Judge: Layne H. Melzer, Case: 19-01111509, Date: 2022-07-28 Tentative Ruling
Pltf. John Romero
Motion for Attorney Fees
Plaintiff’s motion for attorney’s fees and costs/expenses is GRANTED IN THE AMOUNT OF $33,780 for fees and $4,638.15 in costs/expenses.
A. Attorney’s fees
Courts use the lodestar adjustment method to determine the amount of attorney’s fees to award in Song-Beverly actions. (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1112.) “[T]he lodestar is the basic fee for comparable legal services in the community.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) It is “based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’ [Citation.] [The California Supreme Court] expressly approved the use of prevailing hourly rates as a basis for the lodestar… In referring to ‘reasonable’ compensation, [the Court] indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation. (Id., at p. 1131-1132.)
“The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased. Such an adjustment is commonly referred to as a ‘fee enhancement’ or ‘multiplier.’ [Citation.]” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) The lodestar may be adjusted based on factors which include (1) the complexity of the case, (2) the attorney’s skills, (3) the results achieved; (4) whether the case was taken on a contingency. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1134; (Mikhaeilpoor, supra, 48 Cal.App.5th 240 at p. 247.) “The purpose of [the] 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.” (Ketchum, supra, 24 Cal.4th at p. 1132.) “In exercising its discretion to award a multiplier for contingent risk, the trial court ‘should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome.’ [Citation.] It should also consider the extent to which taking the case on a contingent fee basis has precluded the attorney from taking other fee-generating work. [Citation.]” (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1188.) The trial court is neither foreclosed from, nor required to, award a multiplier. [Citations.]” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.)
“The prevailing party and fee applicant bears ‘the burden of showing that the fees incurred were ... “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ [Citations.]… [I]f the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, ‘then the court must take this into account and award attorney fees in a lesser amount.’ [Citation.]” (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247; see Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1186 [It is not enough merely to state that counsel expended a certain number of hours in representing the client; fees motion must affirmatively demonstrate that the hours spent were reasonable and necessary].)
“‘[T]he lodestar method vests the trial court with the discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation’ [Citation] and to determine the hourly rates that should be used in the lodestar calculus. [Citation.]” (Mikhaeilpoor, supra, 48 Cal.App.5th at pp. 246-247.) “The experienced trial judge is the best judge of the value of professional services rendered in his court… [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
Hourly rate of compensation
In support of his fees request, Plaintiff submitted a declaration from John P. Myers, the custodian of time records for the attorneys this case. [Myers decl., ¶ 3]
1. Attorneys
Five attorneys billed time in the case at the following rates [Myers decl., ¶ 6 and Exh. B]:
· Brian Bickel: $665/hr
· Jordan Sannipoli: $495/hr in 2020, $565/hr in 2021, and $585/hr in 2022
· John P. Myers: $405/hr in 2019, $435/hr in 2020, $475/hr in 2021, and $515/hr in 2022
· Nicolas Dillavou: $345/hr in 2019 and $375/hr in 2020
· Stephanie Pengilley: $515/hr in 2021.
Myers states that Bickel Sannipoli APC (“Firm”) is a law firm that exclusively practices Song-Beverly lemon law claims and represents all of its clients on a contingency basis. [Myers decl., ¶ 82] He states that a “significant majority of cases handled by the firm have settled for statutory repurchase.” [Id.] Brian Bickel is the founder of the Firm, has been practicing since 1999, represented thousands of California consumers in Song-Beverly cases since January 2020, and has won every case he has tried. [Id., ¶ 83] Jordan K. Sannipoli is a named partner; she has litigated Song-Beverly cases since 2015 and is undefeated as lead trial counsel. [Id.] John Myers has been licensed since 2017 and has tried several lemon law cases. [Id.] Nicolas M. Dillavou was licensed to practice in 2019, has second-chaired a trial, and settled numerous cases. [Id.] Stephanie S. Pengilley is a senior counsel, licensed to practice in 2015 and has obtained several trial verdicts. [Id.]
To support the attorney rates claimed, Myers listed a sample of hourly rates for attorneys handling Song-Beverly cases in Los Angeles, San Diego, Santa Clara, Santa Cruz, Orange, San Francisco, Riverside counties that range between $550 to $750 per hour. [Myers decl., ¶ 86] While the list states the year each attorney started practicing, there is no description of their skill or level of experience to justify the rates. The most junior attorney on that list started practicing in 2014 and purportedly bills at $550/hr. Myers did not provide any information regarding rates for attorneys of varying years of experience, such as junior, mid-level, or senior associates or partners.
Myers also summarized a list of Song-Beverly cases the firm has litigated and received 100% of the lodestar requested or the fees based on the hourly rates requested. [See Myers decl., ¶ 88] The summary is not particularly insightful, as Myers did not state that the firm has always received what it requested so that implication is that the list is only of the positive outcomes. All but one of the cases are trial court cases that are not verifiable. The single Court of Appeal case Myers cites to is an unpublished opinion, Bettenhausen v. Ford Motor Co. (2014) 2014 WL 1303613. However, the trial court in that case awarded what Myers’ firm requested because the motion was unopposed. The Court of Appeal affirmed the fees decision largely due to the defendant’s failure to provide an adequate record on appeal and to preserve arguments by objecting in the trial court. Moreover, Plaintiff cannot cite to an unpublished opinion and did not set forth an exception to the rule. (Rules of Court, rule 8.1115(a).)
Plaintiff bears the burden of showing that the hourly attorney rate sought is reasonable, but he did not meet that burden. All the attorneys are contingency attorneys and do not have actual billable rates. The two attorneys, Nicholas Dillavou and John Myers, who billed most of the time, have been in practice since 2019 and 2017, respectively. Dillavou worked on this case a first-year attorney and Myers as a third-year attorney. Thus, the sample rates provided do not support the rates sought, as they were rates for much more senior attorneys. Plaintiff has not demonstrated that this case is anything more than a garden-variety lemon law case that resulted in a repurchase. The case was simple enough to allow two junior associates to work on most of it. Other than Defendant’s venue motion, there was no law and motion in this case. A review of the litigation history and billing statement shows that basic discovery was conducted, and the case settled.
Based on the court’s own knowledge and familiarity with lemon law cases, the nature of the work performed in this case, and the evidence provided by the parties, the court finds the following hourly rates to be reasonable and commensurate with the prevailing rate charged by attorneys of similar skill and experience in the community: Myers - $300, Dillavou - $250. The court finds this case did not warrant more than two attorneys working on it. As such, for the remaining, more senior attorneys, Sannipoli and Pengilley, who marginally participated in the case, for non-supervisory tasks Myers could have performed, the court finds their reasonable rate to be $350. For the few supervisory tasks on the billing statement, the court finds that the reasonable rate for Bickel is $400.
2. Paralegals/law clerks and legal assistants
Paralegal and other support services may be included in a fee award. (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951; Guinn v. Dotson (1994) 23 Cal.App.4th 262, 268-269.)
Plaintiff also claims work by paralegal/law clerks at $195/hr and legal assistants at $145/hr in 2020 and $165/hr in 2021. Myers stated that six individuals billed as paralegals, law clerks or legal assistants. [Myers decl., ¶ 83] He did not support the rates of $195/hr for paralegals and law clerks and $145-165/hr for legal assistants. He only stated that “each paralegal has either graduated with a certificate from an ABA-approved school or obtained a certificate upon passing the proper examination” and that “[e]ach law clerk has graduated from an ABA-approved law school.” [Id.]
Plaintiff did not meet his burden of showing that the hourly rates sought for the paralegals/law clerks and legal assistants are reasonable. Myers did not state that those individuals actually billed out at the rates claimed or what the prevailing rates for those types of individuals are. Based on the court’s own knowledge and familiarity with lemon law cases, the nature of the work performed in this case, and the evidence provided by the parties, the court finds the reasonable hourly rate for paralegals/law clerks to be $150/hr. As for legal assistants, the court exercises its discretion and denies any award for their time because made Plaintiff made no showing whatsoever as to their qualifications to justify excessive rates of $145-$165/hr for clerical services.
Amount of time spent
With the exception of the time spent on the subject fees motion, discussed infra, a review of the litigation history and the entire billing statement submitted by Plaintiff shows that the time spent by the attorneys initially appear to have been reasonably necessary to conduct the litigation of the case.
When a party challenges the reasonableness of the number of hours billed, it has the burden “to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564). “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Ibid.)
Defendant submitted a declaration by its counsel, Ian G. Schuler, which included a table of objections to each item in the billing statements. [Schuler decl., ROA 98, ¶ 2 and Exh. A] A review of Defendant’s line-item objections show that it seeks reductions of time spent based on: (1) block billing; (2) double billing; (3) billing for administrative tasks; and (4) excessive billing. The court will refer to the item numbers listed in Defendant’s line-item objections.
1. Block billing
Although the use of block billing is not per se objectionable, if it is used to obscure the nature of the work performed, that may justify a reduction in the amount of fees claimed. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1324-1325; see Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010-1011.) In such instances, a court may “exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them aside.” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 689.)
Defendant’s assertion of block billing is overstated. A review of the billing statement shows that certain related tasks were grouped together, which does not warrant a claim of block billing. For unrelated tasks billed together, there is no indication that it was done to obscure the nature of work performed. The only item that merits the claim of block billing is the #1, in which counsel billed 9.0 hours for a laundry list of rendered in October and November 2019 before the filing of the complaint. Those nine hours appear to represent an initial consultation, but counsel’s use of block billing makes it impossible to ascertain whether the time claimed is reasonable. As such, the court finds the 4.5-hour reduction Defendant seeks is justified.
2. Double or duplicative billing
Defendant’s claims of double billing involve attorneys meeting or emailing with each other (items 54, 136-137, 161 and 163) and duplicate work (items 64, 116, 151).
Items 54, 136-137, 161 and 163 involve a total of 2.8 hours where the junior attorneys consulted with the senior partner, Bickel. The court finds the time spent supervising a junior attorney is reasonable.
The claims of work in item 64 as duplicative of item 63, item 116 as duplicative of 114, and item 151 as duplicative of item 150 are unjustified. Items 64, 116, and 151 described work performed on different dates. The court finds that the work described in items 64, 116, and 151 are not duplicative.
3. Billing for administrative tasks
Plaintiff requests 19.1 hours for paralegal/law clerk and legal assistant time spent.
As previously noted, time spent by support staff may be awarded. However, purely clerical or secretarial tasks should not be billed at a lawyer or paralegal's usual rate, regardless of who performs them. (Missouri v. Jenkins (1989) 491 U.S. 274, 288, fn. 10.) Calendaring, preparing proofs of service, internal filing, preparing binders for a hearing, and scanning are examples of tasks that have been found to be purely clerical and thus noncompensable or compensable at a reduced billing rate. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1187; Ridgeway v. Wal-Mart Stores Inc. (N.D. Cal. 2017) 269 F.Supp.3d 975, 991.)
The court finds that items 3, 4, 6, 11, 12, 13, 18, 19, 20, 23, 24, 26, 37, 40, 43, 45, 47, 65, 67, 71, 73, 76, 77, 82, 85, 87, 91, 96, 97, 98, 100, 102, 105, 108, 109, 110, 112, 120, 130, 145, 169, and 171-182 detail purely clerical tasks that were performed by a mix of paralegals/law clerks and legal assistants. Those tasks should have been performed by a legal assistant. Because Plaintiff did not justify a rate of $145-165/hr for legal assistants, the court exercises its discretion and denies compensation for the time claimed as unreasonable and excessive.
The court finds that items 5, 17, 22, 31, 52, 62, 69, 81, 84, 94, 104, and 155 detail a combination of work that constitutes paralegal/law clerk tasks and purely clerical tasks. Because the block billing makes it impossible to ascertain the time spent on paralegal/law clerk tasks, the court exercises its discretion and denies compensation as unreasonable.
The court finds items 35 and 170 detail paralegal work of 0.7 hour and is compensable at $150/hr.
4. Excessive billing
Defendant objects to item 2 as overbilling and block billing. Item 2 details work by a paralegal in putting together a file, drafting a repair history summary, drafting the complaint, etc. for a total of 4.0 hours. The court finds that the time spent is reasonable, but should be compensated at $150/hr.
Defendant objects to items 50, 51, 61, 80, 83, 95, 99, and 101, tasks performed by attorneys and asserts that there is overbilling because of the case is simple. The court finds there is nothing in the description of the tasks that indicates that the time spent was excessive.
Defendant objects to item 88 as overbilling due to padding. Item 88 describes 3.2 hours for taking a deposition and leaving a voicemail. Defendant states the deposition only lasted 2.6 hours and was taken via zoom. Plaintiff did not respond in reply. As such, the court finds that a reduction of 0.6 is warranted.
Lastly, Defendant objects to overbilling for time claimed for this fees motion. A review of the billing statement shows 27.7 hours spent on the fees motion and estimated another 20.0 hours to review the opposition and draft a reply. [See items 184-193] The 47.7 hours claimed represents almost 40% of the total attorney time claimed. The court finds that Plaintiff’s fee motion is over-litigated, primarily in an attempt to support excessive hourly rates. The time spent is unreasonable and is reduced collectively to 25 hours.
Summary of lodestar
Bickel billed 2.1 hours for supervisory tasks. At $400/hr, the reasonable compensation for Bickel’s time is $840.
Senior attorneys Sannipoli and Pengilley billed 8.7 hours and 6.1 hours, respectively, for non-supervisory tasks that the court finds could have been performed by Myers. Those hours (14.8) are added to Myers’ hours. Myers claimed a total of 81.2 hours. The time is reduced by 4.5 hours (item 1), 2.7 hours (items 184-193) and .6 hours (item 88). Myers total compensable time is 88.2 hours. At $300/hr, the reasonable compensation for Myers’ time is $26,460.
Dillavou claimed a total of 23.1 hours. At $250/hr, the reasonable compensation for Dillavou’s time is $5,775.
The paralegal/law clerk work of 4.7 hour at $150/hr is $705.
After taking all of the above into account, the court exercises its discretion in concluding that the reasonable attorney’s fees incurred by Plaintiff’s counsel to prevail in this case is 33,780.
Plaintiff’s enhancement request
Plaintiff seeks a 0.3 enhancement of $18,387.75.
The court exercises its discretion and denies Plaintiff’s request for an enhancement. Other than stating that they took the case on a contingency basis and obtained the buy-back of the vehicle, Plaintiff’s counsel does not explain why an enhancement is warranted. This case settled with minimum litigation. Counsel did not state that this case involved any complex issue, required a specific or unusual skill set, or was riskier than the usual contingency case. Counsel did not cite to any cases to show that those two factors warrant an enhancement in every case and failed to set forth any circumstance that takes this case outside the norm.
B. Costs
Plaintiff filed a memorandum of costs and submitted a declaration by John Myers to support it. [ROA 75, 80] The costs and expenses appear to be proper and Defendant did not contest them. Therefore, Plaintiff’s claim of $4,638.15 for costs and expenses is awarded.
In sum, Plaintiff’s motion for attorney’s fees and costs/expenses is GRANTED IN THE AMOUNT OF $33,780 for fees and $4,638.15 in costs/expenses.
Plaintiff to give notice of ruling.