Judge: Monica Bachner, Case: 21STCV28113, Date: 2023-02-17 Tentative Ruling

Case Number: 21STCV28113    Hearing Date: February 17, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff’s motion for attorney fees is granted in the reduced amount of $25,000.00.

          Plaintiff Torgom Vartanyan (“Plaintiff”) moves for an order awarding attorneys’ fees against Defendant FCA US LLC (“Defendant”) in the total amount of $51,334.50, reflecting $34,223.00 in fees and a 1.5 lodestar multiplier of $17,111.50. (Notice of Motion, pg. 1.)

Evidentiary Objections

Defendant’s evidentiary objections to the Exhibits attached to the Declaration of Richard M. Wirtz and the Exhibits attached to the Declaration of Norman Taylor are overruled.

Plaintiff’s evidentiary objections Nos. 1-5, 7-16, 17 (sustained as to “This isn’t negotiating. . ., otherwise overruled), and 18 are overruled and Nos. 6, 19-28 are sustained.

Background 

On July 30, 2021, Plaintiff filed this action alleging violations of the Song-Beverly Warranty Act. On June 13, 2022, Plaintiff accepted Defendant’s settlement offer of $33,800.00, plus Plaintiff’s costs, expenses, and attorney’s fees.  On June 14, 2022, Plaintiff filed a Notice of Settlement. The Order to Show Cause Re: Dismissal After Settlement is set for hearing on February 17, 2023.

Legal Standard

          Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”  

The calculation of attorneys’ fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate.  (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)  “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.”  (Graciano, 144 Cal.App.4th at pg. 154.)  

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action.”  (Id.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.”  (Id.)  An attorney’s time spent and hourly rate are presumed to be reasonable.  (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.)  ¿Reasonable hourly compensation does not include inefficient or duplicative efforts, aka “padding.” ¿(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580) ¿¿ 

Further, prevailing parties are compensated for hours reasonably spent on fee-related issues. ¿(Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635).

Reasonableness of the Hourly Rate

          Here, Plaintiff has retained two separate law firms: Norman Taylor & Associates (“NT&A”) and Wirtz Law APC (“Wirtz Law”). Plaintiff asserts that the reason NT&A decided to associate with Wirtz Law is because of NT&A’s case load and settlement offers from Defendants going nowhere.  (Decl. of  Wirtz ¶32.)  It is noted that Defendant does not take issue of this decision. Under these circumstances, the Court finds that the retention of NT&A and Wirtz Law was reasonable. 

          In terms of the hourly rates of the firms’ respectively counsel, the Court finds them reasonable.  With regard to NT&A, it appears three attorneys and three paralegals were assigned to this matter: (1) Counsel Norman Taylor (“Taylor”) with an hourly rate of $645.00; (2) Counsel Mark Anderson with an hourly rate of $575; (3) Counsel Steven Simons with an hourly rate of $550; (3) Counsel Scott Kaufman with an hourly rate of $600; and (4) three paralegals, Nick McNaughton, Lusine Musat, and Lori Richardson at an hourly rate of $250.  (Decl. of Taylor ¶ 12, 23-26.)   As for Wirtz Law, three attorneys and six paralegals were assigned to this matter to varying degrees: (1) Counsel Richard Wirtz with an hourly rate of $695; (2) Counsel Amy R. Rotman with an hourly rate of $500; (3) Counsel Jessica R. Underwood with an hourly rate of $500; (4) Paralegal Rebecca Evans with an hourly rate of $300; (5) Paralegal Danielle Viviani with an hourly rate of $250; (5)  Paralegal Florence Goldson with an hourly rate of $200; (6) Paralegal Zoe Hildebrand with an hourly rate of $200;  (7) Paralegal Amanda Vitanatchi with an hourly rate of $200; and (8) Paralegal Andrea Lizarraga with an hourly rate of $200. (Decl. of Wirtz ¶¶13-23; Exh. A.)  Defendant argues that these hourly rates are excessive and cites to various Los Angeles Superior Court opinions which show a reduction in hourly rate. (Opposition pp. 7-8.) Based on the Court’s experience, Plaintiff’s rates are reasonable. 

However, although these rates are generally reasonable, these rates come with “an expectation that [counsel] will complete tasks efficiently and that its more senior attorneys will limit their involvement to tasks requiring their level of expertise.” (Banas v. Volcan Corporation  (2014) 47 F.Supp.3d 957, 966.)

Reasonableness of Hours for Actual Work Performed

          Although¿detailed¿time records are not required, California Courts have expressed a preference for¿contemporaneous billing and an explanation of work. (Raining Data Corp. v.¿Barrenechea¿(2009) 175 Cal.App.4^th 1363, 1375.) “Of course, the attorney’s testimony must be based on the attorney’s personal knowledge of the time spent and fees incurred. (Evid. Code, § 702,¿subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.”  (Mardirossian¿& Associates, Inc. v.¿Ersoff¿(2007) 153 Cal.App.4^th 257, 269.)

          Here, Plaintiff’s billing reflects NT&A performed 31.8 hours of work on this case and Wirtz Law performed 59.2 hours of work on this case. (Decl. of Taylor Ex. A; Decl. of Wirtz Ex. A.)

          The Court finds that there is some excessive or duplicative billing, especially given that the attorneys are experienced.  For example, there is duplication regarding review of the repair history.  There also appears to be excessive hours regarding discovery demands, and regarding the fee motion.  The Court will impose some reduction for these issues, but not the reduction requested by Defendants. 

Defendant also seeks to reduce the amount of time spent to default non-appearing Rydell Chrysler Dodge Jeep Ram. The amount of time spent was 1.4 hours. The Court finds that this cost is appropriately objected to. With that, the Court reduces the fees by $587 for the cost of this motion.

          Based on Plaintiff’s reduction based on the actual time spent drafting the reply, and the reduction based on the time spent on obtaining the default, the court reduces the total hours spent.

          Multiplier

          Plaintiff requests a lodestar multiplier of 1.5 based on the contingent nature of the case and the public interest. The Court declines to award a multiplier, as the case settled without significant discovery or litigation in the matter, and without a persuasive showing of complexity or novelty under the Song-Beverly Act. Any contingency risk factor is already accounted for in the hourly rates.

          Final Lodestar Determination

          Based on the foregoing, Plaintiff’s motion for attorney fees is granted in part in the reduced amount of $25,000.00.

Dated:  February 17, 2022

Hon. Monica Bachner

Judge of the Superior Court