Judge Ronald F. Frank, Case Number: 20TRCV00772, Date: 2024-04-23 Tentative Ruling

MOVING PARTY: Defendant and Cross-Complainant, Rolls-Royce Motor Cars Financial Services, a division of BMW Financial Services NA, LLS, a Delaware limited liability company and as servicer of its assignee, Financial Services Vehicle Trust, a Delaware business trust

RESPONDING PARTY: Plaintiffs, Avakian Engineering, Inc. and Marine Gasparian (No Opposition)

TRIAL DATE: March 17, 2025¿

MOTION: (1) Defendant, Rolls-Royce Motor Cars Financial Services’ Notice of Motion and Motion for Attorneys’ Fees

Tentative Rulings: (1) CONTINUE or Grant in reduced amount, depending on why Plaintiff has not opposed the motion.

On October 26, 2020, Plaintiffs Avakian Engineering, Inc., and Marine Gasparian (collectively “Plaintiffs”) filed this action against Rolls-Royce Motor Cars NA, LLC, Rolls-Rpyce Cars Financial Services, a division of BMW Financial Services NA, LLC, O’Gara Coach Company LLC, Neil Martin, and DOES 1 through 20. On May 31, 2022, Plaintiffs filed a third amended complaint. On January 12, 2023, Plaintiffs filed a Fourth Amended Complaint (“4AC”) against Defendants alleging causes of action for: (1) Breach of Contract; (2) Negligence; (3) Negligence; and (4) Fraud.

On April 5, 2023, this Court sustained BMW’s demurrer to Plaintiff’s 4th Amended Complaint (“4AC”) without leave to amend. BMW also notes that extensive written discovery relating to Plaintiffs; complaints were also propounded to each Plaintiff during this same time period in the form of special interrogatories (two sets), form interrogatories, requests for admission, and requests for document demands (two sets). BMW notes that Plaintiffs, in turn, propounded all of the same foregoing requests to BMW for which it prepared responses.

Prior to a Judgment of Dismissal on Plaintiffs 4AC was entered, Plaintiffs appealed the Court’s ruling. BMW notes that the Court of Appeal informed Plaintiffs that the record did not include an appealable order or judgment of dismissal signed by this Court. On October 30, 2023, BMW notes that a Judgment of Dismissal with prejudice as to BMW on the 4AC was entered. BMW further notes that the Judgment of Dismissal included language deeming BMW the prevailing party and allowed BMW to apply for attorneys’ fees and court costs according to proof.

Now, BMW has filed this Motion for Attorneys’ Fees, seeking to recover attorneys’ fees in the sum of $61,545 for actions taken in contesting Plaintiffs’ claims. BMW clarifies it is not seeking to recover attorneys’ fees associated with its pending cross-complaint or the pending appeal.

On March 18, 2024, BMW filed this Motion for Attorneys’ Fees. On March 18, 2024, BMW also filed a memorandum of costs. To date, no opposition has been filed.

Attorney’s fees are recoverable when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

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

Where a contract specifically provides for attorney’s fees and costs incurred to enforce the contract, attorney’s fees and costs must be awarded to the party who is determined to be the prevailing party on the contract. (Civ. Code., § 1717, subd. (a).) “Reasonable attorney’s fees shall be fixed by the court and shall be an element of the costs of suit.” (Ibid.)

A prevailing party is defined as follows:

(4) “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

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.)

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.)¿A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)

Here, this Court notes that on May 5, 2023, Plaintiffs’ appealed this Court’s final ruling and judgment of dismissal after an order sustaining demurrer. “[T]he filing of a notice of appeal does not deprive the trial court of jurisdiction to award attorney fees as costs post trial. Although a prevailing party at trial may not be the prevailing party after an appeal, it has been held that a motion for attorney fees is not premature despite the filing of a notice of appeal. [Citation.] . . .¿Under section 916, “the trial court is divested of subject matter jurisdiction over any matter embraced in or affected by the appeal during pendency of that appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.)¿However, an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. [Citations.] Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs.” (Bankes v. Lucas¿(1992) 9 Cal.App.4th 365, 368–369.)¿

First, Defendant notes that Plaintiffs filed five (5) complaints, and in response, Defendant was required to file four (4) demurrers before the Court ultimately sustained its demurrer to Plaintiffs’ 4AC without leave to amend. Additionally, Defendant notes that extensive written discovery was propounded to each Plaintiff in the form of special interrogatories (2 sets), form interrogatories, requests for admission and document demand (2 sets) with review of the responses. Further, BMW notes that Plaintiffs propounded all of the same foregoing requests to BMW that provided verified responses that later supported the Court’s dismissal. Defendant also contends it incurred additional fees to secure the dismissal of improperly named party Rolls-Royce Motor Cars NA, LLC, to communicate with counsel for Plaintiffs and counsel for co-defendants, for the review and analysis of discovery propounded by Plaintiffs on Defendant O’Gara Coach Company LLC, and Defendants Andranik Antonyan and A and D Auto Body Inc., and for the appearances at numerous CMCs.

This Court notes that Plaintiffs have failed to file an opposition to attorneys’ fees. However, the Court is inclined to continue this motion to allow Plaintiffs to file such an opposition, unless they are submitting to the amounts requested. At first blush, this Court finds many of the time entries to be reasonable. However, what this Court finds to be unreasonable is that being that there were four demurrers filed, all of which were sustained, the Court finds it difficult to believe that Defendant worked as many hours on the second, third, and fourth demurrer when the causes of action and analysis were inherently similar. For example, for the fourth demurrer, Defendant is seeking costs in the amount of 5.1 just to type out the reply brief to the final demurrer. Further, the Court notes that even for the final demurrer hearing, counsel for Defendant has two entries for two different attorneys, with two different allotted amounts of time in attending the hearing on demurrer for the Fourth Amended Complaint. As such, the Court believes that Plaintiffs may oppose some categories of attorneys’ fees sought. Thus, the Court will hear oral argument at the hearing and then finalize this tentative ruling.