Judge: Daniel M. Crowley, Case: 23STCV08387, Date: 2024-02-15 Tentative Ruling

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Case Number: 23STCV08387    Hearing Date: February 15, 2024    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Dominic Hill’s motion for attorneys’ fees, costs, and expenses is granted in the total reduced amount of $16,379.50.  Plaintiff’s request for attorneys’ fees is granted in the requested amount of $16,379.50, and Plaintiff’s request for costs is denied.

Plaintiff Dominic Hill (“Hill”) (“Plaintiff”) moves for an order awarding him attorneys’ fees, costs, and expenses against Defendants Mercedes-Benz USA, LLC (“MBUSA”) and Mercedes-Benz of Beverly Hills (“MBBH”) (collectively “Defendants”) in the total amount of $17,528.69, comprised on $16,379.50 in attorneys’ fees, and $1,149.19 in costs, pursuant to an accepted Section 998 Offer (“Settlement Agreement”).  (Notice of Motion, pgs. i-ii; Civ. Code §1794(d).) 

Background

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).  On August 25, 2023, Plaintiff and MBUSA reached a settlement in the amount of $17,000.00, plus all lease payments made by Plaintiff due on or after August 2, 2023, with attorney’s fees to be decided by motion and stipulating that Plaintiff would be deemed the prevailing party for purposes of said motion.  (Decl. of Moss ¶2, Exh. A at pgs. 2-4.)

On October 26, 2023, Plaintiff filed this motion for attorneys’ fees, attaching its memorandum of costs as an exhibit to the Declaration of Michael Saeedian (“Saeedian”).  MBBH filed its opposition on February 1, 2024.  MBUSA filed its opposition on February 1, 2024.  Plaintiff filed his reply on February 8, 2024.

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.”

Here, Plaintiff is the prevailing party per his Settlement Agreement with MBUSA and is entitled to attorneys’ fees and costs from MBUSA (and not MBBH).  MBUSA and Plaintiff do not contest this issue.

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 of the attorneys who worked on this case: (1) Michael Saeedian ($695.00/hour); (2) Christopher Urner ($525.00/hour); (3) Jorge Acosta (certified law clerk) ($250.00/hour).  (Decl. of Saeedian ¶¶3-5.)  These rates are appropriate given each attorney’s relative experience and qualifications.  (See id.)  Plaintiff has sufficiently demonstrated his counsel’s hourly rate is reasonable in their community of practice in their specialized area of law.

MBUSA challenges Plaintiff’s counsel’s hourly rates as unreasonable.  (MBUSA Opposition, pgs. 8-10.)  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.)

Plaintiff’s fee recovery is based on the 31.6 hours spent by his attorneys working on this case, and an additional 4.5 hours in anticipated fees for reviewing Defendants’ oppositions, preparing a reply, preparing for the hearing on the instant motion, and attending the hearing.  (Decl. of Saeedian ¶23, Exh. A.)  Defendant argues Plaintiff’s counsel’s billed hours for clerical tasks, discovery motions prepared on the day the Settlement Agreement was accepted, and the instant fee motion were not reasonably incurred and were excessive and therefore should be cut.  (MBUSA Opposition, pgs. 5-8.)  The Court has reviewed MBUSA’s eight objections to Plaintiff’s counsel’s billed hours and finds MBUSA’s objections unavailing.

First, MBUSA does not provide case law in support of its argument that all the time incurred by law clerk Jorge Acosta is for clerical work that is not recoverable as attorneys’ fees.  Courts of Appeal have upheld the awarding of non-attorney fees, including legal support staff.  (City of Oakland v. McCullough (1996) 46 Cal.App.4th 1, 7 [“[N]ecessary overhead support services that secretaries and paralegals provide to attorneys may be included in an attorney fees award.”]; Salton Bay Marina, Inc. v. Imperial Irrigation District (1985) 172 Cal.App.3d 914, 951 [stating time spent by non-paralegal legal staff compensable]; see also Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 [stating paralegal time compensable].)  Additionally, a verified fee bill is prima facie evidence that the costs, expenses, and services listed were reasonable.  (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)  Therefore, MBUSA did not meet its burden to challenge these fees for Jorge Acosta’s billed hours.

Second, MBUSA’s objection to Plaintiff’s counsel billing 6.6 hours ($4,498.00) to review MBUSA’s motion to compel arbitration, prepare discovery demands, and prepare deposition notices that were served on the same day Plaintiff accepted MBUSA’s Settlement Agreement.  (MBUSA Opposition, pg. 7.)  That Plaintiff conducted legal work on the day the Settlement Agreement was accepted is not on its face evidence of unreasonable billed hours.  Further, MBUSA does not support its contention that such fees billed are unreasonable based on case law.  

Further, Plaintiff provides support of its argument that up until the settlement of this case on August 25, 2023, Plaintiff’s counsel had no authority to accept the Section 998 offer on behalf of Plaintiff.  Plaintiff’s counsel declares that Plaintiff “did provide different authority on August 25, 2023, in the morning which was relayed to Defendant’s counsel around 11:00 a.m.”  (Supp.-Decl. of Saeedian ¶3, Exh. A.)  Plaintiff’s counsel states in his declaration that “I full[y] expected and anticipated the Section 998 offer would expire based upon the fact Mr. Hill wanted different numbers than MBUSA was offering on the day the offer was set to expire. These were relayed to MBUSA by Mr. Acosta from my office.”  (Supp.-Decl. of Saeedian ¶4.)  Plaintiff’s counsel also declares, “I elected to serve discovery upon MBUSA on August 25, 2023, and to review at the pending motion to compel arbitration to get an idea of what types of arguments would need to be made in opposition. This work was done on August 25, 2023. As of the close of business at 6:00 pm, Mr. Hill had provided no authority to me to accept the pending offer on his behalf. It was not until about 5 hours later, sometime around 11pm, that Mr. Hill contacted me to request that we accept the Section 998 offer from MBUSA. I accepted it and the acceptance was transmitted to MBUSA counsel at around 11:24 pm on August 25, 2023.”  (Supp.-Decl. of Saeedian ¶5, Exh. B.)  Therefore, MBUSA did not meet its burden to challenge these fees. 

 Third, the Court also disagrees with Defendant’s objection to Plaintiff’s time spent on the instant motion (8.3 hours or $4,923.00).  Again, MBUSA does not support its argument with case law.  Therefore, MBUSA did not meet its burden to challenge these fees.

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the requested amount of $16,379.50.

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.)

Any effort to tax or strike costs must occur in the form of a motion to strike or to tax costs and must be served and filed fifteen (15) days after service of the cost memorandum.  (CRC, Rule 3.1700(b)(1).)  After the 15-day deadline to file a motion to tax costs has passed, the Court clerk must immediately enter the costs. (CRC, Rule 3.1700(b)(4).)

Here, Plaintiff submitted his Memorandum of Costs as an attachment to his motion for attorneys’ fees on October 26, 2023.  The Memorandum of Costs was not individually filed in this case.  The deadline for MBUSA to file a motion to tax costs was November 10, 2023.  MBUSA did not file a motion to tax costs by this deadline, but instead challenges costs in this motion for attorneys’ fees and costs, which was timely filed on February 1, 2024.  Therefore, MBUSA’s challenge to Plaintiff’s memorandum of costs will be considered by this Court.

MBUSA challenges Plaintiff’s memorandum of costs on the basis the memorandum is incomplete, as Plaintiff provides no detail for the costs incurred.  MBUSA objects specifically to $266.99 in “other” costs for which there is no explanation as to what the costs were for.  (See Decl. of Saeedian ¶24, Exh. B at ¶16.)  In addition to it’s not having been filed, MBUSA’s objection to Plaintiff’s request for costs is well taken, and Plaintiff’s reply fails to address its failure to substantiate its memorandum of costs.  Therefore, all $1,149.19 is taxed from Plaintiff’s memorandum of costs.

Accordingly, Plaintiff’s request for costs is denied.

Conclusion

Accordingly, Plaintiff’s request for attorneys’ fees is granted in the requested amount of $16,379.50, and Plaintiff’s request for costs is denied.  Plaintiff’s motion is granted in the total reduced amount of $16,379.50.

Moving Party to give notice.

Dated:  February _____, 2024