Judge: Gary I. Micon, Case: 23CHCV00247, Date: 2024-09-03 Tentative Ruling
Case Number: 23CHCV00247 Hearing Date: September 3, 2024 Dept: F43
Paul
Markarian vs. FCA US LLC
Trial Date: N/A
MOTION FOR ATTORNEY FEES
MOVING PARTY: Plaintiff
Paul Markarian
RESPONDING
PARTY: Defendant FCA US LLC
RELIEF
REQUESTED
Plaintiff is requesting
attorney fees in the total amount of $37,295 ($32,295 plus an anticipated
$5,000 related to this motion), as well as $845.46 in costs, from Defendant.
RULING: Motion
for attorney fees is granted in a reduced amount. No costs will be awarded at
this time.
SUMMARY OF
ACTION
Plaintiff Paul
Markarian (Plaintiff) had sued Defendant FCA US LLC (Defendant) for causes of
action related to the Song-Beverly Act. On June 6, 2024, the parties settled
the case. Plaintiff filed this motion on the basis that he is entitled to
attorney fees as the prevailing party in a Song-Beverly action.
Plaintiff is
requesting $32,295 in attorney fees from Defendant, plus an anticipated $5,000
related to this motion, for a total requested fee award of $37,295. Plaintiff
argue in his motion that the attorney fees and hourly rates are reasonable. Plaintiff’s
evidence in support of his request for attorney fees are declarations from his
attorneys, Benjeman Beck and Misoo Choi, and billing statements that show each
task that Plaintiff’s attorneys worked on, what the task was, how much time was
spent on the task, the hourly rate, and the amount of money for the task. (Beck
Decl., Ex. 13.)
Beck’s hourly
rates were $525 an hour in 2023 and $550 an hour in 2024 for a total lodestar of
$24,105.00. (Beck Decl., ¶56.) Choi’s hourly rates were also $525 an hour in
2023 and $550 an hour in 2024 for a total lodestar of $8,190.00. (Beck Decl., ¶
56.)
The total
lodestar was calculated by multiplying the attorneys’ hourly rates by their hours
worked.
Plaintiff has
also requested costs in the amount of $845.46. However, costs are awarded
pursuant to California Rules of Court, Rule 3.1700. Costs should be requested
via a memorandum of costs. While Plaintiff indicates in his motion that the
parties agreed to resolve them via the same motion, and there was a memorandum
of costs attached as an exhibit to the Beck declaration, Plaintiff must still
file a separate memorandum of costs.
Plaintiff’s
Request for Judicial Notice: Plaintiff has requested that the Court take
judicial notice of fee awards that his attorneys have obtained in similar
cases. The Court takes judicial notice of these court orders.
ANALYSIS
A prevailing
party is entitled to recover its attorneys’ fees when authorized by contract,
statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) “A
successful party means a prevailing party, and [a party] may be considered
prevailing parties for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.” (Bowman v. City of Berkeley (2005) 131
Cal.App.4th 173, 178.) If a buyer prevails in a Song-Beverly action, then the
buyer is allowed to recover attorney fees. (Civ. Code § 1794(d).) Plaintiff is
authorized by statute to recover attorney fees.
Plaintiff is the
prevailing party by virtue of the fact that the parties settled in Plaintiff’s
favor via the Settlement Agreement. Plaintiff has requested a total of $37,295 in
attorney fees.
Defendant
opposes Plaintiff’s motion on the basis that the number of hours that Plaintiff
seeks were not reasonably incurred and on the basis that Plaintiff’s attorneys’
hourly rates are unreasonable. Defendant argues that the Court should reduce
Plaintiff’s unwarranted requests. Defendant also argues that Plaintiff should
not be awarded fees in connection with a motion to compel that was denied by
the Court, and that Plaintiff should not be awarded fees for excessive and
duplicative work. Next, Defendant argues that the Court should reduce the award
to reflect the excessive overbilling for case updates to Plaintiff, and that
the additional $5,000 for this fee motion that Plaintiff has requested should
be reduced. Finally, Defendant argues that a negative multiplier is justified
in this case.
Plaintiff
argues in his reply that his attorneys’ hourly rates are reasonable. He also
argues that the actual time spent by his attorneys was reasonably incurred.
Finally, Plaintiff argues that a negative multiplier is not appropriate.
Hourly Rate
Defendant argues
in its opposition that Plaintiffs’ attorney’s hourly rates of $525 and $550 are
unreasonably high. It cites a case where a trial court found attorneys’ hourly
rates of $500 to over $600 to be unreasonably high. (See Morris v. Hyundai
(2019) Cal.App.5th 24.)
Plaintiff argues
in reply that his attorneys’ hourly rates are reasonable based on the
prevailing fees in the community and because multiple courts have found the
attorneys’ rates to be reasonable. (Beck Decl., Exs. 6-13.) Plaintiff also
argues that his attorneys’ experience justifies their hourly rates.
Based on
Plaintiff’s attorneys’ experience with Lemon Law cases and the recent approvals
of their hourly rates, the Court finds that their hourly rates of $525 and $550
an hour are reasonable.
Billing Entries
The
Song-Beverly Act only entitles Plaintiffs to attorney fees for “actual time
expended.” (Civ. Code § 1794(d).) This means that analysis as to whether the
fees and costs sought are reasonable under the circumstances is required. (Levy
v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.) Once
objection to the fees has been raised, then Plaintiff’s counsel bears the
burden of showing that the fees were reasonably necessary, and the Court has
the discretion to reduce fees awarded. (En Palm, LLC v Teitler Family Trust
(2008) 162 Cal.App.4th 770, 775.)
In determining
the reasonableness of fees, courts look to the factors from Church of
Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, disapproved on other
grounds by Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
68 n.5. The factors from Wollersheim are (1) the amount of money
involved in the litigation; (2) the nature of the litigation and its difficulty
and the intricacies and importance of the litigation; (3) the skill required
and employed in handling the litigation, the necessity for skilled legal
training and ability in trying the case, and counsel’s education and experience
in the particular type of work involved; (4) the attention given to the case; (5)
the success of the attorneys efforts; and (6) the time consumed by the
litigation. (Id.)
Defendant
argues in its opposition that Plaintiff’s billing entries show an excessive
number of hours for the work performed. Specifically, Defendant points to the
17.2 hours ($9,030) that Plaintiff’s attorneys billed for a motion to compel
further responses that was ultimately denied. Plaintiff’s attorneys spent 12.6
hours drafting the motion and 4.6 hours discussing the motion with their
client.
Defendant’s
reasoning that the 17.2 hours should be scrapped from the attorney fees request
because the motion to compel was denied is flawed and not supported by
authority. In Plaintiff’s reply, Plaintiff cites a case where the Court of
Appeal found that compensation is ordinarily warranted even for unsuccessful
attacks, to the extent that those attacks lead to a successful claim. (City
of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1303.) Furthermore, while
it does not matter whether the motion was successful, the Court denied the
motion without prejudice pending proof that Defendant had fully complied with
Plaintiff’s discovery requests. (December 11, 2023, Minute Order.) The motion
was denied because Defendant had provided supplemental discovery responses a
few days before the hearing. Therefore, Plaintiff may recover time spent on the
motion to compel.
As for the
reasonableness of the amount billed, Plaintiff’s reply explains all of the work
that went into the motion, including a 12 page memo of points and authorities,
a 220 page supporting declaration and exhibits, a 60 page separate statement,
reply briefing, and a supplemental declaration. All of this could easily
account for the 12.6 hours that Plaintiff’s attorneys billed. Plaintiff also
argues that the 4.6 hours cited by Defendant accounted for several entries that
Defendant consolidated and that the lodestar should not be reduced for time
spent keeping the client informed. While the Court agrees that the attorneys
should discuss the motion with their client, 4.6 hours appears to be excessive.
No more than an hour should be required to discuss the motion with the client.
Therefore, the request should be reduced by 3.6 hours, or $1,890 ($525 an
hour).
Additionally,
Defendant also argued that the case updates given by Attorney Choi to Plaintiff
should be cut in half from 5.4 hours to 2.7 hours. The Court will not reduce
the lodestar for entries related to keeping the client informed.
Next, Defendant
argues that Plaintiff should not be awarded fees for excessive and duplicative
work. In particular, Defendant argues that the 3 hours ($1,575) that were
billed for reviewing document production should be subtracted from the total.
It does not appear that Plaintiff’s reply addresses this argument. It appears
that the entries that Defendant indicated should be reduced, but the Court will
only reduce these entries by 2.6 hours (the 1.1 hours on May 10, 2023, to
review discovery production and the 1.5 hours on November 5, 2023, to again
review discovery production). Accordingly, Plaintiff’s total lodestar will be
reduced by $1,365 ($525 an hour times 2.6 hours).
Finally, Defendant
argues that Plaintiff’s request for attorney fees in connection with this fee
motion should be reduced by 3 hours ($1,575). Defendant also argues that
Plaintiff should not recover the anticipated $5,000 for responding to the
opposition to this motion and attending the hearing. Plaintiff’s reply argues
that while Plaintiff actually incurred $8,715 in reviewing Defendant’s
opposition and preparing the reply, Plaintiff is only seeking the $5,000
previously estimated. (Supp. Beck. Decl., ¶ 13, Ex. 23.) The Court will not
reduce the amount of fees that Plaintiff seeks in relation to this fee motion.
Plaintiff has accounted for all of the time his attorneys spent drafting and
responding to the opposition to this motion. Therefore, it is not necessary to
reduce it.
As for
Defendant’s arguments concerning any potential 998 offer, it appears that all Defendant
did was send an informal email offer. It did not make a formal 998 offer.
(Reply, pp. 8-9.) The Court will not consider Defendant’s arguments about the
998 offer.
The Court is
only reducing the lodestar by $1,365 and $1,890, making the total lodestar $34,040.
Negative Lodestar Multiplier
Defendant also
argues that a negative lodestar multiplier should be applied in this case
because it was a run-of-the-mill Song Beverly Act case. Plaintiff argues that a
negative multiplier is not appropriate because Defendant has presented no
objective evidence to support its claim that there was excessive or duplicative
time. The Court agrees. There is no reason to use a negative multiplier in this
case.
CONCLUSION
Plaintiff’s
motion for attorney fees is granted in the amount of $34,040.00. Costs should
be addressed with a memorandum of costs.
Moving party to
give notice.