Judge Michael P. Linfield, Case Number: 21STCV12583, Date: 2023-08-29 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV12583, Date: 2023-08-29 Tentative Ruling

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Case Number: 21STCV12583 Hearing Date: January 2, 2024 Dept: 34

SUBJECT: Motion for Mandatory Attorney Fees and Costs

Moving Party: Plaintiff Gabriela Sosa

Resp. Party: None

The Motion for Mandatory Attorney Fees and Costs is GRANTED in part. Attorney’s fees and costs are AWARDED in favor of Plaintiff and against Defendant Khosrow Gharib in the total amount of $79,143.41.

BACKGROUND:

On April 2, 2021, Plaintiff Gabriela Sosa filed her Complaint against Defendants Casa MBZ, Khosrow Gharib, Fereydoun Gharib, Axel Robles, and Philadelphia Indemnity Insurance Company on causes of action arising from Plaintiff’s purchase of a vehicle from Defendants.

On October 7, 2021, Plaintiff filed her First Amended Complaint (FAC).

On December 29, 2021, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendant Axel Robles from the FAC.

On April 20, 2022, by request of Plaintiff, the Clerk’s Office dismissed with prejudice Defendant Philadelphia Indemnity Insurance Company from the FAC.

On August 25 and 29, 2023, the Court held a bench trial in this matter. At the end of the trial, the Court: (1) found in favor of Plaintiff and against Defendant Khosrow Gharib under Code of Civil Procedure section 1770 for violation of the Consumer Legal Remedies Act; (2) entered an injunction against Defendant Khosrow Gharib; and (3) found $15,000.00 in damages, consisting of $5,000.00 for emotional distress and lack of use of car for three years, as well as $10,000.00 for punitive damages.

On December 8, 2023, Plaintiff filed her Motion for Mandatory Attorney Fees and Costs. In support of her Motion, Plaintiff also filed: (1) Declaration of Colin S. Welsh; and (2) Proof of Service.

No opposition or other response has been filed regarding the Motion.

ANALYSIS:

I. Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

“This title may be cited as the Consumers Legal Remedies Act.” (Civ. Code, § 1750.)

“Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following: (1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000). (2) An order enjoining the methods, acts, or practices. (3) Restitution of property. (4) Punitive damages. (5) Any other relief that the court deems proper.” (Civ. Code, § 1780, subd. (a).)

“The court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.” (Civ. Code, § 1780, subd. (e).)

II. Discussion

Plaintiff moves the Court to award $107,804.03 in attorney’s fees and costs in favor of her and against Defendant Khosrow Gharib (“Defendant”).

Plaintiff argues: (1) that she is the prevailing party; (2) that she is entitled to reasonable, enhanced attorney fees; (3) that attorney fees and costs are mandatory under consumer protection statutes; (4) that the lodestar method supports Plaintiff’s requested fees and enhancements; (5) that a 0.50 multiplier enhancement is reasonable here; (6) that public policy supports a full fee award; and (7) that Plaintiff is entitled to costs and expenses, including fees and costs to prepare this Motion. (Motion, pp. 8:4, 8:12, 9:3, 9:18, 13:22, 14:1–2, 14:17, 15:15, 15:21–22.)

Defendant does not oppose or otherwise respond to the Motion.

The Court agrees that Plaintiff is the prevailing party and thus entitled to reasonable attorney’s fees and costs. The Court also agrees that the lodestar method is the appropriate method for calculating those costs.

As to determination of reasonable attorney’s fees, “the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances¿of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. 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. It follows that if 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.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)

Plaintiff’s Counsel declares: (1) that they spent 118.9 hours on this matter; (2) that they charge $550.00 per hour; (3) that a multiplier enhancement of 0.50 is appropriate to account for the contingency risk of nonpayment, delay in payment, and measure of Plaintiff’s success, as well as to reflect the fair market rate of the recent high rise in inflation; (4) that there were $2,824.03 in actual costs incurred; and (5) that $7,150.00 is anticipated to be incurred for the Motion, including ten hours on the motion and three hours on a reply. (Decl. Welsh, ¶¶ 16–19.)

Upon reviewing the materials submitted by Plaintiff’s Counsel, the Court finds that the 118.9 hours incurred, the declared hourly rate of $550.00 and costs of $2,824.03 are all reasonable.

The Court is aware that this request for attorney's fees is unopposed, so apparently Defendant does not object to the multiplier requested. However, whether or not the motion is opposed, the Court must determine a reasonable and appropriate lodestar and multiplier.

“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; accord Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217–18 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.)

In contrast to Defense Counsel, who presumably gets paid monthly, Plaintiff’s Counsel have not been paid for the 30 months that this action has been pending.

CLRA cases such as this one, are based on statutes that are designed to protect the California consumer. If a plaintiff’s attorney is paid no more than the lodestar, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133, quotation and internal quotation marks omitted.)¿

The Court is also aware that it “should not be ‘unduly parsimonious in the calculation of such fees.’” (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 849, quoting Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 839.)

The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. Because not all of an attorney’s work occurs at the beginning of any given year, the Court assumes that the work was performed more-or-less evenly throughout the course of any given year. This means a 1.05 multiplier per year is appropriate to compensate Plaintiff’s Counsel for the time-value of the money that they would have been paid monthly had the case not been contingent. For the 30 months that this case has been pending, this is the equivalent of a 1.125 multiplier.

The other reasons for a multiplier – contingency risk of nonpayment, the measure of Plaintiff’s success, and the fair market rate of the recent high rise in inflation – are already included in Plaintiff’s counsel’s hourly rate and number of hours spent on this litigation.

As to fees and costs for the Motion, $7,150.00 is unreasonable. First, no reply was necessary because no opposition was filed to the Motion. Second, the motion and declaration appear to be straightforward, uncomplicated items that should not have taken more than 5.0 hours. The Court will award $2,750.00 for the Motion, which accounts for 5.0 hours of work at $550.00.

III. Conclusion