Judge: Peter A. Hernandez, Case: 19PSCV00706, Date: 2023-08-04 Tentative Ruling
Case Number: 19PSCV00706 Hearing Date: August 4, 2023 Dept: K
Plaintiff Mercedes
Hernandez’s motion for attorney’s fees is GRANTED IN PART in the reduced amount
of $22,923.00.
Lemon Law. The Complaint filed, August 7, 2019, was amended and asserts causes of action for:
1.
Violation of Subdivision (d) of Civil Code § 1793.2
2.
Violation of Subdivision (b) of Civil Code § 1793.2
3.
Violation of Subdivision (a)(3) of Civil Code § 1793.2
4.
Breach of Express Written Warranty (Civil Code §§ 1791.2(a);
1794)
5.
Breach of Implied Warranty of Merchantability (Civil
Code §§ 1791.1; 1794)
On March 21, 2023, Plaintiff filed a motion for attorney’s fees. On May 3, 2023, Defendants filed an opposition. On July 27, 2023, Plaintiff filed a reply.
Request for Judicial Notice
The court grants Plaintiff’s request for judicial notice in full.
Discussion
The Song-Beverly Act provides, “[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.” (Civ. Code § 1794(d).)
Plaintiff moves for an award of attorney’s fees in the
amount of $111,588.75, which consists of (1) $42,635.50 in attorney fees for Consumer
Law Experts, P.C.); (2) a 1.50 multiplier enhancement (or $63,953.25) on the
total attorneys’ fees; and (3) an additional $5,000.00 for Plaintiff’s counsel
to review Defendants’ Opposition, draft the Reply brief, and attend the hearing
on this Motion.
On June 21, 2022, Defendant served Plaintiff with a CCP § 998 offer to compromise in the amount of $50,001.00 plus either $10,000 for Plaintiff’s costs and attorney’s fees or “Plaintiff’s costs, including reasonably incurred attorney’s fees, to date to be determined by the Court.” (Opp. Exh. D.) On the date of the 998 offer, Plaintiff incurred $23,413.00 in fees and costs. On July 25, 2022, Plaintiff requested an extension to respond to Defendants’ 998 offer, which was granted. On August 5, 2022, Plaintiff accepted Defendants’ 998 offer and chose the option to settle fees and costs by motion.
Defendant argues that any post-CCP 998 offer attorneys’ fees are disallowed in their entirety because Plaintiff expressly agreed to only those fees “to date” by way of a fee motion and no multiplier should be considered as it was not allowed under the terms of the accepted CCP 998 offer. Defendant also states that the offer specifically does not allow for Plaintiff to recover any multiplier. Plaintiff argues that she is allowed to recover post-offer costs as the 998 offer was never rejected and did not expire. Plaintiff points out that the majority of the attorney’s fees incurred after the 998 offer was the result of Defendant’s own conduct.
The court finds that a reasonable interpretation of the language in the 998 offer limits Plaintiff’s attorney’s fees to those fees incurred to date of when the offer was made. Although the language only states “to date,” the offer provides a date of June 21, 2022, which was also signed by Defendant’s attorney. (Ruggerello Decl. ¶ 2, Exh. D.) Thus, the determination of attorney’s fees should be calculated from that date, and the court will only consider Plaintiff’s pre-offer fees of $23,4130.00. Although Defendant argues that Plaintiff is not entitled to any multiplier, the court finds that the language in the 998 offer does not prohibit it since it allows for reasonably incurred attorney’s fees to be determined by the court. (Ruggerello Decl. ¶ 2, Exh. D.)
California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include “(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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)
Plaintiff’s counsel charges various hourly rates: $460 for Joshua D. Fennell and $370 for Matt Xie. Defendant does not contest the reasonableness of counsels’ rates. Plaintiff provides evidence from cases which show Mr. Fennell’s hourly rates to be similar to the rates California Superior Courts have awarded attorneys in lemon law cases. (Mot. pp. 7-9.) Further, Plaintiff provides sufficient evidence of the experience of attorneys who worked on this case. (Fennell Decl. ¶¶ 158-173, Exhs. 3-15.) Based on counsel’s experience, the type of case, and the market rate, the court concludes that the rates provided are a reasonable hourly rate.
Plaintiff’s pre-offer fees were $23,4130.00. Defendant argues that Plaintiff’s billing is unreasonable and should be reduced to amount to a total of $13,422.00. Defendant provides the following as unreasonable billing:
·
On September 11, 2019, Joshua Fennell billed 1.8
hours for a total charge of $630.00 to draft a motion for remand. On the
same day, Mr. Fennell billed three separate .1 entries attempting to meet and
confer with defense counsel, notably under Central District of California Local
Rule 7-3, a requirement that is intended to occur before filing a motion. On
September 19, 2019, Mr. Fennell met and conferred with defense counsel and
defense counsel agreed to stipulate to a remand, thus deeming the motion to
remand entirely unnecessary. (See Ex. 16 Fennell Decl.)
·
On September 19, 2019, Joshua Fennell billed 1.7
hours for a total of $595.00 to draft a joint stipulation for remand, declaration
in support of stipulation, proposed order and to purportedly “[start] drafting
Points & Authorities.” The very next day Mr. Fennell billed another 1.2
hours to “’[finish] drafting points and authorities in support of stipulation
for remand” for a total of $420.00. All in all, Mr. Fennell billed 2.9
hours for a total of $1,015.00 to prepare a single-page stipulation to
remand, a single-page declaration and a one paragraph proposed order. (See Ex.
16 to Fennell Decl.; Goerlinger Decl. ¶ 6, Exhs. A, B and C.
On April 9, 2020, Defense counsel gave notice of
Defendants’ Motion to Compel Arbitration and requested that state court
discovery be delayed until such time as this court ruled on their motion.
Plaintiff refused and instead persisted on unnecessary and unreasonable
discovery practice, such as numerous entries by Mr. Fennell between April 22,
2020 and September 2, 2020 including – (i) entries by Mr. Fennell on April 22,
2020, 1.5 for “review and analysis of Defendants’ Written Discovery Responses
in preparation for drafting meet and confer letter” and .8 for “Drafting
Documents; Plaintiff’s meet and confer letter re Defendant’s response; and,
(ii) two entries on May 6, 2020 by Mr. Fennell for an additional .9 to draft a
“further meet and confer letter re Defendant’s discovery responses.” (See Ex.
16 to Fennell Decl.) The parties ultimately agreed to extend Plaintiff’s
deadline in which to bring a motion to compel until the court decided
Defendants’ motion to compel arbitration. In addition, because Plaintiff
refused to delay or narrow their excessive discovery requests, Defendants were
required to file motions for a protective order. In response thereto, Plaintiff
billed another 6.5 hours to oppose motions. Plaintiff unnecessarily and unreasonably
billed a total of 10.6 hours amounting to $3,922.00
between April 22,
2020 and September 2, 2020, relating to excessive written form discovery
plaintiff propounded which would have been avoided had Plaintiff simply
extended a professional courtesy and agreed to delay the discovery until such
time as this Court ruled on Defendants’ motion to compel arbitration – which it
ultimately granted.
Mr. Fennell made five entries relating to
Defendants’ motion to compel arbitration beginning on May 20, 2020, with the
last being on September 1, 2020 totaling 7.3 hours for such things as reviewing
the purchase agreement, researching motions to compel arbitration and drafting
Plaintiff’s opposition. The total fees - $2,701.00. Motions to compel
arbitration in these types of cases are routine and often times the similar
opposition used over and over, thus the time billed for this task is excessive
and unreasonable.
·
On September 16, 2020, Benjamin Beck and Joshua
Fennell both made entries for preparing for the motion to compel arbitration –
Mr. Beck 1.8 at $490/hour and Mr. Fennell 1.2 at $370/hour for a total attorney
preparation time of three hours and total fees of $1,326.00. It was not
necessary or reasonable to have two separate attorneys prepare for the hearing,
and particularly, when Mr. Beck did not attend the hearing. [See Ex. 16 to
Fennell Dec.]
With respect to these entries, the court finds that these entries and hours are reasonable except for the September 16, 2020 entry where Mr. Beck billed 1.8 hours at $490/hour and did not attend the hearing. The court therefore reduces Mr. Beck’s hours from 1.8 to .8. Thus, the September 16, 2020 entry is reduced to $836.00 = ($490.00 x .8) + ($370.00 x 1.2).
Plaintiff requests a lodestar multiplier of 1.5 due to obtaining an excellent outcome, taking the case on a contingent basis, the existence of complex issues, and Plaintiff’s counsel’s demonstration of skill in litigating this matter. “[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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139.) This matter was not noticeably different from other lemon law cases, did not involve complex or novel legal issues warranting a multiplier, and Plaintiffs’ counsel has extensive experience litigating similar matters. (See, e.g., Fennell Decl. ¶¶ 158-173.) Plaintiff engaged in discovery, but there are no indications that Plaintiff’s counsel engaged in any actions different from a typical strategy to achieve this result. The court declines to add a multiplier.
Finally, given the court’s finding that attorney’s fees and costs are limited to the amount incurred as of the date of the 998 offer, the court denies Plaintiff’s request for $5,000.00 in anticipated fees incurred with this instant motion.
The motion for attorney fees is GRANTED IN PART. The court awards Plaintiff’s $22,923.00 in attorney fees ($23,4130.00 – $1,326.00. [original September 16, 2020 entry] + $836.00 [reduced September 16, 2020 entry]).