Judge: Katherine Chilton, Case: 21STLC04956, Date: 2023-04-06 Tentative Ruling

Case Number: 21STLC04956     Hearing Date: April 6, 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:

Plaintiff’s Motion for Attorney’s Fees and Costs After Settlement is GRANTED as follows: $7,290.00 in attorney’s fees and $479.50 in costs, for a total of $7,769.50.

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 April 4, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of April 4, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 7, 2021, Plaintiff Debbie Anne Lallave (“Lallave”) filed an action against Fair Servicing, LLC (“Defendant” or “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, signed by both parties.  Plaintiff filed a Notice of Settlement on January 24, 2022.

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.)

On December 27, 2022, Plaintiff filed the instant Motion for Attorney’s Fees and Costs After Settlement (“Motion”).

On February 28, 2023, the Court noted certain deficiencies in the Motion and continued the hearing to March 30, 2023.  (2-28-23 Minute Order.)  The Court also ordered the Answer filed by Defendant on August 23, 2021, stricken, as Defendant had failed to retain counsel as previously ordered.  (Ibid. at p. 5.)

On March 7, 2023, Plaintiff filed additional papers.

On March 30, 2023, the Court, on its own motion, continued the hearing on the Motion to April 6, 2023.  (3-30-23 Minute Order.)

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

On December 27, 2022, Plaintiff filed the instant Motion for Attorney’s Fees and Costs After Settlement.  On February 28, 2023, the Court noted that Plaintiff had filed a defective Notice that did not list the name or address of the courthouse where the hearing on the Motion would take place.  (2-28-23 Minute Order.)  Furthermore, Plaintiff stated that the Motion is based on the Court’s judgment entered on November 2022, but there is no Court order dated November 30, 2022.  (Ibid.)  Given that the Court was not presented with a proper judgment date, it could not determine whether the Motion was timely.  (Ibid.)  For these reasons, the Court continued the hearing on the Motion.  (Ibid.)

On March 7, 2023, Plaintiff filed Supplemental Notice and Points and Authorities in Support of Motion.  The Court finds that Plaintiff has corrected the Notice of Motion to include the address of the Spring Street Courthouse.  (Supp. Notice p. 1.)

Plaintiff has also submitted a copy of the Offer to Compromise and Acceptance Under Code of Civil Procedure § 998 (“§ 998 Offer”), signed by both parties.  (Supp. Notice - Cooper Decl. ¶ 2, Ex. C.)  Plaintiff states that the prior reference to a “judgment” was a typographical error.  (Supp. Notice p. 2.)  Plaintiff’s counsel explains that the Offer was served by regular mail on Defendant on October 26, 2021, and accepted by Defendant on November 30, 2021.  (Supp. Notice - Cooper Decl. ¶ 2, Ex. C.)  Considering mailing time, the Offer was timely accepted.  (Ibid.)  The § 998 Offer was filed with the Court on December 7, 2021.  On December 27, 2022, Plaintiff filed the instant Motion for Attorney’s Fees.  Given that no judgment has been entered and the § 998 does not provide for a time limit for requesting attorney’s fees and costs, the Court finds the instant Motion was filed timely.

Plaintiff seeks attorney’s fees and costs in the amount of $7,769.50.  (Mot. pp. 1-2.)  Plaintiff states that she is entitled to attorney’s fees and costs pursuant to the § 998 Offer, as she was deemed the prevailing party.  (Ibid. at p. 3.)  According to the § 998 Offer, attorney’s fees and costs would either be determined by stipulation or by a noticed motion.  (Ibid.)  Plaintiff states that the parties could not agree on an amount, and therefore, Plaintiff filed the instant Motion.  (Ibid.)  Defendant has not opposed the Motion.

Code of Civil Procedure § 1032 provides that the prevailing party in an action is the one “with a net monetary recovery” and “is entitled as a matter of right to recover costs in any action or proceeding.”  (Code of Civ. Proc. § 1032(a), (b).)  Furthermore, the California Supreme Court has found that “[w]hen a defendant pays money to a plaintiff in order to settle a case, the plaintiff obtains a ‘net monetary recovery.’”  (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140.)  Accordingly, as the parties have settled and Defendant has agreed to compensate Plaintiff, the Court finds that Plaintiff is the prevailing party in the instant action.  The Court also finds that the § 998 Offer allows for attorney’s fees and costs as it states that “Fair will pay Plaintiff’s costs, expenses and attorney fees, in accordance with California Civil Code section 1794(d), in a reasonable amount to be negotiated by the parties, or in the alternative, in an amount to be determined by the Court by way of a noticed motion.”  (12-7-21 Offer to Compromise.)

Plaintiff seeks attorney’s fees in the amount of $7,290 and costs in the amount of $479.50, for a total of $7,769.50.  (Mot. pp. 1-2.)  Plaintiff has submitted its attorneys’ billing records “made contemporaneously with all work performed.”  (Mobasseri Decl. ¶ 2, Ex. A.)  The billing rates for Plaintiff’s representatives in the instant case are as follows: Counsel Mobasseri – 1.3 hours at a rate of $550 per hour, Counsel Cooper – 10.5 hours at a rate of $525 per hour, and paralegal Steven Berkowitz, J.D. – 4.25 hours at a rate of $250 per hour.  (Ibid. at ¶ 4.)  Plaintiff argues that “[a]ll of the time on the fee bill represents time that was necessary under the circumstances to competently and professionally litigate this lawsuit.”  (Ibid.)  Counsel Mobasseri states that his firm has extensive knowledge and experience in the area of consumer protection and automobile litigation.  (Ibid. at ¶¶ 4-7.)  Plaintiff also argues that the hours spent litigating the case and the hourly rates are reasonable and Defendant has “the burden of proving specific instances of unnecessary or duplicative billing.”  (Mot. pp. 6-7.)  Plaintiff has submitted evidence of community rates for attorneys within the field and rates approved by the Courts of Appeal in various Southern California districts for consumer-law litigators, ranging between $400 to $650 per hour.  (Ibid. at pp. 7-8; Mobasseri Decl. ¶¶ 8-10, Exs. C-D.)  Plaintiff argues that Counsels Cooper and Mobasseri’s rates are consistent with these rates.  (Mot. p. 7.)  Plaintiff also states that paralegal and clerical time are recoverable and included in the request for attorney’s fees.  (Ibid. at pp. 8-9.)

In determining the reasonable amount of attorney’s fees, the Court considers the complexity of the tasks, number of hours expended on each task, and other necessary factors.  Having reviewed the billing statement submitted by Plaintiff’s counsel, the Court finds that the hours expended on litigating the case are reasonable and the billing rates are commensurate with those of attorneys and paralegals of similar levels of experience.

Plaintiff also seeks litigation costs, including costs of filing, service fees, and expert expenses.  (Mot. p. 8; Mobasseri Decl. ¶ 2, Ex. A.)  The Court finds the filing fees outlined in the billing statement, in the amount of $479.50 to be reasonable.

Accordingly, the Court grants Plaintiff’s Motion for Attorney’s Fees and Costs as follows: $7,290.00 in attorney’s fees and $479.50 in costs, for a total of $7,769.50.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees and Costs After Settlement is GRANTED as follows: $7,290.00 in attorney’s fees and $479.50 in costs, for a total of $7,769.50.

Moving party is ordered to give notice.