Judge Yolanda Orozco, Case 20STCV11372 2022-10-11 Tentative Ruling

Judge: Yolanda Orozco, Case: 20STCV11372, Date: 2022-10-11 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 20STCV11372 Hearing Date: October 11, 2022 Dept: 31

1) MOTION FOR ATTORNEY’S FEES IS GRANTED, IN PART AND

2) MOTION TO TAX COSTS IS DENIED

Background

On March 19, 2022, Plaintiffs Naima Smith, Daunteyvia Dates, Douglas Johnson, Chrysalin Byrd, Cesar Rodriguez, Martell Wynder, and Anthony Walker filed a Complaint against Defendants Abode Communities, LLC, Abode Communities, 44000 Sahuayo Street, L.P., Vista del Mar MGP, LLC, and Vista del Mar AGP, LLC for violation of the California Investigative Consumer Reporting Agencies Act (ICRAA).

A Jury Verdict in favor of the Plaintiffs was signed and filed on June 27, 2022. (Min. Or. 06/27/22.)

On August 25, 2022, the Plaintiffs filed a Motion for Attorney’s Fees. Defendants filed opposing papers to the Motion for Attorney’s Fees on September 15, 2022. The Plaintiffs filed a reply on September 21, 2022.

On July 15, 2022, Defendant Abode moved to Tax Costs. Plaintiffs filed opposition papers on August 10, 2022. Defendant Abode filed a reply on August 12, 2022.

Supplemental briefs regarding the 998 Offer were served on September 09, 2022, by Defendants and on September 26, 2022, by Plaintiffs.

Evidentiary Objections

Plaintiff objects to the Declarations of John Rubiner and Grant Steifel, filed in opposition to Plaintiff’s Motion for Attorney’s Fees and Costs.

Plaintiffs’ evidentiary objections pertain to statements by Defense counsel as to Plaintiffs previous cases and fee motions. The Court may consider rates awarded in other matters to determine the reasonableness of counsel’s hourly rates. (See Davis v City of San Diego (2003) 106 Cal.App.4th 893, 904; Margolin v Regional Planning Comm'n (1982) 134 Cal.App.3d 999, 1005.)

Based on the foregoing, Plaintiffs’ evidentiary objections are OVERRULED in their entirety.

Legal Standard

a. Attorney’s Fees and Costs

A prevailing party is entitled to recover costs as a matter of right, “[e]xecept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc., §1032(a)(4).) Attorney’s fees may be recovered as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5(a)(10).) The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider several factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Id.)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination . . . is a careful compilation of the time spent and reasonable hourly compensation of each attorney . . . in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) “Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”].)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Id.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Id.)

b. Tax Costs

A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1). Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4)¿provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., §1033.5(c)(4).)¿¿ ¿

Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs.¿ Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”¿ ¿

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)¿

Discussion

i. 998 Offer was Properly Served

Plaintiffs claim the 998 Offers were not properly served because Defendant failed to confirm by telephone or email the electronic service address for the Plaintiffs’ counsel being served.

Defendant argues this was unnecessary because the Plaintiffs’ counsel used the same email to communicate with Defendant, including transmitting and receiving pleadings related to the case. Defendants assert that Plaintiff even requested documents be served to him via the same email to which the 988 Offers were sent, and Plaintiff’s counsel has even confirmed receiving the documents. (Reply Ex. B, C.) Plaintiff’s counsel never communicated to the defense that he did not receive emails at the email provided.

Plaintiffs cite no other facts or case law, to support their contention that the 988 Offers were improperly served for this reason. Accordingly, the Court finds the 998 Offers were properly served.

ii. Attorney’s Fees under ICRAA and the 998 Offer

“Under the Code of Civil Procedure, general entitlement to attorney fees is governed by section 1032, which provides in part, ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’ (Code Civ. Proc., § 1032, subd. (b), italics added.) The litigation costs a prevailing party may recover include attorney fees when recovery of such fees is authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Accordingly, a prevailing party is not automatically entitled to attorney fees merely by virtue of prevailing, but must demonstrate such an entitlement via contract, statute, or law.” (Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, 633. [italics original].)

Thus, whether the Plaintiffs in this action are entitled to recover attorney’s fees in this action hinges on their right to recover fees under the Investigative Consumer Reporting Agencies Act (ICRAA).

Under ICRAA, Plaintiffs are entitled to recover:

“(1)¿Any actual damages sustained by the consumer as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.

(2)¿In the case of any successful action to enforce any liability under this chapter, the costs of the action together with reasonable attorney’s fees as determined by the court.”

(Civ. Code, § 1786.50 subd. (a).)

On May 5, 2022, the jury awarded each of the five Plaintiffs $10,000.00 for violations of (ICRAA) and the Court entered non-suit as to two other Plaintiffs. Defendants assert that the Plaintiffs’ right to recover costs is barred by the fact that the Plaintiffs failed to obtain a more favorable verdict than the Defendant’s 998 Offer. Defendant asserts that the 998 Offers of $10,100.00 for each Plaintiff was more favorable than the Jury verdict because it was “exclusive of attorney fees and costs.” (Mot to Tax Costs. Ex. A) The Offers would then allow the Plaintiffs to file a separate motion to recover attorney’s fees and costs. Plaintiffs assert that Defendant’s 998 Offer for $10,100.00 was not more favorable than the jury verdict because it did not account for attorney’s fees. At the time the 998 Offer was made on November 18, 2021, Plaintiffs had incurred over $50,000.00 in attorney’s fees. (Murphy Decl. ¶ 4.)

“Under Code of Civil Procedure section 998, ‘if the plaintiffs reject a defendant's offer to compromise and then fail to win a more favorable judgment, the plaintiffs cannot recover their post offer costs and must pay the costs the defendant incurred after the offer.’ (Citation.)” (Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, 499.) “To be valid, an offer under Code of Civil Procedure section 998 may include nonmonetary terms and conditions, but it must be unconditional. The offer must be sufficiently specific to allow the recipient to meaningfully evaluate it and make a reasoned decision whether to accept it. (Citation.) Further, the offeree must be able to clearly evaluate the worth of the offer.” (Id. at 499.)

Here, the Plaintiffs argue that the Defendants’ 998 Offer was not valid because it precluded the Plaintiffs from recovering attorney’s fees under ICCRAA because ICCRAA required a finding of liability and the 998 Offer was silent on the Defendants’ liability.

Plaintiffs cite Doran v. North State Grocery, Inc.¿(2006) in support of the proposition that attorney’s fees are only recoverable under ICRAA if the Plaintiffs are the prevailing party. (See Doran v. North State Grocery, Inc.¿(2006) 137 Cal.App.4th 484.) In Dornan, the Appeal Court found that a plaintiff who entered into a compromise settlement under Section 998, could not recover attorney fees under section 52 of the Unruh Civil Rights act because section 52 required a specific finding of liability. (Id. at 491.) The Appeal Court specifically found that “it is well established that a compromise settlement entered into under Code of Civil Procedure section 998 does not constitute an adjudication of liability.” (Id.)

The Doran Court further explained that although a prevailing party is allowed to recover attorney fees under Code Civ. Proc. section 1033.5; subdivision (a)(10) specifies that attorney fees are only recoverable if authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5 subd. (a)(10).) Since section 52 of the Unruh Act only allowed for attorney’s fees on a finding of liability, the plaintiff in Doran was precluded from recovering attorney’s fees. (Doran, supra, 137 Cal.App.4h at 490.) Therefore, the Plaintiffs argue that under ICCRA, attorney’s fees are only recoverable “[i]n the case of any successful action to enforce any liability;” hence since Defendant’s 998 Offers were silent on the issue liability, Plaintiffs would have been precluded from recovering attorney’s fees if they accepted Defendant’s Offers. (Citing Civ. Code, § 1786.50 subd. (a)(2).)

Defendants argue that the Plaintiffs’ reliance on Doran is inapposite because the ICCRA does not have the same requirements as the Unruh Act, so a finding of liability is not required for the Plaintiffs to recover fees and costs under the 998 Offer proposed by Defendants. Defendants cite no legal authority to support their conclusion that a finding of liability under ICCRA would not be required before the statutory entitlement to attorney fees would be triggered. Meanwhile, the Plaintiffs’ assertion that a finding of liability under ICCRA is required is based on the plain language of the statute. (See Civ. Code, § 1786.50 subd. (a).) The Court found no other authority on whether a finding of liability is required to recover attorney’s fees under ICCRA.

For this reason, the Court found Defendants’ 998 Offer to be ambiguous. “An offer to compromise under¿section¿998¿must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer.” (Khosravan v. Chevron Corp.¿(2021) 66 Cal.App.5th 288, 295 [internal citations omitted].) The Court finds the 998 Offers lacked specificity regarding Defendant’s liability, such that the Plaintiffs could be barred from recovering attorney’s fees under ICCRA. Because a 998 offer must be “strictly construed in favor of the party to be bound by it,” the Court must find that the 998 Offers were ambiguous such that the Plaintiffs could not reasonably assess their worth. (Id. at 295.)

“Where a defendant's settlement offer contains terms that make it ‘exceedingly difficult or impossible to determine the value of the offer to the plaintiff[,] ... a court should not undertake extraordinary efforts to attempt to determine whether the judgment is more favorable to the plaintiff. Instead, the court should conclude that the offer is not sufficiently specific or certain to determine its value and deny cost shifting under¿Code¿of¿Civil¿Procedure¿section¿998.’”

(Id. citing Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 766.)

For the reasons stated, the Court determines that the Defendants’ 998 Offer was not valid.

Defendants asked this Court to reconsider its finding that the 998 Offer was ambiguous as to recovery for attorney’s fees because the 998 Offer should be read as a contract and that although the 998 Offer was silent on attorney’s fees, it nevertheless allowed for recovery of attorney’s fees if brought as a separate motion. “Indisputably, a section 998 offer that is silent as to attorney fees cannot reasonably be interpreted as excluding such recovery to the prevailing party, provided attorney fees are authorized by statute or contract.” (Linton, supra, 31 Cal.App.5th at 632.) Normally, a 998 Offer silent on attorney’s fees does not bar recovery of attorney’s fees. This interpretation by Defendants is correct to an extent. However, the Plaintiffs’ entitlement to attorney’s fees depends on their statutory right to recover such fees not under section 998 but under IICRA.

For this reason, the Defendants’ reliance on Timed Out, LLC v. 13359 Corp. (2018) is unavailing. Recovery in Time Out LLC was for misappropriation claims under Civil Code Section 3344 subdivision (a), which states: “The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.” (Cal. Civ. Code § 3344.) For this reason, the Appeal Court in Time Out, LLC found that: “An award of attorney fees and costs to the prevailing party is mandatory under section 3344, subdivision (a).” (Timed Out LLC v. 13359 Corp., supra, 21 Cal.App.5th at 943.)

Defendants do not cite any authority finding that ICRRA does not require a finding of liability which is key here. The other cases relied on by Defendants allowed for recovery of attorney’s fees under different statutory schemes other than the ICRAA. (See Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252 [violations of Song-Beverly Act.]; Engle v. Copenbarger & Copenbarger, LLP, 157 Cal.App.4th 165 [violations of the FEHA.]; Ritzenthaler v. Fireside Thrift Co. (2001) 93 Cal.App.4th 986 [breach of the implied covenant of good faith and fair dealing and unfair business practice]; and Calvo Fisher & Jacob LLP v. Lujan (2015) 234 Cal.App.4th 608 [Law firm brought an action against the client for breach of contract, common count, quantum meruit, and account stated, seeking unpaid legal fees after withdrawing from representation, and client filed counterclaims alleging breach of contract and breach of the covenant of good faith and fair dealing.].)

In Gutierrez v. Chopard USA Ltd. (2022), the Court permitted recovery of attorney’s fees for violations of the Unruh Act and the Americans with Disabilities Act (ADA) because unlike the plaintiff in Doran, the 998 Offer included a joint stipulation on liability wherein the Defendant agreed to not dispute liability on its website as to the plaintiff’s entitlement to attorney’s fees and costs under the Unruh Act and ADA. (Gutierrez v. Chopard USA Ltd. (2022) 82 Cal.App.5th 383, 392 [“Here [Defendant] stipulated not to dispute its liability or to dispute that Gutierrez was entitled to attorney fees and costs under the Unruh Act, which it agreed was the applicable statute. Chopard is bound by the Joint Stipulation and cannot rely on semantics to avoid its import.”].) Here, this case is governed by the ICRRA and the requirement that Plaintiffs are entitled to recover attorney’s fees “[i]n the case of any successful action to enforce any liability under this chapter, . . .as determined by the court.” (Civ. Code, § 1786.50 subd. (a).)

For this reason, this Court finds that Defendant’s 998 Offer was ambiguous as to its terms as to whether it would preclude the Plaintiffs from recovering fees and costs under the ICRAA absent a finding of liability. Such ambiguity would be resolved in favor of the Defendants had they provided evidence that under the ICRAA there was no liability requirement. Having failed to do so, ambiguity exists as to whether the Plaintiffs could recover fees and costs under ICRAA by filing a separate motion had they accepted the Defendants’ 998 Offer.

Therefore, the 998 Offer was not valid because of this uncertainty. Accordingly, the Court examines the two pending motions before this Court and denies the Defendants’ contention that the 998 Offer was valid.

I. Motion for Attorney’s Fees

Plaintiffs request attorney fees in the amount of $221,016.50 based on a lodestar value of

Plaintiffs’ fees incurred through (1) the jury verdict on May 5, 2022, of $143,902.50, (2) a requested multiplier of 1.4 of $57,561.00, and (3) Plaintiffs’ post-verdict fees of $19,553.00.

The total of $221,016.50 includes fees for this fee motion. Plaintiff’s counsel’s billing a rate of $650.00 per hour anticipates spending 3.0 hours reviewing Defendant’s Sur-Reply on its Motion to Tax Costs and Drafting a response and 1.0 hours preparing for and appearing at the hearing, totaling $2,600.00 ($650.00 x 4.0 hrs.). (Murph Decl. ¶ 17.)

Reasonable Hourly Rates

Attached as Exhibit 6 to the Declaration of Glenn A. Murphy is a copy of the invoice for services rendered in representing the Plaintiffs in this case. (See Murphy ¶ 10, Ex. 6.)

Plaintiffs’ counsel, Glenn A Murphy’s hourly rate is $650.00 per hour and that of his paralegal, Tina Lee, is $165.00 per hour.

Plaintiffs’ counsel asserts that his hourly rate is reasonable given that the billing rate of other counsel with similar experience and knowledge is between $600.00 and $850.00 based on the 2014 National Law Journal Billing Survey for Partners in the Los Angles Area. (Murphy Decl. ¶ 9.) Plaintiffs’ counsel spent 233.9 hours on this case while Ms. Lee, the paralegal spent 37.7 hours. (Murphy Decl. ¶ 11, Ex. 6.) Other Courts in the Los Angeles County Superior Court have granted Plaintiffs’ Motion for Attorney’s Fees. (See Murphy Decl. Ex. 2-4.) The Court notes that in LASC Case No. EC061267, Judge Donna Fields Goldstein granted the motion for attorney’s fees at a rate of $500.00 per hour in 2017. (Murphy Decl. Ex. 2.) Both Judge Kevin C. Brazile and Judge David Sotelo granted a fee motion at a rate of $650.00 per hour for LASC Case Nos. 20STCV 10686 and 20STCV35400 in 2022. (Id. Ex. 3, 4.)

Defendants dispute the hourly rate charged by the Plaintiffs’ counsel based on the expert opinion of Grant D. Stiefel, who is a full-time consultant and testifying expert in the field of attorneys’ fees and is the founder of Litigation Limited, a legal fee auditing and consulting firm. (See, Stiefel Decl. ¶ 1.) Defendants’ expert, Mr. Stiefel, opines that Plaintiff’s counsel’s hourly rate should be $500.00 per hour based on the Real Rate Report data and the Consumer Law Report for the Los Angles legal market. (Stiefel Decl. ¶¶ 36-40, Ex. G, Ex. H.) For example, in LASC Case No. 20STCV37597, on August 08, 2022, Judge Kevin C. Brazile found the Plaintiffs’ counsel’s hourly rate of $650.00 to be excessive and reduced the amount to $500.00 per hour. (Opp. Ex. F.) On September 14, 2022, Judge Byrdsong reduced the Plaintiffs’ counsel’s hourly rate to $500.00 per hour in LASC Case No. 20STCV41138.

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Id.)

The Plaintiffs’ counsel asserts that an hourly rate of $650.00 per hour is reasonable given the skill of the Plaintiffs’ counsel, the risk of nonpayment for contingency cases, and other factors the trial court may consider. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)

The Court finds that the hourly rate of charge by the Plaintiffs’ counsel to be excessive and an hourly rate of $600.00 per hour is reasonable and falls somewhat in the middle of what other judges have used on these type of cases in the last year.

Time Spent on Retention Agreements

Defendant’s expert fails to cite any California legal authority to show that the 1.6 hours spent preparing retention agreements and conflict waivers are not billable. (Stiefel Decl. ¶ 44.) The Court finds that they are.

Accordingly, no deductions will be made.

Secretarial Work

Defendants also object to 37.7 hours of work done by paralegal Tina Lee in the value of $6,220.50 because the work done is secretarial work that is non-compensable, such as “scanning and uploading documents, downloading and saving documents from the court website, efiling and serving documents, and scheduling court call appearances.” (Stiefel Decl ¶ 45, Ex. J.)

Plaintiff asserts that the work performed by Ms. Lee was not “secretarial work” and is compensable. (See Guinn v. Dotson (1994) 23 Cal.App.4th 262, 263 [Trial Court erred in not awarding attorney’s fees for paralegal fees because an award for attorney fees that did not compensate for paralegal service would not fully compensate the attorney under CCP section 411.35 (award of reasonable expenses for failure to file a required certificate in action against a professional engineer.)].) Under ICRAA, Plaintiff is entitled to recover “the costs of the action together with reasonable attorney’s fees as determined by the court.” (Civ. Code, § 1786.50 subd. (a).)

Cited by Defendants, Jadwin v. County of Kern (2011) found that secretarial time is not compensable and is part of an attorney’s overhead and is generally not recoverable as attorney’s fees. (Jadwin v. County of Kern (E.D. Cal. 2011) 767 F.Supp.2d 1069, 1113.) However, the District Court in Jadwin cited with authority that “‘Time spent updating CaseMap and adding persons, witnesses, and organizations to spreadsheets have not been excluded because, although somewhat clerical in nature, these tasks add to a database that organizes information to save attorneys' time and to help attorneys perform legal services in a more efficient manner.’” (Id. [citation omitted].)

The Court agrees that some of the work performed by Ms. Lee does appear to be secretarial in nature and that Plaintiffs’ counsel has not adequately explained how some of the fees are not secretarial in nature. However, not all of the 3.7 hours billed by Ms. Lee are not purely secretarial and some appear to be necessary for the litigation. For this reason, the Court disagrees that 37.7 hours spent by Ms. Lee is not compensable as attorney’s fees. (See Stiefel Decl ¶ 45, Ex. J.) Moreover, Defendants fail to point out specific entries in Ms. Lee’s billing and instead assert that all of Ms. Lee’s billing is secretarial.

To compensate for the overlap between paralegal work and secretarial tasks, the time of 37.7 hours spent by Ms. Lee on this case is reduced to 30.0 hours.

Plaintiffs’ Alleged Waiver of Fees

Defendants assert that about four months before trial, Plaintiff’s counsel expressly agreed to dismiss all Defendants other than Abode and waive “any and all fees and costs in this case” and that Abode accepted the offer. (Opp. Ex. H and I.)

Plaintiffs assert that the waivers were meant that recovery of fees against the dismissed Defendants would not be sought, but that it would seek those fees only against Defendant Abode Communities. (Murphy Supp. Decl. ¶ 13.) Any other interpretation would border on the absurd.

Accordingly, the Court finds that there was no waiver of fees against Defendant Abode.

Right to Fees as to only 5 of the 8 Plaintiffs

Defendants assert that fees’ are not recoverable as to two Plaintiffs due to the non-suit entered as to those two Plaintiffs. Defendants argue, without citation to any legal authority, that because the Plaintiffs were only 62.5% successful, the Plaintiffs’ recovery should be reduced by 37.5%. Alternatively, Defendants suggest that a negative multiplier be awarded.

Plaintiffs’ counsel asserts that it has not billed for work representing the three Plaintiffs against whom non-suit was entered. (Murphy Supp. Decl. ¶ 14.) Defendants have also failed to prove otherwise and point to specific entries that they deem are objectionable.

A declaration attesting to the accuracy of the fee bill is presumed credible absent clear error. (Horsford v. Bd. of Trsts. of Cal. St. Univ. (2005) 132 Cal. App. 4th 359, 396.) Once the moving party presents an itemized fee bill, the burden shifts to the opposing party to make specific objections. (McGrath v. County of Nevada (1995) 67 F.3d 248, 255 (fee opponent must provide specific evidence to challenge the reasonableness of the bill.].)

Accordingly, no deductions will be made.

Multiplier

Multipliers may be awarded based on numerous 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, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The Court find that no multiplier is warranted in this case as the hourly rate fairly and fully compensates counsel.

Adjusted Lodestar

Plaintiff’s counsel seeks fees for 233.9 of work supported by the invoice submitted. (Murphy Decl. ¶ 17, Ex. 6) Accounting for the additional 4.0 hours in responding to this motion, the Court finds that the Plaintiffs’ counsel spent 237.9 hours on this case.

237.9 hours billed at an hourly rate of $600 is $142,740.00 and 30.00 hours billed at a rate of $165.00 per hour is $4,950.00 per hour.

Since no multiplier is awarded, the total adjusted lodestar is $147.690.00.

Therefore, Plaintiffs’ Motion for Attorney’s Fees is GRANTED, IN PART in the amount of $147.690.00.

II. Motion to Tax Costs

Since the Court found the Defendants’ 998 Offer to be invalid, the Court denies the Defendants’ Motion to Tax Costs.

Defendant objected to the following billing items on the basis that their 998 Offer was valid:

· Item No. 1: Filing and Motion Fees

· Item No. 2: Jury Fees

· Item No. 12: Models, enlargements, and photocopies of exhibits

Finding that the 998 Offer was invalid, the request to strike the items above is denied.

Item No. 5: Service of Process

Defendant argues that because a few months before trial Plaintiffs proposed dismissing all Defendants other than Abode Communities, Plaintiffs should not recover any costs associated with serving the other Defendants.

The Court finds that the service of process on the other Defendants was necessary to the conduct of the litigation and declines to tax Item No. 5.

Item No. 16 – Other

Defendants seek to tax $1,964.35 for a $94.00 Court Call, $45,00 for a VCourt, $275.00 for parking and $1,550.35 for mileage.

Defendants assert that because the parking and mileage were for trial, the costs are invalid due to the 998 Offer. Finding that the 998 Offer was invalid, the Court declines to tax those items as the Courts find they were necessary to the conduct of the litigation. Defendant asserts that the other items are for the convenience of the parties and were not necessary to the conduct of the litigation.

Plaintiff asserts that the VCourt for $45.00 was necessary to the prosecution of the case and reduced attorney’s fees incurred by not requiring the Plaintiffs’ counsel to travel to the Court and were also required because of the COVID-19 pandemic. (Murphy Decl. ¶¶ 12-13.) Plaintiff also submits invoices for CourtCalls and VCourt and attests to the need and reasonableness of the costs. (Murphy Decl. ¶¶ 12, 13, Ex. 6 to 7.)

A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)

Having failed to rebut the Plaintiffs’ showing that the costs sought are reasonable and necessary to the conduct of the litigation, the Defendants’ Motion to Tax Costs is DENIED.

Conclusion

Plaintiffs’ Motion for Attorney’s Fees is GRANTED IN PART in the amount of $147.690.00. No multiplier is awarded.

Defendants’ Motion to Tax Costs is DENIED.

Plaintiffs to give notice.