Judge: Teresa A. Beaudet, Case: 23STCV16994, Date: 2025-01-16 Tentative Ruling

Case Number: 23STCV16994    Hearing Date: January 16, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background   

Plaintiff Eunki Jang (“Plaintiff”) filed this action on July 20, 2023 against Defendants BMW of North America, LLC (“BMW NA”) and Finchey Corporation of California dba Pacific BMW (jointly, “Defendants”). The Complaint alleges causes of action for (1) violation of Civil Code section 1793.2(d), (2) violation of Civil Code section 1793.2(b), (3) violation of Civil Code section 1793.2(a)(3); (4) breach of express written warranty, and (5) breach of the implied warranty of merchantability.

Plaintiff’s counsel indicates that Plaintiff and BMW NA entered into a settlement agreement. (Cha Decl., ¶ 14, Ex. A.) The Court notes that the settlement agreement provides, inter alia, that “BMW NA also agrees to Pay Plaintiff’s attorneys’ fees as follows: (i) BMW NA will pay Plaintiff’s counsel $11,000…to cover all Plaintiff’s possible attorneys’ fees, costs, and expenses of any kind related, whether directly or indirectly, to this Action or the Subject Vehicle; or (ii) In lieu of the $11,000 offered above, Plaintiff and his counsel may waive that amount and, instead, seek fees from the Court by way of timely filed and properly noticed fee motion.” (Cha Decl., ¶ 14, Ex. A, ¶ 7(b).) 

Plaintiff now moves for an order awarding attorneys’ fees, costs, and expenses in the total amount of $27,736.68. Defendants oppose.

Procedural Issues

As an initial matter, in the opposition, Defendants assert that they were “forced to submit its [sic] Opposition under a constrained timeframe due to Plaintiff’s failure to ever serve Defendants with his moving papers…” (Opp’n at p. 4:13-15, emphasis omitted.)

Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” In addition, under ¿Code of Civil Procedure section 1010.6, subdivision (a)(3)(B)¿, “[a]ny¿period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” The Court notes that eighteen court days before the original December 2, 2024 hearing on the instant motion is November 1, 2024.[1]

Here, the proofs of service attached to Plaintiff’s motion and Plaintiff’s counsel’s supporting declaration indicate that the moving papers were served by electronic service on August 9, 2024. This is well before the November 1, 2024 deadline.

Defendants’ counsel states in her supporting declaration that “[o]n November 4, 2024, defense counsel reached out to Plaintiff’s counsel via phone and email and informed him that Defendants learned about the fee motion hearing but they were never served with the moving papers. Despite Plaintiff’s counsel acknowledging that Defendants were never served while on the phone with defense counsel, he refused to push out the hearing date to allow Defendants proper statutory notice to prepare its opposition.” (Silver Decl., ¶ 8.) However, the Court notes that “Exhibit F” to Defendants’ counsel’s declaration is a “copy of the email forwarded from Plaintiff’s counsel.” (Silver Decl., ¶ 9, Ex. F.) Defendants’ “Exhibit F” includes an August 9, 2024 email from a “Legal Assistant” at the “Law Offices of Alex Cha & Associates” to the emails “A.Amir@amirdefensegroup.com,” “Service@amiredefensegroup.com,” and “M.messinger@amiredefense.com,” indicating, inter alia, “Dear Counsel, Please find the attached:…Notice of Motion for Attorney’s Fees…Declaration in Support of Motion for Attorney’s Fees.” (Silver Decl., ¶ 9, Ex. F.) The Court notes that the caption page of Defendants’ opposition references both “Abtin Amir,” at “A.Amir@AmirDefenseGroup.com,” and Madeleine Messinger at “M.Messinger@AmirDefenseGroup.com.” (See Opp’n p. 1.)

Defendants’ counsel contends that “[o]n April 10, 2024, Plaintiff was explictly [sic] informed to serve any and all documents in this matter and all matters to defense counsel’s service address, eservice@amirdefensegroup.com.” (Silver Decl., ¶ 7, Ex. D.) However, Defendants’ “Exhibit D” includes an April 10, 2024 email providing, inter alia, that “[t]he correct email address is Service@AmirDefenseGroup.com.” (Silver Decl., ¶ 7, Ex. D, emphasis added.) Moreover, Defendants submitted a substantive opposition in response to the instant motion. Defendants appear to concede that Plaintiff served the motion on Defendants’ counsel. (Silver Decl., ¶ 9, Ex. F.) Accordingly, the Court considers Plaintiff’s motion for attorney’s fees herein.

Discussion

The Song-Beverly Consumer Warranty Act grants car buyers the right to sue a manufacturer or retail seller for failure to comply with implied or express warranties. (Civ. Code, § 1794, subd. (a).) “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).)

“[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…The reasonable hourly rate is that prevailing in the community for similar work. 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.” ((PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted]); (see Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818 [applying the lodestar method to determine attorneys’ fees in Song-Beverly action].)

A.    The Hourly Rate of Counsel

In his supporting declaration, Plaintiff’s counsel Alex Cha states that “I have spent approximately 27.8 hours litigating the instant matter. My hourly rate is $550. Our associate attorney Sena Hori spent approximately 15 hours litigating the instant matter, and her hourly rate is $350.” (Cha Decl., ¶ 15.)

In the opposition, Defendants assert that “Plaintiff’s counsel has provided zero evidence to the Court for the reasonableness of their claimed billable rates.” (Opp’n at p. 13:4-5, emphasis omitted.) In the motion, Plaintiff asserts that the “rates are appropriate given the relative experience and qualifications of these attorneys and are similar to the rates that Los Angeles courts have awarded the attorneys in vehicle defect cases.” (Mot. at p. 8:9-11, citing the “Cha Decl.”) However, Mr. Cha’s supporting declaration does not appear to contain any actual discussion of the experience or qualifications of Plaintiff’s counsel, nor does it discuss the rates awarded to attorneys in similar cases. Mr. Cha simply states that “[b]ased on relative experience and qualifications, these rates are appropriate…” (Cha Decl., ¶ 15.)[2]

In addition, Defendants assert that Plaintiff’s counsel’s requested hourly rates should be reduced to “no more than $275 for partners and $224 for associates…” (Opp’n at p. 14:8-9, emphasis omitted.) Defendants assert that the rates “should be reduced to what is consistent with the ‘2023 Real Rate Report: The Industry’s Leading Analysis of Law Firm Rates, Trends, and Practices’ (‘Real Rate Report’) published by Wolters Kluwer.” (Silver Decl., ¶ 15.) Portions of the 2023 “Real Rate Report” provided by Defendants list “median” rates of $275 for a partner and $224 for an associate at a firm of 50 lawyers or fewer. (Silver Decl., Ex. I, p. 132.)[3] This pertains to a practice area of “General Liability – Litigation Only.” (Ibid.)

In the reply, Plaintiff does not address the 2023 “Real Rate Report” provided by Defendants. Plaintiff does not address or dispute Defendants’ assertion that Plaintiff’s counsels’ hourly rates should be reduced to no more than $275 for partners and $224 for associates in accordance with the “Real Rate Report.” In addition, Plaintiff’s counsel does not dispute that the firm size of “50 lawyers or fewer” is applicable to Plaintiff’s counsel’s firm. (Silver Decl., Ex. I.)

In light of the foregoing, the Court adjusts Mr. Cha’s hourly rate to $275/hour. The Court adjusts Ms. Hori’s requested hourly rate to $224/hour.

B.    Reasonableness of the Requested Fees

“[T]he court’s discretion in awarding attorney fees is…to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client.” ((Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Bd. of Trustees of California State Univ., supra, 132 Cal.App.4th at p. 396.)

As set forth above, Mr. Cha states that he spent “approximately 27.8 hours litigating the instant matter,” and that “attorney Sena Hori spent approximately 15 hours litigating the instant matter.” (Cha Decl., ¶ 15.) Plaintiff’s counsel attaches as Exhibit B to his declaration a “copy of the billing record.” (Cha Decl., ¶ 15, Ex. B.) The billing records list a “Total Attorney’s Fee Amount” of $20,540.00. (Cha Decl., ¶ 15, Ex. B.) Plaintiff’s counsel also states in his supporting declaration that “I have incurred 3.0 hours preparing this motion. I anticipate that I will spend another 1.5 hours preparing the reply. I further anticipate spending another hour attending the hearing. Therefore, the cost of having to make this motion is $1,375.00.” (Cha Decl., ¶ 17.)[4]

In the opposition, Defendants assert that the fees requested are not reasonable.

First, Defendants assert that Plaintiff seeks reimbursement for tasks that were never completed. Plaintiff’s billing records include an entry on May 3, 2024 to “[d]raft and send out Amended Notice of Depo” for 0.5 hours. (Cha Decl., ¶ 15, Ex. B.) In her supporting declaration, Defendants’ counsel states that “Plaintiff’s counsel claims that on May 3, 2024, he drafted and served an amended deposition notice, which never occurred.” (Silver Decl., ¶ 12.) Plaintiff does not appear to respond to this point in the reply. Thus, the Court finds that the requested 0.5 hours to “Draft and send out Amended Notice of Depo” should be deducted from the time requested.

Next, Defendants argue that Plaintiff’s counsel “seeks to recover attorney billable time for clearly clerical and administrative tasks.” (Opp’n at p. 9:17-18.) Defendants object the following tasks set forth in Plaintiff’s counsel’s billing entries: (1) “Prepare complaint packet to file with court,” (2) “check on process service,” and (3) “Receive and review Court Orders.” (See Opp’n at pp. 9:27-10:2; Cha Decl., ¶ 15, Ex. B.) The Court does not find that these tasks are “clerical” or “administrative” and declines to deduct the time requested for these tasks.  

Defendants also object to the following purported tasks: “Prepare Case Management Statement,” “Draft and send out discovery” and “Draft and send out depo notice.” (Opp’n at p. 10:3-5.) The Court is unable to locate these specific quoted tasks in Plaintiff’s billing records. (See Cha Decl., ¶ 15, Ex. B.) And in any event, the Court does not find that such tasks are “clerical” or “administrative” in nature.

In addition, Defendants assert that “as detailed in the highlighted Exhibit I attached to the Declaration of Sharona Silver, many of the billing entries are excessive, unreasonable, or clearly should have been handled by a paralegal or legal support staff member.” (Opp’n at p. 12:2-4.) The Court notes that the highlighted billing entries are attached as “Exhibit J” to Ms. Silver’s declaration. Other than the May 3, 2024 time entry discussed above, the Court does not find that the time spent on the highlighted billing entries is excessive, or that such entries are unreasonable. (Silver Decl., Ex. J.) In addition, the Court does not find that the highlighted billing entries should have been handled by a paralegal or legal support staff member. (Ibid.) The Court does not find that the highlighted billing entries should be stricken or that the time spent on the subject tasks should be reduced.  

Defendants also argue that “all work spent after Defendants’ repurchase offer on November 29, 2023 should be stricken.” (Opp’n at p. 11:6-7.) In her supporting declaration, Defendants’ counsel states that “[o]n September 1, 2023, just one week after Defendants were served with the Complaint alleging various violations of the Song-Beverly Act, defense counsel requested a call with Plaintiff’s counsel to discuss ‘coming to an early resolution’ in the case…” (Silver Decl., ¶ 2.) Defendants’ counsel states that “Plaintiff’s counsel never responded to that initial outreach,” and “[s]till not having heard from Plaintiff’s counsel, defense counsel sent another email regarding early resolution of the case on October 27, 2023.” (Silver Decl., ¶¶ 3-4.) Defendants’ counsel states that “Plaintiff ignored defense counsel’s email yet again so defense counsel reached out on November 29, 2023 a third time and finally received a response from Plaintiff’s counsel, wherein the parties discussed via phone and email Defendants’ repurchase offer plus fees/costs in the amount of $5,500. Plaintiff rejected the offer and stated that Plaintiff wishes to keep the vehicle and countered with $55,000, inclusive of fees and costs and civil penalties.” (Silver Decl., ¶ 5.) Defendants contend that “all amounts Plaintiff and his counsel spent after the buyback offer was made must be stricken entirely because Plaintiff ultimately accepted the offer eight months later.” (Opp’n at p. 11:13-15.) The Court notes that Defendants do not appear to show that Plaintiff ultimately accepted the same offer as the one Defendants made on November 29, 2023. And in any event, Defendants do not cite any legal authority to support the proposition that Plaintiff’s fees incurred after November 29, 2023 must be stricken because Plaintiff rejected a settlement offer made on that date. The Court declines to deduct such fees from the total amount requested.

Defendants also assert that “[t]he Court should apply a downward multiplier of at least 0.5 to account for Plaintiff’s counsel’s excessive billing in this manner…” (Opp’n at p. 10:10-11.) The Court does not find that Defendants have shown that Plaintiff’s counsel’s billing is excessive or that a downward multiplier is warranted here.

C.    Request for a Lodestar Multiplier 

Plaintiff asserts that “a lodestar multiplier enhancement of 1.25 is warranted.” (Mot. at p. 9:1.) 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.) 

However, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included within 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 p. 1139.) 

Here, Plaintiff argues that a lodestar multiplier is appropriate because this is a contingency case. (Cha Decl., ¶ 18.) However, other factors do not support the application of a multiplier. There is no indication that this case was complex or presented challenging legal issues. Plaintiff does not indicate that the nature of the instant litigation precluded other employment by Plaintiff’s counsel. In addition, the Court does not find that Plaintiff has demonstrated that the success achieved by Plaintiff’s counsel is exceptional. Accordingly, the Court declines to apply a multiplier to the lodestar amount. 

D.    Costs

Plaintiff also seeks reimbursement for costs in the amount of $686.68. (Cha Decl., ¶ 16.) Defendants do not appear to challenge this amount of costs. The Court finds that the requested $686.68 in costs is reasonable.

E.     Calculation of Attorney’s Fees and Costs

As set forth above, the Court deducts the 0.5 hours spent on May 3, 2024 to “Draft and send out Amended Notice of Depo.” (Cha Decl., ¶ 15, Ex. B.) Plaintiff’s billing records indicate that such entry was made by “AC” which appears to refer to attorney Alex Cha. (Cha Decl., ¶ 15, Ex. B.) Thus, the Court awards fees for a total of 32.8 hours spent by Mr. Cha, which includes the hours spent by Mr. Cha litigating the instant matter (minus 0.5 hours), as well as the time spent and anticipated to be spent by Mr. Cha in connection with the instant motion (27.8 + 5.5 – 0.5 =32.8). (Cha Decl., ¶¶ 15, 17.)

In addition, as set forth above, the Court adjusts Mr. Cha’s hourly rate to $275/hour, and Ms. Hori’s requested hourly rate to $224/hour. Mr. Cha’s 32.8 hours at $275/hour totals $9,020.00 in fees. Ms. Hori’s 15 hours at $224/hour totals $3,360.00 in fees. (Cha Decl., ¶ 15.) Thus, the Court awards Plaintiff a total of $13,066.68 in attorney’s fees and costs ($9,020.00 + $3,360.00 + $686.68).

Conclusion

Based on the foregoing, Plaintiff’s motion is granted in part. The Court awards to Plaintiff attorney’s fees and costs in the total amount of $13,066.68.

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Plaintiff is to provide notice of this ruling.¿¿ 

DATED:  January 16, 2025                           

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court