Judge Holly J. Fujie, Case Number: 22STCV01986, Date: 2024-01-29 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.

Plaintiff’s complaint (the “Complaint”) alleges: (1) violation of Song-Beverly Act – breach of express warranty; (2) violation of Song-Beverly Act – breach of implied warranty; (3) violation of Song-Beverly Act – Section 1793.2; and (4) negligent repair.

On August 31, 2023, Plaintiff filed a notice of settlement. On January 4, 2023, Plaintiff filed a motion for attorney’s fees (the “Motion”) to recover $91,710 in fees expended in the prosecution of this action.^{^[1]}

Plaintiff’s objections to the Declaration of Cameron Major (“Major Decl.”) numbers 1-3 are OVERRULED. Plaintiff’s objection to the Major Declaration number 4 is SUSTAINED.

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.)

As a preliminary matter, it is undisputed that Plaintiff is the prevailing party who is entitled to attorney’s fees as provided in the Song-Beverly Act. Plaintiff presents evidence that that on August 30, 2023, Plaintiffs and Defendant (collectively, the “Parties”) entered into a settlement agreement (the “Settlement Agreement”) that specifically provides for Plaintiff’s recovery of attorney’s fees and costs pursuant to the Song-Beverly Act. (See Declaration of Richard M. Wirtz (“Wirtz Decl.”) ¶ 37, Exhibit 9.)

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.)

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.)

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.)

In support of the Motion, Plaintiff provides evidence of his counsel’s billing records. (See Declaration of Richard M. Wirtz (“Wirtz Decl.”) ¶ 2, Exhibit 1.) Thirteen timekeepers from Plaintiff’s counsel’s firm billed time in this matter. (See Wirtz Decl. ¶¶ 13-26.) Six of the timekeepers are attorneys, whose hourly rates range from $750 per hour to $450 per hour. (Wirtz Decl. ¶¶ 13-19.) The other timekeepers are six paralegals, whose hourly rates range from $300 per hour to $250 per hour, and a law student with an hourly rate of $250 per hour. (Wirtz Decl. ¶¶ 19-26.)

The Court accepts Plaintiff’s counsel’s hourly fees as appropriate but does not find that Plaintiff has demonstrated that the case involved special issues that warrant a lodestar multiplier.

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 argues that Plaintiff’s requested fees are unreasonable because the billing records represent an inflated fee amount as a result of overlitigation, the amount of individuals who billed time, the inclusion of billing records related to unrecoverable fees for work performed on the negligent repair cause of action, and the inclusion of clerical work.

The Court agrees that Plaintiff’s billing records indicate that they are seeking compensation for non-compensable work performed on the negligent repair cause of action, clerical work, and that the total hours billed is somewhat inflated by the numerous timekeepers who performed work on the case. As a result, the Court finds it appropriate to reduce Plaintiff’s recovery of attorney’s fees by $19,385, which makes the amount of recoverable fees $41,755.[2]

The Court therefore GRANTS the Motion in accordance with the terms set forth above.

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.

[1] This amount represents $61,140 in incurred fees with a 1.5 lodestar enhancement.

[2] This amount reflects the reduction of $12,405 in fees billed by paralegals and law students, $4,680 in fees performed on matters related to the negligent repair cause of action, and $2,310 for fees billed in connection with the Motion.