Judge: Serena R. Murillo, Case: 20STCV20390, Date: 2023-09-18 Tentative Ruling
Case Number: 20STCV20390 Hearing Date: September 18, 2023 Dept: 31
TENTATIVE
Plaintiff’s motion for attorney fees is
GRANTED in part. The Court awards
$44,038.35 in attorney fees and $4,807.42 in costs to SLP.
Request for Judicial Notice
Plaintiff requests judicial notice of 15 items: (1)
An Order on attorney’s fees and prejudgment interest in the lemon law matter of
Abraham Forouzan v. BMW (United States District Court for the Central
District of California Case No. 2:17-cv-03875-DMG-GJS); (2) An Order on
attorney’s fees, costs and expenses in the lemon law matter of Joshua
Holeman v. FCA (United States District Court for the Central District of
California Case No. 2:17- cv-08273-SVW-SK); (3) An Order on attorneys’ fees,
costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los
Angeles Superior Court Case No. BC622506); (4) Order on attorneys’ fees and
prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United
States District Court for the Central District of California Case No.
2:17-cv-5061-DMG(PLAx)); (5) Order on attorneys’ fees and prejudgment interest
in the lemon law matter of Zargarian v. BMW (United States District
Court for the Central District of California Case No. 2:18-cv-04857-RSWL-PLA);
(6) Minute Order for Jose Medina v. KMA (Los Angeles Co. Super. Ct.,
Civil Case No. 19STCV02985); (7) May 12, 2021 Minute Order for Michelle
Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351); (8)
Minute Order in Oscar Millan vs. Kia Motors America, Inc., (Los Angeles
Co. Super. Ct., Civil Case No. BC710535); (9) March 14, 2022 Minute Order for Jason
J. Arnold, et al. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case
No. 19STCV26274); (10) Order on Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the matter of Mo Rahman v. FCA US, LLC et al., (United
States District Court for the Central District of California Case No.
2:21-cv-02584); (11) June 13, 2022 Minute Order granting Plaintiff’s Motion for
Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Klingenberg
v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888); (12) October
3, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs,
and Expenses in the lemon law matter of Galvan v. KMA (Los Angeles Co.
Super. Ct., Civil Case No. BC715568); (13) January 24, 2023, Minute Order
granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the
lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United
States District Court for the Central District of California Case No.: 5:21-cv-
01346-SPG-SHK); (14) April 24, 2023 Minute Order granting Plaintiff’s Motion
for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Sergio
Proa v. Kia Motors America Inc. (Los Angeles Co. Super. Ct. Civil Case No.
BC716647); and (15) Order on attorneys’ fees in Holcomb v. BMW of N. Am.,
LLC, Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020).
The Court may take judicial notice of records of any court of
record of the United States. (Evid. Code § 452(d)(2).)
The
request for judicial notice is GRANTED.
Legal Standard
Attorneys’ fees
are allowed as costs when authorized by contract, statute, or law. (Code Civ.
Proc, § 1033.5, subd. (a)(10)(B).)
In a lemon law action, costs and expenses, including attorney’s fees, may
be recovered by a prevailing buyer under the Song-Beverly Act. (See Civ. Code,
§ 1794(d).) Section 1794 provides:
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 [emphasis added].) Thus, the statute includes a
“reasonable attorney’s fees” standard.
The attorney bears the burden of proof as to “reasonableness” of any fee
claim. (Code Civ. Proc., § 1033.5(c)(5).) 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.) “Testimony of an attorney as to the number of hours worked on a
particular case is sufficient evidence to support an award of attorney fees,
even in the absence of detailed time records.” (Id.)
A plaintiff’s verified billing invoices are prima facie evidence that the
costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d
677, 682.) “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 to
not suffice.” (Lunada Biomedical v. Nunez
(2014) 230 Cal.App.4th 459, 488, quoting Premier
Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163
Cal.App.4th 550, 564.) The
Court has discretion to reduce fees that result from inefficient or duplicative
use of time. (Horsford, supra, 132
Cal.App.4th at 395.)
In determining a
reasonable attorney fee, the trial court begins with the lodestar, i.e., the
number of hours reasonably expended multiplied by the reasonable hourly
rate. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24,
36.) The lodestar may then be adjusted
based on factors specific to the case in order to fix the fee at the fair
market value of the legal services provided.
(Ibid.) These facts 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. (Ibid.)
Discussion
Plaintiff moves for an award of
attorney fees in the amount of $103,242.35, consisting of (1) $70,276.50 in
attorney fees for Strategic Legal Practices, APC (“SLP”), (2) a 1.35 multiplier
enhancement on the attorney fees ($24,596.78), (3) $ 4,869.07 in costs and
expenses for SLP; and (4) an additional $3,500 for reviewing the opposition,
drafting a reply, and attending the hearing on this motion.
A. Entitlement to Attorney Fees
Plaintiff contends
that she is the prevailing party in this action because of a signed 998 offer
in which Defendant ultimately agreed to settle this case. The Court agrees and Defendant does not
dispute this. Plaintiff is the
prevailing party in this action entitled to a reasonable amount of attorney
fees.
B. Reasonableness of Fees
i.
Reasonable Hourly Rate
“The reasonable hourly rate is that prevailing in the community for
similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The
experienced trial judge is the best judge of the value of professional services
rendered in [her] court.” (Ibid.)
Plaintiff seeks to recover attorneys’ fees for 11 different attorneys who
worked on the case. Their hourly rates are as follows:
(1) Guy Bercegeay: 2021 rate of
$375/hr; (2) Jason Clark: 2022 rate of $565/hr; (3) Tionna Dolin: 2022 rate of
$425/hr and 2022 partner rate of $550/hr; (4) Mark Gibson: 2020 rate of
$450/hr; (5) Christine Haw: 2022 rate of $490/hr and 2023 rate of $500/hr; (6)
Breita Linnell: 2023 rate of $525/hr; (7) Ian McCallister: 2023 rate of
$595/hr; (8) Anh Nguyen: 2020 rate of $435/hr; (9) Matthew Pardo: 2020 rate of
$360/hr, 2021 rate of $390/hr, and 2022 rate of $410/hr; (10) Marcy Sanchez:
2020 rate of $485/hr; and (11) Greg Yu: 2022 rate of $595/hr.
For each of the attorneys, attorney Payam Shahian attests to their legal
experience and the reasonableness of their rates. (Shahian Decl. ¶ ¶ 41-63.)
Defendant contends that
Plaintiff’s counsels’ hourly rates are excessive. Defendant does not, however, cite any
evidence in support of its assertion and instead argues that Plaintiff’s
submitted evidence is hearsay and not reasonable because it is based on a
sampling of other cases where Plaintiff’s attorneys billing rate was found to
be reasonable. Defendant has not filed evidentiary objections in connection
with its opposition. Further, Defendant presents evidence it paid their counsel much lower hourly rates. (Aliviado Decl.,
¶ 27.)
After reviewing the parties’
arguments, the Court finds, based on the submitted evidence and its own
experience, that Plaintiff’s requested hourly rates are reasonable for
attorneys with the experience stated in the Shahian Declaration. The range of rates charged in this matter by
SLP is reasonable for attorneys of similar experience, in the same area,
dealing with the same subject matter. (See Goglin v BMW of North America
(2016) LLC 4 Cal.App.5th 462, 473-74 [approving $575 per hour fee on lemon law
action for attorneys in Los Angeles]. This conclusion is further corroborated
by Plaintiff’s evidence of multiple other cases in which similar fee awards
have been approved.
ii.
Reasonable Hours Incurred
“A trial court
assessing attorney fees begins with a touchstone or lodestar figure, based on
the ‘careful compilation of the time spent and reasonable hourly compensation
of each attorney ... involved in the presentation of the case.” (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is
within the discretion of the trial court, to be determined from a consideration
of such factors as the nature of the litigation, the complexity of the issues,
the experience and expertise of counsel and the amount of time involved. The
court may also consider whether the amount requested is based upon unnecessary
or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443,
448.)
While not per se
objectionable, block billing can exacerbate the vagueness of an attorney fee
request and support a court’s finding that time entries were inflated and
non-compensable. (Christian Research
Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325-1326.)
Plaintiff’s fee
recovery is based on the 145.50 hours spent by her attorneys at SLP litigating
this case through this motion. Plaintiff has submitted billing records.
(Shahian Decl. ¶ 64; Ex. 16.) At the rates identified above, Plaintiff
represents that she is seeking a lodestar of $70,242.35.
First, the Court addresses the issue of block billing. Defendant
contends that there are numerous time entries that are block billed. The use of
block billing is not per se objectionable. Block billing is only problematic
“when the practice prevents them from discerning which tasks are compensable
and which are not.” (Heritage Pac. Fin. LLC v. Monroy (2013) 215
Cal.App.4th 972, 1010.) Here, the entries themselves are not excessive in time
and are reasonably related to the same task. While it would have been better if
each task was its own entry, the entries themselves appear on their face
reasonable.
Next, Defendant generally argues that the case was overstaffed and
certain attorneys performed duplicative work. The Court disagrees. Defendant
does not identify any specific tasks that were overstaffed or request a
specific reduction of in fees relating to time spent for claimed overstaffing.
The amount of time spent doing the tasks are reasonable regardless of whether
multiple attorneys performed the work.
Next, Defendant
objects to tasks that Defendant argues are grossly exaggerated. (Aliviado Decl., Exh. A.) Defendant
provides the following examples:
·
2.5
hours ($900.00) for “drafting” repair chronology
·
1.7
hours ($765.00) for “drafting” the Complaint.
·
2.5
hours ($1,125.00) for drafting and revising Plaintiff’s template discovery.
·
5.7
hours ($2,052.00) to prepare an opposition to HMA’s motion to advance the motion
to compel Plaintiff’s deposition.
·
4
hours ($1,440.00) to oppose HMA’s Motion to Compel Plaintiff’s Depo.
·
2.8
hours ($1,008.00) to prepare Plaintiff’s IDC Statement.
·
2.9
hours ($1,131.00) to attend January 4, 2021 IDC.
·
2.6
hours ($1,014.00) to draft opposition to HMA’s motion to compel the vehicle
inspection.
·
1.8
hours ($702.00) for “work on VI logistics.”
·
15.5
hours ($8,593.50) to prepare and attend ex parte to invalidate the Second
998.
·
45.7
hours (18.5 hours for motion, 25 for reply, 2.2 for hearing; $26,266.50) for a
motion to invalidate the Second 998.
·
3.9
hours ($2,320.50) to draft Motions in Limine Nos. 1-8.
·
$8,855
(11.4 hours ($5,355) + $3,500) associated with this fee motion.
The Court agrees in part. The Court agrees
that the complaint in this matter should not have taken 1.7 hours to draft, and
thus, reduces the fee by $315. Next, the Court agrees it should not have taken
5.7 hours to prepare an opposition to Defendant’s motion to advance the motion
to compel Plaintiff’s deposition, as it was ex parte, and only three pages
long. However, the Court notes that the billing is also for reviewing the 998
offers. Nevertheless, it is still excessive and thus, the Court will reduce the
fee by 3 hours, i.e., by $972. Next, the Court agrees that it should not have
taken 2.8 hours to prepare a one-page IDC statement, and 2.9 hours to attend
the IDC, when it was only one hour long. Thus, the Court reduces the fees for
these entries by 3 hours, i.e., by $1,080. As to 1.8 hours for work on IV
Logistics, Defendant contends it is entirely unclear what this entry
on February 28, 2021 is for. Plaintiff has not responded to this argument in
the reply. As a result, the Court cannot find it is reasonable. The Court will
reduce the fee by $702. The Court also finds that 15.5 hours to prepare and
attend the ex parte hearing to invalidate the Second 998, and 18.5 hours
to then prepare nearly the same motion is excessive, especially in light of
counsel’s experience and expertise, and further, it is duplicative of the time
spent preparing the ex parte application for the same relief. As a result, the
Court will reduce the fee for the motion by 15 hours due to its duplicative
nature; i.e., by $8.925. Further, the Court finds 25 hours spent drafting the
reply for this motion is also excessive, and reduces the fee by 18 hours, i.e.,
by $10,710. Lastly, the Court agrees with Defendant that $3,500 in anticipated
fees for reviewing the reply should be reduced, as it would not be appropriate
to award fees not actually incurred.
The
Court does not find that the other tasks completed in connection with this case
to be excessive or otherwise unreasonable. To the extent Defendant argues that
Plaintiff should not be awarded for opposing the motion to compel Plaintiff’s
deposition because the Court granted the motion, a plaintiff is entitled to recover for “unsuccessful”
arguments. (See Sundance v Municipal Court, 192 Cal. App. 3d 268, 273-74
(1987).) In addition, as to motions in limine, and the opposition to
Defendant’s motion to compel vehicle inspection, simply because these were not
filed and served does not Plaintiff’s attorneys did not reasonably work on them.
As trial and the motion to compel became moot, Plaintiff did not need to file
them.
Having analyzed
the motions and pleadings filed, and having reviewed the billing statements
provided, the Court determines that a reasonable lodestar in this case, to
limit any duplicative and excessive fees, is $44,038.35.
C. Multiplier
While the lodestar reflects the basic fee for comparable legal services
in the community, it may be adjusted based on various factors, including “(1)
the novelty and difficulty of the questions involved, and the skill displayed
in presenting them; (2) the extent to which the nature of the litigation
precluded other employment by the attorneys; (3) the contingent nature of the
fee award” and (4) the success achieved. (Serrano
v. Priest (1977) 20 Cal.3d 25, 49.)
Nonetheless, the court must not consider extraordinary skill and the
other Serrano factors to the extent
these are already included with the lodestar. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) “[A] trial
court should award a multiplier for exceptional representation only when the
quality of representation far exceeds the quality of representation that would
have been provided by an attorney of comparable skill and experience billing at
the hourly rate used in the lodestar calculation. Otherwise, the fee award will
result in unfair double counting and be unreasonable.” (Id. at 1139.)
Plaintiff requests a lodestar
multiplier enhancement of 1.35 in the additional amount of $24,596.78 on the
ground that SLP undertook representation of Plaintiff on a contingency basis—if
the action failed and Plaintiff did not recover, neither would her counsel.
(Shahian Decl. ¶ 73.) SLP faced a genuine risk of not being paid for its
services for years (if at all) while advancing thousands in costs and expenses
to prosecute Plaintiff’s claims against HMA, a large corporate defendant with
the proven track record to engage in prolonged litigation (while its attorneys
get paid regardless of outcome).
The Court finds that under the circumstances of this case, a lodestar
multiplier is not appropriate. This
is a straightforward lemon law case. Nothing before the Court indicates that the
case presented novel issues or that the quality of representation far exceeded
the quality of representation that would have been provided by attorneys of
comparable skill and experience billing at the same rates. While Plaintiff
argues that counsel accepted the case only on a contingency basis the Court
finds that such consideration and risk is already included within the lodestar
amount.
Based on the foregoing, the Court declines to award a lodestar
multiplier.
D. Entitlement and
Reasonableness of Costs
Allowable costs “shall be reasonably necessary to the conduct of the
litigation rather than merely convenient or beneficial to its preparation.”
(Code Civ. Proc., § 1033.5, subd. (c)(2).) Any items not specifically mentioned
by statute “may be allowed or denied in the court's discretion.” (Id.,
subd. (c)(4).)
'“If the items appear to be proper charges the verified memorandum is
prima facie evidence that the costs, expenses and services therein listed were
necessarily incurred by the defendant [citations], and the burden of showing
that an item is not properly chargeable or is unreasonable is upon the
[objecting party].' [Citation.]” (Nelson v. Anderson (1999) 72
Cal.App.4th 111, 131.) The Court therefore first determines if the statute
expressly allows for the item, and whether it appears proper on its face. If so,
“the burden is on the objecting party to show them to be unnecessary or
unreasonable.” (Id.)
The Beverly-Song Act allows a successful plaintiff to recover both
“costs” and “expenses.” (See Civ. Code, § 1794, subd. (d).) Courts have held
that “it is clear the Legislature intended the word ‘expenses' to cover items
not included in the detailed statutory definition of ‘costs.”’ (Jensen v.
BMW of North America, Inc. (“Jensen”) (1995) 35 Cal.App.4th
112, 137.) The court in Jensen held that “[t]he legislative
history indicates the Legislature exercised its power to permit the recovery of
expert witness fees by prevailing buyers under the Act … ,” noting that the
legislature included “expenses” in the lemon law act because '“[t]he addition
of awards of “costs and expenses” by the court to the consumer to cover such
out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees,
etc., should open the litigation process to everyone.’ [Citation.]”
Plaintiff requests a total of
$4,869.07 in costs and expenses.
Defendant contends that the Plaintiff’s costs should be taxed. First,
Defendant contends that Plaintiff claims costs of $514.00 for a court reporter
for HMA’s motion to compel the deposition of Plaintiff on December 8,
2020, for which Plaintiff was sanctioned. (Aliviado Decl., ¶10.) Plaintiff
cannot now claim that the costs and fees were reasonable when the Court’s
sanction award says the exact opposite. Similarly, Defendant argues, the $72.00
Plaintiff claims to have paid to e-file the opposition on November 23, 2020
(itself a completely unreasonable charge) is not recoverable because
Plaintiff was sanctioned in connection with the motion to compel
the deposition. Defendant next argues that Plaintiff also attempts to
claim $1,033.07 for Darrell Blasjo’s involvement with the vehicle
inspection on March 2, 2023, but Darrell Blasjo was not Plaintiff’s expert
that attended the vehicle inspection. (Id. ¶12.) Plaintiff cannot
collect expert costs for an expert that did not attend the inspection.
Plaintiff also claims $61.65 in filing costs for a motion to compel that
Plaintiff never drafted or filed. (Id. ¶29.) A review of Plaintiff’s own
attorney billing records confirms this to be the case and Plaintiff cannot
recover these costs. Plaintiff also claims a combined total of $156.80
associated with Plaintiff’s ex parte application to invalidate HMA’s 998, which
was denied by the Court as procedurally improper. (Id. ¶16; Costs
Entries: 4/8/22 – 4/11/2022.)
The Court finds that none of
Defendant’s arguments have merit except that Plaintiff never filed a motion to
compel. Defendant has not cited to any legal authority for its assertion that
the court reporter costs cannot be recovered because the Court sanctioned
Plaintiff in connection with the motion to compel her deposition, or that costs
associated with filing legal documents are not compensable if they were not
successful. Further, Plaintiff has filed the invoice to Darrell Blasjo for this
inspection. (Linnell Decl. Ex. 4.)
Thus, the Court will tax costs in
the amount of $61.65.
Conclusion
Based on the
foregoing, Plaintiff’s motion for attorney fees is GRANTED in part. The Court awards $44,038.35 in attorney fees
and $4,807.42 in costs to SLP.
Moving party is ordered to give notice.