Judge Daniel M. Crowley, Case Number: 22STCV05533, Date: 2024-10-22 Tentative Ruling

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Plaintiff Edgar J. Morales (“Morales”) (“Plaintiff”) moves for an order awarding him a total of $102,386.74 in attorneys’ fees, costs, and expenses against Defendant American Honda Motor Co. (“AHM”) (“Defendant”), consisting of (1) (1) $66,239.50 in attorney fees for Strategic Legal Practices, APC (“SLP”); (2) a 1.35 multiplier enhancement on the attorney fees (or $23,183.83); (3) $9,463.41 in costs and expenses for SLP; and (4) an additional $3,500.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply, and attend the hearing on this Motion (though counsel expects to incur over $3,500.00 in fees on these tasks). (Notice of Motion, pg. i; Civ. Code §§1794(d), 998.)

Defendant’s 10/9/24 evidentiary objections to the Declaration of Payam Shahian (“Shahian”) is sustained as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36-1, 37, 38, and 39-1, and overruled as to Nos. 36-2, 37-2, 38-2, 39-2, 40, 41, 42, 43, 44, 49-1, 46, 47, 48, 49-2, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, and 68.

Defendant’s 10/9/24 evidentiary objections to the Declaration of Christian R. Castro (“Castro”) is overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.

Plaintiff’s 10/15/24 evidentiary objections to the Declaration of Kevin D. Zipser (“Zipser”) is overruled as to Nos. 1 and 3, and sustained as to Nos. 2, 4, 5, 6, and 7.

Plaintiff’s 4/16/24 request for judicial notice of Exhibits 1-17 is denied as irrelevant.

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“SBA”). Plaintiff accepted Defendant’s C.C.P. §998 offer of compromise (“998 Offer”) on October 19, 2023, in the amount of $50,000.00 plus attorney’s fees, costs, and expenses by motion. (Decl. of Castro ¶47, Exh. 2.)

On April 16, 2024, Plaintiff filed this motion for attorneys’ fees. On October 9, 2024, Defendant filed its opposition. On October 15, 2024, Plaintiff filed his reply.

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. (See Decl. of Castro ¶47, Exh. 2 at ¶5.) Therefore, Plaintiff’s motion is proper.

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.”

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) Olivia Avelino at $595 per hour; (2) Angel M. Baker at $595 per hour; (3) Joey DeLeon at $575 per hour; (4) Tionna Carvalho at $570 per hour; (5) Mark Gibson at $495 per hour; (6) Elizabeth Larocque at $595 per hour in 2022, and $595 in 2024; (7) Daniel Law at $440 per hour; (8) Jami Littles at $595 per hour; (9) Rebecca Neubauer at $435 per hour in 2022, and $495 in 2023; (10) Steve Rangel (law clerk) at $285 per hour; (11) Ezra Ryu at $400 per hour; (12) Nino Sanaia at $38 per hour in 2022 and $425 per hour in 2023; (13) Tyson Smith at $460 per hour in 2022 and $475 per hour in 2023; (14) Rabiya Tirmizi at $360 per hour in 2022 and $375 per hour in 2023; (15) Sanam Vaziri at $610 per hour; and (16) Steven Whang at $475 per hour. (Decl. of Shahian ¶¶44-75, Exh. 20 at pg. 4.) Plaintiff has sufficiently demonstrated his counsel’s hourly rate is reasonable in their community of practice in their specialized area of law. (Decl. of Shahian ¶¶44-75, Exh. 20 at pg. 4.)

Defendant’s opposition objects to the reasonableness of Plaintiff’s counsel’s hourly rates. The Court finds Plaintiff’s counsel’s rates to be reasonable and do not warrant a reduction.

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 125.6 hours Plaintiff’s counsel spent litigating this case through the instant motion. (See Decl. of Shahian, Exh. 20 at pg. 3.)[1] The fees incurred are reasonable, as captured in the billing records submitted to this Court. (Decl. of Shahian, Exh. 20.) 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.)

Defendant objects to several of Plaintiff’s requested fees on the basis they were not reasonably incurred.

First, Defendant objects to 24.9 hours billed ($275.00) to draft a motion to compel further responses. (Opposition, pg. 8.) Defendant’s objection is not well taken; Defendant merely concludes, “it does not make sense for Plaintiff’s Counsel to spend more than a handful of hours, including the time to perform legal research; however, that was evidently not necessary here as the paragraphs pertaining to Plaintiff’s legal analysis is identical to SLP’s other motions used in previous cases.” General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.) Therefore, Defendant fails to meet its burden to challenge this fee.

Second, Defendant objects to 2.9 hours ($1,230.50) billed drafting discovery requests on the basis Plaintiff’s responses were templated. (See Opposition, pg. 9.) Defendant’s objection is not well taken; Defendant does not cite any authority stating discovery responses that are presumed to be templated should be reduced. Therefore, Defendant fails to meet its burden to challenge this fee.

Third, Defendant objects to 3.1 hours ($1,844.50) billed for work related to reviewing Defendant’s discovery responses and drafting a meet and confer letter. (Opposition, pg. 9.) For the same reasons stated with respect to the second objection, Defendant fails to meet its burden to challenge this fee.

Fourth, Defendant objects to 3.0 hours ($1,425.00) billed to analyze Defendant’s supplemental responses and document production and draft and meet and confer correspondence. (Opposition, pgs. 9-10.) For the same reasons stated with respect to the second objection, Defendant fails to meet its burden to challenge this fee.

Fifth, Defendant objects to 5.1 hours ($3,034.50) to begin to draft a fee motion and its supporting documents. (Opposition, pg. 10.) Defendant’s objection is not well taken; Defendant does not cite any authority stating that a brief presumed to be templated should be reduced. Therefore, Defendant fails to meet its burden to challenge this fee.

Sixth, Defendant objects to 2.2 hours ($1,309.00) to continue drafting the fee motion and supporting documents. (Opposition, pg. 10.) Defendant objects on the basis that “[c]ontinued preparation” for this Motion is vague and should constitute a fraction of a billable hour, if anything, and that the supporting declarations are largely copy-paste, with little to no tailoring to this specific case. (Id.) Defendant’s objection is not well taken because the billing entry is not too vague. Therefore, Defendant fails to meet its burden to challenge these fees.

Seventh, Defendant objects to “numerous block-billed entries.” (Opposition, pg. 10.) General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564.) Therefore, Defendant fails to meet its burden to challenge these unspecified fees.

Finally, Defendant objects to any fees incurred after it offered Plaintiff $10,000.00 in attorneys’ fees in its C.C.P. §998 offer on October 11, 2023. (Opposition, pg. 12.) Defendant does not provide any case law in support of the proposition that “Plaintiff’s Counsel was offered more than they had reasonably incurred, [but] . . . refused AHM’s offer and instead insisted that fees and costs be determined by motion. Plaintiff’s Counsel should not be rewarded for refusing a reasonable offer and proceeding to filing a motion for fees/costs.” (Opposition, pg. 12.) If Defendant only wished to offer attorneys’ fees for a fixed sum in its §998 Offer, then it was fully in control of the substance of its offer. Therefore, Defendant fails to meet its burden to challenge these unspecified fees.

Plaintiff also requests an additional $3,500.00 to review Defendant’s opposition to this motion, draft the reply, and attend this hearing. Defendant does not specifically object to these fees.

Accordingly, the Court grants Plaintiff’s requested attorneys’ fees in the total amount of $69,739.50.

The Court denies Plaintiffs’ request for a 1.35 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.

Plaintiff requests a total of $9,463.41 in costs and expenses. (Motion, pg. 14.) Defendant does not challenge Plaintiff’s request for costs.

Accordingly, the Court grants Plaintiff’s request for costs and expenses in the amount of $9,463.41.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Declaration of Shahian states at ¶77 that billing records are attached at Exhibit 18. However, billing records are attached at Exhibit 20.