Judge Kerry Bensinger, Case Number: 23STCV04392, Date: 2025-04-03 Tentative Ruling

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This is a Song Beverly action brought by plaintiff Dmitri Shistik (“Plaintiff”) and against defendant Kia America, Inc. (“Kia”).

On February 21, 2025, Plaintiff filed this Motion for Attorneys’ Fees, Costs, and Expenses.

Plaintiff’s unopposed request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

Plaintiff seeks a total award of $144,946.38, consisting of $95,475.00 in attorneys’ fees, a 0.5 multiplier enhancement in the amount of $47,737.50, and $1,733.88 in costs and expenses.

On August 19, 2024, the parties agreed to settle the matter. (Azimtash Decl., Ex. CC.) The settlement provides for attorney fees by motion under Civil Code section 1794, subdivision (d). (Id.)¿¿

(d) If 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.¿¿¿
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(Civ. Code, § 1794, subd. (d).)¿¿¿

The settlement provides that Plaintiff is the prevailing party under the Song-Beverly Consumer Warranty Act for the purposes of this motion.¿ Accordingly, Plaintiff is entitled to an award of reasonable attorney fees, costs, and expenses as the prevailing party.¿ The only matter at issue is the reasonableness of the requested fees.¿¿¿

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 Alexander Khoubian (Khoubian) and Sam Azimtash (Azimtash) for this matter. (See Azimtash Decl., Ex. EE.)¿ Mr. Khoubian billed at $450/hour. Mr. Azimtash billed at $500/hour.

¿ Kia contends the hourly billing rates for Plaintiff’s attorneys are unreasonable. Citing Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, Kia argues that the court should reduce the value of services rendered to $200 and $250, respectively. Defendant’s main points of contention are that Mr. Khoubian and Mr. Azimtash were admitted to practice law in California only recently in 2019 and 2020 and that their respective billing rates exceed the rates approved of in Mikhaeilpoor.

After consideration of the filings in connection to this issue, the court finds the billing rates to be reasonable. However, because Plaintiff does not provide the number of hours billed, as explained below, the court will apply a blended rate of $475.

Plaintiff submits counsel’s records which detail the hours spent litigating this matter. ¿(Azimtash Decl., Ex. CC.)

¿¿ “[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.)¿¿¿¿¿

Kia objects to excessive billing for communications with Plaintiff, Plaintiff’s counsel’s use of template discovery, document review, unwarranted motions to compel, and for preparing the attorney fee motion. Kia challenges specific entries. (Opp., pp. 5:1-8:2.) 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. There was very little 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.¿¿Further, a multiplier is not warranted. The court notes however that neither Plaintiff’s billing record nor Plaintiff’s motion sets forth the specific hours billed by Mr. Khoubian and Mr. Azimtash or the total hours billed. The court declines to do the math for counsel.[1] Instead, the court finds a reasonable award of attorney fees in this matter is $41,800 (88 hours at $475 per hour).

Plaintiff is awarded attorney’s fees in the sum of $41,800, and costs in the sum of $1,733.88, for a total award of $43,533.88.

Kerry Bensinger

Judge of the Superior Court

[1] Declaration of SA is not bookmarked. Exhibit EE fails to identify the total hours spent by each counsel. While itemized, the running list without totals is unmanageable. Moreover, the overall time is excessive in this type of case that resolved before trial.