Judge: Mark E. Windham, Case: 20STLC08166, Date: 2022-09-08 Tentative Ruling

Case Number: 20STLC08166    Hearing Date: September 8, 2022    Dept: 26

MOTION FOR ATTORNEY’S FEES

(Cal. Veh. Code § 11726; CCP §§ 1032, 1033.5)

TENTATIVE RULING:

Plaintiff Pacific Coast Highway Powersports, LLC’s Motion for Attorneys’ Fees and Costs is GRANTED IN THE AMOUNT OF $31,390.75.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract, breach of implied covenant of good faith and fair dealing, violation of Vehicle Code section 11713.13(d), and relief pursuant to Vehicle Code section 11726.

BASIS OF MOTION: As the prevailing party, award Plaintiff $63,861.50 in attorney’s fees and costs. 

OPPOSITION: Plaintiff is not entitled to attorney’s fees or costs because it has not shown that Defendant acted with willfulness. Alternatively, the attorney’s fees and costs should be denied as entirely unreasonable and excessive.

REPLY: Plaintiff was forced to litigate this action for two years to recover the monies wrongfully withheld by Defendant. Defendant could have resolved this dispute more efficiently but chose to ignore the law and facts, which Plaintiff had already provided before the action was filed. There is no justifiable reason to deny or reduce the fees sought.

ANALYSIS:

On September 29, 2020, Plaintiff Pacific Coast Highway Powersports, LLC (“Plaintiff”) filed this action against Defendant Piaggio Group Americas, Inc. (“Defendant”). The Complaint alleges a causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) violation of Vehicle Code section 11713.13(d); and (4) relief pursuant to Vehicle Code section 11726. Plainitff sought damages of $$12,858.57. The court granted Plaintiff’s Motion for Summary Judgment on April 7, 2022. (Minute Order, 04/07/22.)

Plaintiff filed the instant Motion for Attorney’s Fees and Costs on June 3, 2022. Defendant filed an opposition on August 24, 2022 and Plaintiff replied on August 31, 2022.

Discussion

Evidentiary Objections

Plaintiff’s evidentiary objections are ruled on as follows.

To Masserat Decl.:

·         Nos. 1-4, 6(1), 6(3), 7-11 are overruled;

·         Nos. 5 and 6(2) are sustained

To Patone Decl.:

·         Nos. 1-3 are overruled;

·         Nos. 4-5 are sustained

Entitlement to Attorney’s Fees

A prevailing party in entitled to recover costs, including attorneys’ fees when authorized by contract, statute, or law. (Code Civ. Proc., § 1032, subd. (a)(4); § 1033.5, subd. (a)(10).) A motion for attorneys’ fees must be filed and served with the time for filing a notice of appeal under Cal. Rules of Court Rule 8.822. (Cal. Rules of Court Rule 3.1702(a).) Cal. Rules of Court Rule 8.822 states that an attorneys’ fees motion must be filed within either (1) 30 days after the trial court clerk served the party filing the motion with notice of entry of judgment; or (2) 90 days after entry of judgment. (Cal. Rules of Court 8.822(1).) Here, the Motion is timely because judgment has yet to be entered.

It is undisputed that Plaintiff is the prevailing party in this action, as the party in whose favor the summary judgment was granted. (See Code Civ. Proc., § 1032, subd. (a)(4).) Accordingly, it is entitled to recover its costs under Code of Civil Procedure section 1033.5, subdivision (a). Those costs include reasonable attorney’s fees pursuant to Cal. Vehicle Code section 11726, for “pecuniary loss because of any willful failure by any other licensee to comply with any provision of Article 1 (commencing with Section 11700) . . . .” (Cal. Veh. Code, § 11726.) The Court’s ruling on the Motion for Summary Judgment expressly found that “Plaintiff’s evidence demonstrates that Defendant violated section 11726 of the Vehicle Code by causing Plaintiff to suffer ‘pecuniary loss because of any willful failure by any other licensee’ to comply with any other section of the Vehicle Code.” (Minute Order, 04/07/22, p. 6, ¶2.) To the extent defense counsel contends a contrary ruling was issued orally by the Court, this is not reflected in the record. (See Opp., Masserat Decl., ¶11.) The Court could not have made a finding in favor of Plaintiff on the fourth cause of action for violation of Vehicle Code section 11726 without a finding of willfulness. (See Cal. Veh. Code, § 11726 [“Any licensee suffering pecuniary loss because of any willful failure by any other licensee to comply with any provision of Article 1 (commencing with Section 11700) or 3 (commencing with Section 11900) of Chapter 4 of Division 5 or with any regulation adopted by the department or any rule adopted or decision rendered by the board under authority vested in them may recover damages and reasonable attorney fees therefor in any court of competent jurisdiction.”].)

Therefore, Plaintiff is entitled to an award of the reasonable attorney’s fees it incurred.

Amount of Attorney’s Fees

The Court’s objective is to award attorney’s fee at the fair market value based on the particular action.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  “The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)   “‘[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.)  The lodestar method is based on the factors, as relevant to the particular case: “(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.”  (Id. at 1132.)  “The ‘‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’’” (Id.) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.)

Plaintiff’s counsel’s firm had three attorneys working on this case: Julie S. Pearson billing at $390.00 per hour, Halbert S. Rasmussen billing from $550.00 to $615.00 per hour, and Dana Cohn billing at $315.00 per hour. (Motion, Pearson Decl., ¶¶15-17.) These rates are reasonable in light of the attorneys’ work experience and the rates charged in Southern California for comparable work. Plaintiff’s counsel also had paralegals’ work charged at $235.00 per hour and legal secretarial staff’s work charged at $145.00 per hour. (Id. at ¶¶18-19.)

The number of hours billed, however, is excessive. Plaintiff contends it billed 176.20 hours, which included 20.5 hours of time to prepare the instant Motion. (Id. at ¶14.) Yet the billing records only reflect 8.3 hours of attorney time billed on this Motion. (Id. at Exh. C, p. 10.) Also, the records include time billed for the declaration of Halbert Rasmussen, which is not part of the Motion papers. The Court is cognizant of the parties’ efforts in this action, which was vigorously litigated. (Ibid.) The Motion for Summary Judgment involved opposition and reply papers, as well as evidentiary objections. (Id. at ¶8.) Plaintiff opposed Defendant’s ex parte application to continue the hearing on the Motion Summary Judgment, which was ultimately granted. As a result, the Motion for Summary Judgment was heard just two weeks before the trial date, requiring Plaintiff to engage in additional discovery and trial preparations. (Id. at ¶¶6-7.) During this time, Plaintiff continued to engage in settlement negotiations with Defendant. (Id. at ¶8.)

However, there is evidence that Plaintiff’s counsel’s litigation and billing was overzealous. For example, Plaintiff advanced the hearing date on the instant Motion to July 5, 2022, despite notice that defense counsel was not available. (Opp., Masserat Decl., ¶10.) Plaintiff’s counsel then refused to stipulate to reschedule the hearing, forcing Defendant to bring an ex parte application. (Ibid.) The Motion also demonstrates that despite this action being worth only $12,858.57, Plaintiff’s counsel utilized a partner, a senior associate and a paralegal to work concurrently on the case, resulting in duplicative work. (Motion, Pearson Decl., ¶¶15-17 and Exh. C.) The paralegals’ work, in particular, overlapped extensively with that of the senior associate. (Id. at Exh. C.) Based on the foregoing, the Court finds the number of hours reasonable billed on this action by Plaintiff’s counsel to be half of what is sought to be compensated by the Motion.

Conclusion

Plaintiff Pacific Coast Highway Powersports, LLC’s Motion for Attorneys’ Fees and Costs is GRANTED IN THE AMOUNT OF $31,390.75.

Moving party to give notice.