Judge: John J. Kralik, Case: 20BBCV00446, Date: 2023-01-20 Tentative Ruling
Case Number: 20BBCV00446 Hearing Date: January 20, 2023 Dept: NCB
North Central District
BMW BANK OF NORTH AMERICA, a Utah industrial bank, by and through its servicer, BMW FINANCIAL SERVICES, NA, LLC, a Delaware limited liability company, Plaintiff, v. ANITA GARGANI aka ANITA MANOUKIAN GHARGANI aka ANITA GHARGANI aka ANITA MANOUKIAN GHARGA, an individual; and ANNA ARMENYAN, an individual, Defendants. |
Case No.: 20BBCV00446 Hearing Date: January 20, 2023 [TENTATIVE] ORDER RE: MOTION FOR ATTORNEY’S FEES |
BACKGROUND
A. Allegations
On July 20, 2020, Plaintiff BMW Bank of North America, a Utah industrial bank, by and through its servicer, BMW Financial Services N.A., LLC (“Plaintiff”) filed the complaint for: (1) breach of contract; (2) common count; (3) claim and delivery; and (4) conversion against Defendants Anita Gargani aka Anita Manoukian Ghargani aka Anita Ghargani aka Anita Manoukian Gharga (“Manoukian”) and Anna Armenyan (“Armenyan”). Plaintiff alleges that on January 15, 2017, Defendants executed the Retail Installment Sale Contract with Century West BMW (“Dealer”) for the purchase of a 2017 BMW X6 M motor vehicle. Plaintiff alleges that Defendants defaulted under the terms of the agreement by failing to make payments on August 15, 2019 and thereafter.
On October 5, 2020, Manoukian filed a cross-complaint against Armenyan for: (1) breach of contract; (2) implied and equitable indemnity; and (3) total and/or comparative contribution.
B. Relevant Background
On June 20, 2022, the matter came for trial.
The Court issued its Final Statement of Decision on July 18, 2022, concluding:
Plaintiff BMW Bank of North America, by and through its servicer, BMW Financial Services, NA, LLC shall prepare a form of judgment showing that it has prevailed on its first cause of action against Defendant Anita Manoukian (and the other names she uses) and Defendant Anna Armenyan in the amount of $74,157.08. Its remaining second cause of action should be dismissed.
Ms. Manoukian’s counsel shall work with BMW’s counsel to see that the form of judgment adequately addresses the declaratory relief that the Court will issue on the second cause of action of the Cross-Complaint.
The form of judgment should be jointly submitted to the Court consistent with this ruling.
As the prevailing party on the complaint, BMW shall recover its costs and attorneys’ fees from the Defendants. As the prevailing part on the cross-complaint, Ms. Manoukian may recover her costs and attorneys’ fees from Ms. Armenyan.
(July 18, 2022 Final Statement of Decision on page 7.) The Certificate of Mailing shows that the Final Statement of Decision was served on Plaintiff’s counsel via mail on July 18, 2022.
On August 5, 2022, Plaintiff filed a Notice of Entry of Judgment or Order, showing that Plaintiff served the July 18, 2022 Minute Order on Manoukian’s counsel by mail on August 5, 2022.
On August 16, 2022, the Court entered the Judgment After Bench Trial on Complaint and Cross-Complaint as follows:
1. Judgment is entered in favor of Plaintiff under its 1st cause of action for breach of contract against Manoukian and Armenyan. On this claim, Plaintiff shall recover from Manoukian and Armenyan, as a joint and several obligation, the amount of $69,088.55 plus interest of $5,068.53 accrued at the contract rate of interest of 5.99% ($11.79 per day) through June 20, 2022 for a total of $74,157.08, with per diem interest accruing at the contract from June 21, 2022 through the date of entry of Judgment.
2. Judgment is entered in favor of Cross-Complainant Manoukian against Armenyan under her 2nd cause of action for equitable indemnity. On this claim, Manoukian has established her right to recover any amount she expends in satisfying Plaintiff’s judgment from Armenyan.
3. Cross-Complainant Manoukian did not present sufficient evidence of a specific oral contract with Cross-Defendant Armenyan that would support an award of damages at trial and did not prove any damages, and her 3rd cause of action for comparative contribution does not apply to the facts of the case as a joint tortfeasor, and therefore shall take noting by her 1st and 3rd causes of action in the Cross-Complaint.
4. Plaintiff is deemed to be the prevailing party under the Complaint and shall be entitled to recover its costs and attorneys’ fees from Manoukian and Armenyan. Cross-Complainant Manoukian is deemed to be the prevailing party on the Cross-Complaint and may recover her costs and attorney’s fees from Armenyan.
(August 16, 2022 Judgment at pp.2-4.)
On November 28, 2022, Plaintiff filed a Memorandum of Costs, seeking $1,763.20.
C. Motion on Calendar
On November 28, 2022, Plaintiff filed a motion for attorney’s fees in the amount of $41,807.50 against Manoukian and Armenyan. Plaintiff also seeks an award of $1,763.20 in costs pursuant to the memorandum of costs.
On December 19, 2022, Manoukian filed an opposition to the motion
On January 12, 2023, Plaintiff filed a reply brief.
DISCUSSION
A. Entitlement to Fees
Plaintiff argues that it is entitled to recover attorney’s fees pursuant to contract and because it was deemed the prevailing party.
The Retail Installment Sale Contract is attached as Exhibit 1 to the declaration of Rebecca A. Caley. It states in section 3(c):
You may have to pay collection costs. You will pay our reasonable costs to collect what you owe, including attorney fees, court costs, collection agency fees, and fees paid for other reasonable collection efforts.
(RISC at § 3.c.)
Further, in the Final Statement of Decision, the Court stated: “As the prevailing party on the complaint, BMW shall recover its costs and attorneys’ fees from the Defendants.” In addition, in the Judgment, Plaintiff was deemed the prevailing party on the complaint and entitled to recover costs and attorney’s fees from Defendants.
In the opposition brief, Manoukian does not dispute that Plaintiff is entitled to recover attorney’s fees. Rather, Manoukian argues that Plaintiffs should only be entitled to recover at most $10,000 in reasonable attorney’s fees.
B. Reasonable Attorney’s Fees
Plaintiff seeks to recover $41,807.50 in attorney’s fees and $1,763.20 in costs.
In support of the motion, Plaintiff provides the declaration of its counsel, Rebecca A. Caley. Ms. Caley states that she was admitted to the California Bar in December 1987. (Caley Decl., ¶16.) Her hourly billing rate is $300, which she states is reasonable for attorneys in Los Angeles County. (Id., ¶¶15-16.) She states work was additionally performed by her associate Christopher M. Domin (admitted to the California Bar in December 2010), who bills at $275/hour, and her paralegal Kathy Fenner (a certified paralegal for over 10 years), who bills at $170/hour. (Id., ¶¶18-19.) Ms. Caley states that Plaintiff incurred attorney’s fees from January 20, 2020 to July 2022 in the sum of $38,917.50. (Id., ¶20, Ex. 5 [Billing Records].) The Billing Records also show that Plaintiff incurred additional fees in September 2022 and January 2023 in the amount of $1,862.50 for filing this motion for attorney’s fees. (Billing Records [September 2022].) Thus, the total fees sought is in the amount of $41,807.50.
In opposition, Manoukian argues that the requested attorney’s fees amount is unreasonably high for a matter that resolved after a one-day trial. She does not dispute the number of hours Plaintiff spent litigating the case or counsels’ reasonable hourly fee, but instead disputes the reasonableness of paying fees for hours spent on: (1) litigating the case against another party (Armenyan), including attempts to locate that party to serve and collect against her; (2) legal strategies (i.e., preparing a motion for summary judgment that was not filed); (3) reviewing routine Case Management Conferences; (4) correspondence between Plaintiff and its own counsel that was not intended to prepare for litigation but simply to communicate with their client; (5) discovery that was for the most part informal and conducted via email and phone calls and which were answered promptly by Manoukian; (6) a non-jury trial that lasted one business day and involved Manoukian and two witnesses produced by Plaintiff; and (7) a straightforward matter involving a car loan where payments ceased to be received by Plaintiff, and the car was eventually recovered and sold by Plaintiff to recover some of its loss. (Opp. at p.6.)
The Court has reviewed Plaintiff’s counsel’s billing records and will make the following adjustments:
· From July 12, 2021 to July 15, 2021, Mr. Domin spent 6.6 hours in preparing a motion for summary judgment on Plaintiff’s behalf. A motion for summary judgment was not filed with this Court. The Court will not impose fees against Defendants for the time Plaintiff’s counsel spent on preparing and drafting a motion that was not filed with the Court. Thus, the Court will reduce the fees by $1,815.00 (= 6.6 hours x $275/hour).
· The Court will reduce time spent by counsel and the paralegal in preparing letters to their client and reviewing correspondence from their clients.
o Ms. Fenner spent nearly 5 hours writing and reviewing correspondence with the client. The Court will reduce the hours incurred by half, or $425.00 (= 2.5 hours x $170/hour).
o Ms. Caley spent nearly 16 hours writing and reviewing correspondence with the client. The Court will reduce the hours incurred by half, or $2,400.00 (= 8 hours x $300/hour).
· In December 2020, counsel spent time to settle with non-party GHG Collision. This time till be reduced in the amount of $492.50 ([RAC: 1 hour x $300/hour] + [CMD: 0.7 hour x $275/hour]).
· The Court will also reduce the time stricken by Plaintiff in its billing records for the September 2, 2020 and September 3, 2020 entries. These entries were also redacted in their entirety. The reduction shall be for $110.00 (= $82.50 + $27.50).
· The Court will also reduce time for the December 4, 2020 entry that was redacted completely in the amount of $55.00.
· The total amount that will be reduced from the attorney’s fees requested = $5,297.50
The Court declines to apportion the time spent by Plaintiff’s counsel to serve and take the default judgment of Armenyan. This motion is directed against both Defendants and the ruling on this motion will be joint and several against the two Defendants. Further, the time spent by counsel in reviewing and preparing for CMCs is reasonable. It appears that counsel spent approximately 15-20 minutes preparing for each of the CMCs before the Court, which is a reasonable amount of time to prepare for a hearing. No reduction will be made based on the CMCs. The Court also declines to make reductions for the time spent in preparing for discovery and in conducting the non-jury trial, as both were necessary components of litigating this action.
Finally, the Court declines to make a reduction in fees based on Manoukian’s argument that this is a straightforward collections case and that Plaintiff eventually recovered and sold the car. Even if the action was a “straightforward,” routine action, this does not mean that Plaintiff’s counsel did not incur the hours spent on litigating this action. In fact, the case did present some unusual complications due to the unusual form of the defense which required additional communications with the client to develop the facts.
Thus, the Court grants the motion for attorney’s fees in the total amount of $36,510.00 (= $41,807.50 fees requested - $5,297.50 reduction).
The Court also awards costs in the amount of $1,763.20 to Plaintiff. The Court notes that no motion to strike/tax costs has been filed. Further, Manoukian does not dispute the costs requested in her opposition brief to the motion for attorney’s fees.
CONCLUSION AND ORDER
Plaintiff BMW Bank of North America, a Utah industrial bank, by and through its servicer, BMW Financial Services N.A., LLC’s motion for attorney’s fees is granted in the amount of $36,510.00. Costs shall be awarded in the sum of $1,763.20.
Plaintiff shall provide notice of this order.