Judge: Daniel M. Crowley, Case: 21STCV4540, Date: 2023-12-13 Tentative Ruling

Case Number: 21STCV4540    Hearing Date: December 13, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Hadi Sabbaghzadeh’s motion for attorneys’ fees and costs is granted in the total reduced amount of $52,677.45.  Plaintiff’s request for attorneys’ fees is granted in the reduced amount of $50,922.50, and Plaintiff’s costs is granted in the reduced amount of $1,754.95. 

Plaintiff Hadi Sabbaghzadeh (“Sabbaghzadeh”) (“Plaintiff”) moves for an order awarding his attorneys’ fees, costs, and expenses against Defendant General Motors LLC (“GM”) (“Defendant”).  (Notice of Motion, pg. ii; Civ. Code §1794(d); C.C.P. §§664.6, 998.)  Plaintiff makes this motion pursuant to a signed settlement offer.  (Notice of Motion, pg. ii.)

Background

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).  Defendant served Plaintiff with a C.C.P. §998 Offer to Compromise (“998 Offer”) in this matter on or about May 10, 2023, which Plaintiff accepted in the amount of $106,000, plus attorney’s fees, costs, and expenses to be determined by this Court by way of motion for attorney’s fees, costs, and expenses and that Plaintiff would be the prevailing party for purposes of that motion.  (Decl. of Mizrahi ¶¶15-16, Exh. C at pg. 2, ¶3.) 

On November 15, 2023, Plaintiff filed this motion for attorneys’ fees.  Defendant filed its opposition on November 30, 2023.  Plaintiff filed his reply on December 11, 2023.

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 for attorneys who worked on this case: (1) Guy Mizrahi ($525.00/hr); (2) Pouyan Bohloul ($395.00/hr.); and (3) Nicholas Yakoobian ($350.00/hr.).  (Decl. of Mizrahi ¶¶22-23.)  Plaintiff has sufficiently demonstrated his counsel’s hourly rates are reasonable in their community of practice in their specialized area of law.  (Decl. of Mizrahi ¶¶18-22.)

Defendant does not challenge Plaintiff’s counsel’s hourly rates as unreasonable, and the Court finds Plaintiffs’ counsel’s rates to be reasonable and do 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 103.7 hours Plaintiff’s counsel spent litigating this case through this motion, and an anticipated 3.5 hours preparing a reply brief and attending the hearing on the instant motion.  (Motion, pg. 7.)  The fees incurred are reasonable, as captured in the billing records submitted to this Court.  (Decl. of Mizrahi ¶4, Exh. A.)  Plaintiff’s counsel’s billing records reflect the actual time and clear descriptions of services performed in connection with litigating this case, which has been carefully reviewed to remove any entry that may be duplicative, excessive, de minimis, or otherwise.  (Decl. of Mizrahi ¶5.)  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.)

Defendant argues the following billed hours were not reasonably incurred and therefore should be reduced by the following dollar amounts: (1) 3.4 hours ($1,785.00) on November 22, 24, and 30, 2021, for pre-Complaint work; (2) 0.7 hours ($367.50) on December 6, 7, and 9, 2021, for preparing a templated Summons, Complaint, and Civil Cover Sheet; (3) 1.3 hours ($682.50) on December 13, 2021, for block-billed case analysis work, or alternatively 0.7 hours ($367.50); (4) 1.3 hours ($630) on March 1, 2022, for counsel’s templated “Set One” Discovery Requests; (5) 6.0 hours ($3,150.00) on March 7, 2022, for Plaintiff’s templated discovery responses; (6) 1.7 hours ($671.50) on April 5, 2022, for block-billed time for initial review of file, review of GM’s discovery responses, and preparation of a templated meet and confer correspondence; (7) 0.4 hours ($158.00) on April 27, 2022, for block-billed time for review and analysis of GM’s document production; (8)7.0 hours ($2,360.00) on May 2, 3, 5, and 6, 2022, for Plaintiff’s templated motions to compel further responses to RFPs and SROGs; (9) 1.2 hours ($474.00) on July 28, 202 for GM’s supplemental discovery responses; (10) 3.0 hours ($1,185.00) on September 9, 2022, for Plaintiff’s templated motions to compel further responses to RFPs and SROGs; (11) 0.6 hours ($315.00) on December 12, 2022, for block-billed case analysis work; (12) 2.0 hours ($790.00) on January 19 and 26, 2023, for templated ex parte application (13) 2.3 hours ($1,207.50) on February 1, 2023, for a templated ex parte application and motion to compel GM’s PMK; (14) 1.5 hours ($592.50) on February 3, 2023, for a hearing on an ex parte application; (15) 2.1 hours ($829.50) on April 6 and 10, 2023, for review of GM’s oppositions to motions to compel and drafting replies; (16) 1.7 hours ($892.50) on April 29, 2023, for templated motions in limine; (17) 1.3 hours ($682.50) on May 8, 2023, for templated oppositions to motions in limine; and (18) 3.5 hours ($1,837.50) on November 15, 2023, for the fee motion and anticipated fees.  (Opposition, pgs. 6-10.)  The Court reviewed the hours billed in each of Defendant’s eighteen categories and finds Plaintiff’s counsel’s billing for tasks as reasonably incurred.

Accordingly, Plaintiff’s billed hours were reasonably necessary to the conduct of the litigation and were reasonable in amount.

Costs

Civil Code §1794(d) provides, as follows: “If 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 . . . incurred by the buyer in connection with the commencement and prosecution of such action.”

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”  (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Defendant objects to the following costs in Plaintiff’s memorandum of costs: (1) dealership subpoena fees ($180.00); and (2) parking fee ($257.34), for a total of $437.34 in costs objected to of the $2,012.29 in the memorandum of costs.  (Opposition, pg. 13.)

Defendant fails to provide legal support for its contention that deposition subpoena costs are not recoverable because the depositions never took place because the dealership informed Plaintiff that the witnesses identified in the subpoenas no longer worked at the dealership. 

However, while Defendant’s objection to $257.34 for parking fees is a misrepresentation of Plaintiff’s memorandum of costs, Defendant’s objection is not without merit. Plaintiff’s memorandum of costs indicates the total for “other” costs includes mediation fees, which are of an unspecified amount in the memorandum of costs, and parking costs, which is erroneously listed in Attachment 1g to the Memorandum of Costs for “Filing and Motion Fees.”  If Defendant’s parking cost had already been included in the amount listed for “Filing and Motion Fees” in Attachment 1g, then listing the costs as “Other Fees” is duplicative.  Further, Plaintiff fails to provide support for the amount of the mediation fees.

Accordingly, Plaintiff’s costs are taxed in the amount of $257.34.

Final Lodestar Determination

The Court denies Plaintiff’s request for a 1.1 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.

Conclusion

Accordingly, Plaintiff’s motion for attorneys’ fees is granted in the reduced amount of $50,922.50, and Plaintiff’s costs is granted in the reduced amount of $1,754.95.  Plaintiff’s motion is granted in the total reduced amount of $52,677.45.

Moving Party to give notice.

Dated:  December _____, 2023