Judge: John C. Gastelum, Case: 20-01130593, Date: 2023-01-05 Tentative Ruling
Motion for Attorney Fees
Plaintiff, Emad Aranki’s Motion for Attorney Fees and Costs and Expenses is GRANTED, in part, DENIED in part, as follows.
Plaintiff moves for an order for attorney fees and reimbursement of costs and expenses in the amount of $71,719.70 in fees and $6,216.08 in costs and expenses pursuant to the settlement agreement under Civil Code section 1794(d). Plaintiff requests attorney fees based upon a lodestar in the amount of $55,169; a multiplier of 0.3 for a fee enhancement of $16,550.70, for a total amount of $71,719.70 in fees.
Entitlement to Fees
Civil Code section 1794, provides, in relevant part: “[i]f 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(d).)
There is no dispute that the parties agree Plaintiff is the prevailing party and Defendant will pay Plaintiff’s attorney fees, costs, and expenses pursuant to Civil Code section 1794(d) such that Plaintiff is entitled to such fees, costs, and expenses, as determined by the Court as having been reasonably incurred by Plaintiff in the commencement and prosecution of this action. (Ex. MM to Declaration of John P. Myers, Settlement Agreement and Release at p. 2, ¶ 2(b).)
Lodestar Analysis
“ ‘The plain wording of the statute requires the trial court to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of the time spent and the amount charged . . . . “It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. 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.” . . . [The] prevailing party has the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.’ [Citation.]” (McKenzie v. Ford Motor Company (2015) 238 Cal.App.4th 695, 698, 703.)
A court assessing a claim for attorney fees under Civil Code section 1794(d) uses the lodestar method to determine the reasonableness of such a claim. (Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240, 247-248 (“Mikhaeilpoor”).)
As Mikhaeilpoor explained:
In the case of contingency fee arrangements, “a prevailing buyer ... is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorneys.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 105, fn. 6, 37 Cal.Rptr.2d 149 (Nightingale), italics added.)
Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then “ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable.” (Nightingale, supra, 31 Cal.App.4th at p. 104, 37 Cal.Rptr.2d 149.) Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. (Ibid.) The prevailing party and fee applicant bears “the burden of showing that the fees incurred were ... ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’ ” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816, 5 Cal.Rptr.2d 770; see Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 926, 14 Cal.Rptr.3d 741 [“[c]ourts have uniformly held that the party moving for statutory attorney fees or sanctions has the burden of proof”].) It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, “then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale, supra, 31 Cal.App.4th at p. 104, 37 Cal.Rptr.2d 149.)
(Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.)
Reasonableness of Hours Incurred
The Court has discretion to reduce the fee award where fees were not reasonably incurred. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [“ ‘[P]adding’ in the form of inefficient or duplicative efforts is not subject to compensation.”].) Fees incurred in preparing a motion for fees are recoverable in the award. (Id. at p. 1133.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Med. Mgmt. Sys. V. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 564.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)
Here, Plaintiff’s counsel provides that 129.4 hours were incurred by Plaintiff’s counsel, Bickel Sannipoli APC, based on the records which itemizes the actual time incurred as follows. (Declaration of John P. Myers, ¶¶ 3-4, 131; Ex. A.)
· 115.8 attorney hours
o Attorney Brian J. Bickel (“BB”) – 0.8 hours
o Attorney Jordan K. Sannipoli (“JS”) – 4.3 hours
o Attorney Sharona Silver (“SS”) – 60.6 hours
o Attorney John P. Myers (“JM”) – 43.7 hours
o Attorney Joshua J. Youssefi (“JY”) – 6.4 hours
· 10.6 hours incurred by paralegals
· 3 hours incurred by legal assistants
(Declaration of John P. Myers, ¶ 6; Ex. B.)
Pre-Filing Fees
Attorney Myers provides that the amount includes a flat fee for all services rendered prior to the preparation of Plaintiff’s Complaint in the amount of $3,750, which is documented as 8.6 hours in the time records due to the limitations of the software. (Declaration of John P. Myers, ¶¶ 3-6; Exs. A, B.)
Defendant argues Plaintiff’s counsel overbilled at $4,767.50 through the filing of the boilerplate Complaint for a garden-variety Lemon Law case, and that counsel’s time and fees should be reduced by approximately one half, or $2,383.75. (See Declaration of Matthew C. Wolf, ¶ 3.) Defendant does not identify which entries it is adding to result in the amount of $4,767.50, although this amount appears to include entries after the filing of the Complaint.
The Court finds the time incurred pre-filing from January 22, 2020 through February 6, 2020, was reasonably incurred as part of the commencement of the action.
Fees Incurred Pending Lawsuit
Defendant does not oppose any fees sought for work done pending the lawsuit prior to the settlement. Time incurred for services rendered after the filing of the Complaint and before settlement are reasonably incurred in the prosecution of the action.
Fees for the Instant Motion
Defendant argues that some $20,457, representing over 40 billable hours, was billed after the execution of the final settlement agreement on January 26, 2022, and primarily for the filing of the instant fee motion, meaning that almost 40 percent of the total billing ($55,169) occurred after the execution of the settlement agreement and the filing of the notice of settlement, and that 10 hours, or about one quarter or 25 percent of the actual time billed, is reasonable for this motion, such that the billing should be cut by $15,342.75 ($20,457 x 0.75 - $15,342.75). (See Declaration of Matthew C. Wolf, ¶ 4.) Defendant provides that these entries are from January 26, 2022, through August 17, 2022. (Ibid.)
However, a review of the time records indicate that entries dated from January 26, 2022 through July 11, 2022, relate to the settlement agreement release and the execution of the same, not fees incurred for the instant motion.
The time records indicate that work on the instant motion did not commence until July 25, 2022, and continued through August 17, 2022. Entries during this time period which describe work done for the instant motion total 28 hours. Given the extent and depth of the Declaration of John P. Meyers in support of the instant motion, and exhibits attached thereto, the 28 hours for the instant motion appear reasonably incurred.
Attorney Myers also provides that he will bill no less than 10 hours to review the opposition, draft a reply brief, and prepare for and attend the hearing on the fee motion which is included in Plaintiff’s lodestar. (Declaration of John P. Myers, ¶ 142.) The supplemental declaration filed in reply indicates that 9.6 hours were billed in reviewing the opposition and drafting the reply. (Supplemental Declaration of John P. Myers, ¶ 146.) The anticipated time of 10 hours to review the opposition, to draft a reply brief, and to prepare for and to attend the hearing also appears reasonable.
Based on the foregoing, the Court finds that 129.4 hours were reasonably incurred and reasonably necessary to the commencement and prosecution of this lawsuit.
Reasonableness of Hourly Rates
In determining a reasonable rate for the attorney's services, courts usually consider: (1) the prevailing rate charged by attorneys of similar skill and experience for comparable legal services in the community; (2) the nature of the work performed; and (3) the attorney's customary billing rates. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 643.) “In making its calculation [of a reasonable hourly rate], 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.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 [citations omitted].)
Here, the rates sought by the five attorneys who worked on this matter, ranging from $385 per hour to $685 per hour, are based on the billed rate at a given year, and vary based upon the time the attorney was licensed and experience. The hourly rates appear reasonable based on the level of each attorney’s experience and previously awarded rates, and are commensurate with the prevailing rates charged by attorneys practicing in this area within the community. Thus, attorney fees in the amount of $52,463.00 for 115.8 hours appears reasonably incurred. (Ex. B to Myers Decl.)
The hourly rate of $235 in 2022 for a legal assistant, which is the same hourly rate for a paralegal in 2022, does not appear reasonable. The rates for paralegals increased by $40 from 2021 to 2022. A similar $40 increase for legal assistants from 2021 to 2022 would result in a rate of $205 in 2022, not $235. As $205 per hour in 2022 for legal assistants appears reasonable, and the difference between the billed rate and the reasonable rate is $30 per hour, the Court deducts $60 for the 2 hours in 2022 for legal assistants, for a total reduced amount for paralegals and legal assistants in the amount of $2,646.
Based on the foregoing, the Court GRANTS attorney fees in the total amount of $55,109.
Multiplier
“The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased.” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) “The trial court is neither foreclosed from, nor required to, award a multiplier. [Citations.]” (Ibid.)
The lodestar may be adjusted based on factors including (1) the novelty of 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. (Ketchum, supra, 24 Cal.4th at p. 1132.) “Such fee enhancements are intended to compensate for the risk of loss generally in contingency cases as a class. [Citation.]” (Id. at p. 1133.)
Plaintiff requests a 0.2 multiplier, or $11,033.80, for the delay in payments as Plaintiff’s counsel litigated this matter since 2020 without pay on Plaintiff’s behalf, and a 0.1 enhancement, or $5,516.90, given the results obtained. Thus, Plaintiff requests a total multiplier of 0.3 in the amount of $16,550.70.
Defendant argues the application of a fee multiplier is not mandatory, and that Plaintiff provides no rationale that justifies the imposition of a multiplier in this case as the novelty and difficulty of the questions involved were minimal, the skill displayed was minimal, the case resolved with minimal litigation and did not preclude other work, and the case was not brought for charitable or taxpayer purposes, as well as since the hourly rates ranging from $495 to $665 are already high.
The Court DENIES the request for a 0.2 multiplier and a 0.1 multiplier as a multiplier does not appear justified under the circumstances of this case.
Costs and Expenses
Plaintiff requests costs and expenses in the amount of $6,216.08. (Declaration of John P. Myers, ¶¶ 4, 7; Exs. A, C.) All costs and expenses appear to be reasonably necessary to the conduct of the litigation and reasonable in amount. The opposition does not oppose any costs and expenses claimed. Thus, the Court GRANTS costs and expenses in the amount of $6,216.08.
Defendant’s Request for Judicial Notice
Although Defendant’s Request for Judicial Notice does not comply with California Rules of Court, rule 3.1113(1), the Court GRANTS the request for judicial notice as to the Notice of Settlement pursuant to Evidence Code section 452(d), and DENIES the request for judicial notice of Court’s docket and “Register of Actions.”
Plaintiff to give notice.