Judge: Frank M. Tavelman, Case: 22BBCV00887, Date: 2023-09-01 Tentative Ruling

Case Number: 22BBCV00887    Hearing Date: September 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEYS’ FEES

ALLEGATIONS: 

On November 11, 2022, Araz Ebrahimpour (“Plaintiff”) filed suit against BMW of North America, LLC (“BMW”). Plaintiff alleges BMW violated certain provisions of Civil Code § 1791.2, commonly known as the Song Beverly Act. The parties have reached an agreement of settlement which provides for attorneys fees to be determined by motion made to this Court. Plaintiff now brings such a motion and BMW opposes.   

ANALYSIS: 

I.                    LEGAL STANDARD 

“The Song-Beverly Act. . . includes a fee-shifting provision allowing for prevailing buyers to recover attorney fees under section 1794.” (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1111.) California “appellate courts have unanimously concluded the lodestar adjustment method of calculating attorney fees is appropriate” in awarding attorney fees under the Act. (Reynolds supra, 47 Cal.App.5th 1105 at 1112.)

“A trial court assessing attorney fees using the lodestar adjustment method 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.” (Reynolds, supra, at 1112 [internal quotation marks and citations omitted].) “[T]he trial court is . . . tasked under section 1794 . . . with calculating attorney fees based on actual hours expended that were reasonably incurred for the particular litigation.” (Id. at 1113.)  Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 [internal quotation marks and citations omitted].)

“If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34.) The party moving for statutory attorney fees or sanctions has the burden of proof. (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

“[C]ounsels’ time records [should be used] as the starting point for [a court’s] lodestar determination.” (Horsford v. Board of Trustees of CSU (2005) 132 Cal.App.4th 359, 397.) However, “the trial court [is vested] with discretion to decide which of the hours expended by the attorneys were ‘reasonably spent’ on the litigation.” (Meister v. Regents of Univ. of Cal. (1998) 67 Cal.App.4th 437, 449.) “A trial court may not rubberstamp a request for attorney fees but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271 [internal quotation marks and citations omitted].) “In evaluating whether the attorney fee request is reasonable, the trial court should consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Morris, supra, 41 Cal.App.5th at 38 [internal quotation marks and citations omitted].) “Reasonable compensation does not include compensation for padding in the form of inefficient or duplicative efforts.” (Id., [internal quotation marks and citations omitted].)

“Reasonable hourly compensation is based on ‘prevailing hourly rates’ in the community, thereby ‘anchoring the calculation’ to an objective standard. [Citation.]” (Reynolds supra, at 1112.) However, “[i]n making its calculation of a reasonable hourly rate, 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, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris supra, at 41 [internal quotation marks, citations, and alterations omitted].)

“Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.” (Lealao v. Beneficial Calif., Inc. (2000) 82 Cal.App.4th 19, 26.) In considering whether to apply a multiplier, the Court should not consider factors which are already included in the lodestar amount, such as extraordinary skill and the difficulty of the question involved. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139.) “Thus, a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.” (Id. at 1139.) “Otherwise, the fee award will result in unfair double counting and be unreasonable. Nor should a fee enhancement be imposed for the purpose of punishing the losing party.” (Id.) The party seeking the fee enhancement bears the burden of proof. (Id at 1138.)

II.                 MERITS

As a preliminary matter, it is undisputed that Plaintiff is the prevailing party.

Attorneys’ Fees

Plaintiff’s counsel request $49,790 in attorneys’ fees. To determine the reasonableness of both the number of hours billed and the billable rate, the Court must first analyze the timeline of this litigation. Despite the contentions of counsel for the parties, the timeline of this litigation is relatively straightforward.

The Complaint was filed November 1, 2022. On November 21, 2022, counsel for BMW sent Plaintiff’s counsel an email explaining it had only recently been retained and asking for an informal 30-day extension to file an initial response. (Abtin Decl. Exh A.) Plaintiff’s counsel granted this extension. (Id.)

Plaintiff’s counsel and counsel for BMW then had a phone call on Dec 22, 2022. Counsel for BMW states they offered to repurchase the vehicle at this time. (Abtin Decl. ¶ 9.) Plaintiff’s counsel offers no account in their declarations as to what occurred during this phone call. Plaintiff’s counsel disputed in a February 2, 2023 email that no purchase offer was made on the phone call. (Abtin Decl. Exh. A.) In this email Plaintiff’s counsel offered to make the email chain Exhibit A to his motion for attorneys’ fees, however he attached no such exhibit to this motion.

On December 22, 2022, Plaintiff’s counsel made a repurchase demand including $8,500 in attorneys’ fees. (Id.) Plaintiff’s counsel stated his offer was open through December 31, 2022. (Id.) No response was received to this offer and Plaintiff thereafter propounded discovery demands on January 3, 2023. (Rezvanpour Decl. ¶ 13.) On February 2, 2023, counsel for BMW responded, rejecting the expired offer and countering with $5,000 in attorneys’ fees. Counsel for BMW also requested further work on the case be stopped while it is conveying the “unreasonable” offer to BMW. (Amir Decl. Exh. A.) On February 2, 2023, Plaintiff’s counsel replied on that he would hold off on discovery pending settlement and granted a 30-day extension. (Id.) On March 9, 2023, Counsel for BMW sent a settlement offer. (Id.) On March 13, 2023 Plaintiff’s counsel replied and insisted on an agreement which stipulates that attorneys’ fees will be determined by the Court. (Id.) Plaintiff’s counsel then filed its motion to compel discovery responses on March 13, 2023. On March 16, 2023, counsel for BMW provided Plaintiff’s counsel with a settlement which included attorneys’ fees decided by motion. (Id.)

Number of Hours

As the Court discussed in its May 5, 2023 ruling which continued the motion to compel discovery responses, Plaintiff’s counsel failed to adequately meet and confer with counsel for BMW prior to making the motion. The Court found there was no communication from Plaintiff on March 13, 2023, on the eve of settlement, requesting discovery responses be provided. As such, the Court finds the hours billed with respect to the motion to compel were not reasonably incurred in the course of this litigation. 

Whether work expended in rendering initial discovery was warranted is another matter. At the time Plaintiff’s counsel propounded discovery, counsel for BMW had not provided an answer to Plaintiff’s repurchase demand. However, counsel for BMW submits a declaration stating that they offered to repurchase the vehicle on the December 22, 2022 phone call. Counsel for Plaintiff submits no competing declaration, and their denial of such an offer can only be gleaned from exhibits submitted by BMW in this motion. The billing provided by Plaintiff’s counsel makes clear discovery demands were drafted on December 27, 2022. (Rezvanpour Decl. Exh C.) It is clear to the Court that BMW’s position to repurchase the vehicle was communicated to Plaintiff’s counsel prior to propounding discovery demands and that the only substantial remaining issue was the provision of attorneys’ fees. Plaintiff’s propounding discovery could not have been in furtherance of this litigation, as BMW had already indicated willingness to repurchase the vehicle.

Accordingly, the Court finds the attorneys’ fees incurred in the preparing and serving the initial discovery demands, as well as those incurred from bringing the motion to compel, are unreasonable. The remainder of fees requested are reasonable in the Court’s evaluation and remain.

Hourly Rate

Plaintiff’s counsel claims a total of 76.5 hours spent between Attorney Rezvanpour (48.6 hours), Attorney Azimtash (21 hours), and their paralegal (6.9 hours). Subtracting from these totals the time expended on discovery and the motion to compel, a total of 51.6 hours was spent (40.5 hours for Rezvanpour, 5.3 hours for Azimtash, 5.8 hours for the paralegal).

Plaintiff’s counsel states the billable rate for Rezvanpour is $595, the rate for Azimtash is $450, and the rate for the paralegal is $165. Plaintiff’s counsel states these rates are below the average shown by the Laffey Matrix, a survey of attorney rates which considers years in practice. (Rezvanpour Decl. ¶ 26.) BMW argues the Court should instead look to 2021 Real Rate Report published by Wolters Kluwer, which shows an average rate of $263 for partners and $210 for associates. (Oppo. p. 18, Abtin Decl. Exh C.) BMW accordingly argues the rate should be no more than $353 for the attorneys and $120 for the paralegal. (Oppo. p. 19.)

BMW presents no substantive argument as to why the Real Rate Report is more applicable to this litigation such as to discard Plaintiff’s representations as to the Laffey Matrix. Further, if it is BMW’s position that the Real Rate Report is the appropriate measurement, it is not clear why they then suggest rates maximum rates which are substantially higher.

In considering the reasonableness of the attorneys’ fees the Court may factor in the complexity of the litigation and the sophistication of the work required. (Morris supra, at 41.) Here, the Court must contrast Plaintiff’s showing of a reasonable hourly fee with the relatively simple nature of the litigation. Most of the billing outside the discovery motion is communication with the client and preparation of the Complaint. These are not tasks which in the Court’s view require the work of a highly qualified attorney in lemon law. Considering the nature of the work performed on the file, the Court finds a reasonable rate for the work performed would be $450 an hour for Rezvanpour and Azimtash and $150 for the paralegal work.  

Accordingly, attorneys fees are awarded in the amount of $21,480 (($450 x 40.5 = $18,225) + ($450 x 5.3 = 2,385) + ($150 x 5.8 = 870) = $21,480).

Multiplier

The Court declines to award Plaintiff the requested lodestar multiplier.

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The burden of proof to support such a multiplier is on the prevailing party. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)

Plaintiff asserts that a 0.3 lodestar multiplier is warranted based on the contingency risk involved. (Rezvanpour Decl. ¶ 30.) In opposition, Defendants argue that Plaintiff is not entitled to a lodestar multiplier because the case did not present novel issues, there is no proof that Plaintiff's counsel was precluded from taking on other matters, and the firms’ contingency risk is exaggerated. (Oppo. p. 15-16.)

Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. The attorneys’ fees being awarded under the lodestar calculation appropriately compensate Plaintiffs’ attorneys at a reasonable hourly rate for the number of hours spent on this case. Any contingency risk factor is already accounted for in the hourly rates.

Accordingly, even though Plaintiff requests a modest lodestar multiplier, the Court finds that it is not appropriate.

Expenses

Given the unreasonable nature of discovery and the motions to compel production, the Court finds the associated filing and reservation fees to be erroneous. These fees account for $290.16 of the total $1,119.66 requested. Accordingly, Plaintiff is entitled to costs in the amount of $829.50.

Fees & Expenses for this Motion

BMW does not dispute the reasonableness of the hours and expenses incurred in bringing this motion. In accordance with the Court’s earlier determination of a reasonable rate of $450, and Plaintiff’s representation of 16.4 hours of work in brining and defending this motion, the Court finds Plaintiff is entitled to $7,380 in attorneys’ fees for this motion.

III.              CONCLUSION

The Court GRANTS the motion for attorneys’ fees in part. Plaintiff is entitled to $21,480 in attorneys’ fees associated with the litigation and $7,380 in attorneys’ fees associated with bringing this motion, for a total of $28,860. Plaintiff is also entitled to costs in the amount $829.50.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Araz Ebrahimpour’s Motion for Attorneys’ Fees came on regularly for hearing on September 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR ATTORNEYS’ FEES IS GRANTED IN THE AMOUNT OF $28,860 AND COSTS IN THE AMOUNT OF $829.50.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles