Judge Gregory Keosian, Case Number: 22STCV15257, Date: 2023-10-05 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV15257, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV15257 Hearing Date: October 5, 2023 Dept: 61

Plaintiff Andrew Murilo’s Motion for Attorney Fees, Costs, and Expenses is GRANTED in the amount of $22,088.40 in fees and $1,986.55 in costs and expenses, subject to increase to $2,536.55 if a $550 charge is incurred to secure a court reporter at the fees hearing.

Defendant to give notice.

I. MOTION FOR ATTORNEY FEES

Parties to litigation must generally bear their own attorney’s fees, unless they otherwise agree. (Code Civ. Proc. § 1021.) However, the Song-Beverly Act provides for the award of attorneys’ fees to prevailing plaintiffs as follows:

If the buyer prevails in an action 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, subd. (d).)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (See id.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at p. 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV).) The Court in Serrano IV also stated that fees associated with preparing the motion to recover attorneys’ fees are recoverable. (See id. at p. 624.)

Plaintiff Andrew Murillo (Plaintiff) seeks $39,674.50 in attorney fees plus $2,825.25 in costs and expenses, for a total request of $42,499.75. The lodestar presented by Plaintiff consists of 76.7 hours of attorney work at rates ranging from $400 to $625 per hour. (Motion at p. 15.) The motion includes time records of attorney work performed on the case. (Barry Decl. Exh. 6.)

Defendant in opposition identifies the following charges as objectionable and proposes reductions:

· Defendant identifies 4.3 hours of work performed (and $2,581.80 in fees incurred) prior to the filing of this Complaint, including 2.5 hours for work expended prior to the representation of Plaintiff, for tasks including the research of Plaintiff’s case, drafting the representation agreement, and updating Plaintiff on the case. Defendant argues that no fees should be awarded for this work (Opposition at p. 5);

· Defendant notes that Plaintiff seeks fees for 22 hours and $10,462.50 in charges for discovery work, including 2.1 hours to read Defendant’s discovery requests, 3.1 hours to draft template discovery requests, 3.0 hours to draft deposition notices and subpoenas to four individuals and entities, 3.6 hours to draft discovery responses consisting of templated objections, 5.6 hours to review Defendant’s responses to deposition notices and objections; and 4.6 hours to prepare templated meet-and-confer correspondence. (Opposition at pp. 6–7.) Defendant proposes a total lodestar reduction of 17.7 hours and $8,417.30 (Ibid.);

· Defendant argues that a charge of 1.3 hours and $590 for a preparing a “memo to file,” evidently for the internal use of Plaintiff’s counsel, should not be permitted (Opposition at p. 7);

· Defendant argues that 5.2 hours and $2890.00 incurred for traveling to a show cause hearing and the hearing on the present motion should not be compensated, as traveling expenses are not customarily billed to clients (Opposition at p. 7);

· Defendant argues that the 1.9 hours and $1,172.50 incurred in appearing for the post-settlement show-cause hearing should be reduced, as the hearing could have been avoided by timely filing of the present motion (Opposition at p. 7);

· Defendant argues that the 10.9 hours and $5,304.50 charged in connection with the present motion should be reduced to account for the largely templated nature of the motion, and proposes a reduction of 6.9 hours and $3,434.50. (Opposition at pp. 7–8.)

Defendant’s proposed fee reductions amount to 37.3 hours and $19,086.10, leaving a lodestar of $20,588.40 and 39.4 hours. (Opposition at p. 8.)

Defendant’s objections to the fees identified are largely reasonable and persuasive. The discovery and motion templates used by Plaintiff’s counsel ought to have resulted in substantially lower fees than those claimed in the present motion for discovery tasks and the present motion. And although charges for pre-litigation activity may be compensable if reasonable (See Stokus v. Marsh (1990) 217 Cal.App.3d 647, 656), the court agrees with Defendant that the charge for 1.8 hours and $1,081.80 to communicate with the client prior to the case filing, considered in conjunction with the other charges for pre-filing investigation and correspondence, is not properly compensable. The other pre-litigation costs appear reasonably incurred, however.

Accordingly, the court adopts 34.8 hours and $17,586.10 of Defendant’s proposed reductions, leaving a fee lodestar of 41.9 hours and $22,088.40.

Defendant also objects to certain costs and expenses requests, including (1) a $550 charge for a court reporter fee for the hearing on the present motion; (2) $150 for jury fees on a case that never went to trial; and (3) $138.70 for mileage and travel. (Opposition at p. 8.) The court agrees that these latter two costs can properly be deducted as not reasonably necessary for the conduct of this litigation. The first may likewise be reduced at present, but may be compensable if Plaintiff indeed incurs the fee for a court reporter at the hearing in question.

The motion is therefore GRANTED as to $1,986.55 in costs, subject to increase to $2,536.55 if a $550 charge is incurred to secure a court reporter at the fees hearing.