TENTATIVE RULING

Calendar: 7

Date: 3/14/2025

Case No.: 22 GDCV00670

Case Name: Bazikyan v. FCA US, LLC 

MOTION FOR ATTORNEY FEES

Moving Party: Plaintiff Armen Bazikyan  

Responding Party: Defendants FCA US LLC and Glendale Dodge Chrysler Jeep 

RELIEF REQUESTED:

FACTUAL AND PROCEDURAL BACKGROUND;

Plaintiff Armen Bazikyan alleges that in November of 2021, plaintiff purchased a 2021 Jeep Grand Cherokee vehicle, which was sold to plaintiff with express warranties from defendant FCA US LLC (FCA) that the vehicle would be free from defects in materials, nonconformities, or workmanship during the applicable warranty period, and to the extent the vehicle had defects, FCA would repair the defects.  

Plaintiff alleges that plaintiff returned the vehicle to defendants for repairs under the warranties due to defects and nonconformities relating to the vehicle not changing gears until the accelerator pedal is tapped, as well as defects and nonconformities related to, among other things, left front fender flare coming apart, high rev transmission, vehicle not shifting in sport mode, rear interior quarter panel lifting up-not flush against the body, rear trunk panel warping, fuel pump clicking off, fuel tank concerns, fuel leaking, solenoid clogged up with fuel, and stalling of the vehicle and jerking when starting and accelerating. 

Plaintiff alleges that plaintiff delivered the vehicle to an authorized repair facility, defendant Glendale Dodge Chrysler Jeep (Glendale Dodge) to repair the nonconformities, but defendants have failed to make the vehicle conform to the applicable warranties, despite a reasonable number of attempts to do so.   

Plaintiff alleges that plaintiff is entitled to replacement of the vehicle or restitution of the amount actually paid or payable under the contract, at plaintiff’s option, plus prejudgment interest at the legal rate.  

The complaint also alleges that defendant Glendale Dodge breached its duty to use ordinary skill and care with respect to the vehicle in accordance with industry standards, as Glendale Dodge failed to properly store, prepare, and repair the vehicle, proximately causing plaintiff damages. 

The complaint alleges three causes of action for Violation of the Song Beverly Act, for breach of express warranty, breach of implied warranty, and violation of Song Beverly Act section 1793.2, as well as a cause of action for negligent repair.     

“The Court notes that the parties agreed that plaintiff is the prevailing party for purposes of a motion for costs, expenses, and attorney’s fees pursuant to CCP section 1794 (d), “as stipulated by the parties or, if the parties cannot agree, upon motion to the Court having jurisdiction over this action.” [Ex.1, para. 3]. This motion is ruled upon without prejudice to that provision of the settlement agreement being sought to be enforced….

Counsel orally stipulate that the Court may dismiss the case with prejudice, and that the Court retains jurisdiction to make orders to enforce any and all terms of the settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6. 

The Court orders the following: The Court, pursuant to an oral request made by Stipulation, orders the Complaint filed by Armen Bazikyan on 10/07/2022 dismissed with prejudice. 

The Court retains jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure Section 664.6. Balance to be paid is $57,157.27.”  

[Minute Order, 08/23/2024].

On October 4, 2024, the court heard an amended motion to enforce the settlement agreement. The motion was granted in part, as prior to the hearing plaintiff had submitted a Supplemental Declaration indicating that a portion of the settlement funds had since been received.  

ANALYSIS:

The fees here are sought under statute, specifically Civil Code § 1794 (d), which provides with respect to consumer warranty protection:

“(d) 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.”

Plaintiff indicates in the motion that the matter has been settled pursuant to a CCP section 998 Offer to Compromise which provided for an award of attorneys’ fees, costs, and expenses to be determined by motion.  [Wirtz Decl., Ex. 7].  

The offer is attached, and provides, in pertinent part:

“In addition to the sum listed in paragraph 1, above, Defendant offers to pay reasonable costs, expenses and attorneys’ fees pursuant to Civil Code section 1794(d) as stipulated by the parties or, if the parties cannot agree, upon motion to the Court, having jurisdiction over this action. The Parties agree that Plaintiff ARMEN BAZIKYAN is the prevailing party for purposes of the motion. However, this shall not be construed as a waiver of FCA US LLC’s right to assert arguments in opposition to the motion.”

[Wirtz Decl., Ex. 7, para. 3]. 

As noted above, the court previously has expressly recognized this provision, and the court’s continuing authority to enforce the provision of settlement concerning attorney fees.   [Minute Order 08/23/2024]. 

There is accordingly no dispute here that plaintiff is the prevailing party under section 1784(d), entitled to attorney's fees actually and reasonably incurred in the commencement and prosecution of this action, and that the parties have been unable to agree to the amount of fees and plaintiff is appropriately seeking fees by motion. 

The motion seeks 35 hours spent by attorneys and paralegals at Norman Taylor & Associates at billing rates of $645 for attorney Taylor and $250 for the paralegals ($17,637.50), and 118 hours of time spent by attorneys and staff at Wirtz Law at billing rates ranging from $250 to $750 per hour.  ($43,495.00) (Total $61,132.50).   

The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:  

 

“[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award."   Margolin v. Regional Planning Com.  (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work.  Id. at p. 1004;   Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002  [39 Cal. Rptr. 2d 506].) 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. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49 .) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. ( Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

"It is well established that the determination of what constitutes

reasonable attorney fees is committed to the discretion of the trial court . . .

 [Citations.]   The value of legal services performed in a case is a

matter in which the trial court has its own expertise. [Citation.] The trial

court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court

makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty,  the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." ( Melnyk v.Robledo (1976) 64 Cal. App. 3d 618, 623 624 [134 Cal. Rptr. 602].)

PLCM, at 1095. (emphasis added).

The Court also held that the standard of review with respect to this determination is abuse of discretion:

 “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.

“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 v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470, quoting Nightingale v. Hundai Motor America (1994) 31 Cal.App.4th 99, 104.  

The moving papers submit evidence justifying the billing rates claimed, describing the experience and expertise of each attorney and paralegal who billed on this matter, as well as descriptions of other cases in Southern California in which rates in the range now claimed for the attorneys for work performed in lemon law cases were approved as reasonable.  [See Taylor Decl., paras. 6-24; Wirtz Decl., paras. 4-15, Exs. 17-22, 26].   The moving papers submit a report, the United States Consumer Law Attorney Fee Survey, as well as the Real Report for 2021, and the Laffey Matrix,  and explain how these reports support the billing rates claimed.  [Wirtz Decl., para. 23-24, Exs. 2, 3; Taylor Decl., para. 12, Ex. 5].  The rates claimed here conform with what this court would expect to be charged in matters of this nature, and are not inconsistent with the 2023 Real Rate Report relied upon by defendants. As read by this court, the Report confirms that the rates are well within and below the median range billing figures. The court has reviewed all evidence submitted and is familiar with the customary billing rates in this county and in cases of this nature, and by firms with the expertise claimed by counsel for plaintiff. Under the circumstances the court finds the billing rates reasonable, and the court will not reduce the hourly rates charged. 

The moving papers submit detailed billing records with the Taylor Declaration at Exhibit 1 and the Wirtz Declaration at Exhibit 1, along with breakdowns by activities for the Wirtz fees.  [Wirtz Decl., at Exhibits 10-31]. 

The opposition argues that the hours billed consist of numerous entries that should be reduced or eliminated altogether, and include entries for clerical tasks, excessive time and block billing, and for anticipated time which has not yet been spent.

Defendants argue that there was nothing complicated about this case, and that plaintiff’s attorneys specialize in representing vehicle owners against manufacturers and dealerships and are well versed in the ins and outs of the Song-Beverly Act, but nonetheless seek to recover an excessive amount for handling this straightforward lemon law matter that did not proceed to trial 

As pointed out in the reply, it is not clear which of the billings are being challenged as clerical tasks.   It appears from the billings that many of the expenses for completing and filing notices and papers would be ordinarily performed by an attorney, or were performed at the paralegal rates. Without any specific charges identified by the opposition, the court cannot determine what tasks are being challenged as overbilled on this ground.  

In Premier Medical Management Systems, Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, the Second District affirmed an attorney fee award made by the trial court, observing:

“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, at 564.

Under the circumstances, it is not clear to the court what hours spent are argued to have been clerical tasks, and how such hours spent were not reasonably necessary to pursuing plaintiff’s claims in this case.

Defendants also argue that there was excessive time and block billing, and identifies specific entries being challenged on these grounds.  The charges challenged relate to the preparation of motions to compel discovery responses and for preparing discovery. 

With respect to the charges to prepare the motions to compel discovery and to meet and confer on those matters, it would appear that the hours to prepare a motion to compel written discovery of documents in March of 2024, a total of 3.8 hours, is excessive for a motion when the billings concede that this matter is governed by a standing order re discovery designed to streamline such discovery and motions.  The court will find that the reasonable hours to have been 2 hours at the rate of attorney Schwartz of $450 per hour.  The remaining charges, 1.8 hours at $450 per hour, will be reduced from the total for a reduction of  $810.00.   

Similarly, the fees to draft a meet and confer letter concerning the second set of documents, and the subsequent motion to compel compliance with the standing order would appear overstated, given that the work spent on the meet and confer letter would have been cut and pasted into the moving papers, and those papers, if consistent with the standing order, need not have been unduly complicated or time-consuming.  The total challenged is 3.2 hours. The court again finds that the reasonable hours to have been spent are two hours, and the remaining 1.2 hours by attorney Schwartz at $450 per hour will be reduced from the total for a further reduction of $540.00. 

The opposition also challenges the time spent by attorney Taylor of 5.2 hours to review the file and prepare form interrogatories, special interrogatories, requests for production and requests for admissions to defendant FCA and an additional 4 hours to prepare the same types of discovery to defendant Glendale Dodge, for a total of 9.2 hours.  The court finds these charges, at the hourly rate of $645, to have been excessive, given the expertise of the attorney in these lemon law cases, the ease of duplicating the discovery as to each of the defendants, and the court’s standing order limiting such discovery, particularly with respect to requests for admissions. The time spent to prepare requests for admissions at 1.8 hours per defendant, a combined total of 3.6 hours at $645 per hour, accordingly are not allowed, for a reduction of $2,322.00. 

The court will further adjust the time spent to reflect a reasonable total time of 5 total hours, for a further reduction (9.2 hours, less 3.6 hours=5.6 hours) of 0.6  hours at $645 per hour for a reduction of $387.00.  

Defendants also argue that the billings include anticipated time attorney time and paralegal time in connection with this motion for fees. In general, a party is entitled to all fees reasonably incurred, including the fees for time expended in obtaining a reasonable fee award.  Serrano v. Unruh (1982) 32 Cal.3d 621, 631.  This may reasonably include reasonable anticipated time in connection with preparing a reply to the opposition and attending the hearing, which would not have been incurred at the time of the filing of the notice of motion, and the fees will not be disallowed on the ground they are anticipated fees.  

The fees sought do not appear to be fees which would not in fact have been reasonably anticipated to be incurred or would not be required to be incurred, and do not appear to be unreasonable in time or overall amount.  It would appear that the time claimed to review such and opposition and prepare a thorough reply, is not excessive.  No reduction is made.  

The total hours claimed for the motion for fees, including billing audits, appears to be 16.2 hours, which the court does not find unreasonable for the detailed product which was filed with the court. 

Overall, in reviewing the file and the billings, it appears that in addition to the fees discussed above, the parties attended an expert deposition, engaged in some trial preparation, and negotiated concerning a CCP section 998 offer, which was ultimately accepted, but then not promptly satisfied by defendants, requiring two motions to enforce the settlement, as well as time spent to appear at the surrender of the vehicle.  Under the circumstances, it does not appear to be appropriate to make further reductions to the lodestar figure other than those set forth above. 

This leaves the lodestar calculation at $61,132.50 in attorney’s fees claimed reduced by the sums of $810.00, $540.00, $2,322.00 and $387.00 ($4,059.00) for a total lodestar, before costs, of $57,073.50. 

This leaves the issue with respect to the multiplier requested.  In this case, each side requests a multiplier.  Plaintiff seeks a fee award which would include the sum of $30, 566.25, which plaintiff indicates is a 1.5 multiplier enhancement on the attorney’s fees.  The opposition seeks a negative multiplier of 0.65, based primarily on arguments concerning the billing rates charged, which is discussed above.   

 

Plaintiff argues that a lodestar enhancement is appropriate here to adjust the fee award based on factors such as the results obtained, and the risk undertaken by counsel in taking on the case on a contingency basis, including delayed recovery.  

The opposition argues that no multiplier is warranted in this case, as there was nothing novel or difficult about this case, and numerous courts have commented that that a typical lemon law case is not a complex case.  The opposition argues that there is a near certainty of prevailing on the merits of such a case given the generous nature of the consumer protections in the Song-Beverly Act.  

It has been held that despite the specific language of Civil Code § 1794(d) that fees must be “based on actual time expended, determined by the Court to have been reasonably incurred by the buyer,” the lodestar adjustment method, including use of a lodestar fee multiplier, is applicable to an award of attorney’s fees under the Song-Beverly Act.   Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 821.  

“[T]he 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. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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.

Ketchum, at 1132.

“This case was taken on a purely contingent basis.  We would have recovered nothing if Plaintiff had lost. My firm is small and the fees and costs we must bear when we do lose a lemon law case are a significant hardship. We take the risk very seriously. 

[Wirtz Decl., para. 31]. 

In any case, the court notes that in connection with this motion, the court has accepted the various billing rates claimed in their entirety, over the protest of defendants, based on successful arguments by plaintiff and the submission of evidence establishing that the attorneys are experienced specialists in this area of law.  

This was not a complicated case, and did not involve any novel or difficult issues beyond those which ordinarily arise in a Song-Beverly action, and any prejudice claimed from passing on other cases is not established by the declaration. In any case, it appears that the billing rates take into account the level of recovery expected, and the nature of the representation.  The court also has declined to reduce the rates pursuant to defendants’ request, and will decline to apply a negative multiplier to the billing rates, also as argued by plaintiff.  In addition, some of the fees incurred were incurred after the acceptance of the CCP section 998 offer, at which time there was no further risk with respect to the recovery of attorney’s fees by the attorneys.   Under the circumstances, the contingent nature of the representation, by itself, does not justify the application of a multiplier. The court finds that no multiplier in favor of plaintiff is warranted.  The court also finds that no negative multiplier is warranted.  The lodestar will not be further adjusted.  

 The court notes that there is no request for expenses included in the motion, as plaintiff has represented that defendants have not filed a timely challenge to the Memoranda of Costs filed on December 3, 2024. [Wirtz Decl., para. 59].  The file shows that a cost memo was filed on behalf of plaintiff by the Wirtz firm in the sum of $8,547.03 and by the Taylor firm in the sum of $919.40.  The combined total sought is $9,466.43.  The opposition does not challenge any of the expenses sought in those memoranda.  While there is request in a declaration to include in the order on this motion the total sought by both defendants in those cost memoranda (Wirtz Decl., para. 59), this does not appear to be appropriate and risks confusion of a double recovery. The court accordingly orders the clerk to enter the costs pursuant to the statutory procedures for entering costs pursuant to cost memorandum.  

  

RULING:

Plaintiff’s Motion for Attorney Fees is GRANTED.

The Court finds that plaintiff Armen Bazikyan was a prevailing party in the action, and so is under Civil Code § 1794 (d) allowed by the Court to recover as part of the judgment a sum to cover attorney's fees based on actual time expended, and determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

The Court finds that reasonable attorney’s fees are:

Lodestar Adjusted= $57,073.50 

The total award of $57,073.50 [$91,698.75 sought] is to be awarded to plaintiff Armen Bazikyan against defendant FCA US LLC and added to the judgment.    

The Court will hear from the parties concerning whether the attorney’s fees are to be awarded against defendant FCA US LLC only or also against defendant Glendale Dodge LLC dba Glendale Dodge Chrysler Jeep. 

Expenses are to be entered by the clerk according to the statutory procedures for costs entered pursuant to Memorandum of Costs, with respect to both Memoranda of Costs filed on December 3, 2024. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect offers free audio and video appearances.  Department D is now requiring either live or VIDEO appearances, not audio appearances.  Please note that in the case of video appearances, ADVANCE REGISTRATION IS REQUIRED. 

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.