Judge: Katherine Chilton, Case: 21STLC04956, Date: 2023-02-28 Tentative Ruling

Case Number: 21STLC04956    Hearing Date: February 28, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY:   Plaintiff Debbie Anne Lallave

RESP. PARTY:         None

MOTION FOR ATTORNEY’S FEES AND COSTS

(CCC § 1780, 1794)

TENTATIVE RULING:

The hearing on Plaintiff’s Motion for Attorney’s Fees and Costs After Settlement is CONTINUED to MARCH 30, 2023 at 10:30 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of February 26, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 26, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 7, 2021, Plaintiff Debbie Anne Lallave (“Lallave”) filed an action against Fair Servicing, LLC (“Fair Servicing”) for violation of the Song-Beverly Consumer Warranty Act, Civil Code § 1790, et seq.

Defendant filed an Answer to the Complaint on August 23, 2021.  On the same day, Defendant filed a Motion to Compel Arbitration and Stay Proceedings.

On December 7, 2021, Defendant filed an Offer to Compromise and Acceptance Under Code of Civil Procedure § 998.  Although Plaintiff’s counsel signed a Notice of Acceptance, it was accepted after the thirty days of the offer, and accordingly the offer to compromise was deemed withdrawn.  (12/3/21 Notice of Rejection).  Plaintiff subsequently filed a Notice of Settlement on January 24, 2022.  The Court has no knowledge of the settlement terms and has continued the Order to Show Cause re: Dismissal twice. 

On October 11, 2022, the Court granted Counsel Dillon D. Chen’s Motion to be Relieved as Counsel as to Defendant Fair Servicing, filed on July 20, 2022.  (10-11-22 Minute Order; 10-11-22 Order.)  Defendant has not retained counsel since then, and a legal entity such as Defendant must be represented by counsel.

On December 12, 2022, the Court set Order to Show Cause Re: Striking of Defendant’s Answer and Status Conference Re: Settlement.  (12-12-22 Minute Order.)

On December 27, 2022, Plaintiff filed the instant Motion for Attorney’s Fees and Costs After Settlement (“Motion”).  No opposition has been filed.

II.              Legal Standard

Pursuant to the Song-Beverly Act, Civil Code § 1794(d), “[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.”

“A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under . . . rules 8.822 and 8.823 in a limited civil case.”  (Cal. Rules of Court, rule 3.1702(b)(1).)  In a limited civil case, a notice of appeal must be filed on or before the earliest of 30 days after service of a document entitled “Notice of Entry” of judgment or 90 days after the entry of judgment. (Cal. Rules of Court, rule 8.822(a)(1).)

The calculation of attorney’s fees in California begins with the “lodestar” method – multiplying the number of hours reasonably expended by the reasonable hourly rate.  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.  The lodestar figure may then be adjusted, based on factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.  (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)  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.  (Ibid. at p. 48, fn. 23.)  After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

As explained in Graciano v. Robinson Ford Sales, Inc.:

“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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. [Citation.]  The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. . . . This 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.” [Internal citations and internal quotation marks omitted.]

((2006) 144 Cal.App.4th 140, 154.)  “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.  [Citations.]  The value of legal services performed in a case is a matter in which the trial court has its own expertise. . . . The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.  [Citations.]”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624.)

No specific findings reflecting the court’s calculations are required.  The record need only show that the attorney fees were awarded according to the “lodestar” or “touchstone” approach.  The court’s focus in evaluating the facts should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided.  The starting point for this determination is the attorney’s time records.  (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397 [verified time records entitled to credence absent clear indication they are erroneous].)  However, California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1810; Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.)  An experienced trial judge is in a position to assess the value of the professional services rendered in his or her court.  (Ibid.; Serrano, 20 Cal.3d 25 at 49.)

III.            Discussion

As a preliminary matter, the Court notes that Plaintiff has filed a defective Notice that does not list the name or address of the courthouse where the hearing on the Motion will take place.

In addition, the Court has no knowledge of the terms of settlement and whether Plaintiff is entitled to fees.  Plaintiff states that the Motion is based on the Court’s judgment entered on November 30, 2022, but there is no order dated November 30, 2022.  Because the Court has no judgment to reference, the Court cannot determine whether the Motion is timely or otherwise warranted.

Accordingly, the hearing on the Motion is continued and Plaintiff is ordered to file and serve a corrected Notice of Motion and to correct any other errors.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on Plaintiff’s Motion for Attorney’s Fees and Costs After Settlement is CONTINUED to MARCH 30, 2023 at 10:30 a.m. in DEPARTMENT 25, SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.