Judge: Daniel M. Crowley, Case: 19STCV41202, Date: 2024-01-03 Tentative Ruling

All parties are urged to meet and confer with all parties
concerning this tentative ruling to see if they can reach an agreed-upon
resolution of their matter.  If you are able to reach an
agreement, please notify the courtroom staff in advance of the hearing if
you wish to submit on the tentative ruling rather than argue the motion by
notifying the court by e-mailing the court at: SMCDept71@LACourt.org.  Include
the word "SUBMITS" in all caps and the Case Number in the Subject
line.  In the body of the email, please provide the date and time of the
hearing, your name, your contact information, the party you represent, and
whether that party is a plaintiff, defendant, cross-complainant,
cross-defendant, claimant, intervenor, or non-party, etc.



           
Please be advised that if you submit on the tentative and elect not to appear
at the hearing, the opposing party may still appear at the hearing and argue
the matter, and the court could change its tentative based upon the
argument.  Unless you receive a submission from all other parties
in the matter, you should assume that others might appear at the hearing to
argue.  If you submit, but still intend to appear, include the words
"SUBMITS, BUT WILL APPEAR" in the Subject line.    
If you elect to argue your matter, you are urged to do so remotely, via
Court-Connect.

If
the moving party fails to appear and/or submit to the Court’s tentative ruling,
the Court will take the  matter off calendar.

                       
  

            Note
that once the Court has issued a tentative, the Court has the inherent
authority not to allow the withdrawal of a motion and to adopt the tentative
ruling as the order of the court. 
 

 

            If you
submitted a courtesy copy of your papers containing media (such as a DVD or
thumb drive), unless you request the return of the media in your papers, the
court will destroy it following the hearing of your matter.  

Case Number: 19STCV41202    Hearing Date: January 3, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Christopher Hardy’s unopposed motion for attorneys’ fees is granted in the amount of $33,840.50.

Plaintiff Christopher Hardy (“Hardy”) (“Plaintiff”) moves unopposed for an order awarding him $33,840.50 in attorneys’ fees against Defendant Mercedes-Benz USA, LLC (“Mercedes-Benz”) (“Defendant”).  (Notice of Motion, pg. 1; Civ. Code §§1794(d), 1780(e).) 

Background

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).  Plaintiff accepted Defendant’s C.C.P. §998 offer of compromise (“998 Offer”) on May 4, 2023, in the amount of $20,000.00 plus attorney’s fees, costs, and expenses by motion.  (P-COE, Exh. 1.) 

On August 24, 2023, Plaintiff filed this motion for attorneys’ fees.  As of the date of this hearing no opposition has been filed.

Discussion

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer.”  (C.C.P. §998(c)(1).)  “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.”  (C.C.P. §998(c)(2)(A).)  “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.”  (C.C.P. §998(e).)

Section 998’s plain language only penalizes plaintiffs who “fail[] to obtain a more favorable judgment or award” than a §998 offer by cutting off their post-offer costs and requiring them to pay “defendant’s [post-offer] costs” out of any “damages awarded.”  (C.C.P. §§998(c)(1), (e).)

A party who settles cannot “fail” to obtain a more favorable “judgment or award.” “Fail[ure]” connotes defeat, abandonment, or “[i]nvoluntarily” falling short of one’s purpose.  (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, 413-414, citing Burton’s Legal Thesaurus (3d ed. 1998) p. 228, col. 1, Black’s Law Dict. (rev. 4th ed. 1968) at pg. 711, col. 1; accord Cambridge Dict. Online (2023) [“fail” means “to not succeed in what you are trying to achieve”].)  Section 998(d) is explicit: A “judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.”  (C.C.P. §998(d).)

Here, Plaintiff is the prevailing party and is entitled to attorneys’ fees and costs pursuant to the 998 Offer.

Civil Code §1794(d)

Civil Code §1794(d) provides, “[i]f the buyer prevails in an action under this section, the buyer 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.”

Reasonable Fees

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the Plaintiff’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.”  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, emphasis added.)

Plaintiff’s Counsel declares the following hourly rates: (1) Christopher P. Barry at $670 per hour; (2) Gregory T. Babbitt at $585 per hour; (3) Michell A. Cook at $335 per hour; (4) David L. Herman at $490 per hour; (5) Jason A. Stones at $310 per hour; (6) Serena Aisenman at $265 per hour; and (7) Leslie Mason at $150 per hour.  (Decl. of Barry ¶8; Decl. of Babbitt ¶8.)  Plaintiff has sufficiently demonstrated his counsel’s hourly rate is reasonable in their community of practice in their specialized area of law.  (Decl. of Barry ¶¶8-18.)

The Court finds Plaintiff’s counsel’s rate to be reasonable and does not warrant a reduction.

Billed Hours

The party seeking fees and costs bears the burden to show “the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount.”  (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

In this case, the declarations and billing records provided by Plaintiff’s counsel are sufficient to meet the burden of proving the reasonableness of the claimed fees in terms of amounts and tasks. To satisfy this burden, evidence and descriptions of billable tasks must be presented in sufficient detail, enabling the court to evaluate whether the case was overstaffed, the time attorneys spent on specific claims, and the reasonableness of the hours expended.  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486-487.)

Plaintiff’s fee recovery is based on 83.5 hours Plaintiff’s counsel spent litigating this case.  (Decl. of Barry ¶8; P-COE, Exh. 5.)  The fees incurred are reasonable, as captured in the billing records submitted to this Court.  (P-COE, Exh. 5.)  Plaintiff’s counsel’s billing records reflect the actual time and clear descriptions of services performed in connection with litigating this case.  Although the submission of such detailed time records is not necessary under California law, if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

Conclusion

Accordingly, Plaintiff’s unopposed motion for attorneys’ fees is granted in the total amount of $33,840.50.

Moving Party to give notice.

Dated:  January _____, 2024