Judge: Monica Bachner, Case: 22STCV01744, Date: 2023-04-24 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 22STCV01744    Hearing Date: April 24, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiffs Homaira Shadravan’s and Roberto Shakiba’s motion for attorneys’ fees is granted in part as to the request for attorney fees in the reduced amount of $25,354.00 and costs in the amount of $1,481.57 for a total of $26,835.57.

Plaintiffs Homaira Shadravan (“Shadravan”) and Roberto Shakiba (“Shakiba”) (collectively, “Plaintiffs”) move for an order awarding attorney fees and costs pursuant to Civil Code §1794(d) and pursuant to Plaintiffs’ settlement agreement with Defendant Jaguar Land Rover North America, LLC (“JLRNA”) (“Defendant”).  (Notice of Motion, pg. 1; Civ. Code §1794(d); Decl. of Klitzke, Exh. 3.)  Specifically, Plaintiffs seek attorneys’ fees in the amount of $26,026.00 with a lodestar enhancement multiplier of 1.3 for $7,807.80, for a total of $33,833.80 in attorneys’ fees as well as costs and expenses in the amount of $1,481.57, for a total amount of $35,315.37 requested in this motion.  (Motion, pg. 10.)

Evidentiary Objections

Plaintiffs’ 4/17/23 evidentiary objections to the Declaration of Matthew C. Wolf (“Wolf”) are overruled as to Nos. 1 and 2.

          Background

          On January 14, 2022, Plaintiffs filed the instant action for violations of the Song-Beverly Act in connection with their December 23, 2018, lease of a 2019 Land Rover Discovery (“Subject Vehicle”), which was manufactured by Defendant. On October 7, 2022, Plaintiffs and Defendant entered into a 998 Offer (“Settlement Agreement”) wherein Defendant agreed to refund Plaintiffs $40,495.00 for Plaintiffs’ lease payments, $495.00 for the lease termination fee, and Plaintiffs to move for attorney fees, costs, and expenses.  (Decl. of Klitzke ¶5, Exh. 3 at §§B(2)-(4).)

          Plaintiffs filed the instant motion on December 2, 2022.  Defendant filed its opposition on April 11, 2023.  Plaintiffs filed their reply on April 17, 2023.

Attorneys’ Fees

Civil Code § 1794(d) provides, as follows: “If 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.”

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). ¿A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ¿(Id.) ¿The Supreme Court stated:  

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.  ‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . ..’ [Citation.]

(Id.) ¿ 

          Reasonableness of Hourly Rate

In terms of the hourly rates of Plaintiffs’ counsel, the Court finds them reasonable.  Plaintiffs’ counsel declares the following hourly rates: (1) Counselor Michael A. Klitzke with an hourly rate of $395.00; (2) Counselor Gregory T. Babbitt with an hourly rate of $585.00; and (3) Paralegal Jeanette Abbenhaus with an hourly rate of $155.00.  (Decl. of Klitzke ¶¶25-27, Exh. 1.)  Defendant contests the above stated hourly rates and argue the base rate of $395.00 per hour is not reasonable for a “simple Lemon Law case that presented no questions of first impression and no unique or extraordinary law and motion work.”  (Opposition, pg. 5.)  Based on the Court’s experience, Plaintiffs’ counsels’ rates are reasonable.

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.4th 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.4th 257, 269.)

Here, Plaintiffs submitted documentation supporting 66.4 hours performed by Counselor Klitzke.  (See Decl. of Klitzke, Exh. 1.)

Defendant argues Plaintiffs’ hours and fees are excessive for an action with no discovery disputes, no expert designations or depositions, no trial preparation, and no FSC.  (Opposition, pg. 5.)  First, Defendant argues Plaintiff’s counsel overbilled at $2,049.50 through the filing of a boilerplate Complaint.  However, according to Plaintiffs’ exhibit, Plaintiffs’ counsel billed $833.50 to draft and file the Complaint, and .8 hours of that time was billed by a paralegal. (Decl. of Klitzke, Exh. 1 at pg. 1.)  Defendant does not provide details for its calculation and the specific billing entries to which it objects and therefore fails to meet its burden. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564 [“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.”].)  Second, Defendant argues Plaintiffs’ counsel billed $1,580.00 post-filing for administrative or ministerial tasks but does not specify the billing entries it objects to or state why these tasks are unreasonable and fails to meet its burden.  (Id.)  Third, Defendant argues Plaintiffs’ counsels’ billing records show dozens of telephone calls to their clients and Defendant’s counsel up to the time of settlement for an amount of $17,113.50 during an “uneventful six-month period.”  (Opposition, pg. 6; Decl. of Klitzke, Exh. 1 at pgs. 3-8 of 9.)  Again, Defendant fails to specify the billing entries (i.e., by date and amount) to which it objects and therefore fails to meet its burden.  Finally, Defendant argues Plaintiffs’ counsel billed $4,740.00 for the instant motion, which it argues is far too much time for a rote motion for attorneys’ fees.  (Decl. of Kitzke, Exh. 1 at pg. 9 of 9.)  Plaintiffs billed 4.8 hours to draft its initial motion and billed 7.8 anticipated hours to review the opposition, draft a reply, and attend the hearing on the motion.  (Decl. of Kitzke, Exh. 1 at pg. 9 of 9.)  The Court agrees 7.8 anticipated hours is excessive, given Plaintiffs’ reply could have clarified the actual hours incurred for reviewing Defendant’s opposition and drafting a reply.  Accordingly, the Court reduces Plaintiffs’ fees for reviewing the opposition, drafting a reply, and attending the hearing from 7.8 hours to 5.5 hours (or from $2,844.00 to $2,172.00).  Otherwise, the Court finds Plaintiffs’ fees are reasonable and supported and are granted in the total amount of $25,354.00.

Multiplier

The Court denies Plaintiffs’ request for a 1.3 lodestar multiplier.  Plaintiffs assert that a 1.3 lodestar multiplier is warranted based on the contingency risk, significant inflation during the year, delay in payment, and skill displayed by Plaintiffs’ counsel.  (Motion at pg. 9.)  In opposition, Defendant argues Plaintiffs are not entitled to a lodestar fee enhancement because the case did not present novel issues, the “skill displayed” was minimal, the case was resolved with minimal litigation risk and did not preclude other work, Plaintiffs’ counsel’s rate is more than adequate at the outset, and Plaintiffs’ case was not brought for charitable or taxpayer purposes.  (Opposition, pgs. 7-9.)

Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates. There is no shortage of experienced counsel litigating in this area of the law at these hourly rates. 

Accordingly, a 1.3 multiplier is not warranted.

          Costs

          Plaintiffs argue pursuant to Civil Code §1794(d), they are entitled to costs and expenses necessarily incurred and included in the submitted Memorandum of Costs.  (Motion, pg. 10; Decl. of Klitzke, Exh. 2.)  Defendant does not challenge Plaintiff’s Memorandum of Costs in the instant motion and has not filed a motion to tax costs and expenses allegedly incurred, which is the proper mechanism to challenge Plaintiffs’ request for costs.  (CRC, Rule 3.1700.)  Accordingly, Plaintiffs’ request for costs and expenses reasonably incurred is granted in the amount of $1,481.57.

          Final Lodestar Determination

Based on the foregoing, Plaintiff’s motion for attorney fees is granted in part as to the request for attorney fees in the reduced amount of $25,354.00 and costs in the amount of $1,481.57 for a total of $26,835.57.

Dated: April _____, 2023

Hon. Daniel M. Crowley