David Abbott v. Mercedes-Benz USA, LLC, et al.

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

 

MOVING PARTY: Plaintiff David Abbott

RESPONDING PARTY(S): Defendant Mercedes-Benz USA, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff David Abbott brought this action against Defendant Mercedes-Benz USA, LLC, for alleged violations of the Song-Beverly Act. 

Following Plaintiff’s acceptance of Defendant’s section 998 offer to compromise, Plaintiff now moves to recover his attorney’s fees and costs. Defendant opposed.

  

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees is GRANTED IN PART in the total amount of $51,750.00.

Plaintiff is also awarded full costs in the amount of $17,314.45.

Moving party to give notice.

DISCUSSION: 

Motion for Attorney’s Fees and Costs

A. Defendant’s Untimely Opposition

As a preliminary note, all papers opposing a motion shall be filed with the court and a copy served on each party at least nine court days before the hearing. (CCP § 1005(b).)  A trial court has discretion to refuse to consider untimely oppositions. (Cal. Rules of Court, rule 3.1300(d)).

Based on a hearing date of January 3, 2024—and considering that January 1, 2024 and December 25, 2023 were court holidays—Defendant’s opposition was due by December 19, 2023. Defendant, however, did not file and serve its opposition until December 22, 2023.

Defendant provides no explanation for the late filing. Be that as it may, in the interests of justice, this court exercises its discretion to consider the untimely opposition. To the extend Plaintiff contends it was prejudiced by the delay, Plaintiff could have, but did not, move for leave to file a late reply.

B. Analysis

By this motion, Plaintiff seeks a total award of $131,138.75, which includes $113,824.30 in attorney’s fees and $17,314.45 in costs.

On June 6, 2023, the parties agreed to settle the matter pursuant to a section 998 offer. (See Block Decl., Exh. 5.) The settlement provides that Plaintiff is the “prevailing party,” and that Plaintiff is therefore entitled to his attorney’s fees and costs by motion under Civil Code section 1794. (Id.)

Civil Code § 1794, subdivision (d) provides:

 

(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.

(Civ. Code, § 1794, subd. (d) [emphasis added].)

 

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.)  “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’”  “[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….”  (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)  In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’”  (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.)  The burden is on the party seeking attorney fees to prove reasonableness of the fees.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

 

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

1. Reasonable Hourly Rate

One law firm and one attorney, Mr. Victor L. Block, worked on this matter for Plaintiff. Block seeks an hourly rate of $625.00 per hour. Mr. Block has practiced law in California since 1999, with a large portion of that on the manufacturer-side of lemon law matters. (Block Decl. ¶ 3.) 

Defendant objects to Block’s requested hourly rate of $625 as “exorbitant.” Defendant notes various examples of courts reducing the requested fees in lemon law matters and urges the court to reduce the rate to “at most $250” per hour. (Opp. 8: 24.)

This court agrees that the quoted rate far exceeds the reasonable rate in the field for standard Song-Beverly litigation. Plaintiff fails to present sufficient evidence that this is the prevailing rate in Los Angeles.

Thus, under the totality of the circumstances and based upon general prevailing rates in the Los Angeles area for this type of litigation, this court finds the reasonable rate to be $450.00. This determination considers the complexity of the case, the quality of services provided, and the attorney’s experience.

2. Number of Hours Reasonably Expended

Plaintiff’s records reflect a total of 174.6 hours billed in this matter. (Block Decl., Exh. 9.) Plaintiff contends the time incurred was reasonable based on the nature of the case coupled with Defendant’s dilatory litigation conduct. Plaintiff argues Defendant did not serve discovery or take Plaintiff’s deposition after 3 and a half years of litigation and took nearly four years to finally serve a “substantive offer” to settle the case.  (Id. ¶ 8; Opp. 8: 16-17.)

"[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)  

In opposition, Defendant contends the hours purportedly spent by Plaintiff’s counsel are excessive. Defendant argues that Plaintiff “made no pre-litigation repurchase demand and MBUSA made immediate efforts to settle this case and provide Plaintiff with exactly what he wanted – a repurchase.” (Opp. 2: 26-28.) Defendant asserts this time is unreasonable “for a case that settled before the bulk of discovery and trial.” (Opp. 4: 17.) Defendant highlights multiple entries in the billing records it contends are excessive, including overly-frequent calls to the client—many of which are redacted in part.

Here, despite the action having pended for nearly four years, this court’s docket reflects very little law and motion practice in this matter. Moreover, there was nothing particularly complex or unique about this case. The issues involved were applicable to other consumers’ vehicles, thereby triggering economies of scale in terms of Plaintiff’s counsel’s efficiency in litigating this type of lemon law case. Litigating this matter should not have required anything more than slight factual modification to existing boilerplate. Consistent with these observations, Counsel’s billing records reflect a series of repetitive administrative-type tasks.

On the other hand, this court is mindful that counsel’s efforts resulted in a commendable settlement of $150,348.33 for the client. (See Block Decl., Exh. 5, § 998 Offer to Compromise.)

Considering these facts, this court ultimately agrees that in some instances, the time quoted is excessive under the circumstances. In light of the foregoing discussion, and in view of the totality of the circumstances, the Court finds that the total amount of reasonable attorney’s fees in this case, using a lodestar methodology, is $51,750.00. This was calculated by multiplying the hourly rate of $450.00 by 115 hours, which this court deems to be the reasonable time spent on all tasks in the matter.

Plaintiff does not seek a multiplier. Be that as it may, the Court in its discretion declines to apply a multiplier given this was a relatively standard Song-Beverly case with no novel or complex issues of law.  

3. Costs and Expenses

Plaintiffs seeks costs in the amount of $17,314.45. A large portion of the costs ($15,455.00) are attributed to expert witness fees. (See Block Decl., Exh. 6, ¶ 8(b).)

In opposition, Defendant contends that Plaintiff has failed to substantiate the costs with evidence. Defendant has not pointed to any of the claimed costs as unrecoverable with any particularity.

When the items on the verified cost bill appear to be proper, the burden of proof is on the contesting party. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal. App. 3d 1192.) 

Here, Plaintiff’s claimed costs appear reasonable on the face of the memorandum of costs. (Block Decl., Exh. 6.) Defendant has failed to properly put the costs at issue. 

Accordingly, Plaintiff is awarded full costs in the amount of $17,314.45.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated: January 3, 2024 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.