Judge: Gail Killefer, Case: 23STCV02266, Date: 2023-12-07 Tentative Ruling
Case Number: 23STCV02266 Hearing Date: December 7, 2023 Dept: 37
HEARING DATE: Thursday, December 07, 2023
CASE NUMBER: 23STCV02266
CASE NAME: David Hecht v. Hyundai Motor America, Inc., et al.
MOVING PARTY: Plaintiff David Hecht
OPPOSING PARTY: Defendant Hyundai Motor America
TRIAL DATE: Post Settlement
PROOF OF SERVICE: OK
PROCEEDING: Motion for Attorney’s Fees
OPPOSITION: 22 November 2023
REPLY: 27
November 2023
TENTATIVE: Plaintiff’s Motion for Attorney’s Fees is
granted in part. The court awards Plaintiff $10,867.50 in
attorney’s fees and $901.94 in costs.
Background
On February 1, 2023, David Hecht (“Plaintiff”) filed a
Complaint against Hyundai Motor America, Inc. (“HMA”); Hyundai of Downtown Los
Angeles; Keyes Mission Hills Hyundai; and Does 1 to 100.
The Complaint alleges five causes of action: (1) Violation
of Lemon Law; (2) Breach of Implied Warranty of Merchantability, (3) Negligent
Repair, (4) Misrepresentation, and (5) Violation of the Magnuson-Moss Warranty
Federal Trade Commission Improvement Act.
On
April 28, 2023, Plaintiff executed a Release and Settlement Agreement (“RASA”). On
November 3, 2023, Plaintiff filed a Motion for Attorney Fees. Defendant HMA
filed opposing papers on November 22, 2023. Plaintiff filed a reply on November
27, 2023. The matter is now before the court.
I. Legal Standard
Under Civil 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 Civil 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. Discussion
As
noted above, Plaintiff filed the Complaint on February 1, 2023, and, on April
28, 2023, Plaintiff executed a Release and Settlement Agreement (“RASA”).
(Tahsildoost Decl. ¶ 4, Ex. B.) Plaintiff now requests for attorney’s fees in
the amount of $27,279.00, and costs in the sum of $1,427.44, for a total
request of $28,706.44. (Davoodi Decl. ¶ 25, Ex. A, B.) Plaintiff does not
request a multiplier.
A. 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 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 they spent 43.3 hours
total litigating this action over 11 months. (Motion at p. 2, fn. 2.) This
included efforts to resolve the issue before pursuing litigation. Defendant HMA
asserts this action was only litigated for less than three months because the
Complaint was filed on February 1, 2023, and the Release and Settlement
Agreement (“RASA”) was executed on April 28, 2023. (Opposition at p. 1:6-7.)
Specifically, Defendant HMA opposes the fees
incurred after the execution of the RASA, given that it specifically prohibits
such fees:
HMA shall pay
Releasor’s attorneys' fees, costs, and expenses pursuant to Civil Code Section
1794(d) in an amount determined by the Court, by way of a single noticed
motion, to have been reasonably incurred by Releasor to date in the
commencement and prosecution of this action.
(Tahsildoost Decl. Ex. B at p. 2 [bold added].)
Because the RASA was executed April 28, 2023, any fees, costs, and expenses
incurred after that date are not allowable.
Plaintiff states that Paragraph 3(k) of the RASA
allows Plaintiff to recover fees incurred in pursuing enforcement of the
agreement. Plaintiff asserts that returning and surrendering the vehicle were
actions taken in furtherance of the Agreement and are recoverable.
Paragraph 3(K) of the agreement states in relevant
part:
If Releasor or Releasor’s attorneys breach this provision,
such party or parties in breach agree to compensate the nonbreaching parties
for any loss or detriment, including attorney’s fees and costs, suffered as a
result of such breach. Such loss or detriment shall include the Releasees’
attorney’s fees and costs incurred in defending any litigation of which the
breach of the confidentiality provision by the Releasor or Releasor’s attorneys
is a legal cause;
(Tahsildoost Decl. Ex. B at p. 5.) Plaintiff
fails to assert that the Releasor or Releasor’s attorneys breached the
Agreement. Accordingly, the court finds
that Paragraph 3(k) of the RASA does not permit Plaintiff’s counsel to recover
fees incurred after the date the RASA was executed. This was the agreement
Plaintiff and Plaintiff’s counsel bargained for and agreed to when the RASA was
executed. If Plaintiff intended fees to be recoverable for carrying out their
obligations under the RASA, including attorney compensation, then they should
have bargained for such a provision. The court agrees that fees, costs, and
expenses incurred after April 28, 2023, when the RASA was signed, are barred.
Therefore, $9,072.00 will be deducted from the
lodestar.
Defense counsel asserts that Plaintiff’s
counsel’s billing entries are vague, unclear, and block-billed to hide inflated
entries. Exhibit A to Defense Counsel’s declaration includes a chart
summarizing the billing entries Defendant deems to be excessive. (Tahsildoost
Decl. Ex. A.) Accordingly, Defendant asserts that Plaintiff should be awarded
no more than $4,550.00 in fees.
The specific billing entries Defendant opposes
are as follows:
Defendant opposes the billing entry because it
was not clear what attorney time was being billed and if the time spent was
reasonable. Plaintiff’s reply fails to address this time entry or otherwise
show that the time expended was reasonably necessary to the conduct of the
litigation. (Morris v. Hyundai Motor
America (2019) 41 Cal.App.5th
24, 34 (Morris).)
Defendant asserts that if the entry is a vehicle
inspection, it had no notice of the inspection, and Plaintiff offers no
evidence that the inspection took place. Plaintiff’s reply again fails to
address this time entry or show that the time expended was reasonably necessary
to the conduct of the litigation.
Defendant
opposes the entry because it is pre-litigation work and it is not recoverable,
yet Defendant fails to cite case law in support of this assertion. The court
finds that pre-litigation work is recoverable under the Song-Beverly Act
because Civil Code § 1794(d) requires that fees “be 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.” (See Glover
v. Mercedes-Benz USA, LLC (C.D. Cal., Aug.
9, 2022, No. 8:21-CV-01969-JDE) 2022 WL 17080196, at *5 [“The Court finds pre-litigation
work was reasonably incurred in connection
with the commencement of this action”].)
Defendant also opposes the entry because it is vague as “1) no
schematics were ever produced; (2) Plaintiff’s counsel is an attorney, not
expert, who has no reason to bill for review of schematics; and (3) there was
never a need for that type of work or appreciable benefit that came from it, to
the extent it even actually occurred.” (Opposition at p. 7:4-7.) Plaintiff’s reply again fails to address this time
entry or show that the time expended was reasonably necessary to the conduct of
the litigation.
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 above billing
entries as either being vague, unnecessary, or 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, supra, 41 Cal.App.5th at p.
34.) Plaintiff failed to address the billing entries challenged by Defendant
such that the court cannot find that they were necessary or reasonably
incurred.
Accordingly,
$6,280.00 will be deducted from the lodestar.
B. 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.”].)¿¿¿
Plaintiff’s
counsel, Natan Davoodi, asserts that his $630.00 hourly rate for this matter is
reasonable. (Davoodi Decl., ¶ 26.)
In
support of this assertion, Plaintiff’s counsel, Natan Davoodi, attached copies
of court orders showing that Plaintiff’s hourly rate of $500.00 in 2019 was
approved by various courts. (Davooni Decl. Ex. C-H, P, Q, A.) On March 18,
2019, and July 6, 2020, Plaintiff’s counsel’s hourly rate of $575.00 was found
to be reasonable. (Id. Ex. E, M, U.) In June 2020, November 2021, and
May of 2022, Plaintiff’s counsel’s hourly rate of $605.00 per hour was also
found to be reasonable. (Id. Ex. K, 0, T, R, S.) Most recently, in December
2022, the court found that $575 was a reasonable hourly rate for Plaintiff’s
counsel. (Id. Ex. Z.)
The
court is unpersuaded by Defendant’s argument that the actual market rate for
lemon law attorneys is much lower than Plaintiff’s counsel’s billing rate and
that the court should adopt Defendant’s suggested rate of $250.00 per hour.
Under
the circumstances of this case, where Plaintiff promptly settled the dispute,
the court finds that $575.00 is a reasonable hourly rate.
Therefore,
no deductions will be made to Plaintiff’s counsel’s billing rate.
C. Costs
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).)¿¿¿
Plaintiff
seeks to recover $1, 427.44 in costs. (Davoodi Decl. ¶ 25, Ex. B.)
Defendant
opposes the following cost and requests that it be stricken.
Defendant
argues that Plaintiff fails to present evidence as to why the cost was
required, where it was purchased from, or any evidence that the above was in
fact purchased. Plaintiff’s opposition once again ignores the disputed cost and
fails to explain why the costs were necessary.
Therefore,
$525.50 will be subtracted from Plaintiff’s costs.
D. Adjusted
Lodestar
Plaintiff’s
unadjusted lodestar is $27,279.00 in attorney’s fees and costs in the sum of
$1,427.44.
The
court made the following deductions to the lodestar:
The
deductions total 24.4 hours, subtracted from the 43.3 hours requested, results in
an adjusted lodestar of 18.9 hours at $575 per hour for a total of
$10,867.50.
As
to costs, the total costs awarded are $901.94, after a $525.50 dedication.
Therefore,
Plaintiff’s Motion is granted in part. The court awards Plaintiff $10,867.50 in
attorney’s fees and $901.94 in costs.
Conclusion
Plaintiff’s Motion for Attorney’s
Fees is granted in part. The court awards Plaintiff $10,867.50 in
attorney’s fees and $901.94 in costs.