Judge: Michael P. Linfield, Case: 22STCV24712, Date: 2023-09-14 Tentative Ruling

Case Number: 22STCV24712    Hearing Date: September 14, 2023    Dept: 34

Subject:          Motion for Attorney’s Fees, Costs, and Expenses

Moving Party: Plaintiff Gaik Pobokhian

Resp. Party:    Defendants Shift Operations, Capital One, National Association, and American Contractors Indemnity Company

Plaintiff’s Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiff and against Defendants in the total amount of $18,766.99, which consists of $17,582.45 in fees and $1,184.54 in costs and expenses.

BACKGROUND:

On August 1, 2022, Plaintiff Gaik Pobokhian his Complaint against Defendants Shift Operations LLC, Capital One, National Association, and American Contractors Indemnity Company on causes of action arising from Plaintiff’s purchase of a vehicle and alleged violations of the Consumer Legal Remedies Act.

On December 5, 2022, Plaintiff filed his First Amended Complaint (FAC).

On January 6, 2023, Defendants Shift Operations LLC and American Contractors Indemnity Company filed their Answer to the FAC.

On July 6, 2023, Plaintiff filed Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On August 21, 2023, Plaintiff filed his Motion for Attorney’s Fees, Costs, and Expenses. In support of his Motion, Plaintiff concurrently filed: (1) Memorandum; (2) Declaration of Lilia F. Guizar; (3) Declaration of Gregory Tl. Babbitt; (4) Declaration of Christopher P. Barry; (5) Declaration of Laura Gaudet; (6) Declaration of Joseph S. Green; (7) Compendium of Exhibits; and (8) Proof of Service.

On August 31, 2023, Defendants filed their Opposition to the Motion. In support of their Opposition, Defendants concurrently filed: (1) Declaration of David R. Sidran; and (2) Request for Judicial Notice.

On September 6, 2023, Plaintiff filed his Reply regarding the Motion. Plaintiff concurrently filed: (1) Declaration of Gregory T. Babbitt; and (2) Objections to Declaration of David R. Sidran.

ANALYSIS:

I.          Evidentiary Objections

Plaintiff filed evidentiary objections to the Declaration of David R. Sidran. The following are the Court’s rulings on these objections.

II.       Request for Judicial Notice

Defendants request that the Court take judicial notice of five items: three items filing in this case, a complaint filed in another case, and a memorandum of points and authorities in still another case.

The Court DENIES as superfluous judicial notice to the three items filed in this case. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

The Court DENIES as irrelevant judicial notice to the other two items. “Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed.” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7, quotation omitted, italics in original.)

III.     Legal Standard

“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).)

IV.      Discussion

A.          The Parties’ Arguments

Plaintiff moves the Court to award $27,545.04 in favor of Plaintiff and against Defendants, which would comprise of: (1) $26,360.50 in attorneys’ fees; and (2) $1,184.54 in costs and expenses. (Memorandum, p. 7:2–3.) (Notably, the total amount requested is $12.00 higher in the Reply, however, it is entirely unclear where this extra $12.00 comes from. [Reply, p. 8:6–7.]) Plaintiff did not request a multiplier.

Plaintiff argues: (1) that he is entitled to attorneys’ fees as the prevailing party; (2) that fees should be calculated using the lodestar method; (3) that the actual time incurred was reasonable; (4) that the hourly rates and billed hours are presume to be reasonable; (5) that the billing rates are reasonable; (6) that California courts and arbitrators approve of Plaintiff’s Counsel’s hourly rates; (7) that Plaintiff’s Counsel charges competitive market rates; (8) that Plaintiff is entitled to fees for litigating this Motion; and (9) that all the costs and expenses should be awarded. (Memorandum, pp. 2:6–7, 2:20, 3:18, 4:8–9, 4:16, 5:1–2, 5:14, 6:8, 6:20.)

Defendants disagree in part, arguing: (1) that they admit Plaintiff is the prevailing party for the purposes of the Motion; (2) that they admit Plaintiff is entitled to reasonable attorneys’ fees based on actual time expended; (3) that they agree fees should be calculated using the lodestar method; (4) that the actual time incurred should be questioned, raising various objections to times listed in the invoices; (5) that the hourly rates of Plaintiff’s Counsel are excessive; (6) that Defendants do not dispute Plaintiff’s costs; and (7) that discussions between the Parties’ respective Counsel should be admissible for purposes of the Motion. (Opposition, pp. 4:3, 4:7–8, 5:6, 6:6–7, 8:23, 9:4, 9:8–9.)

In his Reply, Plaintiff argues: (1) that Plaintiff was sold a vehicle with an obvious illegal exhaust system; (2) that this is not a simple auto fraud case that Plaintiff’s Counsel overbilled, listing various items that occurred during the litigation; (3) that Plaintiff’s Counsels’ hourly rates are reasonable and supported by actual evidence; (4) that Defendants’ objections to the hourly rates lack evidentiary support; and (5) that the hours billed were reasonably spent litigating the case. (Reply, pp. 1:6, 1:11, 5:10, 6:3, 6:12.)

B.      The Prevailing Party

        The Parties agree that Plaintiff is the prevailing party in this matter, and the Court so finds. Thus, Plaintiff is entitled to his attorney’s fees, costs, and expenses. (Civ. Code, § 1780, subd. (e).)

C.      The Method for Calculating Recovery

The Parties do not dispute that the appropriate approach for calculating recovery of attorneys’ fees is the lodestar adjustment method, which involves multiplying the number of hours reasonably expended by the reasonably hourly rate. (Warren v. Kia Motors Am. (2018) 30 Cal.App.5th 24, 36; accord Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 509–12.)

The Court uses the lodestar adjustment method here.¿

D.      Reasonableness of the Fees, Costs, and Expenses

1.     Reasonableness of the Attorneys’ Fees

a.     Legal Standard

“Under the lodestar adjustment methodology, 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].)

b.     The Hourly Rates

Plaintiff’s Counsel declare: (1) that Counsel Christopher P. Barry charges $670.00 per hour; (2) that Counsel Gregory T. Babbitt charges $585.00 per hour; (3) that Counsel Josh Green charges $525.00 per hour; (4) that Counsel Brian McPherson charges $280.00 per hour; (5) that Counsel Lilia Guizar charges $210.00 per hour; (6) that Counsel Laura Gaudet charges $250.00 per hour; and (7) that Paralegal Jeanette Abbenhaus charges $155.00 per hour. (Decl. Barry, p. 2:18–24.)

Based upon the information submitted in the various declarations and the Court’s assessment of the prevailing rate for attorneys (and paralegals) of comparable skill and experience in the relevant community, the Court finds that the hourly rates requested are reasonable.

c.       The Number of Hours

Plaintiff’s Counsel declare that they actually engaged in 58.9 hours of work on this matter, including the work incurred regarding this Motion. (Memorandum, p. 3:8–15; Compendium of Exhibits, Exh. 2, p. 5.)

Defendants argue that this number of hours is excessive.

The Court notes the following: (1) this case was filed 13 months ago; (2) only one motion was filed in this matter (a motion to compel arbitration), however, that motion was taken off calendar by Defendants after the Court issued its tentative ruling; (3) that this case was settled about nine months after filing, and more than four months before trial; and (4) that this case did not involve any unusually difficult or complex issues.

        Upon considering these items, the Court finds that the time expended was not reasonable under the circumstances. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) Thus, the Court must take this into account and award attorneys’ fees in a lesser amount.

The Court also notes that Plaintiff had seven people billing on this case.  The Court finds that the case was over-staffed.  A simple CLRA case such as this should require no more than two or three attorneys.  Anything more is excessive.

“When a ‘voluminous fee application’ is made, the court may, as it did here, ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’ These percentage cuts to large fee requests are, however, ‘subject to heightened scrutiny and the use of percentages, in any case, neither discharges the district court from its responsibility to set forth a ‘concise but clear’ explanation of its reasons for choosing a given percentage reduction nor from its duty to independently review the applicant's fee request.’” (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102, quoting Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1399.)

        Our courts have long recognized the “need to encourage ‘private attorneys general’ willing to challenge injustices in our society” and that “[a]dequate fee awards are perhaps the most effective means of achieving this salutary goal.” (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.)  Therefore, as in Lemon Law cases, our courts should not be ‘unduly parsimonious in the calculation of such fees.’” (Id.)

        Considering these sometimes competing requirements, the Court applies a 1/3 across-the-board percentage cut to the number of hours claimed.

As stated above, the Court finds that a large minority of hours claimed were excessive. This takes into account that only one motion was filed in this matter, this case settled shortly after filing, this case did not involve any particularly complex issues, and there does not appear to be any indication of lengthy discovery or preparation for trial.

Plaintiff did not request a multiplier for his lodestar; hence the Court will not award one.

2.      Reasonableness of the Costs and Expenses

Plaintiff’s Counsel declare that Plaintiff incurred $1,184.54 in costs and expenses during this litigation, including:

(1)       $495.00 in filing fees;

(2)       $150.00 in jury fees;

(3)       $90.00 in service fees;

(4)       $281.50 in e-filing fees; and

(5)       $168.04 in other fees.

(Compendium of Evidence, Exh. 3.)

Defendants concede that these costs are reasonable.

The Court awards all of the costs requested.

V.         Conclusion

Plaintiff’s Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiff and against Defendants in the total amount of $18,766.99, which consists of $17,582.45 in fees and $1,184.54 in costs and expenses, as seen in the spreadsheet below: