Judge: Holly J. Fujie, Case: 21STCV33887, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV33887    Hearing Date: October 14, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendant Volkswagen Group of America, Inc. (“Defendant”)

            The Court has considered the moving, opposition and reply papers.  The Court exercises its discretion and has considered the opposition papers despite their late filing.  (See California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).)

BACKGROUND

            This action arises out of the purchase of an allegedly defective vehicle (the “Vehicle”) manufactured by Defendant.  The currently operative first amended complaint (the “FAC”) alleges violations of the Magnuson-Moss Warranty Act and the Song-Beverly Consumer Warranty Act.

On September 14, 2022, Plaintiff filed a notice of settlement.  On September 16, 2022, Plaintiff filed a motion for attorney’s fees (the “Motion”) pursuant to Civil Code section 1794, subdivision (d).  Plaintiff seeks: (1) attorney’s fees in the amount of $68,591.25; and (2) costs in the amount of $2,701.89.[1]

DISCUSSION

            A prevailing party in an action under the Song-Beverly Act may be entitled to attorney’s fees.  (Civ. Code § 1794, subd. (d); see also CCP § 1032, subd. (a)(4).)  Attorney’s fees ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the claims.  (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.)  The party moving for attorney’s fees has the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.  (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)  Where a case is premised on a contingent fee agreement it is appropriate to award reasonable attorney’s fees for time reasonably expended by the attorney.  (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744, 755.)  If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.  (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age and his experience in the particular type of work demanded.  (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.)  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.)  The verified time statements of attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) 

Prevailing Party

            Plaintiff’s counsel declares that on July 7, 2022, Plaintiff and Defendant (collectively, the “Parties”) entered into a settlement agreement and release of claims entered (the “Settlement Agreement”).  (See Declaration of Hovanes Margarian (“Margarian Decl.”) ¶ 5.)  Margarian declares that the Settlement Agreement includes a term providing that Defendant was responsible for paying Plaintiff’s attorney’s fees and costs on noticed motion.  (Id.)  Plaintiff has not presented a copy of the Settlement Agreement.  Margarian declares that Plaintiff did not include a copy of the Settlement Agreement in light of Defendant’s request that its financial terms remain confidential.  (Margarian Decl. ¶ 6.)  Defendant, however provided a copy of the Settlement Agreement in order to dispute Plaintiff’s representation of the Settlement Agreement as a litigation success, which provides that the Parties agreed that Plaintiff would dismiss her claims against Defendant in exchange for Defendant’s payment of $10,000.00.  (See Declaration of Shaun Kim (“Kim Decl.”) ¶ 7, Exhibit C.)  The Settlement Agreement provides that Plaintiff is the prevailing party entitled to attorney’s fees and the Court therefore finds that Plaintiff has demonstrated the entitlement to an award of reasonable attorney’s fees. 

Reasonableness of Plaintiff’s Counsel’s Hourly Rate

A court awards attorney’s fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  The trial court has broad authority to determine the amount of a reasonable fee.  (Id.)  The loadstar figure may be adjusted, based on a consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.  (Id.)  Generally, the reasonable hourly rate used for the lodestar calculation is that prevailing in the community for similar work.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.)  Nevertheless, where an attorney has been awarded attorney’s fees for comparable work at comparable hourly rates in other actions, the hourly rate will be deemed reasonable.  (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-74.)  Where a defendant does not produce evidence contradicting the reasonableness of plaintiff’s counsel’s hourly rates, the Court will deem an attorney’s hourly rate reasonable.  (Id. at 473.) 

Margarian declares that his hourly rate for matters accepted on a contingency basis (such as this representation) is $650 per hour.  (See Margarian Decl. ¶¶ 10, 12.)  Margarian declares that in setting his hourly fee, he took into consideration his years of experience and the rates charged by attorneys who work on contingency in his area of law.  (Margarian Decl. ¶ 12.)  Margarian also provides evidence that courts have approved of his hourly rate in other actions.  (Margarian Decl. ¶ 12.) 

The Court finds that Margarian’s hourly rate is reasonable based on his qualifications, skills and experience.  (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-37.)[2]

Lodestar Multiplier

In cases involving the Song-Beverly Act, the lodestar figure may be augmented or diminished.  (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 819.)  In determining whether or not a lodestar figure will be multiplied for purposes of attorney’s fees, the court takes various relevant factors into account, including: (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.  (Id.)

Plaintiff requests a lodestar multiplier of 1.5.  The Court finds that Plaintiff has not demonstrated that this case involved novel or difficult questions or required special skills atypical of comparable claims and declines to apply a multiplier to Margarian’s reasonable hourly rate.

Billing Entries

Where a party is challenging the reasonableness of attorney’s fees as excessive that party must “attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.  (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-64.)  A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.  (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)  Attorney billing records are given a presumption of credibility.  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

            Defendant takes issue with numerous entries in Plaintiff’s invoice for attorney’s fees on the grounds that such billing is improper or was unwarranted and Margarian’s billed hours should be reduced from 70.35 hours to 33.8 hours.

            The Court has reviewed Defendant’s itemized objections to various billing entries and finds that Plaintiff’s recovery should be limited to  57 hours of work performed by Margarian.  This reduction takes into account time spent performing clerical or administrative tasks and time spent in connection to non-Song-Beverly or Magnuson-Moss Act claims that were dismissed when Plaintiff filed the FAC.[3]  This amount also reflects a slight reduction to the time spent in connection to the Motion.[4]

            Based on the foregoing, the Court GRANTS the Motion and awards Plaintiff attorney’s fees in the reduced amount of $37,050, which represents 57 hours of work billed by Margarian at an hourly rate of $650 per hour.  As Defendant has not raised a challenge to any of the claimed costs, the Court finds that Plaintiff is entitled to costs in the total amount of $2,701.89.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

          Dated this 14th day of October 2022