Judge: Daniel M. Crowley, Case: 20STCV06417, Date: 2024-05-29 Tentative Ruling

Case Number: 20STCV06417    Hearing Date: May 29, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Artur Roushanian’s motion for attorneys’ fees is granted in the total reduced amount of $406,748.50, comprised of $406,748.50 in attorneys’ fees. The Court does not rule on Plaintiff’s request for costs in its motion for attorneys’ fees.

Defendant BMW of North America, LLC’s motion to tax costs is granted.  The Court strikes Plaintiff’s Memorandum of Costs as untimely.

Plaintiff Artur Roushanian (“Roushanian”) (“Plaintiff”) moves for an order awarding his attorneys’ fees, costs, and expenses as prevailing party after a two-week trial held from January 2-12, 2024, before this Court in the total amount of $1,007,895.03, comprised of $421,712.50 in attorneys’ fees, including a 1.0 lodestar enhancement in the amount of $421,712.50, for a total of $843,425.00 in attorneys’ fees, and costs in the amount of $164,470.03.  (Notice Motion Fees, pgs. 1-2; 15 U.S.C. § 2310(d)(2); Civ. Code §1794(d).)  Plaintiff also states in a footnote to his notice of motion, “Depending on Defendants’ response to the fee motion, Plaintiff may seek a 2.0 Multiplier if their response shows a lack of remorse for what they put Plaintiff through. If Defendants’ response reaffirms their complete lack of reality (e.g. claiming Plaintiff was not the prevailing party or that he is not entitled to fees and costs), Plaintiff will demand a 2.0 Multiplier.”   (Notice Motion Fees, pg. 2.)

Defendant BMW of North America, LLC (“BMW NA”) moves to strike Plaintiff’s Memorandum of Costs, or in the alternative, tax $156,165.25 in claimed costs, as follows: (1) $450.15 claimed under Item 1 as filing and motion fees; (2) $7,757.00 claimed under Item 4 as deposition costs; (3) $445.00 claimed under Item 5 as service of process costs; (4) $133,208.71 claimed under Item 8 as witness fees; (5) $1,610.60 claimed under Item 9 as court-ordered transcripts; (6) $11,119.43 claimed under Item 11 as models, enlargements, and photocopies of exhibits; and (7) $1,574.36 claimed under Item under Item 16 as other costs.  (Notice Motion Tax, pgs. 2-3; CRC, Rule 3.1700(b).) 

Defendant moves on the grounds that: (1) Plaintiff did not file his Memorandum of Costs within the time limit established by CRC, Rule 3.1700(a)(1); (2) the claimed costs are not allowable, under C.C.P. §1033.5(b); (3) the claimed costs were not reasonably necessary to the conduct of the litigation, in violation of C.C.P. §1033.5(c)(2); (4) the claimed costs are not reasonable in amount, in violation of C.C.P. §1033.5(c)(3); and (5) the claimed costs were not reasonably incurred, in violation of Civil Code §1794(d).  (Notice Motion Tax, pgs. 2.)

1.     Plaintiff’s Attorneys’ Fees Motion

Request for Judicial Notice

Defendant’s 5/15/24 request for judicial notice that Yasha Daniel Ahoubim (“Ahoubim”) #331111 was admitted to the State Bar of California on June 1, 2020, as shown by the records of the State Bar of California, is granted.  (Decl. of Villegas, Exh. 5.)

Background

This is a lemon law action brought under the Magnuson-Moss Warranty Act (“Magnuson-Moss”).  This action came on regularly for a jury trial on January 2, 2024.  On January 12, 2024, the jury returned a special verdict in favor of Plaintiff.  On February 7, 2024, Judgment was entered in favor of Plaintiff, stating Plaintiff recovers against Defendant a replacement of the Subject Vehicle with a new vehicle reasonably equivalent to Plaintiff’s vehicle and awarded Plaintiff $23,075.00 with interest thereon at a rate of 10% per annum from the date of judgment until paid, plus attorneys’ fees, costs, and disbursements in an amount pursuant to a timely filed motion as permitted by law.  (Judgment, pg. 13.)

On March 15, 2024, Plaintiff filed this motion for attorneys’ fees.  Defendant filed its opposition on May 15, 2024.  Plaintiff filed his reply on May 21, 2024.

Discussion

The Magnuson-Moss Act provides:

If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action[.]

(15 U.S.C. §2310(d)(2).)

Civil Code §1794(d) provides that a buyer who prevails in an action under that section of the Song-Beverly Consumer Warranty Act (“Song-Beverly”), “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.”

“[I]t is noteworthy that the language of the 1978 amendment [to the Song-Beverly Act] is identical to the attorney fee provision contained in the Magnuson-Moss Warranty Act passed by Congress in 1975 (see 15 U.S.C. § 2310(d)(2)).” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 820.)

Here, Plaintiff is the prevailing party per the Court’s Judgment and is entitled to attorneys’ fees.  Defendant does not contest that Plaintiff is the prevailing party.

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.)

Natan Davoodi declares the following hourly rates for Plaintiff’s attorneys: (1) Natan Davoodi ($645.00/hour); and (2) Yasha Ahoubim ($500.00/hour).  (Decl. of Davoodi ¶¶20 n.13, 24, Exh. A; Decl. of Ahoubim ¶¶5-6, Exh. A.)  This rate is appropriate given each the attorney’s relative experience and qualifications.  (See id.)  Plaintiffs have sufficiently demonstrated their counsel’s hourly rates are reasonable in their community of practice in their specialized area of law.

Defendant challenges Plaintiffs’ counsel’s hourly rates as unreasonable but does not challenge with the necessary particularity.  (Opposition, pgs. 8-10.)  The Court finds Plaintiff’s counsel’s rates to be reasonable and do not warrant reductions.

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.)

Plaintiff’s counsel’s fee recovery for a total of $421,712.50 is based on the following billed hours: (1) Natan Davoodi with 582.5 hours ($375,712.50); and (2) Yasha Ahoubim with 92.0 hours ($46,000.00).  (Decl. of Davoodi ¶24, Exh. A; Decl. of Abouhim ¶¶6-7, Exh. A.) 

Defendant argues specific hours billed by Davoodi should be reduced.  (Opposition, pgs. 5-7.)  The Court has reviewed Defendant’s objections to Davoodi’s billed hours and regards some as well taken. 

First, Defendant’s objection to Davoodi’s billed hours in connection with the motion for terminating sanctions (11.0 hours or $7,095.00) and motion to disqualify defense counsel (11.8 hours or $7,611.00) are well taken, as the motions were unsuccessful and did not advance litigation in this case.  (Opposition, pgs. 5-6.)  Therefore, the Court reduces Plaintiff’s requested fees by $14,706.00.

Second, Defendant’s objection to the 49.3 hours (or $31,798.50) billed by Davoodi in preparing the opposition to Defendant’s motion for summary judgment is not well taken because it is not supported by case law and appears to arbitrarily reduce the amount of hours billed by Davoodi by 20 hours.  (Opposition, pg. 7.)

Finally, Defendant’s objection to the 0.4 hours or ($258.00) billed by Davoodi in billing for a demand letter in a different case is well taken because the demand letter does not appear reasonably incurred in the instant case.  (Opposition, pg. 7.)  Therefore, the Court reduces the Plaintiff’s requested fees by $258.00.

Defendant’s objections to Yasha Ahoubim’s fees incurred in this case are not well taken because Defendant appears to speculate that Ahoubim’s billed hours are duplicative of Davoodi’s billed hours.  (Premier Medical Management Systems, Inc. v California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564 [“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”].)

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $406,748.50.

Final Lodestar Determination

The Court denies Plaintiff’s request for a 1.0 lodestar multiplier.  Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate.  Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.  Further, Plaintiff’s request in his reply for a 2.0 lodestar multiplier for Defendant’s “lack of remorse for what they put Plaintiff through” is denied.

Costs

The Court will address Plaintiff’s request for costs in Defendant’s request to tax costs and will not rule on costs in the instant motion for attorneys’ fees.

Conclusion

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $406,748.50.  The Court will not rule on Plaintiff’s request for costs in this motion.  Plaintiffs’ motion is granted in the reduced total amount of $406,748.50.

Moving Party to give notice.

2.     Defendant’s Motion to Tax Costs

Request for Judicial Notice

Plaintiff’s 5/10/24 request for judicial notice of Defendant’s Opposition to Motion to Tax Costs in Case No. 21TRCV00073 – Iman Peykar v. BMWNA et al. is denied as irrelevant.

Legal Standard

A party seeking costs must file a Memorandum within 15 days of Notice of Entry of Judgment.  (CRC, Rule 3.1700(a)(1); Heimlich v. Shivji (2019) 7 Cal.5th 350, 361.)

C.C.P. §1010.6(a)(3)(B), provides in pertinent part that, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days . . ..”

Discussion

Plaintiff’s Memorandum of Costs, claiming $164,470.03 in costs, is stricken because it was not timely filed.  Plaintiff served Notice of Entry of Judgment by electronic service on February 7, 2024.  The clerk served Notice of Entry of Judgment by mail on February 7, 2024.  Plaintiff did not file his Memorandum of Costs until March 13, 2023, far outside the deadline established by CRC, Rule 3.1700(a)(1).  Based on Plaintiff’s Notice of Entry of Judgment, Plaintiff was required to file and serve his Memorandum of Costs by February 26, 2024.  Where a party does not file a timely Memorandum of Costs, it is an error for a trial court to award costs.  (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 426.)

Accordingly, Defendant’s motion to strike Plaintiff’s Memorandum of costs is stricken as untimely.

Conclusion

Defendant’s motion to strike Plaintiff’s memorandum of costs is granted.

Moving Party to give notice.

Dated:  May _____, 2024