Judge: Gary I. Micon, Case: 23CHCV01364, Date: 2024-06-20 Tentative Ruling

Case Number: 23CHCV01364    Hearing Date: June 20, 2024    Dept: F43

Dept. F43

Date: 6-20-24

Case #23CHCV01364, Karim T. Sazi, et al. vs. BMW of North America, LLC

Trial Date: N/A

MOTION FOR ATTORNEY FEES

MOVING PARTY: Plaintiffs Karim T. Sazi and Jaleh J. Ferdowsian

RESPONDING PARTY: Defendant BMW of North America, LLC

RELIEF REQUESTED

Plaintiffs are requesting attorney fees in the amount of $30,105.00, as well as $563.40 in costs, from Defendant.

RULING: Motion for attorney fees is granted in the base lodestar amount. No costs will be awarded at this time.

SUMMARY OF ACTION

Plaintiffs Karim T. Sazi and Jaleh J. Ferdowsian (Plaintiffs) had sued Defendant BMW of North America, LLC (Defendant) for causes of action related to the Song-Beverly Act. On April 22, 2024, the parties settled the case. Plaintiffs filed this motion on the basis that they are entitled to attorney fees as the prevailing parties in a Song-Beverly action.

Plaintiffs are requesting $20,070.00 in attorney fees from Defendant, plus a lodestar modifier of 1.5 for a total requested fee award of $30,105.00. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs’ evidence in support of their request for attorney fees are a declaration from their attorney, Diba Alemi, and billing statements that show each task that Ms. Alemi worked on, what the task was, how much time was spent on the task, her hourly rate, and the amount of money for the task. (Alemi Decl., Ex. A.)

Ms. Alemi’s hourly rate was $450 for 44.6 hours for a total lodestar of $20,070.00. (Alemi Decl., ¶¶ 5, 10, and 19.)

The total lodestar was calculated by multiplying Ms. Alemi’s hourly rate by her hours worked. Multiplying the lodestar by the 1.5 multiplier gets the total requested amount of $30,105.

Plaintiffs have also requested costs in the amount of $536.40. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. Costs should be requested via a memorandum of costs.

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).) Plaintiffs are authorized by statute to recover attorney fees.

Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs’ favor via the Settlement Agreement. Plaintiffs have requested a total of $30,105.00 in attorney fees.

Defendant opposes Plaintiffs’ motion on the basis that Plaintiffs have not shown that their attorney’s hourly rate is reasonable. Next, Defendant argues that several of Plaintiffs’ billing entries are excessive. Finally, Defendant argues that the claimed lodestar enhancement should be rejected.

Plaintiffs argue in their reply that Plaintiffs’ attorney’s hourly rate of $450 is reasonable. Next, they argue that their billing entries are reasonable. Finally, Plaintiffs argue that their lodestar enhancement is justified.

            Hourly Rate   

Defendant argues in its opposition that Plaintiffs’ attorney’s hourly rate of $450 is unreasonable based on the Wolster Kluwer “2021 Real Rate Report: The Industry’s Leading Analysis of Law Firm Rates, Trends and Practices.” (Horn Decl., ¶ 7, Ex. B.) Defendant argues that this publication shows that the average rate for partners in this area of law in Los Angeles is $278.50 and $259 for associates. Defendant argues that the Court should use an average hourly rate of $270 for Plaintiffs’ attorney’s work. Defendant also cites a few hours of work that Defendant claims is work that would not be expected to be performed by attorneys with partner level experience.

Plaintiffs’ attorney argues in reply that her experience in the area of Lemon Law justifies her hourly rate. She also argues that just recently on May 23, 2024, her hourly rate was approved in Ventura County, case number 2023CUBC017634. (Alemi Reply Decl., ¶ 3.)

Based on Plaintiffs’ attorney’s experience in Lemon Law and the recent approval of her hourly rate, the Court finds that her hourly rate of $450 an hour is reasonable.

            Billing Entires

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 Plaintiffs’ 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 Plaintiffs’ billing entries show an excessive number of hours for the work performed. Specifically, Defendant points to the 3.1 hours to draft the “boilerplate” complaint, 3.7 hours to draft written discovery requests, 7.7 hours to prepare for Defendant’s PMK deposition that did not go forward, and nearly 6 hours for this attorney fees motion. Defendant had also cited 2.4 hours to create a repair order summary, 0.8 hours to draft a PMK deposition notice, 0.3 hours to reserve a court reporter, 0.4 hours to draft an amended PMK deposition notice, 0.8 hours to prepare and file a notice of settlement, 1 hour to review/audit billing entries, and 0.2 hours to file motion for attorney fees. Defendant argues that the latter tasks were all administrative tasks unlikely to be handled by a partner.

Plaintiffs’ attorney argues in the reply that for several of the tasks, she is the sole attorney handling her Lemon Law cases so she prepares all the documents. For the other tasks, she gives reasons why the time for each task was reasonable. (Reply, pp. 4-6.) The Court finds that the time given for the tasks was reasonable and that no adjustment is necessary, given the nature of the work and the fact that Plaintiffs’ attorney was doing most of the work herself.

            Lodestar Enhancement

The lodestar amount, once determined, can be increased by a “multiplier enhancement” that is based on several factors, including: (1) the risks presented by the litigation; (2) the novelty and difficulty of the legal and factual issues involved; (3) the results obtained on behalf of the plaintiff; and (4) the skill exhibited by counsel. (See In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1052.)

Defendant argues in its opposition that Plaintiffs should not get the 1.5 multiplier that they seek because they did not make a showing of novelty or difficulty of the questions involved or make a showing of particular skill displayed in presenting the case. Defendant also argues that this was not a risky case, given the generous nature of the consumer protection in the Song-Beverly Act. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1174-1175 [multiplier not warranted for contingency risk on claim with a mandatory fee-shifting provision, because “the possibility of receiving full compensation for litigating the case was greater than that inherent in most contingency fee actions”].)

Plaintiffs’ attorney argues in her reply that she faced the risk of dismissal because the car in this case was repaired within a reasonable number of attempts under the Song-Beverly Act. She requests the 1.5 multiplier, given the risky nature of the case.

The Court does not find that Plaintiffs have made a showing that this case was particularly novel, difficult, or risky. It appears to be a fairly standard Lemon Law case. Therefore, the 1.5 multiplier enhancement is not justified. The Court denies Plaintiffs’ request for the multiplier enhancement.

CONCLUSION

Plaintiffs’ motion for attorney fees is granted in the amount of $20,070.00. No lodestar enhancement will be added. Costs should be addressed with a memorandum of costs.

Moving party to give notice.