Superior Court of California 

County of Los Angeles 

Department 78 

 

SCOTT MURRAY,

Plaintiff, 

          vs. 

SUBARU OF AMERICA, INC., et al., 

Defendants. Case No.: 22STCV23274

PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES

 

Plaintiff’s motion for attorney’s fees is granted in the reduced amount below.

Moving party to give notice.

I. FACTUAL BACKGROUND   

This is an action brought under the Song-Beverly Consumer Warranty Act. The Complaint alleges as follows.  

Plaintiff Scott Murray leased a 2020 Subaru Outback manufactured by Defendant Subaru of America, Inc. (“Subaru”) with an express written warranty. The vehicle developed a defect during the warranty period that Defendants failed to repair despite a reasonable number of attempts. Defendants then refused to replace the vehicle or make restitution.

II. PROCEDURAL HISTORY 

On July 19, 2022, Plaintiff filed his Complaint.

On September 2, 2022, Defendants Answered.  

On October 30, 2023 Plaintiff filed a notice of settlement.

On October 30, 2023, Plaintiff filed this motion for attorney fees.

On February 15 and 28, 2024, the parties submitted supplemental briefing.

III. LEGAL STANDARD

With respect to attorney fees and costs, unless a statute provides for them, (e.g., Code of Civil Procedure sections 1032, et seq.), the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.¿(Code Civ. Proc., § 1021.)¿ The prevailing party on a contract, which specifically provides for attorney fees and costs incurred to enforce the agreement, is entitled to reasonable attorney fees in addition to other costs.¿ (Civ. Code § 1717, subd. (a); Code Civ. Proc, §§ 1032; 1033.5, subd. (a)(10)(A).)¿ The court, upon notice and motion by a party, shall determine the prevailing party and shall fix, as an element of the costs of suit, the reasonable attorney fees.¿ (Civ. Code § 1717, subds. (a), (b).)¿ A party moving for attorneys’ fees as an element of costs shall serve and file the notice before or at the same time the party serves and files the memorandum of costs; if only attorney fees are claimed as costs, the party shall serve and file the notice within the time specified in the Rules of Court, Rule 3.1700 for filing a memorandum of costs.¿ (Cal. Rules Court. 3.1702; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.)¿¿¿ 

Under the Civil Code section 1794, subdivision (d) the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred:  “If the buyer prevails 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(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, 623 624.) The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.”¿ (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)¿ “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.”¿ (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.)¿ The court may then adjust the lodestar figure based on consideration of factors specific to the case, to fix the fee at the fair market value for the legal services provided.¿ (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].)¿  

 

In challenging attorney fees as excessive because the moving party claimed too many hours of work, the challenging party bears the burden of pointing to the specific items challenged, with a sufficient argument and citations to the evidence.¿ (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿ General arguments that the fees claimed are excessive, duplicative, or unrelated do not suffice.¿ (Ibid.)¿¿ 

IV. DISCUSSION

Plaintiff seeks $92,917.50 in attorney’s fees and $1,565.19 in costs expenses pursuant to a Code Civ. Proc., section 998 offer accepted by Plaintiff. Plaintiff also seeks a multiplier of 0.3. The parties dispute whether Plaintiff’s counsels

hourly rates and billing were reasonable and whether a multiplier should be awarded.

Judicial Notice

Plaintiff seeks judicial notice of the following:

1. The Complaint in this action

2. Defendants’ Answer in this action

3. Plaintiff’s Notice of Ruling on an IDC in this matter

4. The Court’s May 25, 2023 minute order for an ex parte application in this matter

5. Rulings on motions for fees, costs, and expenses in other matters.

The requests are granted.

Defendants request judicial notice of records obtained from the state bar website showing that Plaintiffs’ counsel were admitted to the state bar in December 2019 and May 2020. Although Defendants argue that the records are attached to the request for judicial notice, no records were attached. Nevertheless, because Plaintiffs’ counsel’s bar numbers and admission dates are not reasonably subject to dispute and may be immediately and accurately determined through a search of state bar records, the request is granted.

Evidentiary Objections

Plaintiff objects to Defendants’ evidence submitted in opposition to the motion for attorney’s fees and costs. The objections are overruled.

Reasonableness of Hourly Rates

Defendants argue that Plaintiff’s counsels’ hourly rates are excessive and unsupported by evidence. Defendants allege that Plaintiff’s counsel have not provided competent evidence to support their claimed hourly rates. Defendants argue Plaintiff’s evidence in support of fees is hearsay without exceptions. Defendants propose an hourly rate of $300 per hour for both attorneys.

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“a reasonable hourly rate is the product of a multiplicity of factors . . . [including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case”].)¿

Plaintiff provides the declaration of Sam Azimtash, who testifies that he and his co-counsel Alexander Khoubian were retained in this matter. (Azimtash Decl., ¶5.) Khoubian filed the Complaint in this action and Azimtash was associated into the matter to litigate and try the matter. (Id., ¶7.) Azimtash alleges that he performed research, participated in discovery, retained consultants, attended court hearings, met and conferred with Defendants, reviewed Defendants’ 998 offer, drafted motions to compel further, attended an IDC, drafted ex parte motions, negotiated settlement, and filed this motion. (Id., ¶11.) Azimtash testifies that he has litigated hundreds of lemon law cases on behalf of manufacturers and that he is the founder of his own firm. (Id., ¶32.) Azimtash alleges that an attorney of his caliber typically charges $508 per hour, which he calculated using the Laffey Matrix and comparing the rate to average rates listed in the National Law Journal. (Id., ¶33.) Azimtash also alleges this rate was awarded to him in other matters. (Id., ¶¶36-37.)

Khoubian testifies that he is the founder of his own firm, which focuses on consumer warranty, fraud, and class actions. (Khoubian Decl., ¶12.) Khoubian alleges he performed pre-litigation negotiations. (Id., ¶14.) Khoubian argues that an attorney of his caliber typically charges $413 per hour, which he calculated using the Laffey Matrix and the National Law Journal. (Id., ¶13.)

Azimtash has significant experience, expertise in lemon law cases, and demonstrated extensive involvement in litigation. Based on these facts, Azimtash’s hourly rate of $450 is reasonable.

On the other hand, Khoubian appears to have less specialized experience in lemon law and less experience overall. Additionally, Khoubian only participated in prelitigation negotiations. Thus, an hourly rate of $350 rather than the requested $375 to $400 hourly rate is reasonable.

Defendants argue that Plaintiff does not explain why more than one attorney was necessary to litigate this case. However, it is reasonable for Khoubian to have handled pre-litigation work while Azimtash handled the litigation. 

Reasonableness of Hours Billed

Plaintiff’s counsel provide a detailed invoice describing the hours billed by each attorney. 

Here, the Complaint was filed on July 19, 2022. Defendant’s 998 offer was accepted by Plaintiff on June 23, 2023. The notice of settlement was filed on October 30, 2023. Trial in the case was set for February 26, 2024.

No motions were filed in the case, save for this motion for attorney’s fees. There was one IDC held and one ex parte application filed by Plaintiff. There were no depositions taken in the case.  

Khoubian has mainly submitted billings for the period of April 29, 2022 through and including July 22, 2022.  

There are a few later entries for Khoubian. 

Defendant contends that having two attorneys on the case was unnecessary and led to duplicative billing. The Court agrees with respect to most of the billing entries for Khoubian that were incurred after Azimtash took over the case on August 10, 2022.

With respect to these later entries for Khoubian, the Court finds most of them to be duplicative or unnecessary and therefore unreasonable particularly given that Azimtash took over the case on August 10, 2022. 

Plaintiff asks for fees for 22.9 hours of Khoubian’s time.  

The following entries are disallowed, which total 4 hours.

8/18/22 Khoubian .4 at $375

$150 Communications with Azimtash re: the Complaint

9/8/22 Khoubian .3 at $375

$112.50 Communication with Defense re: Association of Azimtash (also billed for by Azimtash)

1/30/23 Khoubian 1.1 @ $375

$412.50 Communication with Client (also billed for by Azimtash)

2/10/23 Khoubian .4 at $375

$150 Communication with Client (also billed for by Azimtash)

2/11/23 Khoubian .4 at $375

$150 Communication with Client (also billed for by Azimtash)

2/16/23 Khoubian .6 at $375

$225 Communication with Client (also billed for by Azimtash)

8/13/23 Khoubian .8 at $375

$300 Audit of Alpha Law Firm Billings

Fees will be awarded for Khoubian’s time in the amount of 18.9 hours of time at the rate of $350 per hour.

Azimtash has submitted billings starting on August 10, 2022. 

Plaintiff seeks fees for 187 hours of Azimtash’s time.

Defendants contend that tasks such as reviewing court documents, drafting assessments, drafting discovery, drafting parts of motions, filing, drafting pleadings, reviewing papers, and some communications were clerical tasks that should have been delegated to a paralegal, secretary, or file clerk. The Court agrees in part and finds that the following tasks are clerical.

Date Biller Task Time

5/21/22 SA Draft opening letter to client .4

5/21/22 SA Draft retainer .3

7/18/22 SA Draft and revise civil case cover sheet .2

7/18/22 SA Draft and revise summons .2

7/19/22 SA Receipt and review conformed complaint .1

7/19/22 SA Receipt and review notice of case assignment .1

7/19/22 SA Receipt and review conformed civil case cover sheet .1

7/19/22 SA Communication with process server re service on dealer .3

7/19/22 SA Receipt, review and file proof of service on SOA .2

7/19/22 SA Communication with process server re service on dealer .4

7/22/22 SA Receipt, review and file proof of service on dealer .2

8/26/22 SA Receipt and review fully endorsed Notice of Association .1

9/29/22 SA Draft-Word version of discovery per defense counsel’s request .4

2/16/23 SA Receipt and review executed updated association and change of counsel papers/file same with Court .2

10/28/23 SA Draft notice of settlement of entire case .3

10/30/23 SA Finalize all filings for motion/file same with Court .3

2/16/23 SA Receipt and review executed updated association and change of counsel papers/file same with Court .2

3/31/23 SA Receipt and review Defendant's verifications to its responses to RFPs; calendar meet and confer/motion deadline .1

4/1/23 SA Receipt and review Defendant's verifications to its responses to SROGs; calendar meet and confer/motion deadline .1

4/1/23 SA Receipt and review Defendant's verifications to its responses to FROGs; calendar meet and confer/motion deadline .1

4/2/23 SA Receipt and review Defendant's verifications to its responses to RFAs; calendar meet and confer/motion deadline .1

The Court will allow one hour of time to cover all of these tasks. Therefore Azimtash’s hours will be reduced by 3.4 hours.

Defendants argue that Plaintiff’s counsel billed excessively for various tasks, including communicating with Plaintiff and others, drafting, researching, filing papers, and reviewing materials. Although it does not appear the communication billing entries were excessive, entries related to drafting, researching, and reviewing materials appear excessive. This was a straightforward lemon law case that settled relatively quickly. Due to Azimtash’s expertise in the area of lemon law cases and the fact that he would have previously dealt with every issue in the case, to include the drafting of discovery requests and motions, the Court finds the following tasks to be either billed excessively or to not be necessary.  

Date Biller Task Time Reduce to

8/12/22 SA Research Judge .8 0

8/12/22 SA Receipt and review Department 78 rules .4 .2

8/18/22 SA Communication with SOA re pleading .4 .2

8/19/22 SA Research for discovery 2.2 1

8/19/22 SA Draft repair chronology 1.5 1

9/9/22 SA Inspection of subject vehicle prior to commencing discovery 2.8 2

9/11/22 SA Draft definition for ELECTRICAL DEFECT based on subject vehicle’s repair history 1.2 Total for discovery drafting: 2

9/11/22 SA Draft definition for POWERTRAIN DEFECTS based on subject vehicle’s repair history 1

9/11/22 SA Draft definition for INFOTAINMENT DEFECTS based on subject vehicle’s repair history. .7

9/12/22 SA Draft Discovery: Request for Production of Documents 1.8

9/12/22 SA Draft Discovery: Request for Admission 1.1

9/12/22 SA Draft Discovery: Form Interrogatories .5

9/12/22 SA Draft Discovery: Special Interrogatories 1.1

9/30/22 SA Draft meet and confer letter re Defendant’s responses and obligation to produce ESI 1.1 .5

10/19/22 SA Plan and prepare for phone conversation with Defense Counsel re Plaintiff's demand, settlement, repurchase, and Civil Penalties exposure. .5 .2

10/19/22 SA Phone call and email communications with Defense Counsel re Plaintiff's demand, settlement, repurchase, and Civil Penalties exposure. 1.5 1

11/14/22 SA Receipt and review Defendant's responses to discovery: Form Interrogatories .7 Total time for review of discovery: 1

11/14/22 SA Receipt and review Defendant's responses to discovery: Special Interrogatories .7

11/14/22 SA Receipt and review Defendant's responses to discovery: Requests for Production of Document .7

11/14/22 SA Receipt and review Defendant's responses to discovery: Requests for Admission .7

4/8/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit A: Repair Orders 5.3 Total time for review of discovery: 2

4/9/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit B: Warranty Report 2.4

4/9/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit E: Warranty Policy and Procedure 2.7

4/15/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit F: Subaru Owner's Manual and Usuage [sic] of Vehicle 1.6

4/15/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit G: Lease Agreement and all douments [sic] signed by Plaintiff at the time of lease 1.4

4/15/23 SA Receipt, review, annotate, and compare with Plaintiff's records: Defendant's Document Production; Exhibit H: all TSBs for the Issues of the Subject Vehicle, review NHTSA and other platforms for the TSBs provided 5.1

4/16/23 SA Draft summary of discovery responses, including all TSBs and new Repair Orders and warranty report and more than 870 pages of document production in preparation of motion to compel meet and confer/trial 2.7 1

4/17/23 SA Update litigation/trial strategy based on discovery response .5 0

5/12/23 SA Draft Notice of Motion to Compel Further Responses to RFPs .6 Total time for this unfiled motion to compel further: 1

5/12/23 SA Review file, research, and draft memorandum of points and authorities re Motion to Compel Further Responses to RFPs 1.8

5/12/23 SA Draft Decl. of Sam Azimtash in support of motion/prepare all exhibits/prepare billing for sanctions request .8

5/12/23 SA Draft Proposed Order granting motion to compel .2

5/13/23 SA Draft Notice of Motion to Compel Further Responses to SROGs .5 Total time for this unfiled motion to compel further: 1

5/13/23 SA Review file, research, and draft memorandum of points and authorities re Motion to Compel Further Responses to SROGs 2.3

5/13/23 SA Review file, research, and draft separate statement 3.1345 re Motion to Compel Further Responses to SROGs 3.8

5/13/23 SA Draft Decl. of Sam Azimtash in support of motion/prepare all exhibits/prepare billing for sanctions request .5

5/13/23 SA Draft Proposed Order granting motion to compel .2

5/14/23 SA Draft Notice of Motion to Compel Further Responses to FROGs .5 Total time for this unfiled motion to compel further: 1

5/14/23 SA Review file, research, and draft memorandum of points and authorities re Motion to Compel Further Responses to FROGs 1.2

5/14/23 SA Review file, research, and draft separate statement 3.1345 re Motion to Compel Further Responses to FROGs 3.2

5/14/23 SA Draft Decl. of Sam Azimtash in support of motion/prepare all exhibits/prepare billing for sanctions request .5

5/14/23 SA Draft Proposed Order granting motion to compel .2

5/23/23 SA Research, draft, and revise notice of Ex Parte Application 1.8 Total for this ex parte motion: 1

5/24/23 SA Draft decl. of Sam Azimtash in support of Ex Parte .6

5/24/23 SA Draft proposed order for Ex Parte .2

5/24/23 SA Finalize Ex Parte and make last revisions to file .3

5/24/23 SA Draft correspodendence [sic] re notice of plaintiff' ex parte application .3

5/24/23 SA Communications with Defense Counsel re Ex Parte .4

5/24/23 SA Attend ex parte hearing 1.3

8/1/23 SA In-person meeting with client 1.2 .5

10/25/23 SA Draft and revise Motion for Attorney's Fees 2.4 Total for this motion: 2

10/26/23 SA Continue drafting/revising Motion for attorneys' fees 2.8

10/27/23 SA Draft request for judicial notice for motion/gather all exhibits .8

10/27/23 SA Draft Proposed Order for motion .2

10/27/23 SA Draft declaration of Sam Azimtash for motion/gather all exhibits 1.6

10/27/23 SA Draft declaration of Alexander Khoubian for motion/gather all exhibits .9

10/27/23 SA Create table of content/table of authorities for motion .8

10/30/23 SA Draft and cost sheet and memorandum of costs .7 .3

12/1/23 SA ANTICIPATED - Review Opposition to Motion for Attorney's Fee 1.5 Total for this opposition: 2

12/3/23 SA ANTICIPATED - Draft and revise Reply to Opposition to Motion for Attorney's Fee, additional decl. of Sam Azimtash 2.2

12/11/23 SA ANTICIPATED - Receipt and review Court's tentative ruling and plan and prepare for hearing .7

Totals 79.8 20.9

Total to be taxed 58.9

Fees will be awarded for Azimtash’s time in the amount of 124.7 hours of time at the rate of $450 per hour.

Lodestar Multiplier

Plaintiff’s counsel seek a 0.3 multiplier on the grounds that they were exposed to risk in taking this matter on a contingency basis.

After calculating the lodestar amount, the court may increase or decrease the amount “by applying a positive or negative ‘multiplier' to take into account a variety of other factors.” (Laffitte v. Robert Half Int'l Inc. (2016) 1 Cal.5th 480, 489). Those factors include, but are not  limited to:(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) success or failure, (4) the extent to which the nature of the litigation precluded other employment by the attorneys, (5) the contingent nature of the fee award, (6) that an award against the state would ultimately fall upon the taxpayers, (7) that the attorneys in question received public and charitable funding for the purpose of bringing lawsuits of the character here involved, and (8) that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed. (Glaviano v. Sacramento City Unified Sch. Dist. (2018) 22 Cal.App.5th 744, 751). Such an approach “anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.” (Id.). However, “a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138). “Although the attorney's fee agreement is relevant and may be considered, the agreement does not compel any particular award.” (Glaviano, 22 Cal.App.5th at 757). 

Based on all the factors to be considered, the Court does not find that a multiplier should be applied here given this was a routine case in which a settlement was reached in less than one year from the filing date. 

Costs

Plaintiff seeks $1,565.19 in costs for jury fees, filing fees, and service of process. These costs are allowable under Code Civ. Proc. section 1033.5(a) and Defendants do not challenge the costs.

Sanctions

Defendants also seek sanctions. This request is denied.

Conclusion

The Court awards Plaintiff attorney’s fees as follows:

Khoubian (18.9 hours x $350)

Azimtash (124.7 hours x $450) $56,115

Costs $1,565.19

Total $64,295.19

DATED: March 22, 2024 

________________________

Hon. Jill Feeney 

Judge of the Superior Court