Judge: David A. Rosen, Case: 20GDCV01144, Date: 2022-12-30 Tentative Ruling

Case Number: 20GDCV01144    Hearing Date: December 30, 2022    Dept: E

Hearing Date: 12-30-2022-8:30am
Case No. 20GDCV01144
Trial Date: N/A
Case Name: GEORGE MAGALLON v. KIA MOTORS OF AMERICA, INC.

1-TENTATIVE RULING– MOTION FOR ATTORNEYS’ FEES

Moving Party:  Plaintiff, George Magallon
Responding Party: Defendant, Kia America, Inc. (formerly known as Kia Motors America, Inc.)

Opposition and Reply Submitted.

RELIEF REQUESTED¿ 
Plaintiff, George Magallon, moves for payment of attorneys’ fees and reimbursement of costs.

[As a preliminary matter, neither the caption of the motion nor the cover page of the notice of motion states how much money Plaintiff is moving for in total. Further, the declaration of Diamse doesn’t state how much Plaintiff is moving for in total. The Diamse declaration states how much Plaintiff is seeking in attorneys’ fees plus costs, but the Diamse declaration does not mention how much Plaintiff seeks with the addition of the multiplier – the multiplier is only mentioned in the motion itself and the Reply]

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.

BACKGROUND
Plaintiff filed a complaint on 12/29/2020 for violation of the Song-Beverly Consumer Warranty Act. The action pertained to the purchase of a 2018 Kia Forte and alleged defects of the vehicle. On May 14, 2022, Plaintiff accepted Defendant’s itemized offer to repurchase Plaintiff’s vehicle, with fees to be further negotiated. (Decl. Diamse ¶47.) On September 2, 2022, Plaintiff executed the Settlement Agreement and Release. (Decl. Diamse ¶48.)

Plaintiff moves for attorneys’ fees and reimbursement of costs on the grounds that Plaintiff is the prevailing party under the parties’ settlement agreement and the Song-Beverly Consumer Warranty Act, Civil Code section 1794(d).

Plaintiff seeks attorneys’ fees, costs, and a multiplier for a total of $109,716.11.

The total of $109,716.11 is comprised of the addition of three different numbers.

The first number is the total lodestar of $82,690.00.

The second number is the cost figure, including the fee for this motion, which is $10,488.11.

The third number is a requested multiplier of 0.2x for a fee enhancement of $16,538.00

When adding all three of those numbers together, $82,690 plus $10,488.11 plus $16,538, the total is $109,716.11.

The first number of $82,690.00 is based upon an alleged total of 195.6 hours of work. Plaintiff’s attorneys spent 189.6 hours prosecuting this case (including this motion), plus anticipates spending an additional 4 hours reviewing the Opposition and preparing a Reply, and 2 hours preparing for and attending the motion hearing. These 6 additional hours result in a total lodestar of $82,690.00. [$80,140.00 (Decl. Diamse, ¶¶3-4,7, Exs. A-B; current lodestar) plus $2,550.00 (additional time from 6 hours, Decl. Diamse ¶8) for a total of $82,690.00.

The second number of $10,488.11 is the costs including the fee for this motion. The motion itself requests $10,488.11 in costs and then presumably makes a typo in the motion and requests costs for $10,353.11. (See Pl. Mot. p.8.) The $10,353.11 is presumably a typo because the math wouldn’t add up properly if using $10,353.11, and because the declaration of Diamse requests costs and expenses of $10,488.11. (Decl. Diamse ¶9.)

The third number of $16,538.00 is the multiplier. In the moving papers, Plaintiff requests a multiplier of 0.2x, and in the Reply, Plaintiff requests a multiplier of .1x. Plaintiff’s request of the 0.1x multiplier in the Reply doesn’t make any sense because the Reply still requests a total of $109,716.11; however, the only way to request the $109,716.11 would be using the multiplier of 0.2x. Plaintiff’s request of a multiplier of 0.2x appears to be based on the total lodestar of $82,690.00 because 82,690.00 times 0.2 equals $16,538.00. Although not expressed in the moving papers, the arithmetic makes clear that Plaintiff properly seeks the multiplier only as to the fees, and not the costs.

Defendant argues that Plaintiff’s fees should be reduced from $109,716.11 to $42,490.00. Defendant argues the hours billed of 195.6 should be reduced to 121.4 hours and Defendant argues the rate for those 121.4 hours should be $350.

The Court notes that 121.4 multiplied by $350 is $42,490.00. Therefore, the Opposition does not appear to be attacking the costs in this Opposition. As noted in Footnote 1 on page 4 of the Opposition, “Defendants have filed a motion to strike or tax costs, … requesting that the Court tax at least $10,053.11” of Plaintiff’s claimed costs.  Said Motion to Tax Costs will be dealt with in a separate Tentative Ruling.

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, the parties agreed in their settlement agreement that Plaintiff was the prevailing party for purposes of this motion and Defendant shall pay Plaintiff’s attorneys’ fees, costs and expenses pursuant to Civil Code Section 1794(d) in an amount determined by the Court by way of noticed motion to have been reasonably incurred by Plaintiff in the commencement and prosecution of this action. (Decl. Diamse ¶14, Ex. E.)

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
Plaintiff argues that the 195.6 hours expended litigating this case from the time of inception through the conclusion of this motion, including reviewing the opposition, preparing a reply, and appearing for the motion hearing, is reasonable.

Plaintiff argues:

Defendant’s tactic of delay, non-responsiveness, and over-litigation, while ignoring Plaintiff’s repeated requests to repurchase his vehicle, were the major driver of fees in this case. Instead of attempting to quickly resolve the matter and minimize potential liability for fees, Defendant did not offer a settlement until over a year and a half of litigation had been expended and then dragged out the process far longer than necessary. In the meantime, Plaintiff was forced to pursue and respond to discovery, conduct depositions, prepare for trial, and engage in other necessary work to bring the matter to a successful close. All such work was reasonably necessary for the prosecution of the case and is therefore compensable.

(Pl. Mot. p. 10.)

Plaintiff cites several cases to argue its point, one being Peak-Las Positas Partners, which states, “A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.” (Peak-Las Positas Partners v. Bollag (2009) 172 Cal.App.4th 101, 114.)

In Opposition, Defendant disputes the reasonableness of the time expended in pages 5-13 of the Opposition. Defendant argues that 195.6 hours is not reasonable, and that the reasonable number of hours spent on this case was 121.4 hours. Yet, the Opposition doesn’t challenge any or each of Plaintiff’s attorneys’ hours. In other words, Defendant doesn’t state, “X attorney should have reduced hours by y amount,” or “A attorney should have reduced hours by B amount.” Defendant simply argues a decrease in the hours overall.  This is not persuasive, nor is Defendant’s unsupported argument that Plaintiff’s attorneys engaged in improper block billing.

The court in Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101 stated:

“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 overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.”

This Court, having examined Plaintiff’s attorneys’ bills, finds the time expended herein to be reasonable.

Reasonableness of Rate
Plaintiff argues the hourly rates of its attorneys and paralegals are reasonable in pages 11-15 of its motion. Plaintiff submits the declaration of Diamse, caselaw, and different attorneys’ rates of those specializing in consumer lawsuits in the Southern California area. Plaintiff cites Goglin v. BMW of North America (2016) 4 Cal.App.5th 462 alleging that the Court of Appeal has approved hourly rates of $575 and $625; therefore, Plaintiff argues that its attorneys’ fees requests ranging from $200 for paralegals to $550 per hour for Plaintiff’s counsel’s most expensive attorney is reasonable.

Defendant argues the rate of Plaintiff’s attorneys’ rates are unreasonable in page 8-9 of its Opposition. Defendant predominantly argues that Plaintiff’s attorneys’ rates are unreasonable because there are no complex issues of law and no additional causes of action aside from the Song-Beverly claims. Defendant argues that all hourly rates should be billed at $350 per hour. Opposition cites Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240 to support the argument that this Court reduced hourly rates to $350.00 per hour.

Reply argues that Plaintiff’s attorneys’ rates are reasonable in pages 2-4 of its Reply.  Reply argues that Mikhaeilpoor did not hold that $350 per hour is the only reasonable rate, but merely that the Court of Appeal reviewed the trial court’s decision for abuse of discretion. Plaintiff argues that Defendant has not provided any evidence of consumer lemon law attorneys’ fee rates to rebut the prevailing rates provided in Plaintiff’s moving papers. Plaintiff cites Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156. “Graciano’s unrebutted declarations established the prevailing rates in the region for attorneys with comparable skills and expertise, and her evidence compelled a finding that the requested hourly rates were within the reasonable rates for purposes of setting the base lodestar amount.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156.)

The court in Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154-157, also 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 fee, 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 of $350 per hour for attorney Hallen Rosner, $275 per hour for attorney Christopher Barry and $270 per hour for attorney Virginia Calderon. 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….

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

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

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 from Morris v. Hyundai Motor America (2019 ) 41 Cal App. 5^th 24, 38-40. There, the appellant argued that fees were arbitrarily reduced in those circumstances where particular fee amounts claimed were not the subject of defense objections. Notwithstanding this argument, the court in 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.”

Defendant here makes a blanket assertion that an hourly rate of $350- should apply to each of Plaintiff’s attorneys, regardless of their relative experience, skill level, or the tasks each attorney undertook.  This argument is therefore unpersuasive.

The evidence as to hourly rates charged by these Plaintiff’s attorneys, or others, in other cases, in other jurisdictions is important, but does not eliminate the Court’s discretion on the issue of reasonable hourly rates, nor does Defendant’s blanket challenge to the rates.

The Court, considering the evidence presented as to hourly rates, but also in view of the Court’s experience as to local hourly rates, and comparing the rates claimed by Plaintiff’s attorneys here to their relative levels of experience, finds that the rates claimed are reasonable, except as to Ms. Diamse.  Ms. Diamse has been admitted to practice since mid-2020.  In view of the factors listed immediately hereinabove, and the discretion afforded this Court on these issues based upon the case law discussed herein, the Court finds that a reasonable hourly rate for Ms. Diamse is $350.00.  Thus, the total attorneys’ fees awarded will be reduced by $11,422.50 (Ms. Diamse’s total hours hereon, 152.3, x $75).

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.)

Plaintiff argues for a multiplier of 0.2x. Plaintiff argues for this multiplier in pages 15-16 of its motion, although a lower multiplier of 0.1x is also variously argued by Plaintiff. Plaintiff argues a multiplier is appropriate based on delay of payment because Plaintiff’s counsel litigated this matter since March 2021 without pay on Plaintiff’s behalf.  Plaintiff also argued that Plaintiff’s counsel should be given an enhancement for the “results obtained” because Plaintiff obtained full compensation by obtaining a statutory repurchase.

Opposition argues on page 13-14 that the multiplier is not warranted because the case did not present any novelty or difficulty. Opposition argues as follows:

 “The Court here should be concerned that a substantial enhancement would result in improper double counting as expressed by the California Supreme Court in Ketchum v. Moses (2001) 24 Cal.4th 1122, 1142 (Ketchum.) The Court in Ketchum warned that by using counsel’s qualifications to justify both the hourly rate and the multiplier “the court appears to have counted the same factor twice.” (Id.) Certainly in this case, Plaintiff’s counsel are not entitled to such a windfall. Moreover, the Ketchum Court held that once an award of fees was mandatory, it is no longer contingent, and it is erroneous for the “court to apply an enhancement for contingent risk” for fees accrued after that date. (Id.)”

(Oppo. p. 13-14.)

Plaintiff argues that a fee enhancement is appropriate on page 8 of its Reply.

The Court, in consideration of the evidence and law discussed herein, finds, first, that the time spent by Plaintiff’s attorneys after the issue of their fees vel non was no longer contingent; that is, after the settlement was reached, was nevertheless reasonable.  However, the Court finds that Plaintiff’s attorneys have failed to sustain their burden of persuasion as to the application of a multiplier in this case. The Opposition argues that the issue of complexity is discussed in the moving and opposing papers as to the time spent, the hourly rates claimed, and the multiplier. This is duplicative. A multiplier is inappropriate here as there is no evidence of novelty nor difficulty of questions involved in this case (the first Ketchum factor) as applied to these Plaintiffs’ attorneys. Nor is the Court persuaded that Ketchum factors 2, 3, and 4 apply to these attorneys, in this case, to result in a multiplier beyond the Lodestar fees the Court will grant.  In the Diamse Declaration, at ¶3, Plaintiff’s counsel states, inter alia, that she routinely litigates these types of cases, and that her office has developed forms and other streamlining techniques in an effort to shorten the time required of particular tasks.

TENTATIVE RULING

The Court grants Plaintiff’s motion for Attorney’s fees per the following equation:

$82,690.00 (fees requested), less $11,422.50 (reduction in Ms. Diamse’s hourly rate from $425- to $350-), less $1,700.00 (the fees portion of discovery sanctions awarded to Plaintiff against Defendant on March 18, 2022) = $69,567.50.

The Court awards no multiplier.  The issue of Costs will be covered in the Tentative Ruling on the Motion to Tax Costs.

2-TENTATIVE RULING - MOTION TO TAX COSTS

RELIEF REQUESTED
Defendant moves the Court pursuant to Rule 3.1700(b) of the California Rules of Court to strike the memorandum of costs filed by Plaintiff or tax $10,053.11 in costs as follows:

$1,373.77 for filing and Motion fees, claimed under Item 1;

$5,639.55 for deposition costs, claimed under Item 4;

$1,297.91 for service of process costs, claimed under Item 5;

$1,500.00 for witness fees, claimed under Item 8;

$178.68 for fees for hosting electronic documents, claimed under Item 15; and

$63.20 for “other” costs, claimed under Item 16.

This motion is made on the grounds that: (1) the claimed costs are not substantiated; (2) these costs are not allowable, under Code of Civil Procedure section 1033.5, subdivision (b); (3) the costs were not reasonably necessary to the conduct of the litigation, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(2); (4) the costs are not reasonable in amount, in violation of Code of Civil Procedure section 1033.5, subdivision (c)(3); (5) the costs were not reasonably incurred, in violation of Civil Code section 1794, subdivision (d); and (6) these items are not properly claimed as a cost in this action.

BACKGROUND
Plaintiff filed a memorandum of costs on 10/20/2022 when Plaintiff filed its motion for attorneys’ fees and costs. Plaintiff’s memorandum of costs seeks $10,488.11 in costs. Defendant moves to tax $10,053.11 of those costs.

ANALYSIS
Timeliness

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (CRC, Rule 3.1700(b)(1).)

The instant cost memorandum was served by mail on 10/20/2022. The instant motion to tax costs was filed and served electronically on 10/31/2022. Therefore, this motion is timely. Further, the Opposition does not object to the timeliness of the motion to tax costs.

Form of Motion
“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (CRC, Rule 3.1700(b)(2).)

Defendant’s motion followed Rule 3.1700(b)(2); however, since each argument asserted by Defendant is the same, with the exception of service of process, the Court will address the motion as a whole, with the exception of service of process.

Defendant’s motion argues that all costs claimed should be taxed because Plaintiff did not provide documentation to substantiate any of his claimed costs. Defendant’s argument is unavailing.

“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.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 citing Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.)

As to every item asserted in the memorandum of costs, Defendant argues each cost is not reasonable because Plaintiff has not provided an itemized breakdown or any documentation to substantiate the claimed amount, and Defendant cannot adequately determine the amount that is taxable. This argument is unavailing as to all costs because as the Court cited in Ladas, the burden is not on the party that filed the memorandum of costs.

Additionally, Defendant argues as follows to tax each item in the memorandum of costs, “Where, as here, weaker and less satisfactory evidence is offered when it is within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. (See Evid. Code, § 412.)” The court finds this argument unavailing based on its prior citation to Ladas.

“He correctly asserts the items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682 citing Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.)

Here, moving party did not properly object to each cost and shift the burden to Plaintiff. Defendant did not provide any factual basis as to why each cost requested was unreasonable, Defendant simply argues in a conclusory fashion that the costs are unreasonable.

Further, even if Defendant had properly objected to Plaintiff’s costs (which Defendant did not) and shifted the burden to Plaintiff to justify its costs, Plaintiff in Opposition submitted Exhibits A and B which appear to be expense reports and receipts. Defendant did not file any objection to the submission of these exhibits.

As to Item 5, Service of Process, Defendant argues the claimed costs of $1,297.91 is excessive on its face because CCP 1033.5(a)(4) indicates an allowance only for service of process, not service in general. Defendant argues, “Service of process is generally defined as the service of Summons and Complaint on a party, as described in Code of Civil Procedure sections 413.10- 417.40.”

The Court finds the argument as to service unavailing. Defendant cited no specific section in the CCP to support its argument that “service of process is generally defined as the service of the summons and complaint on a party.”

TENTATIVE RULING
Defendant’s motion to tax costs is DENIED in its entirety. Defendant did not challenge any of the costs claimed on any factual basis, nor did Defendant challenge any of the costs on any proper legal basis. Defendant never shifted the burden to Plaintiff, and Plaintiff was not required to submit itemized breakdowns or documentation to substantiate its claim. Further, even if Plaintiff was required to do so, in his Opposition to this Motion Plaintiff submitted Exhibit A and Exhibit B, and Defendant did not submit a Reply and object to those exhibits.

Thus, Plaintiff is awarded the full amount of his timely and properly submitted Cost bill (Memorandum of Costs):  $10,428.11, less the $60.00 in filing fees the Court awarded Plaintiff against Defendant as a discovery sanction on 3/18/22.