Judge: Walter P. Schwarm, Case: 30-2022-01254512, Date: 2023-08-22 Tentative Ruling
Plaintiff’s (Arman Andreasyan) Motion for Attorney’s Fees and Cost (Motion), filed on 3-29-23 under ROA No. 47, is GRANTED as set forth below. (The Notice for this Motion was filed on 3-29-23 under ROA No. 49.) Defendant (Prime Sales, Inc.) filed its Opposition to Plaintiff’s Motion for Attorney’s Fees, Costs and Expenses (Opposition) on 8-9-23 under ROA No. 54.)
Civil Code section 1780, subdivision (e), states, “The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff's prosecution of the action was not in good faith.” The court notes that Civil Code section 1780, subdivision (e), allows Plaintiff to seek attorneys’ fees and costs. (Motion; 7:17-18 and Opposition; 10:25-28.) The parties do not appear to dispute that Plaintiff is the prevailing party under Civil Code section 1780, subdivision (e), based on a settlement agreement between the parties. (Sirey Decl., ¶ 4 and Exhibit 13.)
The dispute between the parties pertains to the amount of attorney’s fees requested by Plaintiff. Plaintiff seeks to recover $49,530.00 as attorney’s fees with a multiplier of 1.5 for a total of $74,925.00 plus $785.75. in costs. (Motion; 5:13-17.) The Opposition states, “Plaintiff has brought the instant motion seeking $49,530.00 in attorney fees and a multiplier on attorney's fees in the amount of$24,765.00, for a total of $74,295.00 ("Motion"). This request is so unreasonably inflated such that special circumstances exist which permits the Court to deny Plaintiffs fee demand altogether.” (Opposition; 3-6.)
PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, explains, “As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘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.’ [Citation.] The reasonable hourly rate is that prevailing in the community for similar work. [Citation.]” “In referring to ‘reasonable’ compensation, we indicated that that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation. [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum); Italics in Ketchum.) Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322, provides, “ ‘To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.’ [Citation.]”
Syers Properties III, Inc. v. Rankin (Syers) (2014) 226 Cal.App.4th 691, 698–700 (Syers Properties III, Inc.) states, “The trial court did not abuse its discretion in accepting defense counsel's computation of attorney hours as hours reasonably spent working on the case. It is well established that ‘California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court's own view of the number of hours reasonably spent. [Citations.]’ [Citations.] . . . [¶] ‘Because time records are not required under California law . . ., there is no required level of detail that counsel must achieve. See, e.g., PLCM Group[, supra, 22 Cal.4th at p.] 1098, 95 Cal.Rptr.2d 198, 997 P.2d 511 (“We do not want ‘a [trial] court, in setting an attorney's fee, [to] become enmeshed in a meticulous analysis of every detailed facet of the professional representation. It . . . is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps dwarfing the case in chief,’ ” quoting Serrano v [.] Unruh (Serrano IV) (1982) 32 C[al.]3d 621, 642 [186 Cal.Rptr. 754, 652 P.2d 985]). See, e.g., . . . Jaramillo v [.] County of Orange (2011) 200 [Cal.App.] 4th 811, 830 [133 Cal.Rptr.3d 751] (noting that records included very general descriptions, e.g., ‘trial prep,’ ‘T/C-Client’); City of Colton v [.] Singletary (2012) 206 [Cal.App.] 4th 751, 784 [142 Cal.Rptr.3d 74] (declaration stating time spent on various activities); [citation].’ [Citation.]” (Footnotes 3, 4, and 5 omitted.) In Syers, “. . ., Feeney's declaration set forth the hours billed by Associate Attorney David J. Gibson, as well as by each of four paralegals who assisted on the case. This declaration also described the qualifications and experience of Gibson and each of the paralegals, as well as a brief description of the work each performed.” (Id., at p. 695.)
Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41 (Morris), states, “Similarly here, even if Morris established that her attorneys’ rates were generally commensurate with other consumer law attorneys with the same level of experience and skill, Morris ignores that there are a number of factors that the trial court may have taken into consideration in determining that reductions in the attorneys’ hourly rates were warranted. The court reasonably could have reduced the rates based on its finding that the matter was not complex; that it did not go to trial; that the name partners were doing work that could have been done by lower-billing attorneys; and that all the attorneys were doing work that could have been done by paralegals. [Citation.]”
Hourly Rate:
The declaration in support of the Motion seeks to recover at an hourly rate of $650.00. (Margarian Decl., ¶¶ 8-12.) The Opposition states, “Most, if not all of these tasks should be reduced to a clerical rate (such as $150.00) or entry-level associate rate, such as $265.00. In addition, Plaintiffs counsel filed these documents as opposed to having his assistant, who is identified in the billing records, perform such tasks at a lower rate. An hourly rate of $650 is excessive for such work and many described tasks appear to be work that could have been done by paralegal or clerical staff.” (Opposition; 12:15-20.) Plaintiff’s Reply to Defendant’s Opposition (Reply), filed on 8-15-23 under ROA No. 58, states, “Further, Defendant argues against various items in Exhibit A attached to the Decl. claiming them to be clerical or entry-level associate tasks. If Defendant insists, the Court should reduce Plaintiff’s fee demand in the amount of $1,116.50 for entry-level associate related work and $4,550.00 for the clerical related work, then in terms of all other tasks that the Court would consider as less difficult though performed by Plaintiff’s Counsel, the Counsel agrees to be billed at the associate attorney rate $265 an hour.” (Reply; 6:22-27.)
Based on the above, the court finds that a reasonable hourly rate is between $265.00 and $650.00 is reasonable depending on the task. As to the hourly rate of $650.00, Plaintiff’s counsel has 16 years of experience in consumer rights litigation, and the court finds that an hourly rate of $650.00 is reasonable in light of the experience of Plaintiff’s counsel depending on the task. (Margarian Decl., ¶¶ 2, 3, 4, 14, 15, 16, 17, 18, 19, 20, and 21.)
Reasonableness of Hours Expended:
In light of the above rules, the court reviewed the billing entries submitted by Plaintiff. The court has reviewed the billing entries in the “Breakdown Of Expended Hours.” (Margarian Decl., ¶ 31 and Exhibit A.) The Opposition states, “Plaintiff seeks to claim attorneys' fees in connection with a significant amount of discovery in this case. The discovery was not necessary for this case given that by the time Plaintiff began drafting discovery (August of 2022), the parties had reached a settlement agreement in principle and were only discussing the attorneys' fees amount.” (Opposition; 11:15-18.)
A review of the communications between counsel confirms a tentative agreement to settle was reached, as early as 7-13-22. (Rotenberg Decl., ¶¶ 6, 7, and 8, and Exhibits 4, 5, and 6.) A review of the communications between counsel indicates that there was a delay in the finalization of the settlement agreement because of a disagreement as to the amount of attorney’s fees and the procedure for determining attorney’s fees. was held-up, due primarily to a disagreement regarding the amount and means of determining attorney’s fees. (Rotenberg Decl., ¶¶ 8, 9, and 10, and Exhibits 6 and 7; Sirey Decl., ¶¶ 3, 4, 5, 6, and 7, and Exhibits 12, 13, 14, 15, and 16.)
The billing entries show that Plaintiff prepared discovery request after the parties had tentatively reached a settlement that resolved the action except for attorney’s fees. (Margarian Decl., ¶ 31 and Exhibit A; See the entries dated 8-26-22, 8-29-22, 8-30-22, 9-6-22, 9-14-22, 10-3-22, and 10-21-22.)
The court notes that Plaintiff filed this case on 4-13-22. (Compliant filed on 4-13-22 under ROA No. 2.) Given the tentative settlement agreement on the Plaintiff’s substantive claims and the fact that the parties reached the tentative settlement at an early stage of the proceedings (before the Case Management Conference scheduled on 9-16-22 (ROA No. 8)), the court finds the fees incurred in connection with discovery were inefficient.
Further, it appears that Plaintiff’s counsel billed at the hourly rate of $650.00 for administrative task. (For example, see the following entries: (1) 12-1-21 and 12-2-21 for tasks related to organizing Plaintiff’s file (2.5 hours); (2) 12-2-21 for a task involving non-legal factual research (1.2 hours). (Margarian Decl., ¶ 31 and Exhibit A.)
Considering all of the above, the court finds that the reasonable amount of attorneys’ fees for this action is $15,895.00 consists of 3.7 hours at the hourly rate of $150.00 for administrative tasks in pre-filing activity, 12.9 hours at the hourly rate of $650.00 for pre-filing activity, 4.7 hours at the hourly rate of $650.00 for client communications, and 6 hours at the hourly rate of $650.00 for time expended on this Motion. The court reached this figure after removing hours expended on inefficient tasks in light of the tentative settlement.
As to Plaintiff’s request for a multiplier, Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399 (Bernardi), states, “The California Supreme Court has instructed that, while the lodestar amount ‘is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including . . . (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. [Citation.]’ [Citation.] [¶] An enhancement of the lodestar amount to reflect the contingency risk is ‘[o]ne of the most common fee enhancers. . . .’ [Citation.] ‘The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights . . . into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis.’ [Citation.] Thus, as explained in Ketchum, the lodestar enhancement ‘is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.’ [Citation.] The trial court's decision to apply a multiplier to enhance an award of attorney fees ‘is a discretionary one.’ [Citation.]”
The declaration in support of the Motion states, “As such, I expend large amounts of time working on cases where the recovery, including the attorney’s fee recovery, is minor compared to the time investment by counsel. Unrepresented consumers are taken advantage of by defendant vehicle manufacturers and dealerships all the time. I have seen hundreds of $1,000 or $2,000 settlement agreements negotiated by unrepresented consumers and manufacturers and dealerships, wherein those consumers had much larger claims. For this reason, I feel an obligation to assist consumers with all kinds of cases. [¶] Lastly, as with any litigation, not all cases reach an ideal resolution wherein the dealership or manufacturer agrees to a refund sum plus payment of attorney’s fees and costs. Even when it does, as here, defendant refuses and claims that fees and costs are a fraction of what they really are. [¶] For the foregoing reasons, the risk factor in lemon law and dealer fraud cases is huge for me and the average recovery of my fees is $0 per hour for 1/3 of my cases, about $100 per hour for the other 1/3 of my cases, and a 1.5 multiplier on cases with a statutory settlement will allow me to recover $975 per hour, and therefore an average rate of $358 per hour across all of these cases. . . .” (Margarian Decl., ¶¶ 25, 26, and 27.) Ketchum, surpa, 24 Cal.4th at pp. 1137-1138, provides, “For similar reasons, we disagree that a fee enhancement improperly permits attorneys to ‘pool’ the risk in contingency cases, and thus, in effect, receive payment for cases in which their clients did not prevail. Code of Civil Procedure section 425.16, subdivision (c), permits only a prevailing party to recover attorney fees; the calculation of an appropriate fee has nothing to do with the amount of time his or her attorney may actually invest in other, unrelated, losing cases.” (Italics in Ketchum.)
Additionally, the court notes that Plaintiff’s counsel increases the hourly rate from $550.00 to $650.00 to account for work on contingency cases. (Margarian Decl., ¶ 12.) Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1174-1175 (Weeks), provides, “Looking first to the contingent nature of the award, as has already been discussed, the situation here is unlike that in the Serrano cases, where it was uncertain that the attorneys would be entitled to an award of fees even if they prevailed. Government Code section 12965, subdivision (b) created a reasonable expectation that attorney fees would not be limited by the extent of Weeks's recovery and that Weeks's attorneys would receive full compensation for their efforts.”
In considering the above, the court exercises its discretion, and DENIES Plaintiff’s request for a multiplier. Civil Code section 1780, subdivision (e), provided Plaintiff’s counsel with a reasonable expectation that the extent of Plaintiff’s recovery would not limit attorney’s fees for Plaintiff’s counsel. The hourly rate of $650.00 included an increase to account for the contingency nature of the representation by Plaintiff’s counsel. This case was not novel or difficulty especially in light of the tentative settlement at an early stage of the proceedings. Plaintiff’s counsel has not demonstrated that this litigation precluded employment in other cases for Plaintiff’s counsel.
Based on the above, the court awards attorney’s fees in the amount of $15,895.00.
Costs:
Plaintiff requests $785.75 in costs. (Memorandum of Costs filed on 3-29-23 under ROA No. 45 and Memorandum of Costs (Worksheet) filed on 3-29-23 under ROA No. 43.) As noted above, Civil Code section 1780, subdivision (e), allows for the recovery of costs. Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 773-774 (Ladas), states, “ ‘[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]’ [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citations.] However, because the right to costs is governed strictly by statute [citation] a court has no discretion to award costs not statutorily authorized. [Citations.]” (Italics in Ladas.)
The court finds that the costs appearing in the Memorandum of Costs (Worksheet) are proper costs under Code of Civil Procedure section 1033.5, subdivisions (a)(1). Since the Opposition does not oppose Plaintiff’s request for costs, the court finds that costs in the amount of $787.65 are appropriate.
Based on the above, the court GRANTS laintiff’s (Arman Andreasyan) Motion for Attorney’s Fees and Cost, filed on 3-29-23 under ROA No. 47, in the amount of $15,895.00 as to attorney’s fees plus $787.65 as costs.
Plaintiff is to give notice.