Judge Holly J. Fujie, Case Number: 21STCV38513, Date: 2024-10-21 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving and opposition papers. No reply has been filed. Any reply was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

This action arises out of the lease of an allegedly defective 2017 Chevrolet Bolt EV vehicle. The operative First Amended Complaint asserts the following causes of action: (1) violation of Civil Code section 1793.2, subdivision (d); (2) violation of Civil Code section 1793.2, subdivision (b); (3) violation of Civil Code section 1793.2, subdivision (a)(3); (4) breach of express written warranty; (5) breach of the implied warranty of merchantability; and (6) fraud by omission.

On July 25, 2024, Plaintiff filed a Motion for Attorney’s Fees (the “Motion”) pursuant to a 998 Offer to Compromise, the Song-Beverly Consumer Warranty Act and California Civil Code § 1794(d) for an order awarding attorney’s fees, costs and expenses in the total amount of $61,086.58. Defendant filed an opposition on October 8, 2024.

Plaintiff requests judicial notice of 19 orders relating to awards of attorney’s fees in other unrelated lemon law cases in both California and federal court. These orders are not relevant to the question of whether the award of fees and costs sought in the instant case is proper. Accordingly, Plaintiff’s requests for judicial notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [[J]udicial notice … is always confined to those matters which are relevant to the issue at hand.”].)

Attorney’s fees are allowed as costs when authorized by contract, statute or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

In a lemon law action, costs and expenses, including attorney’s fees, may be recovered by a prevailing buyer under the Song-Beverly Act. Civ. Code, § 1794 provides:

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.

The attorney claiming fees bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Id.)

In determining a reasonable attorney’s fee, the trial court begins with the lodestar, i.e., the

number of hours reasonably expended multiplied by the reasonable hourly rate. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 36.) The lodestar may then be adjusted based on factors specific to the case in order to fix the fee at the fair market value of the legal services provided. (Ibid.) These facts include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Ibid.)

Here, Plaintiff moves for an award of attorney’s fees in the amount of $61,086.58, consisting of (1) $40,026 in attorneys’ fees for Strategic Legal Practices, APC; (2) a 1.35 multiplier enhancement on the attorneys’ fees ($14,009.10); (3) $3,551.48 in costs and expenses; and (4) an additional $3,500 in fees for reviewing the opposition, drafting a reply, and attending

Plaintiff contends that he is the prevailing party in this action because of a signed 998 offer in which Defendant ultimately agreed to settle this case. The Court agrees and Defendant does not dispute this. Plaintiff is the prevailing party in this action and is entitled to a reasonable amount of attorney’s fees.

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [“The experienced trial judge is the best judge of the value of professional services rendered in [her] court.”].)

Plaintiff seeks to recover attorney’s fees for 11 different attorneys and a law clerk who worked on the case. For each of the attorneys and law clerk, attorney Payam Shahian attests to their legal experience and the reasonableness of their rates. (Shahian Decl. ¶¶ 45-69.) The Court finds, based on the submitted evidence of the declaration of Payam Shahian and the Court’s own experience, that Plaintiff’s attorneys’ requested hourly rates are reasonable for attorneys with their experience and in this area of the law.

“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.) “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. 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.)

Plaintiff requests a total amount of attorney’s fees of $40,026 for 77.80 hours spent. (Shahian Decl., ¶ 73; Exh. 20.) The Court finds that the hours asserted are well-supported by the declaration and the accompanying billing records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford, supra, 132 Cal.App.4th at 396; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 785.) The Court finds that there is no clear indication these records are erroneous; therefore, the Court accepts this lodestar amount.

The Court exercises its discretion, however, and reduces the anticipated amount of $3,500 in attorneys’ fees in connection with reviewing the opposition to this Motion, preparing a reply and attending the hearing to the amount of $1,000.00, representing 2 hours at a rate of $500/hour, considering that no reply was filed.

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, 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; (3) the contingent nature of the fee award” and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Nonetheless, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included with the lodestar. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) “[A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable.” (Id. at 1139.)

Plaintiff requests a lodestar multiplier enhancement of 1.35 in the additional amount of $14,009.10 on the ground that the settlement results were excellent, and because the firm undertook representation of Plaintiff on a contingency basis—if the action failed and Plaintiff did not recover, neither would his counsel. (Shahian Decl., ¶ 75.) Plaintiff argues there was also a delay in payment.

The Court finds that under the circumstances of this case, a lodestar multiplier is not appropriate. This is a straightforward lemon law case. Nothing before the Court indicates that the case presented novel issues or that the quality of representation far exceeded the quality of representation that would have been provided by attorneys of comparable skill and experience billing at the same rates. While Plaintiff argues that counsel accepted the case only on a contingency basis and there was a delay in payment, the Court finds that such consideration and risk is already included within the lodestar amount. That is because the substantial hourly rates allowed for by the Court are hourly rates for lemon law cases done on a contingency basis.

Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Any items not specifically mentioned by statute “may be allowed or denied in the court's discretion.” (Id., subd. (c)(4).)

The Song-Beverly Act allows a successful plaintiff to recover both “costs” and “expenses.” (Civ. Code, § 1794, subd. (d).) Courts have held that “it is clear the Legislature intended the word ‘expenses' to cover items not included in the detailed statutory definition of ‘costs.”’ (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) The court in Jensen held that “[t]he legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act … ,” noting that the legislature included “expenses” in the lemon law act because '“[t]he addition of awards of “costs and expenses” by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc., should open the litigation process to everyone.’ [Citation.]”

Plaintiffs request a total of $3,551.48 in costs and expenses. (Shahian Decl., ¶ 74.) The Court likewise gives credence to Plaintiff’s counsel’s declaration and the schedule of fees and costs attached to it, and finds the costs reasonably necessary.

Based on all the foregoing, Plaintiff’s Motion is GRANTED in part. The Court awards in favor of Plaintiff $41,026 in attorneys’ fees and $3,551.48 in costs.

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.

Hon. Holly J. Fujie

Judge of the Superior Court