Judge: David A. Rosen, Case: 19GDCV00391, Date: 2023-01-20 Tentative Ruling

Case Number: 19GDCV00391    Hearing Date: January 20, 2023    Dept: E

Hearing Date: 01/20/2023 – 8:30am
Case No. 19GDCV00391
Trial Date: N/A
Case Name: BRIAN CEBERIO v. FORD MOTOR COMPANY

TENTATIVE RULING– MOTION FOR ATTORNEYS’ FEES

Moving Party:  Plaintiff, Brian Ceberio
Responding Party: Defendant, Ford Motor Company

 

RELIEF REQUESTED¿ 
Plaintiff moves the Court pursuant to the Song-Beverly Consumer Warranty Act, Civ. Code §1794(d), for an order awarding his attorney fees in the total amount of $155,955.00. [Such amount consists of a) $60,382.00 in attorney fees for Consumer Law Experts, P.C.) a 1.50 multiplier enhancement (or $90,573.00) on the total attorneys’ fees; and c) an additional $5,000.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this Motion (though Plaintiff’s counsel expects to spend well over ten hours on these).]

 

This Motion is made on the grounds that Plaintiff is the prevailing party on the Song-Beverly Consumer Warranty Act claim at issue in this lawsuit, and under said Act is entitled, by both agreement and statute, to such a fee, cost, and expense award.

 

Procedural
16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

Opposition and Reply Submitted.

Moving Papers submitted on 12/21/2022: Notice of Motion and Motion for Attorney’s Fees, Costs, and Expenses; Plaintiff’s Request for Judicial Notice; Proposed Order; Index of Exhibits; Declaration of Joshua D. Fennell

On 12/28/2022 Plaintiff submitted a Memorandum of Costs.

Opposition Papers: Opposition; Objection to Plaintiff’s Request for Judicial Notice; Objection to Declaration of Joshua Fennell

Reply Papers: Reply

ARGUMENTS BY PLAINTIFF
Plaintiff argues it is entitled to fees totaling $155,955.00. This total is based on $60,382.00 in attorney fees, plus a multiplier of 1.5 for $90,573.00, plus an additional $5,000.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this motion.

 

Plaintiff argues that the reasonable hourly rates for the attorneys who worked on this case is: (1) Joshua D. Fennell ($385/hr) , (2) Matt Xie ($370/hr), (3) Nancy Zhang ($410/hr) and (4) Benjeman Beck ($490/hr). Plaintiff argues these hourly rates are reasonable based on the Exhibits submitted in the Fennell Declaration.

 

Plaintiff further argues that 166 hours spent by attorneys litigating this case is reasonable. Plaintiff also argues that paralegal rates are recoverable as attorney’s fees.

 

Plaintiff further argues a multiplier of 1.5 is warranted.

 

Plaintiff also argues it is entitled to costs and litigation expenses, which are in the separate province of the cost memorandum.

OPPOSITION ARGUMENTS BY DEFENDANT

Defendant argues this Court should award Plaintiff’s attorneys’ fees and costs according to either of the following:

 

(1)   $25,122.38 in attorneys’ fees and costs based on Ford’s March 17, 2021 offer ($20,810.00 in fees and $4,312.38 in costs); or

(2)   This Court should award fees pursuant to Mikhaeilpoor v. BMW of North America, LLC, (2020) 48 Cal.App.5th 240, and reduce the amount based on unreasonably incurred fees as follows:

a.       Reduce the four attorneys’ hourly rate;

b.      strike the vague entries of 3.8 hours for a total of $1,650.50;

c.       Reduce block billing to 4.5 hours from 9.1;

d.      Reduce excessive billing to 12.8 hours from 25.6 hours;

e.       Strike the secretarial work by attorney: 5.9 hours for a total of $2,160.50

f.        minus fees for anticipated work on fee motion: $5,000.00.

g.      Total Fees and costs of $59,197.64: $49,645.00 fees and $9,552.64 in costs.

 

Defendant argues that Plaintiff is not entitled to any fees or costs incurred after FMC’s March 17, 2021, 998 Offer because Plaintiff failed to obtain a more favorable judgment. Defendant states how it served a 998 Offer to Plaintiff that Plaintiff did not accept; however, Plaintiff continued to needlessly litigate the case a year and three months later, driving up fees, only to agree to the same offer.

 

Defendant also argues that Plaintiff’s counsel’s hourly rates and hours expended are excessive.

 

Defendant argues that Plaintiff proffered no admissible evidence as to the prevailing rate for attorneys conducting non-contingent litigation of the same type, and that the declarations of Plaintiff’s counsel make no statement that billing records are entered contemporaneously with the work performed.

 

Defendant also argues that Plaintiff’s attorneys’ bills include vague entries, improper block-billed entries, excessive amounts of time for routine tasks, and that Plaintiff’s attorneys’ billing includes secretarial or administrative tasks.

 

Defendant also argues that Plaintiff is not entitled to attorneys’ fees under civil code section 1794(d) for unnecessarily incurred attorneys’ fees.

 

Defendant also argues no multiplier should be applied.

 

REPLY ARGUMENTS BY PLAINTIFF
In Reply, Plaintiff argues that although it accepted a settlement for the same amount that was offered over a year prior, it had a reasonable basis for doing so, and was still able to garner the offer that finally settled the case. Plaintiff also argues and presents evidence that his attorneys’ hourly rates, billed hours, and requested multiplier are reasonable.

 

DISCUSSION
Civil Code 1794(d)
Under Civil Code section 1794, subdivision (d) the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred:  “If the buyer prevails 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.” (Civ. Code, § 1794(d).)  

Here, moving party alleges it is the prevailing party because FMC stipulated that Plaintiff is entitled to recover reasonable attorney fees. The Opposition does not dispute this contention.

General Legal Standard - Lodestar and Multiplier
The lodestar method is the primary method for determining a reasonable attorney fee award under section 1794, subdivision (d).  (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818-19.)  “A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations omitted].)  “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.  [citation] The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”  (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)  “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.”  (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)  The Court has the discretion to reduce the amount of fees (or deny recovery altogether) when the amount of attorney fees is inflated. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635; Meister v. Regents of the Univ. of California (1998) 67 Cal. App. 4th 437, 455). 

 

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.”].)    

The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (Serrano v. Unruh (1982) 32 Cal.3d 621, 624 (Serrano IV).)

Reasonableness of Time Expended

As stated in Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101: “We adhere to our earlier conclusion that there is no general rule requiring trial courts to explain their decisions on motions seeking attorney fees. In cases where the award corresponds to either the lodestar amount, some multiple of that amount, or some fraction requested by one of the parties, the court's rationale for its award may be apparent on the face of the record, without express acknowledgment by the court of the lodestar amount or method. When confronted with hundreds of pages of legal bills, trial courts are not required to identify each charge they find to be reasonable or unreasonable, necessary or unnecessary. The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney over litigated a case or submitted a padded bill or that the opposing party has stated valid objections.”

 

TENTATIVE RULING- REASONABLENESS OF TIME BILLED – A review of Plaintiff’s attorneys’ bills reflects that Defendant’s arguments as to vague entries and block-billed entries are not persuasive. Billing statements were certain enough to be reasonable. Defendant’s argument regarding Civil Code §1794(d) is unavailing. Defendant’s arguments as to excessive time being billing for routine tasks and Plaintiff’s attorneys’ billing including secretarial or administrative tasks is unpersuasive. Defendant’s argument about Plaintiff’s failure to accept the 998 offer is also unavailing because Plaintiff provided reasons as to why it continued to litigate the case.  Also, Defendant’s argument in this regard betrays a misapprehension of CCP sec. 998; this case has been settled-no trial was conducted and no judgment has been entered.  Thus, the settlement amount’s relationship to the 998 is immaterial.

 

The Court finds the time billed here was reasonable in sum.

 

Reasonableness of Hourly Rates

As to reasonableness of an hourly rate, the Court cites to Graciano, Goglin, and Mikhaeilpoor.

 

The court in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154-157 stated:

 

The determination of what constitutes a reasonable fee generally “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 (Ketchum ), citing Serrano v. Priest (1977) 20 Cal.3d 25, 49, 141 Cal.Rptr. 315, 569 P.2d 1303 (Serrano III ); see also Serrano v. Unruh (1982) 32 Cal.3d 621, 626, fn. 6, 186 Cal.Rptr. 754, 652 P.2d 985 (Serrano IV ) [lodestar figure may be enhanced or diminished based on factors as those set out in Serrano III ].) This approach “anchors the trial court's analysis to an objective determination of the attorney's services, ensuring the amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511.)

 

Graciano contends the court abused its discretion by reducing the hourly rate of all the attorneys working on her case to a flat rate of $250. She maintains the trial court, which in setting the rate relied solely on an unrelated local rule capping expert witness hourly fees, disregarded unopposed declarations she submitted from several area attorneys and other evidence of rates and comparable experience. Graciano's contention has merit.

 

In her attorney fee motion, Graciano sought fees calculated by an hourly attorney fee rate[s]…. In a declaration supporting the motion, Rosner averred these rates were well within the range charged by other plaintiffs' counsel engaging in similar areas of practice. Robinson, via the declaration of one of its counsel, objected to that portion of Rosner's declaration as hearsay. The court sought supplemental briefing on the question of whether it could consider prevailing rates from outside metropolitan areas other than El Centro, where the litigation took place. In its supplemental briefing, Graciano presented declarations from two El Centro-based attorneys averring that her counsels' hourly rates were appropriate and reasonable for the El Centro area. She also argued that the relevant market for purposes of determining the reasonable hourly rate should encompass both Imperial and San Diego Counties, but that, in any event, her counsel's San Diego home market rates were justified because the firm had substantial expertise in the specialized field of vehicle fraud. In its written response, Robinson did not challenge this evidence; it simply asserted in opposing points and authorities that the court should base the hourly rate on Imperial County standards. Further, during arguments on the matter, Robinson's counsel indicated it was not challenging the rate but the amount. In its attorney fee order, the court stated without analysis, “The court will set the reasonable hourly rate for Plaintiff's attorney's legal services at $250 per hour (see [Imperial County] local rule 3.12 which sets the rates for attorney expert testimony at $250 per hour).”

 

The sole evidence before the court demonstrated that Graciano's counsel's requested fee rates were reasonable for automobile-related consumer fraud cases in the El Centro area, and Robinson did not challenge that evidence. We acknowledge the awarding of attorney fees is a highly fact-specific matter best left to the trial court's discretion (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 581, 21 Cal.Rptr.3d 331, 101 P.3d 140) and that the trial court has its own expertise in determining the value of legal services performed in a case. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096, 95 Cal.Rptr.2d 198, 997 P.2d 511.) “However, since determination of the lodestar figure is so ‘[f]undamental’ to calculating the amount of the award, the exercise of that discretion must be based on the lodestar adjustment method.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322, 193 Cal.Rptr. 900, 667 P.2d 704, citing Serrano III, supra, 20 Cal.3d at pp. 48–49, 141 Cal.Rptr. 315, 569 P.2d 1303; see also Maria P. v. Riles, supra, 43 Cal.3d at p. 1295, 240 Cal.Rptr. 872, 743 P.2d 932.) Here, there is no indication that in ascertaining the reasonable hourly rate, the court engaged in the relevant objective analysis: to determine the prevailing rate in the community for comparable professional legal services, that is, services rendered by counsel on consumer fraud issues. (PLCM Group v. Drexler, at p. 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511 [reasonable hourly rate is that prevailing in community for similar work ], in part citing Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002, 39 Cal.Rptr.2d 506.) Rather, the court arbitrarily relied upon what it considered to be a reasonable rate for generic expert attorney testimony fixed by Imperial County Superior Court local rule 3.12. This was an abuse of discretion.

 

Nor can we ascertain a reasonable basis for the court's reduction in Graciano's counsel's hourly rates, further demonstrating an abuse of discretion. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355, 188 Cal.Rptr. 873, 657 P.2d 365 [trial court's discretionary action is subject to reversal on appeal where no reasonable basis for the action is shown].)7 If the court had decided that a lesser hourly rate should apply because of the lack of novelty or complexity of issues, then its reduction would be improperly duplicative, since the court had already considered and declined to apply a positive multiplier for those factors. (Cf. Ketchum v. Moses, supra, 24 Cal.4th at p. 1142, 104 Cal.Rptr.2d 377, 17 P.3d 735 [use of counsel's qualifications and exceptional representation both in calculating hourly rate and in applying a multiplier amounts to “improper double counting” of factors; “[b]y using counsel's qualifications and the submitted declarations to justify both the hourly rate and the multiplier, the court appears to have counted the same factor twice”]; Lealao v. Beneficial California (2000) 82 Cal.App.4th 19, 40, fn. 10, 97 Cal.Rptr.2d 797, (Lealao); Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 647, 71 Cal.Rptr.2d 632 [use of skill and experience of attorneys and nature of the work performed both to calculate lodestar and to enhance award amounts to improper windfall]; accord, Ramos v. Countrywide Home Loans, Inc., supra, 82 Cal.App.4th at p. 629, 98 Cal.Rptr.2d 388.)

 

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154-157

 

 

The court in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-474 stated:

 

Regarding Goglin's counsel's hourly rate, … [t]he declarations … indicated various state and federal courts had previously awarded him attorney fees for comparable work at comparable hourly rates. BMW North America and BMW San Diego presented no evidence contradicting these points. Rather, the trial court, which considered all of the evidence before it and observed Goglin's counsel's lawyering skills firsthand, determined $575 was an appropriate hourly rate. As the record does not show this determination was clearly wrong, we cannot conclude the trial court abused its discretion in basing its fee award on this hourly rate.

 

(Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-474.)

 

 

The court in Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 254 stated:

 

Mikhaeilpoor contends that the trial court impermissibly reduced fees below the level defendants proposed. Plaintiff argues “[a]ny objections to the fees and rates requested not made by BMW should have been deemed waived by the trial court.” This argument is meritless.

 

 

The extent of a court's discretion to unilaterally reduce fees is also apparent in Morris. There, the appellant argued that fees were arbitrarily reduced in those circumstances where particular fee amounts claimed were not the subject of defense objections. (Morris, supra, 41 Cal.App.5th at pp. 38–39, 253 Cal.Rptr.3d 592.) Notwithstanding this argument, Morris was “satisfied that the trial court did not abuse its broad discretion to determine the reasonable value of the professional services performed by [the appellant's] attorneys.”

 

(Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 254.)

 

TENTATIVE RULING-REASONABLENESS OF RATES- Here, the Court, noting the foregoing and that Plaintiff seeks reimbursement at the hourly rates actually charged at the time the billed task was done, finds the hourly rates charged here to be reasonable.

 

Multiplier
The lodestar amount “may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.”¿ (Bernardi¿v. County of Monterey¿(2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132].)¿ The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary.¿ (Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker & McKenzie¿(1998) 63 Cal.App.4th 1128, 1171-72.)

 

“The trial court is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 citing Montgomery v. Bio-Med Specialties, Inc. (1986) 183 Cal.App.3d 1292, 1297.)

TENTATIVE RULING ON MULTIPLIER- The Court exercises its discretion in declining to award a multiplier here as this case was neither novel nor difficult, factually or legally. The initially contingent nature of the fees here did not present an unusual or increased risk to Plaintiff’s attorneys, especially in view of their practice and the proceedings in this case. The outcome was favorable without unusual risks or complex issues.

TENTATIVE RULING OVERALL- The Court GRANTS the Motion in part; awarding Plaintiff’s attorneys the Lodestar fees it seeks, but without any multiplier.  The issue of Costs, while mentioned in the moving papers, is subject to the Memorandum of Costs filed and served by Plaintiff and is not before the Court on this Motion.

 

Request for Judicial Notice

Defendant’s objections to Plaintiff’s Request for Judicial Notice are sustained.  The Court denies Plaintiff’s RJN per CA Evidence code, sections 452 and 453(b).