Judge: Theresa M. Traber, Case: 21STCV35536, Date: 2024-06-17 Tentative Ruling
Case Number: 21STCV35536 Hearing Date: June 17, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: June 17, 2024 TRIAL DATE: NOT
SET
CASE: Tara Lea, et al. v. American Honda Motor
Co. Inc.
CASE NO.: 21STCV35536
MOTION
FOR ATTORNEY’S FEES AND COSTS
MOVING PARTY: Plaintiffs Tara Lea and Van Duong
RESPONDING PARTY(S): Defendant American
Honda Motor Co. Inc.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a lemon law action filed on September 27, 2021. Plaintiffs
purchased a 2016 Honda Pilot which manifested numerous systemic defects
throughout the vehicle.
Plaintiffs move for attorney’s fees
pursuant to a settlement agreement.
TENTATIVE RULING:
Plaintiffs’
Motion for Attorney’s Fees and Costs is GRANTED IN PART. Plaintiff is awarded $37,430.00
in attorney’s fees plus $5,549.86 in costs.
DISCUSSION:
Plaintiffs move for attorney’s fees
pursuant to a settlement agreement.
Defendant’s Evidentiary Objections to Declaration of Payam
Shahian
Defendant
objects to the bulk of the Declaration of Payam Shahian filed in support of the
motion. The Court rules on these objections as follows:
Objections
Nos. 1-3: OVERRULED. These objections are specious. Plaintiffs’ counsel is
describing his own experience, which is facially relevant to a fee motion and
lays its own foundation. Further, nothing in this declaration is hearsay
because it does not describe an out of court statement. (See Evid. Code §
1200.)
Objections
Nos. 4-39: SUSTAINED as irrelevant. Fee awards in other trial court
proceedings have no bearing on this motion.
Objections
Nos. 36 [second], 38 [second], 40-62: OVERRULED. Plaintiffs’ counsel is
describing the experience of his subordinates, which are matters within his
personal knowledge as their superior and for which foundation has been laid.
These statements are not hearsay and do not require authentication as they are
not documents. The secondary evidence rule is not applicable here. Evidence
Code section 352 does not support an objection to declarations in a motion of
this nature as “argumentative.”
Defendant’s Evidentiary Objections to Declaration of Tionna
Carvalho
Defendant
objects to the portion of the Declaration of Tionna Carvalho in support of the
motion which describes the underlying factual history of the case. Attorney
Carvalho’s description of these facts is relevant to the Court’s determination
about whether the attorney’s fees expended were reasonably spent to advance
Plaintiffs’ claims in this case. For
this reason, Defendants’ objections are OVERRULED.
Plaintiffs’ Evidentiary Objections to Declaration of
Kevin D. Zipser
Plaintiffs,
in response, object to portions of the Declaration of Kevin D. Zipser in
opposition to the motion. The Court rules on these objections as follows:
Objection
No. 1: OVERRULED. This statement contains relevant procedural history, is
not overly prejudicial, argumentative, nor a legal conclusion, and does not
assume facts not in evidence.
Objection
No. 2: SUSTAINED as argumentative and an improper legal conclusion. (See Kramer
v. Barnes (1963) 212 Cal.App.2d 440, 446; Hayman v. Block (1986) 176
Cal.App.3d 629, 638-39.)
Objection
No. 3: SUSTAINED with respect to Defendant’s analysis of the fees billed by
Plaintiffs’ counsel as argumentative and an improper legal conclusion. (See Kramer
v. Barnes (1963) 212 Cal.App.2d 440, 446; Hayman v. Block (1986) 176
Cal.App.3d 629, 638-39.)
Objection
No. 4: SUSTAINED as irrelevant. Hourly rates charged by defense counsel in
Song-Beverly actions do not bear on the reasonableness of the fees for plaintiff’s
counsel.
Objection
No. 5: SUSTAINED as improper conclusions. Defense counsel’s assertion that
“Lemon Law cases are simple and straightforward” and statements concerning the
motivation of plaintiff’s attorneys in Song-Beverly actions are not evidence.
//
Request for Judicial Notice
Plaintiffs
request that the Court take judicial notice of a series of rulings on fee
motions in other Song-Beverly cases not concerning the dispute at issue here.
These rulings are entirely immaterial to the motion at hand. Plaintiffs’
requests are DENIED. (Gbur v. Cohen
(1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to
those matters which are relevant to the issue at hand.”].)
Entitlement to Fees
Plaintiffs
seek an award of attorney’s fees pursuant to a settlement agreement reached by
the parties. Plaintiffs brought claims for violation of the Song-Beverly
Consumer Warranty Act. (Civ. Code § 1790 et seq.). Civil Code section
1794(d) states:
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.
On November
9, 2023, Plaintiff signed an offer to compromise under Code of Civil Procedure
section 998 to repurchase Plaintiff’s vehicle for $157,500. (Declaration of Tionna
Carvalho ISO Mot. ¶ 64 Exh. 4.) The offer provided for an award of reasonable
attorney’s fees to Plaintiff by noticed motion pursuant to Civil Code section
1794(d), with the award to be paid by Defendant. (Id. ¶ 3.) The parties
agree that Plaintiff is the prevailing party for the purposes of this motion. (Id.)
Reasonableness of
Fees
Plaintiff requests a total fee award
of $54,855.36, based on a total of $33,930.00 in fees accrued by Plaintiffs’
counsel before the instant motion, plus a 1.35x multiplier accounting for
$11,875.50, plus $3,500 in anticipated fees to review the opposition, draft a
reply brief, and attend the hearing, plus $5,549.86 in costs. (See Notice of
Motion.)
Reasonable attorney’s fees are allowable costs when
authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10),
(c)(5)(B).) In actions that are based on a contract, “where the contract
specifically provides that attorney’s fees and costs, which are incurred to
enforce that contract, shall be awarded either to one of the parties or to the
prevailing party, then the party who is determined to be the party prevailing
on the contract… shall be entitled to reasonable attorney’s fees in addition to
other costs.” (Civil Code § 1717(a) [emphasis added].) A recovery of attorney’s
fees is authorized even in noncontractual or tort actions if the contractual
provision for fee recovery is worded broadly enough. (See Code Civ. Proc §
10211; Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 993
[agreement to award fees based on outcome of “any dispute” encompasses all
claims, “whether in contract, tort or otherwise]; Lockton v. O'Rourke (2010)
184 Cal.App.4th 1051, 1076; Lerner v. Ward (1993) 13 Cal.App.4th 155,
160.)
Reasonable attorney’s fees shall be fixed by the Court and
shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).)
Reasonable attorney’s fees are ordinarily determined by the Court pursuant to
the “lodestar” method, i.e., the number of hours reasonably expended multiplied
by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982)
134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation
of time spent on a case and the reasonable value of that time is fundamental to
a determination of an appropriate attorneys' fee award.”].) “[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….” (Ibid.)
In setting the hourly rate for a fee award, courts are entitled to consider the
“fees customarily charged by that attorney and others in the community for
similar work.” (Bihun v. AT&T Info. Sys., 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’s fees to prove the 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, 1393-1394.) 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 Indus. Inc.
(2012) 212 Cal.App.4th 258, 274-275.)
1.
Base
Fee Requests
Plaintiff has
provided an itemized list of the attorney time billed in connection with this
case. (Declaration of Payam Shahian ISO Mot. Exh. 18.) Plaintiffs’ counsel
billed a total of 69.5 hours in connection with this case at hourly rates
ranging from $325 to $595 per hour. (Id.) Attorney Shahian attests to
the skills, training, and hourly rates of the attorneys in the firm as their
supervisor and Managing Partner. (Shahian Decl. ¶¶ 43-69.) The Court observes that these hours and fees
were incurred by a dozen attorneys and one law clerk across three years of
litigation. (Id., Exh. 18.) However, close examination of the
records shows that the bulk of the hours were incurred by only six individuals:
Attorneys Mani Arabi, Joy Deleon, Tionna Carvalho, Mark Gibson, Tyson Smith,
and law clerk Yenok Tantanyan. (Id.) Further, the records show that the
remaining attorneys incurred few hours performing generally non-duplicative
tasks. Moreover, the records show that research and drafting tasks were
generally assigned to more junior attorneys charging lower rates, while
reserving strategic and editing pursuits and client communication to more
senior attorneys. (Id.) Tellingly, attorneys whose rates increased over
the course of the representation incurred fewer hours as those rates increased
and began performing tasks more suited to those higher rates, passing more
time-consuming drafting and research tasks to newer junior lawyers. (Id.)
These records demonstrate that Plaintiffs’ counsel exercised billing judgment,
notwithstanding the number of attorneys involved in the case.
Defendant
first argues that Plaintiffs’ fee demand is unreasonable because the rates of
Plaintiffs’ counsel are inflated and unsupported. Defendant offers no basis for
this conclusion, and the Court does not share the view that the rates charged
are unreasonably inflated. Nor is the Court persuaded by Defendant’s argument
that the case was overstaffed; despite the number of attorneys involved in the
case, the billing records do not demonstrate runaway costs caused by high
staffing and duplicative work. Morris v. Hyundai Motor Am., cited by
Defendant, is distinguishable and unpersuasive, as that opinion affirmed the
trial court’s denial of fees to six of eleven attorneys where the attorneys had
incurred $127,792.50 in fees for 283.3 hours of work, slashing 83.5 hours billed
by six associates. (Morris v. Hyundai Motor AM. (2019) 41 Cal.App.5th
24, 32-34.) Here, however, As Plaintiffs state, five attorneys and one law
clerk account for 48.6 hours, or 70% of the time billed in this case. Had the
remaining 20.9 hours been performed by those same attorneys, the Court is not
persuaded that the fees incurred would materially differ.
Defendant
also identifies instances of what it contends are excessive billings for
preparation of template filings, including the instant motion. However,
Defendant offers no evidence that this is so: the arguments of Defendant’s
counsel in a declaration are not admissible evidence, nor is a spreadsheet
which identifies billing records that Defendant claims are inappropriate actual
evidence that those fees are, in fact, unreasonable. The Court is also not
persuaded by Defendant’s vague assertion that Plaintiffs’ counsel’s records are
improperly block-billed so as to render it impossible to determine whether
those fees are reasonable.
Defendant
also asserts that the hourly rates charged by Plaintiffs’ counsel are per se
unreasonable. The say-so of Defendant’s counsel is not sufficient to
demonstrate the unreasonableness of these fees. The rates charged by counsel
for manufacturer defendants in Song-Beverly actions are also completely
immaterial to the reasonableness of fees charged by Plaintiffs’ counsel.
Finally,
Defendant contends that Plaintiffs should not be awarded fees because they
rejected an offer by Defendant to pay $12,500.00 in attorney’s fees as part of
a previous settlement. Defendant cites no authority supporting a reduction in
fees on this basis, and Defendant’s conclusion that the fees it offered was
reasonable is unpersuasive.
The Court is therefore not convinced
that there should be any reduction in the base fee request claimed for $33,930
plus $3,500 in anticipated fees, for a total base rate of $37,430.
//
2. Fee Multiplier
Plaintiffs request that the
lodestar be enhanced by a multiplier of 1.35x, which would result in an
additional award of $11,875.50.
Plaintiffs contend that this multiplier is reasonable considering the
contingent nature of this action, Plaintiff’s counsel’s experience and
knowledge, the difficulty of this litigation, and the favorable result achieved
for Plaintiff.
Multipliers for successful
representation on a contingency basis have frequently been awarded. (See, e.g.,
Santana v. FCA US LLC (2020) 56 Cal.App.5th 334, 352.) Here, however, there
is little in the record demonstrating that such a multiplier is warranted. Plaintiff
has not proven any substantial risks undertaken. Prosecuting a case through
discovery disputes, motions practice, and preparations for trial shows legal
representation that embraces risk despite the contingent character of receiving
fees. A Song-Beverly action where the case largely sat idle on the Court’s
docket for three years—notwithstanding negotiations and mediation to which the
Court was not privy—and where there was no substantive motion practice before
settlement and no trial preparation does not demonstrate risk. Nor were there
any novel, difficult, or complicated issues confronted in this case. The level
of expertise exhibited by Plaintiff’s counsel in securing this favorable
settlement is amply accounted for in the substantial hourly rates sought as
their market rates. The Court cannot conclude that a multiplier should be
applied to the sue-and-settle approach adopted here.
Costs
Plaintiffs also seek an award of
costs in the amount of $5,549.86.
A prevailing party on a Song-Beverly
claim may also seek to recover costs reasonably incurred, as well as attorney’s
fees. (Civ. Code § 1794(d).) Once a request for costs is properly challenged,
the burden shifts to the propounding party to demonstrate why such costs are
recoverable and proper. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th
1103, 1113.) Costs are normally sought by way of a memorandum of costs pursuant
to California Rule of Court 3.1700(a). However, as Defendant consents to
determination of costs via this motion, the Court will exercise its discretion
to do so.
Plaintiffs included an itemized list
of costs their counsel’s itemized billing records reflecting the amount
requested. (Shahian Decl. Exh.
18.) Defendant does not object to the
costs claimed. The Court will therefore award the full amount of costs.
CONCLUSION:
Accordingly,
Plaintiffs’ Motion for Attorney’s Fees and Costs is GRANTED IN PART. Plaintiff
is awarded $37,430.00 in attorney’s fees plus $5,549.86 in costs.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: June 17, 2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@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
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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.