Judge Peter A. Hernandez, Case Number: 22STCV17968, Date: 2024-09-30 Tentative Ruling

Plaintiff Fernando Carmona’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Plaintiff and against Defendants, jointly and severally, in the total amount of $67,461.92. This amount is comprised of $60,500.00 in attorney’s fees and $6,961.92 in costs and expenses.

On June 1, 2022, Plaintiff Fernando Carmona (“Plaintiff”) filed his Complaint against Defendants FCA US, LLC and Arm and J Corporation on causes of action arising from Song-Beverly Consumer Warranty Act (“Defendants”).

On May 9, 2023, Plaintiff filed: (1) Notice of Acceptance of Defendant FCA US LLC’s (“FCA”) Amended Offer to Compromise (“998 Offer”); and (2) Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On September 14, 2023, the court entered the Parties’ Stipulation and Order Requesting the Court Retain Jurisdiction Pursuant to Code of Civil Procedure § 644.6.

On September 15, 2023, the court dismissed with prejudice the Complaint. By this time, no motion for attorney’s fees had been heard, despite prior orders of the Court requiring that such a motion be heard by the time of dismissal.

On November 9, 2023, Plaintiff filed a Motion for Relief Pursuant to CCP Section 473(b) which was denied by the court on December 11, 2023.

On July 1, 2024, Plaintiff filed his Motion for Attorney’s Fees. On July 24, 2024, FCA filed their opposition to Plaintiff’s Motion for Attorney’s Fees. On July 26, 2024, Plaintiff filed his reply to FCA’s opposition.

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

Pursuant to the Song-Beverly Consumer Warranty Act, a prevailing 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).) They have “the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.) In granting their motion, “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38, quoting Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) “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.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

Plaintiff moves the court to award him $98,078.92, which is comprised of $72,630.00 in attorney’s fees actually incurred lodestar attorney time billed, $6,961.92 in advanced incurred out of pockets costs and expenses associated with litigation, $14,526.00 in a lodestar multiplier of 0.2 to be added to the lodestar as a “multiplier”, and $3,961.00 in an allowance of an additional six hours total associated with this Motion through hearing. (Motion for Attorney’s Fees, ii:5-19.)

Plaintiff argues that FCA’s 998 Offer stipulates that Defendants jointly and severally will pay the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended pursuant to Civil Code section 1794(d). (Motion for Attorney’s Fees, 2:20-24.) Plaintiff further argues that the fees and costs requested by his Motion were reasonably incurred as they are (1) not excessive or unreasonable considering the case history, and (2) were necessary considering Defendants’ delays and refusal to honor their obligations. (Id., 3:19-22.)

In opposition, FCA concedes that Plaintiff is entitled to his legal fees, but argues that, by statute, only reasonably incurred attorneys’ fees are recoverable in an action under the Song-Beverly Consumer Act. (Opp., 2:9-24.) FCA argues that Plaintiff’s counsel improperly or excessively billed and used highly inflated hourly rates which support significant reductions to Plaintiff’s request. (Ibid.)

In reply, Plaintiff reiterates his arguments that Plaintiff’s counsel’s time incurred was reasonable and necessary, argues that the hourly rates are reasonable, and that the lodestar is deserving of a multiplier. (Rep., 2:13-15, 3:7-8, 3:20.) Additionally, Plaintiff argues that FCA fails to rebut Plaintiff’s argument by showing the contrary. (Ibid.)

Civil Code section 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.”

On September 15, 2023, the Court dismissed with prejudice Plaintiff’s Complaint pursuant to the FCA’s 998 Offer. (Minute Order dated September 15, 2023.)

Plaintiff is the prevailing party and is entitled to attorneys’ fees and costs pursuant to the 998 Offer. (Motion for Attorney’s Fees, i:22-27.) Thus, Plaintiff is entitled to recover his attorney’s fees and costs.

Plaintiff argues that the lodestar adjustment method should be used to calculate attorney’s fees. (Motion for Attorney’s Fees, 13:10-12.)

“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus. In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437, citations omitted.)

Counsel for Plaintiff claim the following hourly rates: (1) $500.00 per hour for Counsel Adam Zolonz until 2022 and $600.00 per hour thereafter; (2) $450.00 per hour for Counsel Stephen Parnell until 2022 and $550 per hour thereafter; (3) $450.00 per hour for Counsel Lisa Ziperman; (4) $150.00 per hour for staff time and Paralegal Sherri Rangel until 2023 and $200.00 for Paralegal Sherri Rangel thereafter; (5) $550.00 per hour for Counsel Nicholas Bravo in 2020 and 2021; $600.00 for 2022; $625 for 2023, and $650.00 per hour for 2024. (Decl. Zolonz, ¶¶ 9-14, Decl. Bravo, ¶ 3.)

In opposition, FCA argues that the Court should adopt the analysis in Arias v. Ford Motor Co., No. (2020) WL 1940843 where the court used the 2018 Real Rate Report: The Industry’s Leading Analysis of Law Firm Rates, Trends, and Practices (“Real Rate Report”) to determine the proper rate to be used in calculation of attorney fees. (Opp., 4:13-17.) FCA argues that using the 2021 Real Rate Report, partner rates should be capped at $443.00 per hour and associate rates at $308.00 per hour. (Id., 4:18-24.) As such, Counsel Adam Zolonz would be entitled to $9,391.60 for 21.2 hours and Counsel Stephen Parnell would be entitled to $31,169.60 for 101.2 hours. (Ibid.) FCA argues that $150.00 per hour is the more reasonable rate by the California court for paralegal services which would amount to $4,620.00 for Paralegal Sherri Rangel’s 30.80 hours of services. (Ibid.) FCA argues that the Law Offices of Adam Zolonz, APC would be entitled to a total of $45,181.20 (Id., 4:25-27.) FCA also argues that Counsel Nicholas Bravo’s rate should be reduced to $443.00 per hour for a total of $2,658.00 for six undisputed hours billed in connection with this Motion. (Id., 5:1-4.)

In reply, Plaintiff argues that FCA’s deduction of Plaintiff’s counsels’ hourly rate is unfounded since FCA does not criticizes counsels’ experience. (Rep., 3:9-19.) Plaintiff also argues that FCA’s use of the 2021 Real Rate Report is inadmissible and arbitrarily imposes rates. (Ibid.) Plaintiff argues that other courts have deemed Plaintiff’s counsels’ rates reasonable, including this same Court. (Ibid.)

After considering the information provided, the court finds that the appropriate hourly rate for (1) Counsel Adam Zolonz is $550/hr, (2) Counsel Stephen Parnell is $450/hr, and (3) Counsel Nicholas Bravo is $550/hr. The court has no information concerning Counsel Lisa Ziperman other than an hourly rate. Furthermore, the court finds that attorney’s fees should not be awarded for services provided by Paralegal Sherri Rangel. (Roe v. Halbig (2018) 29 Cal.App.th 286, 312.)

“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].)

Counsel for Plaintiff claim that the following hours were incurred: (1) 21.20 total hours for Counsel Adam Zolonz; (2) 101.20 total hours for Counsel Stephen Parnell; (3) 6 total hours for Counsel Nicholas Bravo. (Decl. Zolonz, ¶ 49 and Exh. B, p. 34; Decl. Bravo, ¶ 32.)

In opposition, FCA argues that the number of hours spent are unreasonable due to excessive billing and ambiguous description of activities billed. (Opp., 5:18-21.) In his opposition, FCA highlights multiple entries found in exhibit B[1] of Plaintiff’s Motion arguing that they should be reduced by at least 35% meaning a reduction of 20.16 hours of work billed by Plaintiff’s counsel. (Id., 5:21-28, 6:1-28, 7:1-11.)

In reply, Plaintiff argues that the number of hours incurred were reasonable as the billing records of Plaintiff’s counsel showcase the involving and disputed nature of the litigation. (Rep., 2:16-19.) Additionally, Plaintiff argues that the billing statements provided are not required in order to make a request for attorney’s fees and when provided they should be given credence absent any clear indication that the records are erroneous which FCA failed to show in their opposition. (Rep., 2:19-28.)

In this case, the declarations and billing records provided by Plaintiff’s counsel are sufficient to meet the burden of proving the reasonableness of the claimed fees in terms of amounts and tasks. To satisfy this burden, evidence and descriptions of billable tasks must be presented in sufficient detail, enabling the court to evaluate whether the case was overstaffed, the time attorneys spent on specific claims, and the reasonableness of the hours expended. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486-487.)

The court finds Plaintiff’s fee recovery is based on 128.40 hours. The fees incurred are reasonable, as captured in the billing records submitted to this Court. (Decl. Zolonz, ¶ 49 and Exh. B.) Plaintiff’s counsel’s billing records reflect the actual time and descriptions of services performed in connection with litigating this case. Although the submission of such detailed time records is not necessary under California law, if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

FCA’s objections to Plaintiff’s counsel’s billing entries are not sufficient to meet their burden to challenge Plaintiff’s fee request. Most of the objections are mere references to the billing entries without an explanation of what is being actually disputed by FCA. Others only state that the billing is excessive but give no authority to support that argument. Additionally, FCA does not challenge the number of hours billed and anticipated to be billed in connection with the Motion by Counsel Nicholas Bravo. (Opp., 5:1-4.)

Accordingly, the court grants Plaintiff’s requested attorneys’ fees in the reduced amount of $60,500.00 for 128.40 hours billed, and $1,350.00 [3 hours at $450/hr] in an allowance of an additional three hours total associated with this Motion through hearing. A total of $61,850.00.

Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The contingent risks, preclusion of other work, skill, and difficulty counsel assert are absorbed by counsel’s hourly rates. (Robertson v. Fleetwood Travel Trailers of California Inc. (2006) 144 Cal.App.4th 785, 822.)

Plaintiff argues that Plaintiff’s counsel took this case on a contingency basis, advanced all costs and expenses on behalf of Plaintiff, and assumed the full risk of loss of the expenses paid. (Motion for Attorney’s Fees, 10:10-12.) As such, Plaintiff argues that attorneys who take matters on a contingency basis must receive a higher compensation that those who do not due to the risk involved. (Id., 10:16-23.) Plaintiff argues that his request for an additional 0.2 lodestar multiplier (total of 1.2X multiplier) is warranted due to the length of the case, the result obtained, and to deter a seller or manufacturer from refusing to provide consumers who are entitled a refund or replacement in hopes that they will not persist a claim. (Id., 17:1-9, 18:1-4.)

In opposition, FCA argues that this multiplier adjustment is unwarranted since this case did not present any complex or novel issues and Plaintiff’s counsel knew the procedural and substantive standard involved from experience. (Opp., 7:13-16.) FCA argues that the contingency risks assumed by Plaintiff’s counsel are already perfectly balanced by their hourly rate. (Id., 7:23-28.)

The court denies Plaintiff’s request for a 0.2 lodestar multiplier. 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, which the Court has found to be reasonable.

Plaintiff lists $6,961.92 in costs and expenses as seen evidenced in exhibit B of their Motion. (Motion for Attorney’s Fees, Exh. B, pp. 32-34.)

The court notes that as a prevailing party, Plaintiff can obtain costs pursuant to Code of Civil Procedure section 1032, subdivision (b).

Accordingly, the Court finds that all of these costs are reasonable and allowable under at least one of the cost statutes. The Court will award all $6,961.92 in these costs and expenses.

Plaintiff’s Motion for Attorney’s Fees is GRANTED in part. Fees and costs are AWARDED in favor of Plaintiff and against Defendants, jointly and severally, in the reduced amount of $68,811.92. This amount is comprised of $61,850.00 in attorney’s fees and $6,961.92 in costs and expenses.

[1] FCA’s opposition papers cite exhibit A in every billing entry disputed. However, these billing entries are found in exhibit B of Plaintiff’s Motion.