Judge: Malcolm Mackey, Case: 21STCV05965, Date: 2023-05-05 Tentative Ruling

Case Number: 21STCV05965    Hearing Date: May 5, 2023    Dept: 55

ABDELMALAK v. MERCEDES-BENZ USA, LLC,                              21STCV05965

Hearing Date:  5/5/23,  Dept. 55.

#3:   MOTION FOR ATTORNEY’S FEES AND EXPENSES.

Notice:  Okay

Opposition

MP:  Plaintiff.

RP:  Defendant.

Summary

On 10/25/22, the Court received Plaintiff’s Notice of Settlement (unconditional), for $35,000.00, of this Lemon-Law case.

MP Positions

Moving party requests an order awarding attorneys’ fees and expenses, in the amounts of $41,553.81 as fees, $794.81 as costs, plus $3,750.00 related to filing this motion, on grounds including the following:

·         On 10/13/22, Plaintiff executed Defendant MERCEDES-BENZ USA, LLC’s Offer to Compromise.

·         The motion is brought to determine reasonably incurred costs, expenses, and attorney’s fees (Civ. Code § 1794(d)) that Defendant obligated itself to pay.

·         Plaintiff submitted detailed time records for all persons who have worked on this matter, and receipts for all costs and expenses incurred (motion, exh. “B”.)

·         Attorney Jacob Kashani is an experienced attorney, with multiple past and present Song-Beverly cases in litigation in this Court, and whose rates (between $550 and $675) have been deemed reasonable by other Superior Court judges.

·         This case was litigated 1.5 years.

·         Having chosen to litigate tenaciously to avoid its legal responsibility to pay statutory fees, Defendant should now be ordered to reimburse Plaintiff for the full costs.

RP Positions

Opposing party advocates reducing the amount to no more than $13,660.00, for reasons including the following:

·         Courts have recently been exercising discretion to greatly reduce attorneys’ fee awards in Lemon Law cases.  E.g., Mikaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240 (upholding a trial court’s 72% reduction in the requested fees in a Song-Beverly Act case);  Morris v. Hyundai (2019) 41 Cal.App.5th 24.

·         Plaintiff’s Motion seeks reimbursement for work at the exorbitant rates based on his fee rates from 2020 ($550), 2021 ($575), and 2022 ($625).   The types of rates claimed by Plaintiff in Song-Beverly actions have recently been reduced by courts, because they do not reflect the reasonable rates for attorneys in the field. (See Exhibits A, B, and C to the Declaration of Jonathan J. Kim “Kim Decl.”)  Here, $400 should be the maximum rate.

·         Plaintiff’s case was not handled exclusively by one attorney. There are several entries where Ms. Erika Lipcsey, outside counsel, provided legal services on Plaintiff’s behalf.

·         In addition, no paralegals are listed in the invoice, but certain paralegal tasks such as drafting simple pleadings and conducting brief communications were handled by Mr. Kashani.

·         Plaintiff’s counsel’s billing includes many examples of inefficiencies and overbilling. Plaintiff’s counsel billed approximately 68.05 hours for this matter. This necessarily resulted in inefficiency and avoidable duplicative work.  See more listed at opposition pages 3 through 6.

·         Defendant had every right to conduct and respond to discovery and ultimately settle after performing its investigation regarding Plaintiff’s claims.

Tentative Ruling

The motion is granted, as prayed.

The Court awards to Plaintiff attorneys' fees and costs in the sum of $46,098.62 against Defendant.

Moving counsel’s declaration and billing summary suffices to shift the burden, but the opposing evidence is unhelpfully just counsel’s declaration authenticating other trial courts’ rulings (opposition, p. 11).

Opposition pages 3 through 6 primarily base the conclusion of unreasonable billings, by complaining about vague block billing, but that type of billing is permissible.

Further, those pages assert misrepresentations of durations, such as conferences or a deposition, without proof of what the different durations were.

Additionally, those pages often assert that a paralegal or secretary should have done some tasks, but attorneys also commonly do such tasks (like drafting complaints), and no governing law requires more use of staff in order to make attorneys’ fees reasonable.

Also, those pages assert some duplications, but without providing sufficient detail to reason there was such duplication.

The Court finds that the billing rates, between $550 and $625 are standard in the local profession involving Lemon Law, and reasonable.  The rates awarded by other trial judges (opposition, p. 8), do not govern here.

            Movant’s Burden

In supporting attorneys’ fees motions, “ ‘there is no required level of detail that counsel must achieve.’ ”  Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 699.  Attorney billing records are not required, but there must be some evidence in support of fees. Weber v. Langholz (1995) 39 Cal. App. 4th 1578, 1587.   “It is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method…. Declarations of counsel setting forth the reasonable hourly rate, the number of hours worked and the tasks performed are sufficient.”  Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324.  Records amounting to vague block billing are not objectionable per se, but the strategy may lead to trial courts’ discretionary curtailing of the number of compensable hours.   Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1325.

As to Song–Beverly warranty claims, prevailing buyers have the burden to show that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable amounts.  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.  Under the Song-Beverly Act, the question whether attorneys’ fees were reasonably incurred may depend on circumstances including, “factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved.”  Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470.  The appellate court reviews awards of attorney fees under Civil Code section 1794, subdivision (d), for abuse of discretion.  Doppes, supra, at 998.

Civil Code Section 1794(d) requires a court to base the attorneys’ fee award on actual time expended on the case, and reasonably incurred, as to time spent, and amount, under all circumstances including complexity of the case, procedural demands, skill exhibited, and results achieved.  McKenzie v. Ford Motor Co. (2015) 238 Cal. App. 4th 695, 698, 703 (reversing a judge’s denial of fees where based on instances of duplicative work).  “The ‘plain wording’ of section 1794, subdivision (d) requires the trial court to ‘base’ the prevailing buyer's attorney fee award ‘upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.’ ”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 35.  Accord  Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.  But see  Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1110  (as to the Song-Beverly Act, fee awards must be based on the judge’s calculation of actual time expended determined to have been incurred reasonable, and the Act does not include a requirement that the court also determine that the amount of attorneys’ fees is reasonable). 

“[I]t is inappropriate and an abuse of a trial court's discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff's damages or recovery in a Song-Beverly Act action, or pursuant to another consumer protection statute with a mandatory fee-shifting provision.”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 37.  Accord  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 35.  Under the Song-Beverly Act, awards of attorney fees are limited to actual hours expended and reasonably incurred, and not based on the amount of the prevailing plaintiff's damages or recovery, or the fact of a contingency fee agreement.  Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1112-1117.

Opposing Burden

Cases cited in the opposition involved distinguishable evidence and issues.  In one Lemon Law case, there was substantial evidence amply supporting the trial court's reduced fee award, based on a record demonstrating the relative simplicity of plaintiff's lawsuit and the inefficiency of counsel’s activities.  See Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 255.  “‘In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the 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.  Accord  Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 848.  Parties opposing motions for attorneys' fees fail to show any abuse of discretion where they merely contend that amounts of attorneys' fees are excessive without providing a specific analysis or factual support.  Mallard v. Progressive Choice Ins. Co.  (2010) 188 Cal.App.4th 531, 545;  Raining Data Corp. v. Barrenechea  (2009) 175 Cal.App.4th 1363, 1376 (an “‘assertion [that] is unaccompanied by any citation to the record or any explanation of which fees were unreasonable or duplicative’ is insufficient to disturb the trial court's discretionary award of attorney fees.”);  Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1250;  Avikian v. Wtc Fin. Corp. (2002) 98 Cal. App. 4th 1108, 1119;  Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 560  (emphasizing that opposing parties “submitted no evidence that the hours claimed by counsel were excessive,” and declining to “declare as a matter of law that the hours were unreasonable”);  Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1204 (opposing party “offered no evidence of any kind which might have warranted a reduced fee award.”).

                        Reasonable Amount

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  PLCM Group v. Drexler (2000) 22 Cal.4^th 1084, 1095;  Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.

                        Billing Rates

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.  Judges are not required to award the market rate of attorneys’ fees, and may have discretion to determine that the actual rate charged was reasonable.  Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702. 

                        Staffing

Here, the very small number of attorneys is not overstaffing.  “[I]t is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 39.  A court “ ‘indicated a fee reduction was warranted because it was unreasonable to have so many lawyers staffing a … case that did not present complex or unique issues, did not involve discovery motions, and did not go to trial.’ ”  Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 253.

                        Governing Law

The Court does not appreciate references to other state trial court decisions, since they are not governing or relevant.  Trial court rulings are not binding precedent.  E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.  Rulings in other trial court cases are irrelevant absent some additional showing like the elements of claim or issue preclusion.  Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448. 

                        Costs/Expenses

The Song-Beverly Act requires allowing costs “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution” of the case, which is reviewed under the abuse of discretion standard.  Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 813. See also generally  Duff v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal. App. 5th 491, 501  (summarizing Civ. C. § 1794(d)).

“[I]n enacting Civil Code section 1794, subdivision (d) the Legislature intended the phrase ‘costs and expenses’ to cover items not included in “ ‘the detailed statutory definition of ‘costs’ ” set forth in Code of Civil Procedure section 1033.5.”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 42, 43  (“it is indisputable that Warren ‘reasonably incurred’ the $5,882 cost of the trial transcripts ‘in connection with the ... prosecution of [the] action.’ ”). 

Vehicle buyers are entitled to reasonably incurred expert witness fees under Civil Code Section 1794(d) allowing costs and expenses.  Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-38.