Judge Kerry Bensinger, Case Number: 22STCV34745, Date: 2024-09-03 Tentative Ruling

PLAINTIFF’S MOTION FOR PAYMENT OF ATTORNEY’S FEES AND REIMBURSEMENT OF COSTS AND EXPENSES

On October 31, 2022, Plaintiff Miguel Salas filed a Complaint against Defendant Volkswagen Group of America, Inc. for violations of the Song-Beverly Act.

On June 11, 2024, Plaintiff filed this Motion for Payment of Attorney’s fees and Reimbursement of Costs and Expenses.

Plaintiff seeks a total award of $57,544.50. This amount consists of attorney fees of $44,265.00, a lodestar multiplier of 0.3 for a fee enhancement of $13,279.50, and costs and expenses of $4,323.28.

On May 16, 2023, the parties agreed to settle the matter.¿ (Myers Decl., ¶¶ 46-50, Ex. L.) The agreement provides that Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act and authorizes recovery of fees and costs by motion.¿ (Id.) Accordingly, Plaintiff is entitled to an award of reasonable attorney fees as the prevailing party.¿ The only matter at issue is the reasonableness of the fees and costs requested.¿

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’”¿ “[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….”¿ (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)¿ In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’”¿ (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees.¿ (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.)¿

It is settled “ ‘that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court .... [Citations.] The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation.] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.’ ” (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096; accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [the “ ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and ... his judgment ... will not be disturbed unless the appellate court is convinced that it is clearly wrong” ’ ”].)

Plaintiff retained Bickel Sannipoli APC for this matter which involved work by attorneys Brian J. Bickel, Jordan K. Sannipoli, Sharona Silver, and John P. Myers, billing at hourly rates of $695, $605, $515, and $585, respectively. (Myers Decl., ¶ 61.)¿ Additionally, paralegals and legal assistants identified as “CW,” “MP,” and “MT” in the billing records) billed at $285 in 2024, $265 in 2023, and $235 in 2022.

Defendant argues the hourly billing rates for Plaintiff’s attorneys and non-attorneys are unreasonable. Defendant requests a reduction.

Based upon general prevailing rates in the Los Angeles area for this type of litigation, the court finds the reasonable rate for attorney billing is as follows: for lodestar purposes, the court will award a “blended” hourly rate of $500.00 per hour.¿ (See, e.g., Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 256 [trial court has discretion to award a “blended hourly rate” for attorney’s fees motion].)¿ The court further finds the reasonable rate for support staff billing to be $200.00 per hour.¿ This determination considers the complexity of the case, the quality of services provided, and the attorneys’ experience.¿

Plaintiff’s counsel’s records reflect a total of 86.6 billable hours spent litigating this matter. ¿(Myers Decl., ¶¶ 4-5, Ex. A.) Defendant argues the hours billed is excessive and unreasonable.

¿ “[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”¿ (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)¿¿¿

¿ Defendant objects to duplicative billing for “flat rate” services, billing for administrative tasks, block billing entries, the amount of billing given Plaintiff’s counsel’s use of template discovery, excessive and unnecessary time billed for depositions and taking non-appearances, and excessive billing in connection to this fee motion. Defendant challenges specific entries. (Opp., pp. 4-6.) Plaintiff contends they were reasonably incurred.

The court appreciates that this case progressed towards trial.¿ Along the way, Plaintiff served and responded to standard written discovery. Save for this motion, there was no law and motion practice.¿

Moreover, there was nothing particularly complex or unique about this case.¿ The issues involved were applicable to other consumers’ vehicles, thereby triggering economies of scale in terms of Plaintiff’s counsel’s efficiency in litigating this type of lemon law case.¿

Considering these facts, the court agrees that in some instances, the time quoted is excessive or unreasonable under the circumstances.¿¿Accordingly, the court finds the total amount of reasonable attorney’s fees in this case is $27,900.00 (50.8 hours at $500 per hour). This was calculated by reducing Plaintiff’s counsels’ billing entries as follows:

· 2.10 total hours block-billed by Ms. Silver on October 31, 2022. The entry includes various tasks, some of which are for clerical work which are not recoverable as attorney fees. The court reduces this entry by 1.10 hours.

· 15.6 hours block-billed by counsel for drafting, reviewing, and responding to written discovery. (See Oaks Decl., ¶ 23.) The court reduces these entries by 3.6 hours.

· 6 hours billed for drafting deposition notices, objections to the notices, and preparing certificates of non-appearance. (See Oaks Decl., ¶ 27.) The certificates, in particular, were unnecessary given that Defendant indicated that the deponents would not appear for deposition due to counsel’s unavailability. The court reduces these entries by 3 hours.

· 31.1 hours billed in connection with this fee motion. (See Oakls Decl., ¶ 28.) The time is excessive. The court reduces these entries by 16.1 hours.

The court in its discretion declines to apply a multiplier given this Song-Beverly case did not involve novel or complex issues of law.

Plaintiff seeks costs of $4,323.28. Defendant challenges the costs of $480.00 for personal service of deposition subpoenas and $2,881.50 for the taking of certificates of non-appearance for Defendant’s persons most knowledgeable depositions. The court agrees that the $2,881.50 were not reasonably incurred. As discussed above, Plaintiff was notified via Defendant’s properly served objections to the deposition notices that the deponents would not appear. Plaintiff should have met and conferred with other dates or moved to compel their depositions. Accordingly, the court will reduce the request for costs by $2,881.50.

Plaintiff is awarded attorney’s fees in the sum of $31,400.00, and costs in the sum of $1,441.78, for a total award of $32,841.78.

Kerry Bensinger

Judge of the Superior Court