Judge Gail Killefer, Case Number: 22STCV07285, Date: 2023-12-11 Tentative Ruling

TENTATIVE: Plaintiff’s Motion for Attorney’s fees is granted in part. Plaintiff is awarded attorney’s fees in the sum of $19,750.00 and $1,099.94 in costs. Plaintiff is to give notice.

On July 5, 2020, Plaintiff purchased a 2019 Ram 2500 for the total cash price of $64,998.09. on February 28, 2022, Pedro Ramirez (“Plaintiff”) filed a Complaint against FCA UC LLC (“FCA”); FAB4 LLC dba Russel Westbrook CDJR; and Does 1 to 50. The Complaint alleged two causes of action: (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Act; and (2) Breach of Express Warranty Obligations under the Song-Beverly Act.

On June 5, 2023, Plaintiff accepted a Settlement Agreement and Release offered by Defendant FCA. Plaintiff now moves for Attorney’s Fees. Defendant FCA opposes. The matter is now before the court.

Motion for attorney’s fees

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.)¿¿¿¿¿

In the Settlement Agreement, the parties agreed that Plaintiff could seek both attorney fees, by motion, and costs. (Kohen Decl. ¶ 4, Ex. 3.) Plaintiff now moves for an order awarding $30,130.00 in attorney’s fees, costs in the amount of $1,099.94, and a multiplier of 1.1 in the amount of $3,013.00. The total amount requested is $34,242.94 for about 68 hours of work. (Kohen Decl. Ex. 1.)

On March 16, 2023, Defendant offered to repurchase the subject vehicle and pay any additional expenses incurred in compliance with the Song-Beverly Act. (Skanes Decl., ¶ 6.) Plaintiff, however, never followed up. (Id., ¶ 7.) Instead, Plaintiff then served multiple discovery requests.

On May 19, 2023, Plaintiff rejected FCA’s repurchase offer that would have resulted in recovery of $13,629.02 and the pay off the $52,496.05 loan in exchange for the surrender of the subject vehicle. (Kohen Decl. ¶ 10, Ex. 9.) The June 5, 2023, settlement gave Plaintiff $22,000.00 plus the right to maintain possession of the subject vehicle, valued at $57,500.00. (Kohen Supp. Decl. ¶ 3, Ex. 10.)[1]

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.”].)¿¿¿

Plaintiff requests an hourly rate of $535.00 for Issac Kohen and $285.00 for Tamara R. Imber. (Kohen Decl. Ex. 1.) Since 2012, Kohen has been practicing lemon law and litigating cases against various manufacturers. (Kohen Decl. ¶ 15.) Imber has been practicing law lemon law since she graduated from law school in 2021. (Id. at ¶¶ 17, 18.)

In support of the requested fee rates, Plaintiff’s counsel relies on the Laffey Matrix and his personal experience of other lawyers charging rates between $500.00 and $650.00. (Kohen Decl. ¶¶ 21, 22.) Plaintiff’s counsel also submits previous court orders approving Plaintiff’s counsel’s hourly rate ranging from $525.00 to $500.00 per hour. (Id. ¶ 23, Ex. 4 to 8.) Kohen also asserts that Imber’s hourly rate ranging from $275 to $285 has also been approved. (Id. ¶ 24, Ex. 4, 8.) Exhibit 4 shows that in May 2023, a court approved an hourly billing rate of $400.00 for Kohen and $265.00 for Imber. (Id. Ex. 4 at p. 3:1-7.) In April 2023, another court approved Kohen’s billing rate at $525.00 per hour and Imber’s rate at $225.00 per hour. (Id. Ex. 8.)

Given that the billing rates for Plaintiff’s counsel were approved at lower rates in 2023, the court agrees that the billing rates for Plaintiff’s counsel here are somewhat high. The court sets Kohen’s reasonable hourly rate at $500.00 per hour and Imber’s at $250.00 per hour.

“‘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 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.)¿

Plaintiff’s counsel asserts that they reasonably spent about 68 hours litigating this action. Defendant argues that the time spent litigating this action was excessive as there were no discovery disputes, no depositions taken, no motions filed, no vehicle inspections, and there was no trial preparation.

Although a prevailing party’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred, Defendant has successfully challenged the billing entries below as being excessive, unnecessary, and unreasonably incurred.¿ (Hadley v.¿Krepel (1985) 167 Cal.App.3d 677, 682.) “A prevailing buyer has the burden of showing that the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were ‘reasonable in amount.” (Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 34.) Plaintiff failed to address the billing entries challenged by Defendant such that the court cannot find that they were necessary or reasonably incurred.

Defendant seeks a reduction of 38 hours for: 1) billing for communications (4 hours); 2) overbilling on form pleadings (21.5 hours); 3) excessive overbilling on this motion (6.5 hours; and 4) speculative time spent on the reply and in preparation for the hearing.

Defendant opposes the practice by Plaintiff’s counsel of billing in .25 increments as opposed to .10 increments when drafting and reviewing email communications. Defendant argues that 8.25 hours spent on “communications” and “email correspondence” should be reduced by half.

The court agrees that a deduction is warranted, and that Kohen should have spent 4.25 hours on “communications” and “email correspondence.” Therefore, 4.0 hours will be subtracted from the lodestar.

Defendant argues that Plaintiff’s billing for 6.25 hours for drafting written form discovery is excessive, particularly as the discovery was recycled from a previous case. (Skanes Decl. ¶¶ 8-10.) Defendant argues that Plaintiff’s counsel should recover only 1.5 hours drafting discovery.

The court finds that Plaintiff may recover 3 hours of Ms. Imber’s time and .75 of Mr. Kohen’s time for discovery, and thus deducts .5 hours from Mr. Kohen’s and 2 hours from Ms. Imber’s time.

Defendant argues that the 3.5 hours billed by Imber, and the .5 hours billed by Kohen on July 28, 2022, for the meet and confer letter was excessive because it was nearly identical to the Meet and Confer Letter served by Kohen’s office in other lemon law cases. (Skanes Decl. Ex. E, F.)

The court finds that the .5 hour billed by Kohen was reasonable, but that Imber should have spent at most 1.5 hours drafting the meet and confer letter. The court deducts 2 hours from Ms. Imber’s time.

Defendant argues that on July 26 and 27 and August 2 and 11 of 2022, both Imber and Kohen billed for reviewing Defendant’s discovery responses and document production, suggesting it took 13.25 hours (10.25 hours for Imber and 3 hours for Kohen) to review straight-forward discovery responses.

The court agrees that deductions are warranted and deducts 2 hours from Kohen’s billing entries, and 5 hours for Imber, for reviewing Defendant’s discovery responses.

Plaintiff seeks 12 hours to prepare this motion, to prepare the reply brief, and attending the hearing. “[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.)¿

Defendant argues that the 8 hours spent to draft this fee Motion is excessive and should be reduced as given that the time spent does not include the time requested to draft a reply and attend the hearing.

Given Kohen’s experience in lemon law litigation, the court agrees that it should not have taken more than 6 hours to draft this initial Motion, including supporting Declaration and exhibits. It should only have taken Plaintiff’s counsel 3 hours to review the opposition, draft a reply, and appear at the hearing for this motion.

Moreover, Defendant does not oppose Plaintiff’s costs so the 1 hour estimated for Mr. Kohen to draft the memorandum of costs is not necessary. Accordingly, 5 hours will be subtracted from the lodestar.

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.)¿¿¿¿

Plaintiff’s counsel requests a multiplier of 1.1 or $3,013.00 on the basis that Plaintiff’s counsel took this case on a contingency fee basis with no guarantee of recouping the costs expended in bringing this action. Moreover, Plaintiff’s counsel asserts they were precluded from other employment and the skill displayed by counsel resulted in a favorable outcome.

The court finds there is no reasonable basis to award a multiplier because the time and skill of counsel, as well as the contingent nature of the representation, are compensated with attorney fees. Plaintiff’s counsel 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.¿¿¿

A prevailing party in litigation may recover costs, including but not limited to filing fees. (CCP §1033.5(a)(1).¿Under CCP § 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to CCP § 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.)¿ CCP § 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”¿(CCP § 1033.5(c)(4).)¿¿¿¿

As Defendant does not dispute the costs, Plaintiff’s request for costs in the amount of $1,099.94 is granted.

Plaintiff’s unadjusted lodestar was $34,242.94, composed of $30,130.00 in attorney’s fees, costs in the amount of $1,099.94, and a multiplier of $3,013.00.

The court deducts 11.5 hours from the 43 hours billed by Kohen, billed at a reasonable hourly rate of $500. (31.5 hours x $500= $15,750.) The court deducts 9 hours from the 25 hours billed by Imber at a rate of $250.00 per hour (16 hours x $250 = $4,000).

Therefore, after adjusting the hourly rate of Plaintiff’s counsel to a reasonable hourly rate, the total attorney’s fees incurred is $19,750.00.

The adjusted lodestar is $19,750.00 since no multiplier is awarded. Therefore, the court grants Plaintiff’s Motion for attorney’s fees in part, in the amount of $19,750.00 and $1,099.94 in costs.

Plaintiff’s Motion for Attorney’s fees is granted in part. Plaintiff is awarded attorney’s fees in the sum of $19,750.00 and $1,099.94 in costs. No multiplier is awarded

[1] The Complaint, however, alleges that Plaintiff purchased the subject Vehicle for a total amount “paid or payable” of $96,115.92 (Complaint, ¶ 7.)