Judge David Sotelo, Case BC706193 2022-09-26 Tentative Ruling

On June 21, 2021, the Parties executed a settlement agreement, which contemplates payment by Defendants to Plaintiffs, and dismissal of this Song-Beverly Act action.

Plaintiffs now bring the instant Motion for Attorney’s Fees, which is opposed by Defendants on the grounds that it is untimely, and that the fees sought are unreasonable. The reply was untimely filed on September 19, 2022 and contends that the fees sought are reasonable. The reply was due on September 16, 2022.

After review, Plaintiffs’ Motion for Attorney’s Fees is GRANTED in part. The Court finds that Plaintiffs shall recover a total of $89,182.85 accounting for $83,244 actually incurred and costs $5,938.85.

Analysis

Timeliness: California Rules of Court, rule 3.1702(b)(1) provides, in relevant part: a notice of motion to claim attorney’s fees for services up to and including the rendition of judgment must be filed and served within the time for filing a notice of appeal under rules 8.104 and 8.108. The deadline for filing a motion for attorney’s fees is mandatory. (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1444 (Community Youth).)

Under rule 8.104(a)(1), a notice of appeal must be filed on or before the earliest of:

(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served;

(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

If parties stipulate in the trial court to waive notice of the court order being appealed, the time to appeal under rule 8.104(a)(1)(C) applies unless the court or a party serves notice of entry of judgment or a filed-endorsed copy of the judgment. (Id., rule 8.104(a)(3).) “[A] compromise agreement contemplating payment by defendant and dismissal of the action by plaintiff is the legal equivalent of a judgment in plaintiff’s favor.” (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1260.)

Here, the Settlement Agreement was executed by the Parties on June 21, 2021. (Yashar Decl., Exh. 16.) Plaintiffs represent that the Settlement Agreement was served on Defendants on June 22, 2021.

California Rules of Court, rule 3.1702(b)(2) states, in relevant part, that the parties may extend the time for filing a motion for attorney’s fees by stipulation filed before the expiration of time allowed under rule 3.1702(b)(1): “Until 60 days after the expiration of the time for filing a notice of appeal in an unlimited civil case ….” (Cal. Rules of Court, rule 3.1702(b)(2).) The parties did not file any such stipulation, and Plaintiffs’ deadline to bring the motion thus expired on December 20, 2021, which is 180 days after the executed Settlement Agreement was served on Defendant. Plaintiffs filed the subject motion on August 24, 2022, and the motion is untimely.

“For good cause, the trial judge may extend the time for filing a motion for attorney’s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” (Cal. Rules of Court, rule 3.1702(d).)

The Court finds that there is good cause to continue the time to extend the time for filing this Motion because, as Plaintiffs represent, the initial date that was reserved for the Motion was continued by Plaintiffs on two occasions (12/8/21 & 6/22/22) to the current date of September 26, 2022, to attempt to resolve the Attorney’s Fees issue without Court intervention. The Court finds that Plaintiffs were acting in good faith with their continuances to reach an informal resolution, but after the Parties were unable to reach that resolution, Plaintiffs were forced to move forward with the filing of the instant Motion. Accordingly, there is good cause to extend the time for filing the instant Motion and the Court finds that Plaintiffs’ Motion is timely.

Attorney’s Fees: A prevailing buyer in an action under Song-Beverly “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,¿subd. (d).) The prevailing party has the burden of showing that the requested attorney fees are reasonable.¿¿(Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “is not necessarily entitled to the compensation of the value of attorney services according to [his or her] own notion or to the full extent claimed . . . .”¿¿(Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿If the “time expended or the monetary charge being made for the time expended are not reasonable under all circumstances, then the court must take this into account and award fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿¿
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In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.¿ (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.¿ (Ibid.)¿¿

Plaintiffs requests a total fee award of $134,314.85, accounting for $85,5484[1] actually incurred, a multiplier of 1.5 amounting to $42,792, and costs for $5,938.85,¿while Defendant provides specific objections to certain items of billing, counsel’s rates, and other specific objections.¿¿

Defendant’s General Request Fee Reduction: As a preliminary matter, Defendant generally seeks a fee reduction; however, as set forth above, Defendant’s general request for a fee reduction is insufficient to meet its burden, as Defendant is required to point the Court to specific items. Also as stated above, sufficient argument and citations to evidence is required to show that fees are improper.

Reasonableness of Rates: Defendant contends that the hourly rates for attorney’s fees of $420 per hour are unreasonable and should be reduced to $325 per hour¿

The Court’s review of the Nadia Yashar Declaration (in support of the Motion for Attorney’s Fees), its description of her years of experience, the accompanying exhibits, and the arguments and evidence brought forth by Defendant leads to the conclusion that Plaintiffs’ attorney’s fees as requested are reasonable because they are supported by substantial evidence under the present circumstances.¿ While Defendant points the Court to other judicial bodies reducing rates from larger rates to $300-$400, this Court is not tied to the determinations of other judicial bodies on the reasonableness in fees and costs. Instead, “the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“a reasonable hourly rate is the product of a multiplicity of factors . . . [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case”].) Accordingly, based on the Yashar Declaration, its description of the reasonableness in fees, the accompanying exhibits, and the Court’s knowledge and familiarity with the legal market, Plaintiffs’ counsel’s hourly rate is reasonable and the Court denies Defendant’s request to reduce Plaintiffs’ attorney’s hourly rate.¿

Multiple General Objections: Defendant generally categorizes objections to Plaintiffs’ billing time entries. As noted above, Defendant’s general request for a fee reduction is insufficient to meet its burden: Defendant is required to point the Court to specific items so the Court is left to speculate what billing entries are at issue and which entries are not at issue.

For example, the Court finds that 50 hours for preparing discovery, and drafting motions to compel, and attending hearings for the same for two Plaintiffs and two Defendants is not unreasonable. Instead, of pointing the Court to the specific billing entries that may include repetitive work (or other issues), Defendant fails to point the Court to the specific billing entries and leaves the Court to speculate as to the deficiencies with each entry. The same is true for Defendant’s objections to the categories of motions to compel, discussions with client (with the exception discussed below), trial documents, and unused expert[2].

Court Hearings: Defendant objects to Plaintiffs’ billing time entries for hearings in this matter, pointing to specific hearings to reflect the actual time spent on the hearings.

Defendant has failed to meet its burden of providing evidence to show that Plaintiffs’ time entries for the Court hearings are incorrect. Defendant represents what it believes the time entries to be, but it fails to provide a declaration attesting to those time entries or the actual time entries for those hearings. In reply, Plaintiffs agreed to reduce their court hearing time entries by 3.8 hours. Accordingly, the Court will reduce the court hearings entries by 3.8 hours.

Discussion with Client: Defendant specifically objects to a four hour phone conversation that Plaintiffs’ counsel had with Plaintiffs regarding an email sent by Defendant and “trial.” (See 1/28/20 Pl. Billing Entry.) Plaintiffs agree that this entry was a typographical error and should have been “.4”. The Court finds that an entry of .4 to discuss an email by opposing party and trial is reasonable. Thus, the Court will reduce the time entries for January 28, 2020 for a phone call by 3.6 hours.

Fee Motion: Defendant contends that the 6.6 hours for preparation of the instant Motion and the anticipated 6.6 hours for reviewing and preparing the reply is unreasonable.

Here, Plaintiffs’ counsel provided billing for the preparation of the Motion, which reflects that 6.6 hours were billed for preparation of this Motion. In addition, in the declaration in Reply to the Opposition, Plaintiffs’ counsel states that she billed 5.6 hours (not the 6.6 hours anticipated) to Reply to the Opposition.

The Court finds that spending a total of 12.2 hours for Plaintiffs’ counsel to draft the instant Motion and Reply is reasonable based on the arguments contained therein.

Multiplier: Plaintiffs seek a 1.5 lodestar multiplier¿because an excellent outcome was obtained and because of the risk posed by the litigation. Plaintiffs’ requests for a lodestar multiplier is DENIED.

Final Calculation: Here, Plaintiffs billed 206.6 hours. (See Mot. Exh. 1.) As discussed above, Plaintiffs’ overall billing time entries will be reduced by 8.4 hours and the total amount of actually incurred by Plaintiffs will be $83,244 (representing 198.2 hours at a rate of $420).

In addition, Plaintiffs will be awarded their costs of $5,938.85, for a total of $89,182.85.

Conclusion

Based on the rulings above, Plaintiffs’ Motion for Attorney’s Fees is GRANTED in part and DENIED in part. The Court finds that Plaintiffs shall recover a total of $89,182.85 accounting for $83,244 actually incurred and costs $5,938.85.

[1] The Court notes that the amount actually incurred by Plaintiffs is incorrect. Plaintiffs actually incurred $86,772 (representing 206.60 hours billed at a rate of $420 (206.60*420=86,772).) (See Yashar Decl., Exh. 1.) The Court need not analyze this issue here because, as is discussed below, Plaintiffs’ overall time billed will be reduced.

[2] The Court notes that contrary to Defendant’s contention that there was no breakdown of the billing entries for Plaintiffs’ expert, Darrell Blasjo, Plaintiffs’ billing time entries reflect a breakdown of the time billed for conversations with Mr. Blasjo, and for attending the vehicle inspection with Mr. Blasjo. It is reasonable that Plaintiffs incurred 9.1 hours in attorney’s fees for communications with Mr. Blasjo and for attending the inspection of the subject vehicle.