MOTION FOR ATTORNEY FEES IS GRANTED IN PART. 

Background 

This lemon law action was filed on February 16, 2022, by Plaintiff Jose Abad against Kia Motors America, Inc, Kia Downtown Los Angles, and Does 1 to 100. 

A Notice of Settlement was filed on June 28, 2022, but was rejected by the Court on June 30, 2022, because the second page was not filled out. 

Plaintiff filed a Motion for Attorney Fees along with a Memorandum of Costs on July 12, 2022. 

Defendant Kia filed Opposition paper on July 29, 2022. Plaintiff filed a Reply on July 29, 2022. 

Legal Standard 

Under the Civil Code section 1794, subdivision (d) the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred:¿ “If the buyer prevails 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(d).)¿¿ 

The lodestar method is the primary method for determining a reasonable attorney fee award under section 1794, subdivision (d).¿ (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818-19.)¿ “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 [internal quotations omitted].)¿ “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.¿ [citation] 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.)¿ “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.”¿ (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)¿ “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.”¿(Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)¿¿  

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Information Systems, 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; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.”].)¿¿¿  

Evidentiary Objections 

Objection Nos. 1 through 20 are OVERRULED. 

Objection Nos. 21, 22, 24, 25, and 26 are SUSTAINED 

Discussion 

I.                Attorney’s Fees 

Plaintiff requests $23,385.00 in attorney fees (Davoodi Decl. ¶¶ 25, 45, Exh. A -B) and $2,228.28 in costs. Plaintiff also requests 0.1 enhancement. The total fees requested are as follows: 

·       Lodestar fees:            $22, 385.00

·       Multiplier:                 $0.00.

·       Costs:                         $2,228.28

·       Total:                          $34,613.28. 

In total, Plaintiff’s counsel spent 34 hours working on this case, and anticipates spending an additional 3 hours reviewing Defendant’s opposition and drafting a reply. (Davoodi Decl. ¶ 25.) 

a.     Communications with Plaintiff over Settlement 

Defendant Kia asserts this case was simple and Kia offered to repurchase Plaintiff’s vehicle on March 29, 2022, approximately 6 weeks after this case was filed. Plaintiff asserts Kia has still not repurchased the vehicle and settlement may need to be enforced. Kia’s offer of settlement was accepted on April 6, 2022. Plaintiff does not dispute these facts. Therefore, Kia asserts there was no need for discovery, motion practice, or communication from Plaintiff. (See lines 26, 27, and 28 of Mr. Davoodi’s fee statement.) 

Kia argues that the fees requested by Plaintiff were unreasonably incurred in finalizing the settlement and performing administrative costs. Line items 25 through 27 of Plaintiff’s counsel’s billing statement reflect that Plaintiff’s counsel spent 42 minutes discussing settlement offers with Plaintiff. The Court finds this amount to be reasonable and DENIES Defendant’s request to strike fees spent in communicating settlement offers with Plaintiff. 

b.     Duplicative, Unnecessary or Administrative Tasks 

Defense counsel argues that Plaintiff’s counsel billing statement contains duplicative entries. 

·       Plaintiff’s counsel bills twice for reviewing client’s documents. (Mot Ex. A: Davoodi Fee Statement, lines 13 and 17.)

·       Twice for conveying Kia’s initial offer to client (Id. lines 27 and 28.)

·       Twice for the Request for Dismissal of the dealer. (Id. lines 60 and 67.)

·       Twice for review of updated financials. (Id. lines 82 and 84.)

·       Twice to review Kia Case Management Conference Statement. (Id. Lines 65 and 71.) 

Accordingly, Kia argues $1,149.50 should be stricken. (See also Orquiola Decl. ¶ 2, Exh. A- Highlighted Davoodi Fee Chart-Blue Highlighting). 

As to items 27 and 28, the Court finds that communicating offer to Plaintiff was reasonable as to the time spent, but the conference call between Plaintiff and Tammy Abad on the same day and for the same time (0.4 hours), plus and an additional .2 hours to convey the settlement to Plaintiff does seem duplicative. Moreover, Plaintiff does not address the duplicative billing in his Reply. Plaintiff also does not address the duplicative billing for the request for dismissal, which the Court notes has not been entered. Similarly, Plaintiff billed twice for reviewing the updated financials. 

A prevailing party’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.) However, Defendant Kia has presented evidence to rebut Plaintiff’s prima facie evidence by pointing to billing entries that appear to be duplicative. Rather than rebut the entries, in his Reply, Plaintiff merely asserts he should be paid for all fees incurred. Therefore, Plaintiff has not rebutted the presumption that the alleged entries listed above are not duplicative. 

Accordingly, after reviewing the alleged duplicative entries, the following will be stricken: 

·        0.4 hours for the Conference Call between Jose and Tammy on March 30, 2022. (Line 28.)

·       0.1 for the Request for Dismissal. (Line 67.)

·       0.2 hours for Reviewing the updated financials. (Line 84.)

·       0.3 for Reviewing RASA with Plaintiff. (Line 65.) 

Defendant also asserts that Plaintiff’s counsel billed for administrative tasks such as setting up phone calls with Plaintiff. (Davoodi Fee Statement, Lines 43, 44, 62, 72, 76, and 82) Moreover, Plaintiff’s counsel involvement should not have been required to obtain Plaintiff’s financials from Plaintiff’s own bank. Therefore, Kia argues $1,633.50 should be stricken. (Orquiola Decl. ¶6, Exh. A- Highlighted Davoodi Fee Chart-Orange Highlighting). 

Plaintiff again fails to show that the challenged costs are not administrative. After reviewing the challenged entries, the Court finds that updating financials is an administrative task and should be stricken. (Line 72.) All other correspondence appears to have been reasonably incurred during the course of litigation. 

Accordingly, 0.2 hours will be stricken from Plaintiff’s attorney fees. 

c.      Counsel’s Billing for a Vehicle Inspection 

Defendant argues that the second vehicle inspection billed by Plaintiff is unnecessary. 

The first vehicle inspection took place on February 21, 2022, for “CSA Appraisal and VI.” (Davoodi Fee Statement Line 7.) Another vehicle inspection was to take place the next day on February 22, 2022, for 3.2 hours. (Davoodi Fee Statement, Line 22.) Therefore, $1,936.00 should be stricken for the second inspection. (Orquiola Decl. ¶6, Exh. A- Highlighted Davoodi Fee Chart-Red Highlighting). 

The Court finds that the first vehicle inspection was an appraisal, while the second was an onsite vehicle inspection. Accordingly, the costs and time incurred appear to be necessary and reasonable. No deductions will be made. 

d.     Pre-litigation Demand Letters 

Defense counsel asserts Plaintiff’s counsel has billed for a demand letter that was never sent to Kia. Plaintiff’s counsel billed $423.50 for the preparation of the letter that was never sent and $121.00 to review it with Plaintiff. (Davoodi Fee Statement, Lines 19 and 20). Therefore, $544.50 should be stricken. (See also Orquiola Decl. ¶6, Exh. A- Highlighted Davoodi Fee Chart-Green Highlighting). 

In his Reply, Plaintiff does not address nor dispute this allegation. Accordingly, the demand letter will be stricken totaling $544.50 or minus 0.9 hours of work. 

e.      No Fees for Vague or Excessive Work 

Defendant argues that Plaintiff’s counsel should not recover for work that is either too excessive or vague to give Kia notice of whether the work quoted was reasonably necessary to prosecute the case, such as: 

·       “Review of NHSTA and TSBS” and was billed for 2.8 hours on January 19, 2022, totaling $1,694.00. (Davoodi Fee Statement, Line 18.)

·       “Tammy Abad-Confirmed offer met” and was billed for 0.3 hours, totaling $181.50 billed on April 6, 2022. (Id. line 39.)

·       “Elizabeth Kolar-Agreement” billed for 0.2 hours, totaling $121.00 on April 29, 2022. (Id. line 58.) 

Defendant argues that due to the ambiguity of the fees, Plaintiff’s counsel’s fee should be reduced by $1,996.50. (See also Orquiola Decl. ¶6, Exh. A- Highlighted Davoodi Fee Chart-Yellow Highlighting). 

The Court can reasonably infer that items on line 18 refer to searches in the National Highway Traffic Safety Administration database and the technical service bulletins, and the review of same. Thus, item 18 will not be stricken since the costs appear to be reasonable and necessary. Moreover, the 0.3 hours spent confirming the settlement offer with Plaintiff on April 06, 2022, is not a vague entry and appears to be reasonably incurred. 

Moreover, the “Elizabeth Kolar -Agreement” billed on April 29, 2022, for 0.2 hours appears to refer to Defense counsel Elizabeth L. Kolar.  The amount billed seems reasonable and Defendant has not presented other evidence to rebut the amount requested other than claiming the amount is vague. 

According, no deductions will be made as to these challenged entries. 

f.      Plaintiff’s Counsel Billing for Reply and Appearance

 Defense counsel assets Mr. Davoodi, Plaintiff’s counsel, was acting unreasonably in negotiating attorney fees. Consequently, the Defense requests that Plaintiff’s counsel fees for preparing a reply brief, reviewing the opposition, and attendance at the hearing totaling $1,815.00 should be stricken. 

Plaintiff asserts he is entitled to recover attorney fees for time spent preparing and defending their fee application. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 631 [Stating: the time expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys' fee application, and in the court's fee award.”].) Since Defendants cite no legal authority that would permit the Court to preclude Plaintiff’s counsel from recovering fees for the time spent reviewing the opposition and drafting a replay, the fee is recoverable. 

Although Plaintiff’s counsel anticipated spending 3.0 hours reviewing the Opposition, drafting a reply, and appearing at the hearing, 0.5 hours will be subtracted because the Reply was only 6 pages long and did not address the specific billing entries challenged by Defendant. 

g.     Plaintiff’s Counsel Hourly Rate 

The Defense further argues that Plaintiff’s hourly rate of $605 per hour is unreasonable and the evidence cited by Plaintiff in justification of the amount sought varies from $300.00 to $575.00 and does not explain the procedural posture of the cases or whether the requested rate was ever challenged. The Court disagrees. 

Plaintiff’s counsel asserts that his $500.00 hourly rate has been found reasonably in various cases in 2019 and January 14, 2022, due to his skills and expertise. (Davoodi Decl. ¶ 45-59, Exh. C-H, P, Q, S.). A billing rate of $525.00 was also found to be reasonable on July 17, 2019. (Exh. I.) Plaintiff’s billing rate of $525.00 has also been found to be reasonable on March 18, 2019, and July 6, 2020. (Exh E, M, U.) Courts have also found Plaintiff’s counsel’s billing rate of $605.00 an hour to be reasonable, on June 10, 2020, April 29, 2021, and May 11, 2022. (Exh. K, O, and T.) 

Defense points out that “Judge Elizabeth White with the Los Angeles Superior Court (in 2019) noted that $605 for a sole practitioner with seven years’ experience was unreasonable and that $350 was reasonable” and she cut the fee from $33,275.00 to $11,000.00 (Orquiola Decl. ¶ 8, Exh. C.) Therefore, assuming 5% for inflation, Plaintiff’s counsel’s fee should be from $405.00 to $450.00. Moreover, Defense counsel asserts that Plaintiff’s counsel’s fees have been reduced in four rulings to $500.00 per hours and two rulings have awarded him $575.00 per hour. (Opp. at 9:1-5.) The Defense does not cite the evidence regarding this proposition. 

The Court is satisfied that Plaintiff has offered sufficient evidence to justify a fee of $605.00 per hour. 

h.     Adjusted Attorney Fees 

The following will be stricken from Plaintiff’s billing: 

·       0.4 hours for the Conference Call between Jose and Tammy on March 30, 2022. (Line 28.)

·       0.1 for the Request for Dismissal. (Line 67.)

·       0.2 hours for Reviewing the updated financials. (Line 84.)

·       0.3 for Reviewing RASA with Plaintiff. (Line 65.)

·       0.2 hours were stricken because updating financials was deemed an administrative task. (Line 72.)

·       0.9 hours for work spend the demand letter that was never sent (or $544.50). (Lines 19 and 20.)

·       0.5 hour for drafting the reply (Line 98.) 

In total 2.60 hours were subtracted totaling $1,573.00. According, the new lodestar amount is $20,812.00 

II.   Tax Costs

a.     Legal Standard 

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.) 

b.     Alleged Unreasonable Costs 

Defense counsel asserts that $7.67 for the postage related to the pre-litigation demand letter that Kia never received should be stricken. (Davoodi Fee Statement, Line 1.) Given that Plaintiff does not dispute that the letter was never sent, $7.47 will be stricken. 

Defense counsel also demands that $600.00 be removed for the vehicle inspection because it was unnecessary for the prosecution of this case and the inspection did not contribute to the settlement negotiations and is thus unnecessary. (Davoodi Fee Statement, Line 7.) The Court finds the amount charged for the vehicle inspection was reasonable and necessary in order to prepare the case for litigation. Request to strike the cost of the inspection is DENIED. 

Defense counsel also challenges the $837.50 spent on the “Ronsin-Subpoena” since there is no explanation of what was subpoenaed, or a billing reflecting that the subpoenaed documents were reviewed. (Davoodi Fee Statement, Line 8.) “A verified memorandum of costs is prima facie evidence of the propriety of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary. (Bender¿v. County of Los Angeles (2013) 217 Cal.App.4th 968, 989.¿Nevertheless, this is a case that was never litigated. An offer of repurchase was made six weeks after the case was filed which Plaintiff accepted the following month. There does not appear to be any reason for a subpoena to anyone. The Court will deduct $837.50. 

Accordingly, Plaintiff’s costs are $1,383.11 after subtracting the cost of the postage stamp. 

III. Loadstar Multiplier 

Plaintiff’s counsel asserts that a multiplier of .0.1% is appropriate because Plaintiff’s counsel incurred the risk it would not relieve compensation despite taking and working on the case.

Plaintiff asserts there is a 45% difference in what Kia originally offered for settlement and what the case was ultimately settled for. (Reply at 3:4-7.) 

The lodestar amount “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.”¿ (Bernardiv. County of Monterey(2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132].)¿ The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary.¿ (Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker & McKenzie(1998) 63 Cal.App.4th 1128, 1171-72.)¿ 

Plaintiff’s request to award a multiplier is DENIED.¿ The Court finds there is no basis to award a multiplier because the time and skill of counsel, as well as, the contingent nature of the representation, are compensated with fees.¿ Also, there is nothing before the Court to suggest this relatively straightforward case required extraordinary legal skill and/or required counsel to bear unnecessary risk.¿ Nothing before this Court suggests that special skill was displayed, or an extraordinary result was obtained by Plaintiff’s counsel.¿¿  

Conclusion 

Plaintiff’s request for Attorney Fee’s is GRANTED IN PART as follows: 

·       Lodestar fees:            $20,812.00

·       Multiplier:                 $0.00.

·       Costs:                         $1,383.11

·       Total:                          $22,195.11 

Attorneys’ fees and costs in the reduced amount of $22,195.11 will be awarded to Plaintiff’s counsel. 

Moving Party to give notice. 

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.