Judge: Mark E. Windham, Case: 20STLC08166, Date: 2024-04-23 Tentative Ruling
Case Number: 20STLC08166 Hearing Date: April 24, 2024 Dept: 26
Pacific Coast Highway Powersports, LLC v. Piaggio
Group Americas, Inc., et al.
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 $208,770.49
ATTORNEY’S FEES.
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 a Motion for
Attorney’s Fees and Costs on June 3, 2022, which came for hearing on October
11, 2022. The Court awarded Plaintiff attorney’s fees of $31,430.26, reduced
from a request of $63,861.50. (Minute Order, 10/11/22.) Following Plaintiff’s
appeal of the Court’s award, the Appellate Division issued a remitter on
November 28, 2023 reversing the award and remanding to “the trial court to
determine a reasonable attorney’s fees award in a manner consistent with the
law and this opinion.” (Remittitur, 11/28/23, p. 8.)
On December 20, 2023, the Court
entered as an order the parties’ stipulation to extend the deadline for
Plaintiff to extend the deadline to file its Motion for Attorney’s Fees After
Appeal (“Second Fees Motion”) to January 26, 2024. Plaintiff filed the instant
Motion for Attorney’s Fees on January 17, 2024, which was originally set for
hearing on February 8, 2024. The hearing was then continued by ex parte
application to April 24, 2024. On April 11, 2024, Defendant filed an opposition
and Plaintiff replied on April 17, 2024. Defendant filed an objection on April
18, 2024 to which Plaintiff filed a response on April 19, 2024.
Entitlement to Attorney’s Fees
The Court previously determined that Plaintiff
is entitled to an award of the reasonable attorney’s fees it incurred in the
trial court action. (Minute Order, 10/11/22.) The Appellate Division also
awarded Plaintiff its costs on the appeal. (Remittitur, 11/28/23, p. 8.)
Evidentiary Objections
Defendant objects to paragraphs 6-12, 21,
24-30, 34, 38, 50-54 of the Pearson declaration in support of the Motion;
paragraphs 1-14 of the Bailey declaration; paragraphs 1-10 of the Bento
declaration; and paragraphs 1-12 of the Paliwoda declaration. The objections
are overruled.
Plaintiff objections to portions of the
Conlon and Wileman declarations are sustained.
Request for Judicial Notice
Defendant’s request for judicial notice is
granted solely as to the registrar of actions in this case. The request for
judicial notice of two, unpublished trial court rulings is denied as irrelevant
to this action. Judicial notice of unpublished decisions is only
permitted when “relevant under the doctrine of law of the case, res judicata or
collateral estoppel.” (In re Bush (2008) 161 Cal.App.4th 133, 146
[citing Cal. Rules of Court rule 8.1115(b)(1)].)
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 request for attorney’s fees concerns three
separate time periods, as follows: (1) trial court proceedings prior to the
appeal; (2) trial court proceedings after the appeal; and (3) appellate
division proceedings. The Court will address each time period, in turn.
Trial Court Proceedings Prior to the Appeal
For the time from the start of the litigation
on July 6, 2020 to November 2, 2022, Plaintiff moves for an award of $87,460.99
in attorney’s fees and $1,000.99 in costs. (See Memo of Costs, filed 05/18/22;
Pearson Decl., ¶6 and Exh. 1.) During this time, 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.) These professionals
billed 104.1 hours of time. (Id. at ¶6.)
($550-$615), 34 ($235), 44 ($315), 40 ($390),
52 ($235),
Plaintiff contends it billed 246.4 hours,
which included 20.5 hours of time to prepare the initial Motion for Attorney’s
Fees (Id. at ¶14.) 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 initial Motion for Attorney’s Fees 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.) This
resulted in $3,652.00 in unnecessary attorney’s fees billed from June 29, 2022
to July 29, 2022. (Motion, Pearson Decl., Exh. 1.) Defendant also argues that
the Motion for Summary Judgment was billed at $30,010.00, including more than
32 hours for the initial memorandum and 16.6 hours for the reply memorandum.
The Court agrees that this amount of time for the Motion for Summary Judgment
was unreasonable, having read the papers and prepared the ruling thereon.
Although the Complaint alleged four causes of action, the gravamen of the case
was Defendant’s failure to pay Plaintiff the benefits of the 2019 Bonus
Program. (Minute Order, 04/07/22.)
However, the Motion for Summary Judgment was fully briefed and involved
evidentiary objections by Plaintiff that were sustained. Therefore, the Court
finds the time spent should be reduced by ten hours billed at $235.00, in the
amount of $2,350.00. (Motion, Pearson Decl., Exh. 1.)
To the extent Defendant broadly argues that
the attorney’s fees billed on the Motion for Summary Judgment, or the initial
Motion for Attorney’s Fees was unreasonable because they amounted to so much
more than the total possible judgment, the opposition does not cite any
authority that holds the total judgment is an appropriate measure of the fees
incurred. Therefore, the amount billed on trial proceedings for the period of
July 6, 2020 to November 2, 2022 is reduced from $87,460.99 to $80,558.99.
Trial Proceedings After the Appeal
For the time from following the issuance of
the Appellate Division order starting from September 7, 2023 through
January 16, 2024, Plaintiff moves for
an award of $57,660.00 in attorney’s fees based on 104.1 hours of time.
(Motion, Pearson Decl. ¶7 and Exh. 3.) This included work on the instant Motion
for Attorney’s Fees and an ex parte application to extend the filing deadline,
which the Court granted. The Court finds a considerable unnecessary overlap in
the work performed during this time by two principals of Plaintiff’s law firm.
(Ibid.) The work performed by the most senior principal, Attorney
Rassmussen, is often described as “attention to” or “reviewing” or “revising”
matters already worked on by Attorney Pearson. (Id. at Exh. 3.) For
example, attention to the ex parte application on December 11, 2023, revising
the instant Motion for Attorney’s Fees on December 23, 2023, January 6-8, 2024.
These fees are therefore reduced in the amount of $4,915.00.
Additionally, Plaintiff filed an unsuccessful
ex parte application to confirm or extend the deadline to file the instant
Motion for Attorney’s Fees, on which its counsel spent more than ten hours from
December 4, 2023 to December 15, 2023. (Id. at Exh. 3.) The fees are
reduced by $4,880.00 for this ex parte application.
Third, the Court finds it unreasonable that
Plaintiff’s counsel spent approximately 100 hours of attorney time on a second
motion for attorney’s fees after having spent almost 50 hours drafting the
initial Motion for Attorney’s Fees. The second Motion includes an argument in
support of a multiplier for the fees based on the novelty and difficulty of the
issues, which were not raised in the initial Motion, demonstrating that this
argument was added unnecessarily, as none of the legal issues changed. The number
of hours billed, therefore, is reduced by an additional $5,500.00 for ten hours
billed by Attorney Pearson.
Therefore, the attorney’s fees for trial
proceedings are reduced from $57,660.00 to $42,365.00.
Appeal of Initial Motion for Attorney’s Fees
For the appeal of the initial Motion for
Attorney’s Fees in this action Plaintiff’s counsel billed 182.9 hours from
November 3, 2022 through November 28, 2023. (Motion, Pearson Decl., ¶8 and Exh.
2.) This resulted in attorney’s fees of $103,611.50. (Ibid.) The work
performed during this time involved preparation of the notice of entry of
judgment; legal research for, drafting of, and revision of, the appellate
opening brief; legal research for, drafting of, and revision of, the appellate
reply brief; arguing the appeal; and continued settlement negotiations with
Defendant. These hours are documented in Plaintiff’s counsel’s billing records.
(Ibid.) Defendant’s opposition makes no specific argument against the
reasonableness of the hours billed for the appeal. Instead, the opposition
again argues that the amount of fees billed in relation to the amount sought in
the initial Motion for Attorney’s Fees makes the requested fees unreasonable. No
authority is cited for using this standard to objectively calculate the
reasonable number of attorney’s fees billed.
Nevertheless, the Court finds that billing
182 hours on appellate work over the course of one year is unreasonable in
light of the five-page legal analysis provided by the Appellate Division. The
crux of the remittitur was the trial court’s across-the-board 50 percent
reduction in the amount of attorney’s fees, which was not a complex issue. (Remittitur,
11/28/23, pp. 7-8.) The high number of hours is explained by the numerous
reviews and revisions of the appellate briefs filed by Plaintiff, as well as
the overlapping work performed by Attorney Pearson, a principal at the firm,
and senior associates. (Motion, Pearson Decl., Exh. 2.) This can be seen at
billing entries dated February 27, 2023, March 22, 2023, March 23, 2023, April
4, 2023, April 10-12, 2023, April 19, 2023, and July 8-9, 2023. (Ibid.)
Accordingly, the attorney’s fees for the appeals are reduced in the amount of
$17,765.00 to $85,846.50.
Multiplier
Finally, the Court declines to award a
multiplier to the lodestar amount. As noted earlier, Plaintiff’s counsel made
no multiplier argument in support of the initial Motion for Attorney’s Fees,
suggesting that there was nothing particularly complex or difficult about this
action at that time. Nor did the appeal of the initial Motion for Attorney’s
Fees add any particular complexity, as indicated by the straightforward ruling
from the Appellate Division.
Conclusion
Based
on the foregoing, Plaintiff Pacific Coast Highway Powersports, LLC’s Motion for
Attorneys’ Fees and Costs is GRANTED IN THE AMOUNT OF $208,770.49 ATTORNEY’S FEES.
Moving
party to give notice.