Judge: Robert S. Draper, Case: 21STCV20529, Date: 2023-04-03 Tentative Ruling

Case Number: 21STCV20529    Hearing Date: April 3, 2023    Dept: 78

The parties should note that Department 26 (Judge Elaine Lu) will be hearing this motion on April 3, 2023 in Judge Robert Draper’s absence.

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On June 2, 2021, Plaintiff filed the instant action against Defendants FCA US LLC (“FCA”) and BPSN II LLC dba Russell Westbrook Alfa Romeo Maserati of Van Nuys (“BPSN” and together, “Defendants”).  The Complaint asserts three causes of action for (1) Breach of Implied Warranty of Merchantability Under the Song-Beverly Warranty Act, (2) Breach of Express Warranty Obligations Under the Song-Beverly Warranty Act, and (3) Violation of Song-Beverly Warranty Act Section 1793.2.

            On September 29, 2022, Defendants informed the Court that a settlement had been reached.

            On March 6, 2023, Plaintiff filed the instant motion for attorneys’ fees and costs.  On March 20, 2023, Defendants filed an opposition.  On March 24, 2023, Plaintiff filed a reply.

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees when authorized by contract or statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (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.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  From there, the “[t]he 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.)

Discussion

Right to Recover

A prevailing buyer in an action under the Song-Beverly Act “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).)  “[W]hen ‘prevailing party’ is undefined by the statute, ‘a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement or otherwise. [Citations.] In assessing litigation success, Hsu v. Abbara (1995) 9 Cal.4th 863, 877, ... instructs: ‘[C]ourts should respect substance rather than form, and to this extent should be guided by “equitable considerations.”’”  (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048.)

            On approximately July 26, 2022, the parties settled the instant action.  In their Release Agreement, the parties agreed that “FCA US LLC agrees to pay Karleta F. Jackson’s attorney’s reasonable fees, costs and expenses pursuant to Civil Code section 1749(d) in an amount to be determined by the Court. . .” (Kohen Decl; Ex. 3.) 

Reasonableness of Attorneys’ Fees

Plaintiff seeks attorneys’ fees and costs totaling $41,366.10 consisting of $33,397.50 in attorneys’ fees, $6,679.50 in a 1.2 fee multiplier, $6,037.50 in anticipated attorneys’ fees for the reply and hearing for the instant motion, and $1,259.10 in costs.

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) 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.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)  Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.”  (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Attorney Isaac Kohen (“Kohen”) claims an hourly rate of $525 per hour.  (Kohen Decl. ¶ 17.)  Kohen has practiced law since 2012, focusing primarily on Lemon Law litigation. (Id. ¶ 15.) In that time, Kohen has filed approximately 500 complaints on behalf of consumers.  (Ibid.)  Kohen’s claimed rate is consistent with those approved in other courts.  (Id. ¶¶ 20-21.)

Attorney Tamara Imber claims an hourly rate of $285 per hour. (Motion at p. 1.) Plaintiff does not provide any substantiation for Imber’s claimed rate.

Pursuant to the billing records, these two attorneys anticipate spending a total of 71.5 hours on the instant action.  (Kohen Decl., Exh. 1.)  Based on Kohen’s experience and prevailing rates of similar, the Court finds Kohen’s hourly rates are reasonable. (Id. ¶ 21.) However, as Plaintiff provides no information regarding Imber’s experience, background, or similarly situated attorneys’ rates, the Court finds that $225 is a reasonable hourly rate for Imber.

Moreover, in light of Plaintiffs’ Counsel’s firm’s expertise in lemon law actions, as reflected in Counsel’s hourly rates, the Court finds the hours billed on motions practice to be excessive.  Considering Plaintiff’s Counsel’s expertise in lemon law matters and the availability of templates from other lemon law actions that Plaintiff’s Counsel’s firm has handled in the past, drafting and propounding discovery requests are routine matters that should have required only a fraction of the hours that Plaintiffs’ Counsel billed.  For example, Plaintiff’s Counsel claims 5.5 hours on propounding discovery and 5.25 on reviewing FCA’s responses, which is excessive as all the discovery in this matter was routine and boilerplate.  Similarly, Plaintiff’s Counsel claims seven hours for drafting the instant motion for attorney’s fees and anticipates an additional three hours to draft the reply. Moreover, no motions other than the instant motion were filed in this matter, no depositions were taken, no vehicle inspection occurred, and no discovery disputes arose.  On the other hand, the Court does recognize that the action did take place over nearly two years.

Given the totality of these factors the Court concludes based on the claimed experience of Plaintiffs’ Counsel, as reflected in their hourly rates, a reduction is warranted.  Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred thus far is $22,000, with $4,000.00 in anticipated fees.

Lodestar Enhancement

Plaintiffs request a lodestar enhancement multiplier of 1.2 given the time and labor required, the contingent nature of the case, preclusion of other employment, Plaintiff’s Counsel’s skill, and the outcome achieved. 

In determining whether to apply a multiplier the California Supreme Court has given clear guidance for the trial courts to follow.

Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.

(Ketchum, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors raised have already been addressed in the calculations of the hours worked and hourly rate above.  Moreover, the risk to Plaintiff’s Counsel due to the contingent fee agreement with Plaintiff is substantially mitigated by Kohen’s claim that in the nearly 500 lemon law cases he has litigated, Kohen has “only lost once.” (Kohen Decl. ¶ 16.) Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

Costs

Defendants do not contest Plaintiff’s claimed costs.  Upon review of Plaintiff’s claimed costs, the Court finds the costs are clear and recoverable costs which can easily be determined based on the date of the claimed cost and the corresponding filings. 

Accordingly, the costs appear reasonable.

CONCLUSIONS AND ORDER

            Based on the forgoing, Plaintiff Karleta F. Jackson’s motion for attorneys’ fees and costs is granted in the total amount of $27,259.10 consisting of $26,000.00 in Attorneys’ Fees and $1,259.10 in Costs.

            Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: March 30, 2023                                                       ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court