Judge: Gail Killefer, Case: 20STCV44433, Date: 2024-08-08 Tentative Ruling
Case Number: 20STCV44433 Hearing Date: August 8, 2024 Dept: 37
CASE NUMBER: 20STCV44433
CASE NAME: Sargiz Shamouni v. Subaru of America, Inc., et al.
MOVING PARTY: Plaintiff Sargiz Shamouni
OPPOSING PARTY: Defendant Subaru of America, Inc.
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s Fees
OPPOSITION: 5 June 2024
REPLY: 24
June 2024
TENTATIVE: Plaintiff’s motion for attorney fees is
granted in the sum of $40,282.00.
Background
On November 19,
2020, Sargiz Shamouni (“Plaintiff”) filed this lemon law action against Subaru
of America Inc. (“Subaru”); Ladin Hyundai Subaru; and Does 1 to 50. The
Complaint alleges causes of action for (1) Violation of Civ. Code § 1703.2(d);
(2) Violation of Civ. Code § 1793.2(b); (3) Violation of Civ. Code §
1793.2(A)(3); (4) Breach of Express Warranty; (5) Breach of Implied Warranty of
Merchantability; and (6) Fraud.
On January 12,
2024, the Parties filed a Notice of Settlement.
Plaintiff now moves
for attorney’s fees and costs. Defendant Subaru opposes the Motion. The matter
is now before the court.
I. Legal Standard
Under Civ. Code § 1794(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).)¿¿¿¿¿¿¿
The lodestar method is the primary method for determining a
reasonable attorney fee award under Civ. Code, 1794(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.)¿¿¿¿
II. Request for Judicial Notice
The court may take judicial notice
of records of any court of record of the United States. (Evid. Code, §
452(d)(2).) However, the court may only judicially notice the existence of the
record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1565.)¿
1)
An Order on attorney’s fees and prejudgment
interest in the lemon law matter of Abraham Forouzan v. BMW (United
States District Court for the Central District of California Case No.
2:17-cv-03875-DMG-GJS), attached as Exhibit 1 to the Declaration of
Payam Shahian.
2)
An Order on attorney’s fees, costs and expenses
in the lemon law matter of Joshua Holeman v. FCA (United States District
Court for the Central District of California Case No. 2:17- cv-08273-SVW-SK),
attached as Exhibit 2 to the Declaration of Payam Shahian.
3)
An Order on attorneys’ fees, costs and expenses
in the lemon law matter of Catherine Shepard v. BMW (Los Angeles
Superior Court Case No. BC622506), attached as Exhibit 3 to the
Declaration of Payam Shahian.
4)
Order on attorneys’ fees and prejudgment
interest in the lemon law matter of Jerry Zomorodian v. BMW (United
States District Court for the Central District of California Case No.
2:17-cv-5061-DMG(PLAx)), attached as Exhibit 4 to the Declaration of
Payam Shahian.
5)
Order on attorneys’ fees and prejudgment
interest in the lemon law matter of Zargarian v. BMW (United States
District Court for the Central District of California Case No.
2:18-cv-04857-RSWL-PLA), attached as Exhibit 5 to the Declaration of
Payam Shahian.
6)
April 29, 2021, Minute Order granting
plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law
matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No.
19STCV02985) attached as Exhibit 6 to the Declaration of Payam Shahian.
7)
May 10, 2021 Tentative Ruling granting
plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law
matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil
Case No. BC722351) attached as Exhibit 7 to the Declaration of Payam
Shahian.
8)
Order on attorneys’ fees in Oscar Millan vs.
Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No.
BC710535) attached as Exhibit 8 to the Declaration of Payam Shahian.
9)
March 14, 2022 order granting Plaintiff’s’
Motion for Attorney’s Fees, Costs, and Expenses in the Song Beverly matter of Jason
J. Arnold, et al. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case
No. 19STCV26274) attached as Exhibit 9 to the Declaration of Payam
Shahian.
10) Order
on Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the matter of
Mo Rahman v. FCA US, LLC et al., (United States District Court for the
Central District of California Case No. 2:21-cv-02584), attached as Exhibit
10 to the Declaration of Payam Shahian.
11) June
13, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles
Co. Super. Ct., Civil Case No. BC709888) attached as Exhibit 11 or the
Declaration of Payam Shahian.
12) January
24, 2023, Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford
Motor Company (United States District Court for the Central District of
California Case No.: 5:21-cv01346-SPG-SHK) attached as Exhibit 12 to the
Declaration of Payam Shahian.
13) A
true and correct copy of the January 24, 2023 Fee order in Sandra J.
Williams et al. v. Ford Motor Company, Case No. 5:21-cv-01346-SPG-SHK (C.D.
Cal. Jan. 24. 2-23) is Exhibit 13 to the Declaration of Payam Shahian
14) April
24, 2023 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the lemon law matter of Sergio Proa v. Kia Motors America
Inc. (Los Angeles Co. Super. Ct. Civil Case No. BC716647) attached as Exhibit
14 to the Declaration of Payam Shahian.
15) July
6, 2023 Minute Order in Francsico Rodriguez and Norma Rodriguez v. Hyundai
Motors America. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655)
(July 6, 2023) attached as Exhibit 15 to the Declaration of Payam
Shahian.
16) October
16, 2023 Minute Order in Charles Steven Sedlacek IV v. General Motors, LLC (Los
Angeles Co. Super. Ct. Civil Case No. 21STCV23811) (October 16, 2023) attached as
Exhibit 16 to the Declaration of Payam Shahian.
17) Order
on attorneys’ fees in Holcomb v. BMW of N. Am., LLC, Case No.
18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020) attached as Exhibit
17 to the Declaration of Payam Shahian.
Plaintiff’s request for judicial
notice is granted.
III. Evidentiary Objections
Plaintiff’s objections to the
Declaration of Julie A. Goerlinger are overruled as the objections are without
merit.
Defendant Subaru objects to
Plaintiff’s untimely reply and newly submitted evidence. The court grants Defendant
Subaru’s request to strike new evidence submitted on reply but denies Subaru’s
request that the reply brief be disregarded by the court.
IV. Discussion
Plaintiff’s
counsel, Strategic Legal Practices, APC (“SLP”), moves for attorney’s fees in
the sum of $78,831.50 for 153.50 hours of work; a 1.37 multiplier or
$27,595.40; and $6,504.03 in cost and
expenses. (Amended Notice of Motion) In addition, SLP requests $3,500.00 for
fees incurred in anticipation of submitting a reply and attendance at the
hearing. (Id., ¶ 80) SLP’s total fee request is $116,430.93. (Id.)
This
action was filed on November 19, 2020, and relates to the purchase of a 2025
Subaru Forester vehicle purchased in January 2015 by Plaintiff. (Carvalho
Decl., ¶¶ 3, 16, Ex. 1.) On January 11,
2024, Defendant Subaru served its third 988 Offer to Compromise wherein
Defendant offered to pay Plaintiff $70,000.00 in exchange for the surrender of
the Subject Vehicle and settlement of the case plus attorneys’ fees, costs, and
expenses. (Id. ¶ 62.) Plaintiff accepted the 988 Offer the same day. (Id.,
Ex. 7.)
A. Reasonable Hourly Rates¿¿
¿
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.”].)¿¿¿¿¿
SLP provides
evidence that its attorney fee rates ranging from $350 to $610 have been found
reasonable by various courts in California. (Shahian Decl., ¶¶ 8-42, Ex. 1-16.)
“ ‘Affidavits of the plaintiffs' attorney and other attorneys regarding
prevailing fees in the community, and rate determinations in other cases,
particularly those setting a rate for the plaintiffs' attorney, are
satisfactory evidence of the prevailing market rate.’ ”(Heritage Pacific
Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 citing United Steelworkers
of America v. Phelps Dodge Corp. (9th Cir.1990) 896 F.2d 403, 407.)
SLP further
represents that although 16 attorneys and one law clerk worked on this case,
only 7 attorneys (Angel Baker, David Berschauer, Karin Kuemerle, Daniel Law,
Bryan Miller, Oliver Tomas, and Greg Yu) account for 103.60 hours out of the
153.50 total hours billed (i.e. around 70%) with other attorneys performing
non-duplicative tasks. (Motion, at p. 10, fn. 12.)
The hourly billing
rates of SLP are as follows:
Having examined
SLP’s evidence submitted in support of its hourly rates, the court finds that
SLP has shown that courts have approved SLP’s billing rate and that its billing
rates are reasonable.
B.
Time
Reasonably Spent on the Litigation¿
¿
“‘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. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada
Biomedical v. Nunez¿(2014) 230 Cal.App.4th 459, 488, citing Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163¿Cal.App.4th¿550, 564.) The court will exercise its discretion in
determining if the Plaintiff’s attorney’s fees request is reasonable by
considering the following factors: the nature of litigation, its difficulty,
the amount involved, the skill required in handling the matter, the attention
given, the success or failure, and the resulting judgment. (Melnyk v.
Robledo (1976) 64 Cal.App.3d 618, 623.)¿¿¿
SLP asserts it reasonably spent
153.50 hours litigating this action, resulting in $78,844.00 in attorney’s
fees. Defendant Subaru asserts that SLP lacked diligence in litigating this
action because it failed to meaningfully negotiate in good faith or make a
counteroffer offer to Defendant’s offers of settlement. The burden is on
Defendant to show that SLP engaged in inefficient, unreasonable and unnecessary
billing.
i. Fees Associated with Opposing Demurrer
Plaintiff billed $2,259 to oppose
Defendant’s demurrer. Defendant argues
that the demurrer was necessary because Plaintiff refused to withdraw their
fraud claim. (Goerlinger Decl., ¶ 5.) The demurrer was sustained with leave to amend,
and Plaintiff failed to amend the fraud cause of action. (Id.) The court
finds that Plaintiff’s decision to oppose the demurrer was reasonable, but the
time spent attending the hearing and drafting a hearing memorandum was
excessive.
Accordingly, 1.3 hours billed
at a rate of $460.00/hour or $585.00 will be subtracted from the lode star.
ii. Fees
Associated with Drafting Plaintiff’s Discovery Requests
Defendant Subaru asserts that
the 3.0 hours billed totaling $1,250.00 related to written form discovery is
excessive because it could have been prepared by a paralegal or law clerk
rather than an attorney who billed $475.00 per hour. The court finds that
preparing written form discovery is not a task that is so administrative or
secretarial in nature that it should be performed by a paralegal or law clerk.
The court finds that no deductions are warranted as to this time entry.
iii. Fees Associated with Opposing Defendant’s Motion for a
Protective Order and Preparing For and Attending the hearing
Plaintiff billed $17,651 for five
attorneys’ work in drafting an opposition to Defendant’s motion for a
protective order and attending a single hearing and failed to meet and confer
with Defendant’s counsel beforehand. Defendant
argues five attorneys worked on drafting a 13-page opposition to Defendant’s
motion for a protective order and that the billing was inefficient. Defendant
asserts it tried to meet with Plaintiff on five separate occasions before
filing the motion – but that Plaintiff’s counsel was not responsive.
The court agrees that the
billing was inefficient.
It should have taken Greg Yu,
no more than 6 hours to oppose the motion for a protective order given his
years of experience. Moreover, Oliver Tomas's billing on the same matter was
excessive. Lastly, it was Mani Arabi who prepared for and attended the hearing
despite Mr. Yu doing most of the work.
The court will subtract 19.5
hours billed at a rate of $550.00 or $10,725.00 from the lodestar. In addition,
the court will subtract $3,094.00 as billed by Olive Tomas from the lodestar.
In addition, the court will subtract 3.0 hours billed at a rate of $410.00 or
$1,230.00 for the time spent preparing for an attending the hearing. Deductions
for this matter total $15,049.00.
iv. Plaintiff’s Motion to Remand
Plaintiff billed $15,693.50 to
draft a motion to remand. Defendant
filed a Notice of Removal on November 29, 2021, and a Notice of Remand was
filed on February 16, 2021, with a two-page order from the federal court. Defendant Subaru argues that the 29.4
hours billed to draft a basic motion to remand and reply was excessive given
the lack of complexity of the issues.
The court agrees and subtracts about
two-thirds of the billing for this task, or $10,462.00.
v. Reviewing Defendant’s Response to Discovery and Drafting a
Meet and Confer Letter
Defendant maintains that Tina
Abodolhosseini excessively billed 3.0 hours ($1,245.00) to review and draft a
meet and confer to Defendant’s responses to Plaintiff’s discovery because it
consisted solely of objections and Plaintiff refused to grant an extension of
time to meet and confer.
Plaintiff argues that it was
Defendant who served deficient discovery responses. The court agrees that the
hours billed were excessive and deducts 2.0 hours billed at a rate of
$415.00/hour or $830.00 from the lodestar.
vi. Opposing Motions to Compel that Became Necessary Because
Plaintiff Failed to Appear for Deposition and Failed to Produce Vehicle for
Inspection
Plaintiff billed $1,281 to
oppose motions to compel. Defendant
Subaru asserts that it is unfair to allow Plaintiff to recover $1,281.00 for
2.10 hours of work to oppose motions that became necessary because Plaintiff
failed to appear for a deposition or produce the subject vehicle for an
inspection. Plaintiff argues that Defendant never served a demand for
inspection and unilaterally filed the motion. Plaintiff further asserts that
Defendant did not meet and confer properly prior to filing the motion to compel
the deposition of Plaintiff because the deposition was noticed less than 30
days before filing the motion to compel.
The court finds that the fees
incurred in this matter are reasonable and no deductions are warranted.
vii. Drafting and Attending Three Ex Parte Applications to Continue
Trial Caused by Plaintiff’s Lack of Diligence
Plaintiff billed $15,123.50 for
five attorneys to draft and attend three ex parte applications – on November 7,
2022, May 1, 2023, and November 21, 2023 -- to continue trial. Defendant argues that SLP excessively billed for
fees associated with three ex parte applications to continue trial due to
Plaintiff’s lack of diligence in prosecuting this action, failure to take
depositions, failure to make experts available for deposition, and failure to
engage in discovery in good faith. Plaintiff asserts that the delay in
discovery was due to Defendant’s dilatory tactics and Defendant’s failure to
provide substantive responses to Plaintiff’s discovery request or provide a PMK
witness or expert for deposition. The court notes, however, that Plaintiff’s
counsel never requested an informal discovery conference (IDC) to insist on the
discovery they now claim Defendants were withholding. Department 37 requires an IDC before motions
to compel are filed.
The
Court also notes that Plaintiff never made a settlement demand or counteroffer
to Defendant’s three CCP § 998 offers. (Ruggerello Dec., ¶14.) The Court does
not want to award intransigence in litigating cases. Because the court agrees that Plaintiff
unnecessarily prolonged the length of this litigation, the court declines to
award Plaintiff fees for drafting and attending the three ex parte
hearings. Deductions for this matter total
$15,123.50.
C. Request for 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.”¿ (Bernardiv. 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.)¿¿¿¿¿
SLP requests a
multiplier of 1.35 or $27,591.03 on the basis that SLP litigated this action
for three years, obtained excellent results, and took this case on a
contingency fee basis with no guarantee of recouping the costs expended in
bringing this action. The court finds that the results of this case are not
exceptional and awarding a multiplier is not warranted because the time and
skill of counsel, as well as the contingent nature of the representation, are
compensated with high fees. SLP also failed to show how this case is different
from other lemon law actions or presented new or complex issues that made this
case particularly hard to litigate.¿¿
Accordingly, SLP’s
request for a multiplier is denied.
D. Reasonable Costs and Expenses¿
“A prevailing party
who claims costs must serve and file a memorandum of costs within 15 days after
the date of service of the notice of entry of judgment or dismissal by the
clerk under Code of Civil Procedure section 664.5 or the date of service of written
notice of entry of judgment or dismissal, or within 180 days after entry of
judgment, whichever is first. The memorandum of costs must be verified by a
statement of the party, attorney, or agent that to the best of his or her
knowledge the items of cost are correct and were necessarily incurred in the
case.” (CRC, rule 3.1700(a); see also Hydratec, Inc. v. Sun Valley 260
Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927–928.)
Plaintiff filed a
Memorandum of Costs on June 20, 2024, after Defendant filed its opposition to
this motion on June 5, 2024. The clerk
will enter the costs in this matter unless Defendant Subaru files a motion to strike
or tax costs. The Court declines to rule on Plaintiff’s
request for costs at this time.
E. Fee Request for Fee
Motion
“[T]ime expended by
attorneys in obtaining a reasonable fee is justifiably included in the
attorneys' fee application, and in the court's fee award.” (Serrano v.
Unruh¿(1982) 32 Cal.3d 621, 631.) However, “[a] fee request that appears
unreasonably inflated is a special circumstance permitting the trial court to
reduce the award or deny one altogether.” (Id. at p. 635.)¿¿
SLP requests
$3,500.00 in fees in anticipation for preparing a reply brief and attending the
hearing. SLP fails to explain how it arrived at $3,500 or what is the hourly
rate. The court assumes that Angela Baker is the attorney tasked with reading
Defendant’s opposition and drafting a reply. The court finds that the 6.0 hours
spent on this task billed at a rate of $595.00 per hour is reasonable and no
deductions are warranted.
F. Amount
Requested
Plaintiff requests
an Order awarding attorney fees, costs, and expenses as follows: (1) $78,831.50
in attorneys’ fees (the unadjusted lodestar); (2) a 1.35 multiplier enhancement
on the attorney fees (or $27,595.40); (3) $6,504.03 in costs and expenses for
SLP; and (4) an additional $3,500.00 for time spent reviewing, drafting the
reply, and attending the hearing.
The deductions
total $42,049.50.
·
$15,123.50
After reducing the
lodestar by deductions and adding a fee request for $3,500, Plaintiff’s
attorney fee award totals $40,282.00.
No multiplier is
awarded. The court declines to award costs at this time.
Conclusion
Plaintiff’s motion for attorney
fees is granted in the sum of $40,282.00