty-eight (168) manufacturer
communications on NHTSA). Review, analyze and summaries recalls/TSB relating to
Vehicle.
Defendant disputes
this entry because an experienced lemon law attorney could have evaluated the
case for settlement without reviewing these materials. Additionally, Defendant
alleges the documents reviewed were not relevant to the litigation. However, it
is reasonable that Plaintiffs’ counsel reviewed this information before this
case settled to determine whether Defendant was aware of defects in the subject
vehicle. The time will not be taxed.
·
Draft Complaint: 1.9 hours at $525/hour
[$997.50] - Draft twenty (20) page Complaint with details specific to the
Subject Vehicle, an table of repair history, recalls, and TSBs included (see
Complaint, p. 4, line 7 - p. 12, line 25).
Notice of Acceptance of 998: .3 hours at $525/hour
[$157.50]
Defendant disputes these entries because Plaintiff’s
counsel uses templates and did not require so much time to draft these
documents. Although templates are designed to reduce the amount of time an
attorney spends drafting, that does not mean an attorney is barred from billing
for time reasonably spent drafting. 1.9 hours and 0.3 hours are already short
amounts of time to draft these documents even if they were templated. The time
will not be taxed.
·
Fee motion: 8.5 hours (plus 5 hours anticipated)
at $525/hour [$7,087.50]
The Court agrees that the time billed here was
excessive. Because the billing only involved one attorney, concerned a small
number of hours, and was straightforward, it should not take a total of 13.5
hours to draft this motion and the reply. The Court will tax 6 hours from this
time.
·
Estimated Misc Tasks to Complete Settlement 1
hour at $525/hour [$525].
The Court agrees this time should be taxed because the
OSC has not yet taken place and is not likely to take one hour. Once this
motion has been ruled upon, the OSC will be moved to a future date and
discharged once Plaintiff submits a request for dismissal. In all likelihood,
Plaintiff will never need to appear for the OSC. 1 hour will be taxed from
Plaintiff’s Counsel’s time.
·
Anticipated OSC that never happened: 1 hour at
$525/hour [$525] - Misc. tasks to complete case, draft RFD and close file.
Defendant argues this
time should be taxed because the time is not recoverable. The Court agrees that
these tasks are largely clerical and are not reasonable under the
circumstances. 1 hour will be taxed from Plaintiff’s counsel’s time.
Hourly Rates
Defendant first disputes Plaintiff’s counsel’s hourly
rate, arguing his rate should be closer to $350 per hour. Counsel Isaac Kohn
billed an hourly rate of $525 per hour. Kohen testifies that he has 13 years of
experience as an attorney. (Kohen Decl., ¶21.) Kohen has filed 500 lemon law
actions since 2012. (Id., ¶17.) Plaintiff retained his counsel on a
contingency basis. (Id., ¶27.) Based on the Court’s experience and
taking into account Counsels’ experience and contingency fee structure, the
Court finds the proposed hourly rates are reasonable.
Multiplier
Defendant next argues a multiplier
is not warranted. Plaintiff requests a multiplier of
1.1 on the fees.
The
factors for consideration in a multiplier are “(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,
supra, 24 Cal.4th at
1132.)
The award already takes into account
the fact that Plaintiff’s counsel worked on contingency, as required by Ketchum.
(Id. at p. 1133.) The other factors do not call for a multiplier
here. This was a simple lemon law case which settled quickly. It was not novel
or difficult. No multiplier is appropriate here.
Costs
Defendant argues that the costs aside from the
Complaint filing fee should be taxed because Plaintiff did not file a
memorandum of costs. However, as Plaintiff points out, the 998 offer of
compromise states the parties agreed Plaintiff was permitted to seek costs
through a noticed motion or by filing a memorandum of costs. (Motion, Exh. 3.)
Defendant thus agreed to allow Plaintiff to seek costs through this motion
rather than a memorandum of costs.
Plaintiff provides a breakdown of the costs and fees
involved in this case in Exhibit 2 of the motion. The costs appear reasonable
and are thus granted.
Conclusion
Plaintiff’s motion for attorney fees is GRANTED in the
reduced amount of $14,437.5 for 27.5 hours of attorney time at a rate of $525
per hour, as well as $1,143.74 in costs.