Judge: Michelle Williams Court, Case: 19STCV16373, Date: 2022-09-26 Tentative Ruling

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Case Number: 19STCV16373    Hearing Date: September 26, 2022    Dept: 74

19STCV16373           KAREN ABRAMIAN vs MERCEDES-BENZ USA, LLC

Plaintiff’s Motion for Payment of Attorney’s Fees and Reimbursement of Costs and Expenses

TENTATIVE RULING: Plaintiff’s Motion for Payment of Attorney’s Fees and Reimbursement of Costs and Expenses is GRANTED in part. The Court awards Plaintiff attorneys’ fees in the amount of $67,362.50 and costs in the amount of $5,047.89 pursuant to Civil Code section 1794(d).

Background

 

On May 10, 2019, plaintiff Karen Abramian filed this action against defendant Mercedes-Benz USA, LLC alleging a violation of the Song-Beverly Consumer Warranty Act.  

 

On June 29, 2021, Plaintiff filed a Notice of Settlement of Entire Case. On July 7, 2022, the Court dismissed the action following settlement.

 

Motion

 

On July 11, 2022, Plaintiff filed the instant motion for attorneys’ fees, costs, and expenses seeking lodestar attorneys’ fees of $75,590.00, a 1.3 multiplier of $22,677.00, and $5,047.89 in costs and expenses.

 

Opposition

 

In opposition, Defendant argues Plaintiff’s counsel’s claimed hours and hourly rates are unreasonable and suggests a total fee of $15,125.00.

 

The Court disregards Defendant’s citation to unpublished authority. (Cal. R. Ct., rule 8.1115.)

 

Reply

 

In reply, Plaintiff correctly contends Defendant’s opposition was untimely by one day. The Court notes September 23, 2022 will be a Court holiday. However, Plaintiff responded on the merits and therefore was not prejudiced by the late filing.

 

Plaintiff also argues the attorneys’ fees claimed are adequately supported and Defendant failed to meet its burden to contest the fees claimed.

 

Discussion

 

Standard

 

Pursuant to Civil Code section 1794(d), “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” As stated by the court in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462:

 

The statute requires the trial court to make an initial determination of the actual time expended; and then to 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. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.”

 

(Goglin, supra at 470 quoting Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.) However, “[t]he lodestar method is applicable to calculating attorney fees under section 1794, subdivision (d).” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.) The Court cannot tie the attorney fee award to the amount of plaintiff’s recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37 (“it 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.”).)

 

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.  The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”  (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)

 

“The law is clear . . . that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)  “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.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

 

Reasonable Hourly Rates

 

Plaintiff provides the declaration of Jordan K. Sannipoli as well as the billing records for Plaintiff’s counsel, to support the fees claimed. (Sannipoli Decl. ¶¶ 100-103, 106-108, 117-118 Ex. A-B.) Plaintiff seeks recovery for work performed by six different attorneys, three paralegals or law clerks, and three legal assistants in handling this action:

 

(1) Brian Bickel, practicing law since 1999 with an hourly rate of $665.00;

(2) Jordan Sannipoli, practicing law since 2015 with an hourly rate between $465.00 and $585.00;

(3) Joshua Youssef, practicing law since 2019, with an hourly rate between $335.00 and $385.00;

(4) Stephanie Pengilley, practicing law since 2015, with an hourly rate between $495.00 and $545.00;

(5) Nicolas Dillavou, practicing law since 2019, with an hourly rate of $345.00;

(6) Scott O’Halloran, practicing law since 2019, with an hourly rate of $355.00;

(7) Paralegals and law clerks (“CK” “JG” and “AM” in the billing entries) with an hourly rate between $195.00 and $235.00; and

(8) Legal assistants (“CC,” “MP,” and “MT” in the billing entries) with an hourly rate between $145.00 and $235.00.

 

(Ibid.)

 

“The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Ibid.) Plaintiff provides evidence that counsel’s rates have been previously approved in other cases in the Los Angeles Superior Court. (Sannipoli Decl. ¶ 107.) “[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) 

 

In opposition, Defendant argues Plaintiff’s counsel’s rates are unreasonable. (Opp. at 11:2-11:27.) Defendant first states its unsupported opinion that the rates are too high, which is irrelevant and insufficient to meet their burden. Defendant also cites the rate of defense firms, including that of Defendant’s counsel, which is similarly unpersuasive. (Goglin, supra, 4 Cal.App.5th at 473–474 (“BMW North America and BMW San Diego presented no evidence contradicting these points. Although BMW North America and BMW San Diego presented evidence they paid their counsel much lower hourly rates, the trial court was not obliged to accept this evidence as conclusive of the appropriate hourly rate for the work performed by Goglin's counsel.”); Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 40 (“Kia claimed the hourly rates of Warren's plaintiff's attorneys should be limited to the lower hourly rates charged by Kia's defense attorneys. This was not a good comparison, given that Warren's plaintiff's attorneys' work pursuant to contingency arrangements and Kia's defense attorneys do not.”).)

 

Defendant also argues, without citation to authority, that Plaintiff cannot recover for time spent by support staff. (Opp. at 5:25-7:4, 8:8-16. See generally Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 410 (“A point totally unsupported by argument and authority may be rejected by the reviewing court without discussion.”).) In reply, Plaintiff demonstrates such fees are compensable. (See Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269 (“awards of attorney fees for paralegal time have become commonplace in California.”’); Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951 (“We think, however, necessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees.”); Roe v. Halbig (2018) 29 Cal.App.5th 286, 312 (“paralegal fees may be awarded as attorney's fees if the trial court deems it appropriate”).)

 

The Court finds the hourly rates reasonable.

 

Reasonable Hours Expended

 

Plaintiff’s evidence indicates its counsel claims 142.2 hours of attorney time and 33.8 hours of paralegal, law clerk, or legal assistant time on this action, which is detailed in counsel’s billing records. (Sannipoli Decl. Ex. A-B.) Sannipoli’s billing entries list the total hours for the timekeepers as follows:

 

-        0.5 hours by Brian Bickel;

-        47.6 hours by Jordan Sannipoli;

-        36.5 hours by Joshua Youssefi;

-        55.7 hours by Stephanie Pengilley;

-        1.1 hours by Nicolas Dillavou;

-        0.8 hours by O’Halloran;

-        28.5 hours by Paralegals/Law Clerks; and

-        5.3 hours by Legal Assistants.

 

(Sannipoli Decl. Ex. A-B.) The Court has reviewed the billing statements provided by Plaintiff.

 

In opposition, Defendant contends “Exhibit A to Ameripour Decl. includes a chart that provides a summary of excessively-billed tasks and tasks that are not recoverable attorney’s fees under the Song-Beverly Act, such as clerical tasks performed by legal assistants. The chart adjusts claimed fees to a reasonable hourly rate and non-inflated amounts of time for work allegedly performed, and provides an explanation for each of those adjustments.” (Opp. at 7:12-16.) The chart constitutes improper argument and, if properly placed within the memorandum, would result in an oversized opposition. (Cal. R. Ct., rule 3.1113(d); In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30 n.3 (“The proper place for argument is in points and authorities, not declarations.”).) The Court does not consider Exhibit A to the Ameripour declaration.

 

Defendant contends Plaintiff’s fees should be reduced due to block-billing. (Opp. at 7:17-22, 9:19-10:6.) “[B]lock billing is not objectionable per se, though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation under section 1021.5 from work that does not.” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830.) “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.)  The issues raised by block billing have little application in this matter because all fees are compensable under the relevant statute. Defendant’s argument is unpersuasive.

 

In its opposing memorandum, Defendant identifies some entries that it deems excessive or unreasonable. First, Defendant contends pre-litigation work is not recoverable. (Opp. at 7:26-8:6, 10:8-10:17.) However, the case cited, Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, does not stand for this broad proposition. Rather, Dominguez held that a plaintiff is not entitled to attorneys’ fees when a Defendant complies with its obligations to repurchase or repair prior to the commencement of litigation, which did not occur here. (Id. at 60 (“we cannot conclude the Legislature intended that every time a manufacturer repurchases or replaces consumer goods, a consumer is entitled to attorney fees, regardless of whether it was pre- or post-commencement of litigation.”).) Fees incurred before the filing of the complaint, which are directly related to the litigation and Plaintiff’s claims, are compensable.

 

Defendant contends intra-firm communications are not recoverable. (Opp. at 10:18-11:1.) However, Defendant does not cite any authority supporting this contention and has therefore failed to meet its burden. (Ibid.) “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management, supra, 163 Cal.App.4th at 564.)

 

Defendant notes counsel billed 7.3 hours “for primarily drive time” by Joshua Youssefi on March 2, 2020 and contends “Plaintiff’s counsel advertises a Los Angeles office, located at 10940 Wilshire Blvd., Suite 1600, Los Angeles, California 90024-3944 on its website.” (Opp. at 8:17-26.) Defendant does not provide evidence supporting this contention and Plaintiff does not address Defendant’s drive-time objection in the reply. Regardless of whether Plaintiff’s counsel has or advertises a Los Angeles office, the Court agrees it is not reasonable to require Defendant to pay additional fees that arise solely due to Plaintiff’s decision to retain non-local counsel. The Court shall reduce the hours claimed by Joshua Youssefi by 6.3 hours at the 2020 rate of $385.00, for a total reduction of $2,425.50.

 

Defendant contends Plaintiff’s counsel billed 7 hours on September 1, 2020 and September 2, 2020 for the six-page reply in support of the motion to compel deposition. (Opp. at 8:27-9:5.) The Court finds a separate reason to deny recovery of these fees, as well as additional fees related to this motion. Pursuant to Code of Civil Procedure section 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” On September 10, 2020, the Court granted Plaintiff’s motion to compel the deposition and imposed sanctions against Defendant in the amount of $5,802.00. The sanction order was based upon Plaintiff’s counsel’s representation that they spent 4.6 hours on the motion and an anticipated 5-7 hours to prepare a reply and attend the hearing. (See Pengilley Decl. ¶ 21 filed August 18, 2020.) Accordingly, Plaintiff and Plaintiff’s counsel have already been compensated for the motion to compel. The Court reduces Plaintiff’s attorney fee request by $5,802.00, consisting of 11.6 hours of Pengilley’s time at a rate of $495.00 per hour.

 

Finally, Defendant contends spending 28 hours for the instant motion is excessive. (Opp. at 9:6-18.) Defendant provides a fee motion filed by Plaintiff’s counsel in another case. (Ameripour Decl. Ex. D.) While the two memoranda are similar, there are numerous differences including the cases cited and the reliance upon case specific facts and evidence. Additionally, Plaintiff’s counsel stated “our office has developed forms and other streamlining techniques in effort to shorten the time required of particular tasks. Where such forms were used, time was only billed for the time spent modifying the form.” (Sannipoli Decl. ¶ 103.) The Court is not persuaded to reduce the hours claimed.

 

The Court finds the reasonable lodestar attorneys’ fees are $67,362.50.

 

A Lodestar Multiplier is Not Warranted

 

Plaintiff also seeks a multiplier of 1.3 for the attorneys’ work on the instant matter. 

 

The lodestar amount “may be adjusted by the court based on factors including (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, [and] (4) the contingent nature of the fee award.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.) The purpose of any lodestar and adjustment thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Ibid.) “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)

 

The Court finds the instant litigation to be a typical Lemon Law case, with questions that are neither novel nor particularly difficult. Moreover, Plaintiff’s counsel appears to have demonstrated skill commensurate with their experience and specialty. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 (“a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.”).) While “[t]he ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit,” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582), the litigation in this case does not satisfy this high bar. The lodestar is sufficient to compensate counsel for the contingent nature of their representation. The request for a lodestar multiplier is DENIED in its entirety.

 

Accordingly, the Court awards Plaintiff’s attorneys’ fees in the amount of $67,362.50.

 

Costs and Expenses

 

Plaintiff’s motion also sought $5,047.89 in costs and expenses, which were supported by Plaintiff’s counsel’s billing entries. (Sannipoli Decl. Ex. A.) Recoverable costs and expenses pursuant to Civil Code section 1794(d) extend beyond the costs available under Code of Civil Procedure section 1033.5. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.) Defendant did not challenge the costs and expenses claimed. The Court finds the costs and expenses are reasonable and the Court awards Plaintiff $5,047.89 in costs and expenses.