Judge Holly J. Fujie, Case Number: 22STCV06646, Date: 2025-03-06 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.

This is a lemon-law action. Plaintiff’s complaint (the “Complaint”) alleges: (1) breach of express warranty under the Song-Beverly Act; (2) breach of implied warranty under the Song-Beverly Act; and (3) violation of Civil Code section 1793.2, subdivision (b).

On January 15, 2025, Plaintiff filed the instant motion for attorney’s fees (the “Motion”). On February 21, 2025, Defendant filed an opposition (the “Opposition”). On February 27, 2025, Plaintiff filed a reply (the “Reply”).

Plaintiff objects to certain portions of the Declaration of Samuel B. Laughlin submitted with Defendant’s Opposition.

Attorneys’ fees are allowed as costs when authorized by contract, statute or law. (Code Civil Procedure (“CCP”), § 1033.5, subd. (a)(10)(B).)

In a lemon law action, costs and expenses, including attorneys’ fees, may be recovered by a prevailing buyer under the Song-Beverly Act. Civil Code section 1794 states: 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).)

The attorney claiming fees bears the burden of proof as to “reasonableness” of any fee claim. (CCP, § 1033.5 subd. (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 attorneys’ 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. (Id.) 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. (Id.)

Plaintiff moves for an award of attorneys’ fees in the amount of $74,478.75, consisting of: (1) $49,652.50 in attorney’s fees; (2) a 1.5 multiplier enhancement in the amount of $24,826.25; and (3) $3,688.47 in costs and expenses.

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 entitled to a reasonable amount of attorneys’ 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 attorneys’ fees for 2 attorneys from JSGM Law LLP (“JSGM”) and 3 attorneys and 4 paralegals from Wirtz Law APC (“Wirtz”). Their hourly rates are as follows: (1) Guy Mizrahi: $550/hr; (2) Pouyan Bohloul: $395/hr; (3) Amy R. Rotman: $550/hr; (4) Jessica R. Underwood: $550/hr; (5) Rebecca Evans: $300/hr; (6) Dalia Zaki: $250/hr; (7) Alana Mellgren: $450/hr; (8) Amanda Vitanatchi $250/hr; and (9) Andrea Lizarraga: $250/hr.

For each of the JSGM attorneys, attorney Guy Mizrahi attests to their legal experience and the reasonableness of their rates. (Mizrahi Decl., ¶¶ 7-12.) For each of the Wirtz attorneys and paralegals, attorney Richard M. Wirtz attests to their legal experience and the reasonableness of their rates. (Wirtz Decl., ¶¶ 14-25.) The Court finds, based on the submitted evidence in the Mizrahi and Wirtz declarations 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. The range of rates charged in this matter by JSGM and Wirtz are reasonable for attorneys of similar experience, in the same area, dealing with the same subject matter. (See Goglin v BMW of North America (2016) LLC 4 Cal.App.5th 462, 473-74 [approving $575 per hour fee on lemon law action for attorneys in Los Angeles].)

Defendant argues that the use of 9 different legal professionals in this action is unwarranted and resulted in redundant work (Opp., pp. 3:14-22, 5:15-23.) The Court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) The Court will consider this issue in determining whether the total number of hours was reasonable.

“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’s fee recovery is based on 58.20 hours spent by attorneys at JSGM and 57 hours spent by attorneys and paralegals at Wirtz litigating this case through this Motion for which Plaintiff has submitted billing records. (Mizrahi Decl., Ex. 1; Wirtz Decl., Ex. 1.) At the rates identified above, Plaintiff represents that he is seeking a lodestar of $49,652.50.

Defendant objects to several of Plaintiff’s requested hours on the grounds that Plaintiff’s counsel billed time that was unreasonable and unnecessary.

First, Defendant objects to various tasks as unnecessary work due to overstaffing or as duplicative. (Opp., pp. 5:15-23; 9:3-7.) Specifically, Defendant objects to 2.4 hours ($970.00) billed on August 3, 8, 15 and 16, 2023 on grounds that these tasks were redundant and 0.3 hours ($135) on grounds that these tasks were duplicative. (Laughlin Decl., Ex. 11.) Upon review of the entries, the time spent does not appear to be duplicative.

Second, Defendant objects to various tasks as administrative or clerical in nature. (Opp. pp. 5:24-6:9.) Specifically, Defendant objects to 9.4 hours ($4,120.00) billed on May 9 and 31, June 8 and 21, 2022, March 27, June 28, July 3, 10, 24 and 31, August 1, November 8 and 30, December 1, 4, and 14, 2023, January 19, 23, 24, 25, 30 and 31, February 12, 13, 15 and 22, and March 12, 2024 as excessive time for administrative duties and overheard. (Laughlin Decl., Ex. 11.) Upon review, the Court does not find that these tasks were unnecessary or billed at excessive rates.

Third, Defendant objects to time spent related to a discovery dispute on grounds that the discovery sought was not material to Plaintiff’s claims. (Opp., pp. 6:11-7:2.) Specifically, Defendant objects to 18.3 hours ($7,228.50) billed on June 30, July 12, 15, 18 and 20, August 16, 24, 25, 26 and 29, December 1 and 2, 2022, January 9, March 2, 9 and 14, and May 4, 2023 as excessive time for discovery dispute issues with a motion to compel further responses. (Laughlin Decl., Ex. 11.) Upon review, the Court does not find that Plaintiff spent an unreasonable amount of time on this discovery dispute, as the issue was contested and the Court ordered Defendant to produce additional documents in response.

Fourth, Defendant objects to the time spent drafting the instant fee Motion on grounds that the work includes a boilerplate brief and simple gathering of documents. (Opp., p.7:3-6.) Specifically, Defendant objects to 14.6 hours ($7,680.00) to draft the Motion and complete various related tasks. (Laughlin Decl., Ex. 11.) While the billing and supporting evidence may have taken some time to gather, the Court finds that the time as requested is excessive and not reasonable. The Court therefore reduces the fee by $3,000.00.

Next, Defendant objects to various tasks as billed at excessive amounts of time. (Opp., pp. 7:7-8:2; 10-15.) Specifically, Defendant objects to the following:

· 0.9 hours ($495.00) for preparing the summons, Complaint and initial filing papers

· 3.4 hours ($1,343.00) for initial review of the file and discovery responses and prepare meet and confer correspondence regarding same

· 0.9 hours ($355.00) for reviewing meet and confer correspondence and a proposed protective order

· 0.2 hours ($110.00) for preparing Plaintiff’s objections to notice of deposition

· 0.5 hours ($275.00) for preparing a memo summarizing and analyzing Plaintiff’s deposition

· 0.4 hours ($180.00) for drafting, reviewing and revising the stipulation to continue trial

The Court finds that most of this time spent is reasonable. The Court will, however, reduce the fees by $550.00 for the time spent on internal memos.

Next, Defendant objects to excessive time spent on standard discovery and discovery responses. (Opp., p. 8:3-9.) Specifically, Defendant objects to 11.6 hours ($6,349.00) billed on April 2 and 22, November 15, 2022 and May 9, 2023. (Laughlin Decl., Ex. 11.) The Court finds that the amount of time spent preparing Plaintiff’s responses to the initial discovery is slightly overstated considering this is a standard Lemon Law action. The Court will thus reduce the fees by 2.0 hours, in the amount of $1,100.00.

Defendant also objects to the time spent to finalize the settlement in this matter as unnecessary. (Opp., p. 8:16-25.) Specifically, Defendants objects to 5.2 hours ($2,735.00) billed on March 18, 19 and 20, April 4 and 15, May 1, 3, 14, 20, 21, 22, 23 and 30, June 3, 4 and 5, and July 3, 8 and 9 2024. (Laughlin Decl., Ex. 11.) As both parties contested the settlement terms in this matter for several months, the time spent does not appear unnecessary or excessive.

Next Defendant objects to the time spent preparing for trial as unnecessary. (Opp. pp. 8:26-9:2.) Specifically, Defendant objects to 6.9 hours ($2,820.00) billed on January 23, 26, 29 and 30, February 14 and 26, and April 17, 2024. (Laughlin Decl., Ex. 11.) Upon review of the entries, the Court does not find that this time was unreasonably spent.

Defendant further objects to certain time-entries as block-billed or vague. (Opp., p. 9:8-17.) Specifically, Defendant objects to 3.0 hours ($1,588.00) billed on February 22 and 25, March 2, July 14, 2022 and January 6, 2023. (Laughlin Decl., Ex. 11.) The Court will reduce the fees by 1.0 hour, $550.00, for work billed prior to counsel preparing the representation agreement.

Lastly, Defendant objects to the fees incurred after Defendant’s first 998 offer was served. (Opp., pp. 9:18-10:7.) Specifically, Defendant objects to 3.7 hours ($1,765.00) billed on February 13, 15, 23 and 27, March 8 and 12, April 23, May 20 and 21, 2024. (Laughlin Decl., Ex. 11.) As Defendants completed this work prior to reaching the final settlement in this matter, the time spent on these tasks was reasonable.

Having analyzed the motions and pleadings filed, and having reviewed the billing statements provided, the Court determines that a reasonable lodestar in this case, based on the foregoing discussion, is $44,452.50.

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

Plaintiff requests a lodestar multiplier enhancement of 1.5 in the additional amount of $24,826.25 for risk and delay and because public interest justifies a multiplier. (Mot., pp. 13:11-15:1.)

The Court finds that under the circumstances of this case, a lodestar multiplier is not appropriate. 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. Based on the foregoing, the Court declines to award a lodestar multiplier.

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

Song-Beverly 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. (“Jensen”) (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.’

Plaintiff requests a total of $3,688.47 in costs and expenses. (Mizrahi Decl., ¶ 43; Wirtz Decl., ¶ 52.) Defendant does not object to the costs or expenses sought.

Based on the foregoing, Plaintiff’s Motion for Attorneys’ Fees is GRANTED, in part. The court awards $44,452.50 in attorneys’ fees and $3,688.47 in costs. Payment of these funds is due to Wirtz Law APC within 30 days of this Order.

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