Judge: Elaine Lu, Case: 20STCV30437, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV30437    Hearing Date: September 21, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background   

             On October 29, 2018, plaintiff Luis Velastegui (“Plaintiff”) filed the instant action against Nissan North America, Inc. (“Defendant”) and West Covina Nissan[1].  The complaint asserts three causes of action for (1) Breach of Implied Warranty pursuant to the Song-Beverly Act, (2) Breach of Express Warranty pursuant to the Song-Beverly Act, and (3) Negligent Repair.

The Complaint, in relevant part, alleges that Plaintiff purchased a 2018 Nissan Altima (“Subject Vehicle”) on November 29, 2019.  (Complaint ¶¶ 5-6.)  During its warranty period, the Subject Vehicle experienced loss of power, acceleration issues, Recall P2813 for Transmission Control Module, abnormal noises and transmission issues which Defendant and Defendant West Covina Nissan were unable to repair after at least three repair attempts.  (Id. ¶¶ 8-13.) 

On February 8, 2022, Plaintiff accepted Defendant’s Code of Civil Procedure section 998 offer, which settled the instant action.  (Barry Decl. ¶ 9, Exh. 4.)   Pursuant to the settlement agreement, Plaintiffs are the prevailing party and are entitled to attorneys’ fees pursuant to Civil Code section 1794(d).  (Barry Decl. ¶ 9, Exh. 4.)

            On July 22, 2022, Plaintiff filed the instant motion for attorneys’ fees and costs.  On September 8, 2022, Defendant filed an opposition.  On September 14, 2022, Plaintiff filed a reply.

Evidentiary Objections

            Defendants have submitted evidentiary objections to portions of the declarations of Hallen D. Rosner, Stephanie Papayanis, Esq., David N. Barry, Esq., Elizabeth Quinn, Esq., and Sarah Jane Borris, Esq.  However, these objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible.  (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.)  Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process.  (People v. Coddington (2000) 23 Cal.4th 529, 644.)

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees are allowable as costs when authorized by contract or statute and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.)  This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.)  Relevant factors include: “(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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Right to Recover

A prevailing buyer in an action under the Song-Beverly Act “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).)  “[W]hen ‘prevailing party’ is undefined by the statute, ‘a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement or otherwise. [Citations.] In assessing litigation success, Hsu v. Abbara (1995) 9 Cal.4th 863, 877, ... instructs: ‘[C]ourts should respect substance rather than form, and to this extent should be guided by “equitable considerations.”’”  (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048.)

            Here, on February 8, 2022, Plaintiff accepted Defendant’s Code of Civil Procedure section 998 offer and settled the instant action.  (Barry Decl. ¶ 9, Exh. 4.)   Pursuant to the settlement agreement, Plaintiffs are the prevailing party and are entitled to attorneys’ fees pursuant to Civil Code section 1794(d).  (Barry Decl. ¶ 9, Exh. 4.)

Reasonableness of Attorney’s Fees

Plaintiff seeks attorney fees and costs totaling $48,707.63, consisting of $45,842.50 in attorneys’ fees and $2,865.13 in costs.  (Barry Decl. ¶ 10, Exh 5.) 

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)  Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.”  (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Attorney David Barry (“Barry”) is president and founder of the law firm Journey Law Group, Inc., counsel of record for Plaintiff, and billed at an hourly rate of $525.00, which increased to $600 after January 1, 2022, and spent a total of 15.5 hours on the instant action.  (Barry Decl. ¶ 16, Exh. 5.)  Barry graduated from Pepperdine School of Law in 2000 and served as an Associate Editor for the Pepperdine Law Review.  (Barry Decl. ¶ 18.)  Barry has been practicing law for 21 years and for most of those years specialized in consumer law, including breach of warranty and lemon law cases.  (Barry Decl. ¶ 17.)  Barry has operated his own firm since August of 2010.  (Barry Decl. ¶ 17.)  Further, Barry’s hourly rate has been approved by numerous other courts.  (Barry Decl. ¶¶ 22-127.)  Moreover, Barry’s rate is similar and lower than other hourly rates charged by attorneys with similar experience in the area.  (Barry Decl. ¶ 20.) 

            Attorney Elizabeth Quinn (“Quinn”) is a senior associate of the law firm, The Barry Law Firm., counsel of record for Plaintiff, and billed at an hourly rate of $450, which increased to $500 in January 2022.  (Quinn Decl. ¶¶ 1, 11.)  Quinn spent a total of 1.6 hours on the instant action.  (Barry Decl., Exh. 5.)  Quinn graduated Pepperdine School of Law in May of 2000.  (Quinn Decl. ¶ 5.)  Quinn has been admitted to the State Bar of California since December 2000.  (Quinn Decl. ¶ 3.)  Quinn has received certificates in Dispute Resolution and has volunteered as a mediator for Los Angeles Superior Court through the California Academy of Mediation Professionals.  (Quinn Decl. ¶¶ 5, 7.)  Quinn served as a Senior Associate and manager of civil litigation at Randolph & Associates from March 2006 to May 2008.  (Quinn Decl. ¶ 9.)  Quinn then was a sole practitioner from May 2008 to May 2018 handling a wide variety of matters.  (Quinn Decl. ¶ 10.)    Since August of 2018, Quinn has been an associate at the Barry Law Firm.  (Quinn Decl. ¶ 11.)  Further, Quinn’s hourly rate has been approved by numerous other courts.  (Quinn Decl. ¶¶ 12-58.)

            Attorney Logan Pascal (“Pascal”) is an associate of the law firm, The Barry Law Firm., counsel of record for Plaintiff, and billed at an hourly rate of $300.  (Pascal Decl. ¶¶ 1, 5.)  Pascal spent a total of 9.5 hours on the instant action.  (Barry Decl., Exh. 5.)  Pascal graduated Southwestern Law School in May of 2018.  (Pascal Decl. ¶ 3.)  Pascal has been admitted to the State Bar of California since January 2019.  (Pascal Decl. ¶ 4.)  Since August of 2019, Pascal has been an associate at the Barry Law Firm.  (Pascal Decl. ¶ 5.)  Further, Pascal’s hourly rate has been approved by numerous other courts.  (Pascal Decl. ¶¶ 6-41.)

Attorney Sarah Jane Norris (“Norris”) is an associate of the law firm, The Barry Law Firm., counsel of record for Plaintiff, and billed at an hourly rate of $350.  (Norris Decl. ¶¶ 1, 6.)  Norris spent 8.1 hours working on the instant action.  (Barry Decl., Exh. 5.) Norris graduated Regent University School of Law in May of 2016.  (Norris Decl. ¶ 3.)  Norris has been admitted to the State Bar of California since December 2016.  (Norris Decl. ¶ 4.)  Norris worked on unlawful detainer cases until November 2017, and then from December 2017 to June 2018 worked as sole practitioner. (Norris Decl. ¶¶ 4-5.)  Since, July of 2018, Norris has been an associate at the Barry Law Firm.  (Norris Decl. ¶ 6.)  Further, Norris’s hourly rate has been approved by numerous other courts.  (Norris Decl. ¶¶ 7-57.)

            Attorney Stephanie Papayanis (“Papayanis”) is an associate of the law firm, The Barry Law Firm., counsel of record for Plaintiff, and billed at an hourly rate of $250.  (Papayanis Decl. ¶¶ 1, 6.)  Papayanis spent a total of 20.6 hours on the instant action.  (Barry Decl., Exh. 5.)  Papayanis graduated California Western School of Law School in December of 2020.  (Papayanis Decl. ¶ 3.)  Papayanis has been admitted to the State Bar of California since June 2021.  (Papayanis Decl. ¶ 5.)  Since August of 2021, Papayanis has been an associate at the Barry Law Firm.  (Papayanis Decl. ¶ 6.)  Further, Papayanis’ hourly rate has been approved by numerous other courts.  (Papayanis Decl. ¶¶ 7-14.)

Attorney Daniel Macioce (“Macioce”) is a former associate of the law firm, The Barry Law Firm., counsel of record for Plaintiff from October 5, 2020 to August 13, 2021, and billed at an hourly rate of $300.  (Barry Decl. ¶ 21.)  Macioce spent a total of 3 hours on the instant action.  (Barry Decl., Exh. 5.)  Macioce has been in practice since December 2018 and graduated from Pepperdine University School of Law in May 2018.  (Barry Decl. ¶ 21.)

In sum, six attorneys spent a total of 103.4 hours on the instant action over approximately two years.  Based on the stated experience of each respective attorney and prevailing rates of similar, the Court finds the hourly rates are reasonable.  However, the number of attorneys working on the instant action is excessive. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.)  Here, the instant action did not involve any complicated issues.  Rather, the instant action was simple and routine.  Yet, four separate attorneys and two paralegals worked on the instant action.  This is reflected in some of the inefficiencies in billing.  Further, given Plaintiffs’ Counsel firm’s expertise in lemon law actions, as reflected in Counsel’s hourly rates, the Court finds the hours billed on pursuing discovery to be excessive.  In light of Plaintiff’s Counsel’s firm’s expertise in lemon law matters and in light of the availability of templates from other lemon law actions that Plaintiff’s Counsel’s firm has handled in the past, propounding discovery and litigating motions to compel further are routine matters that should have required only a fraction of the hours that Plaintiff’s Counsel billed.  Moreover, there was very little to no motion practice in this action, with only a single discovery motion and a few motions in limine that were briefed.  Accordingly, given these factors, a reduction is warranted. 

In opposition, Defendant disputes the time spent on interoffice communications, time spent traveling to attend routine court hearings and attending the vehicle surrender.  Here, as noted in the billing record, 2.6 hours was spent on just inter-office communications.  Given that the action was overstaffed, the Court concludes that a reduction of $785 for these interoffice communications is warranted.  Defendants further contend that the time spent traveling to and from the office for routine Court hearings was unreasonable as the Court was encouraging parties to appear remotely.  In fact, this departments courtroom information on the first page in bold and underlined states “TELEPHONIC APPEARANCE: For all matters except for trials and evidentiary hearings, the Court strongly encourages all counsel and all parties to appear remotely via telephone or video.”  Accordingly, the Court finds that the time spent traveling to and from routine hearings was not reasonably incurred.  Therefore, a reduction of $1,512.50 is warranted.

Finally, Defendant contends that the three hours spent by Attorney Barry traveling and attending the vehicle surrender was unreasonable.  The Court agrees that having the named partner of the firm attend the vehicle transfer at $600 per hour is excessive.  Accordingly, a slight reduction is warranted.  However, the Court notes that Plaintiff is likely to incur fees and costs in opposing the pending motion to tax, warranting an increase in fees for the estimated time spent.

Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred is $42,150.00.

Costs

            As to costs, Plaintiff filed a memorandum of costs, which Defendant has challenged in part through a motion to tax.  Accordingly, as there is a pending motion to tax costs, the Court declines to address the claimed costs in the instant order.

CONCLUSIONS AND ORDER

Based on the forgoing, Plaintiff Luis Velastegui’s motion for attorneys’ fees is GRANTED in the total amount of $42,150.00. 

The Moving Parties are to give notice and file proof of service of such.

DATED: September 21, 2022                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court