Judge: Cynthia A Freeland, Case: 37-2022-00004926-CU-BC-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00004926-CU-BC-NC PUNDIK VS NISSAN NORTH AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 05/03/2023

Plaintiffs Jillian Pundik and Daniel Pundik (collectively, 'Plaintiffs')'s motion for attorneys' fees and costs is granted in part.

Defendant Nissan North America, Inc. ('Defendant')'s request for judicial notice is granted. Defendant's evidentiary objections are overruled.

California Civil Code ('CC') § 1794 entitles the prevailing buyer to recover as part of the judgment the total amount of costs and expenses, including attorneys' fees based upon the actual time expended, determined by the court to have been reasonably incurred in connection with the commencement and prosecution of the case. See Cal. Civ. Code § 1794(d). Where 'the prevailing buyer has a contingency fee arrangement, he or she is entitled to recover 'reasonable attorney fees for time reasonably expended.'' Warren v. Kia Motors America, Inc. (2018) 30 Cal. App. 5th 24, 35-36 (quoting Nightingale v. Hyundai Motor America (1994) 31 Cal. App. 4th 99, 105 n. 6). The prevailing buyer bears the burden of establishing that his or her requested attorneys' fees are allowable, reasonable, and reasonably necessary to the conduct of the litigation. See Goglin v. BMW of North America, LLC (2016) 4 Cal. App. 5th 462, 470. In this case, Plaintiffs accepted Defendant's Offer to Compromise under California Code of Civil Procedure ('CCP') § 998, and there is no dispute that Plaintiffs are the 'prevailing party' under CC § 1794(d). Accordingly, the court must determine the amount of attorneys' fees Plaintiffs reasonably and necessarily incurred in prosecution of this action.

The approach for determining reasonable attorneys' fees under CC § 1794(d) is the lodestar method, which is the number of hours reasonably expended multiplied by the reasonable hourly rate. See Warren, 30 Cal. App. 5th at 36. Once the lodestar figure is calculated, the court can adjust it based upon case-specific factors such as: '(1) the novelty and difficulty of the questions involved, (2) the skills 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.' Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1112. See also Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132. The case's procedural demands can also be considered. See Nightingale, 31 Cal. App. 4th at 104. The most critical factor in evaluating reasonableness, however, is the degree of success obtained. See Etcheson v. FCA US LLC (2018) 30 Cal. App. 5th 831, 847.

Plaintiffs' Counsel's Reasonable Hourly Rates In determining a reasonable hourly rate, the court must consider the prevailing market rates in the relevant community, which typically means comparable attorneys' rates in the forum district. See Calendar No.: Event ID:  TENTATIVE RULINGS

2969959 CASE NUMBER: CASE TITLE:  PUNDIK VS NISSAN NORTH AMERICA INC [IMAGED]  37-2022-00004926-CU-BC-NC Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009. The court should consider the requesting attorney's experience, skill, and reputation, and may also rely upon its own knowledge and familiarity with the legal market. Ibid. In addition, the court can review attorney affidavits regarding prevailing fees in the community and rate determinations in other cases. Ibid. The litigation's difficulty or complexity is also relevant. See Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 700.

Defendant argues that Plaintiff's counsels' hourly rates are excessive and must be reduced to reflect the nature of the work performed and the complexity (or lack thereof) of this matter. Defendant contends that hourly rates for defense counsel performing noncontingent work on consumer products cases range in California between $165 and $225 and, therefore, Plaintiffs' claimed hourly rates, by comparison, are not reasonable for a 'noncontingent' litigation. See Opposition, p. 9. In support of this proposal, Defendant requests that the court take judicial notice of rulings in cases dating back to 2012. While the court has taken judicial notice as requested, the court respectfully finds the proffered rulings unpersuasive as a bell-weather for market rates today in cases like the one presented here.

As is undisputed, Plaintiffs bear the initial burden 'to produce satisfactory evidence – in addition to the attorney's own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.' Kerkeles v. City of San Jose (2015) 243 Cal. App. 4th 88, 105. Affidavits of the applicant attorney and other attorneys are satisfactory evidence of the prevailing market rate. Ibid. 'If a fee applicant presents such evidence, the opposing party ' 'has a burden of rebuttal that requires submission of evidence ... challenging the accuracy and reasonableness of the ... facts asserted by the prevailing party in its submitted affidavits.' [Citation.]' Ibid. (quoting Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110-1111 (9th Cir. 2014)). In this case, Plaintiffs' counsel has provided the court with substantial evidence that their hourly rates in other lemon law cases have been approved in multiple cases in various courts throughout California.

See Barry Decl., ¶¶ 24-96; Kim Decl., ¶¶ 9-36; Norris Decl., ¶¶ 7-98. The hourly rate charges are not out of line with what experienced counsel might charge in a similar case. See Goglin, 4 Cal. App. 5th at 474 (affirming an award of an hourly rate of $575.00 for counsel in a lemon law case in San Diego County).

In addition, Mr. Barry's declaration provides sufficient information for the court to conclude that the hourly rates charged in this matter were reasonable. The hourly rates are also consistent with the court's understanding of the prevailing market rate for similarly situated attorneys in the San Diego legal community. Moreover, while this case was not overly complex, it did occasion discovery and addressing contemplated law and motion practice and communications/negotiations to informally resolve.

Accordingly, the court approves Plaintiffs' counsel's requested hourly rates.

The Number of Hours Plaintiffs' Counsel Reasonably Expended Defendant does not dispute that Plaintiffs are entitled to attorneys' fees as the prevailing party in this matter. However, Defendant argues that the number of hours expended in this matter was unreasonable in various respects. Again, as the objecting party, Defendant bears the burden of referencing the specific items challenged, with a sufficient argument and citations to evidence. See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564.

'General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' Ibid. At the same time, Plaintiffs' counsel's verified time statements are entitled to credence absent a clear indication that the records are erroneous. See City of Colton v. Singletary (2012) 206 Cal. App. 4th 751, 785.

However, the billing statements merely form the basis for the hours reasonably expended and the court may reduce the number of hours if it concludes that Plaintiffs' counsel's efforts were unnecessary, duplicative, or excessive in light of the issues fairly presented. See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 440.

That being said, with few exceptions, Defendant has not presented specific, admissible evidence warranting the requested deductions in the number of hours worked. In addition, Defendant's contention that Plaintiffs' counsel inappropriately block-billed time is unavailing. 'Block billing occurs when a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.' Mountjoy v. Calendar No.: Event ID:  TENTATIVE RULINGS

2969959 CASE NUMBER: CASE TITLE:  PUNDIK VS NISSAN NORTH AMERICA INC [IMAGED]  37-2022-00004926-CU-BC-NC Bank of America, N.A. (2016) 245 Cal. App. 4th 266, 279. The court has reviewed Plaintiffs' counsel's invoices and does not conclude that the entries constitute block billing. Even assuming those entries did constitute block billing, block billing is not per se objectionable. The court maintains discretion to discount or deny a fee request in instances where block billing prevents the court from discerning which tasks are compensable and which are not. See Heritage Pacific Financial, LLC, 215 Cal. App. 4th at 1010; Jaramillo v. County of Orange (2011) 200 Cal. App. 4th 811, 830. Such is not the case here, however.

The court must also independently assess the reasonableness of the time spent and will not simply 'rubberstamp' Plaintiff's fee application. See, e.g., Donahue v. Donahue (2010) 182 Cal. 4th 259, 271.

This includes the reasonableness of paralegal and other support services, which are compensable (see Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal. App. 3d 914, 951, but not clerical or secretarial tasks, which are non-compensable (see Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal. App. 4th 1179, 1187).

The court carefully has reviewed the attorney declarations and the invoices attached as Exhibit 6 to Mr.

Barry's declaration and reduces Plaintiffs' fee request as follows: - It is unclear why both Mr. Kim and Ms. Norris billed time for the exact same task on May 3, 2023. As a result, the court declines to include in its attorneys' fee award 0.3 hours (or $90) spent by Mr. Kim on May 3, 2023.

- There appears to have been no reason to incur time to review materials for the case management conference or review said materials on November 17, 2022, November 22, 2022, or November 30, 2022 because these dates were after Plaintiffs accepted Defendant's CCP § 998 Offer to Compromise.

Therefore, the court reduces the attorneys' fees requested by an additional $240.

Based on the foregoing, the court awards Plaintiffs attorney's fees in the base lodestar amount of $13,137.50.

Plaintiffs' Requested Costs By way of Plaintiffs' motion, they also seek costs. Although the court does not have a proof of service reflecting when Plaintiffs served their Memorandum of Costs, Defendant filed a motion to tax/strike costs on June 21, 2023, in which Defendant represents that the Memorandum of Costs was served on June 2, 2023. See ROA No. 51. The court, as of the issuance of this ruling, cannot determine how the Memorandum of Costs was served. As a result, the court defers ruling on Plaintiffs' request for costs until October 27, 2023, at which time Defendant's motion to tax/strike costs is scheduled to be heard.

Accordingly, the court grants Plaintiffs' motion, in part, and awards Plaintiffs $13,137.50 in attorneys' fees pursuant to CC § 1794(d). The court defers ruling on Plaintiffs' request for costs until October 27, 2023.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2022. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 2022.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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