This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:53:21 (UTC).

FATU OLOMANU VS FCA US LLC ET AL

Case Summary

On 10/20/2016 FATU OLOMANU filed a Contract - Other Contract lawsuit against FCA US LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8180

  • Filing Date:

    10/20/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

OLOMANU FATU

Defendants and Respondents

SCOTT ROBINSON CHRYSLER DODGE JEEP RAM

FCA US LLC

DOES 1 THROUGH 10

JRDTSP LLC

RAM SCOTT ROBINSON CHRYSLER DODGE JEEP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MIKHOV STEVEN B. ESQ.

YAGHOUBZADEH KEVIN

MIKHOV STEVE BORISLAV

Defendant Attorney

OLSON DEAN ALBERT

 

Court Documents

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Opposition

10/15/2018: Opposition

Motion in Limine

10/18/2018: Motion in Limine

Minute Order

10/31/2018: Minute Order

Opposition

11/2/2018: Opposition

Opposition

11/5/2018: Opposition

Opposition

11/5/2018: Opposition

Reply

11/8/2018: Reply

Notice

11/14/2018: Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

2/14/2019: Minute Order

Certificate of Mailing for

2/14/2019: Certificate of Mailing for

Memorandum of Points & Authorities

5/6/2019: Memorandum of Points & Authorities

PROOF OF SERVICE SUMMONS

11/4/2016: PROOF OF SERVICE SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

12/21/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF CASE MANAGEMENT CONFERENCE

12/23/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

PLAINTIFF'S MOTION IN LIMFNE NO. 9 TO PROHIBIT TESTIMONY OR EVIDENCE NOT PREVIOUSLY IDENTIFIED OR CONTAINED WITHIN DEFENDANT'S FORMAL DISCOVERY RESPONSES

10/30/2017: PLAINTIFF'S MOTION IN LIMFNE NO. 9 TO PROHIBIT TESTIMONY OR EVIDENCE NOT PREVIOUSLY IDENTIFIED OR CONTAINED WITHIN DEFENDANT'S FORMAL DISCOVERY RESPONSES

PLAINTIFF'S MOTION IN LIMINE NO. 5 TO EXCLUDE TESTIMONY, ARGUMENT OR IMPLICATION THAT PLAINTIFFS MISUSED, ABUSED OR POORLY MAINTAINED THE SUBJECT VEHICLE

10/30/2017: PLAINTIFF'S MOTION IN LIMINE NO. 5 TO EXCLUDE TESTIMONY, ARGUMENT OR IMPLICATION THAT PLAINTIFFS MISUSED, ABUSED OR POORLY MAINTAINED THE SUBJECT VEHICLE

93 More Documents Available

 

Docket Entries

  • 10/08/2019
  • Hearingat 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 09/24/2019
  • Hearingat 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 06/06/2019
  • DocketNotice of Ruling; Filed by FCA US LLC (Defendant); JRDTSP LLC (Defendant)

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  • 05/31/2019
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Compel Further Discovery Responses (TO SECOND SET OF REQUESTS FOR PRODUCTION FROM DEFENDANT FCA US LLC AND REQUEST FOR SANCTIONS) - Held

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  • 05/31/2019
  • DocketStipulation and Order to use Certified Shorthand Reporter; Filed by Fatu Olomanu (Plaintiff)

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  • 05/31/2019
  • DocketMinute Order ( (Hearing on Motion to Compel Further Discovery Responses TO SE...)); Filed by Clerk

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  • 05/17/2019
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Compel Further Discovery Responses (TO SECOND SET OF REQUESTS FOR PRODUCTION FROM DEFENDANT FCA US LLC AND REQUEST FOR SANCTIONS) - Not Held - Advanced and Continued - by Court

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  • 05/13/2019
  • DocketNotice ( of Hearing on Motion to Compel Further Discovery Responses to Second Set of Requests for Production from Defendant FCA US LLC and Request for Sanctions); Filed by Fatu Olomanu (Plaintiff)

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  • 05/10/2019
  • DocketReply (PLAINTIFF?S REPLY TO DEFENDANT?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL FURTHER RESPONSES TO SECOND SET OF REQUESTS FOR PRODUCTION FROM DEFENDANT FCA US LLC, AND REQUEST FOR SANCTIONS); Filed by Fatu Olomanu (Plaintiff)

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  • 05/06/2019
  • DocketMemorandum of Points & Authorities; Filed by FCA US LLC (Defendant)

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123 More Docket Entries
  • 11/04/2016
  • DocketProof-Service/Summons; Filed by Fatu Olomanu (Plaintiff)

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  • 11/04/2016
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/04/2016
  • DocketProof-Service/Summons; Filed by Fatu Olomanu (Plaintiff)

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  • 11/04/2016
  • DocketPROOF OF SERVICE SUMMONS

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  • 10/20/2016
  • DocketCOMPLAINT 1. BREACH OF EXPRESS WARRANTY - VIOLATION OF SONG-BEVERLY ACT; ETC

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  • 10/20/2016
  • DocketSummons; Filed by Fatu Olomanu (Plaintiff)

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  • 10/20/2016
  • DocketComplaint; Filed by Fatu Olomanu (Plaintiff)

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  • 10/20/2016
  • DocketDEMAND FOR JURY TRIAL

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  • 10/20/2016
  • DocketSUMMONS

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  • 10/20/2016
  • DocketDemand for Jury Trial; Filed by Fatu Olomanu (Plaintiff)

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Tentative Rulings

Case Number: BC638180    Hearing Date: February 02, 2021    Dept: 37

HEARING DATE: February 2, 2021

CASE NUMBER: BC638180

CASE NAME: Fatu Olomanu v. FCA US, LLC, et al.

TRIAL DATE: None. Notice of Settlement September 24, 2019

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion for Attorney Fees for Knight Law Group

MOVING PARTY: Plaintiff Fatu Olomanu

RESPONDING PARTY: Defendant, FCA US, LLC

OPPOSITION: August 21, 2020

REPLY: August 27, 2020

TENTATIVE: Plaintiff’s motion is granted in part. Plaintiff’s counsel Knight Law Group is awarded attorney fees in the total amount of $19,443.75. Plaintiff is to give notice.

MOTION: Plaintiff’s Motion for Attorney’s Fees for Counsel Hackler, Daghighian, Martino & Novak, P.C.

MOVING PARTY: Plaintiff Fatu Olomanu

RESPONDING PARTY: Defendant, FCA US, LLC

OPPOSITION: None as of January 28, 2021

REPLY: No opposition filed.

TENTATIVE: Plaintiff’s motion is granted in part. Plaintiff’s counsel HDMN is awarded $14,987.50 in attorney fees. HDMN is to give notice.

MOTION: Defendant’s Motion to Tax Costs

MOVING PARTY: Defendant, FCA US, LLC

RESPONDING PARTY: Plaintiff, Fatu Olomanu

OPPOSITION: January 15, 2021

REPLY:

TENTATIVE: FCA’s motion is granted in part. Plaintiff’s memorandum of costs is taxed in the amount of $740.34. FCA is to give notice.

Background

The following factual background is common to each of the motions before the court.

This is a lemon law action arising out of Plaintiff, Fatu Olomanu’s (“Plaintiff”) purchase of a 2013 Dodge Durango (“Subject Vehicle”). Plaintiff alleges that the Subject Vehicle was delivered with defects, including to the Totally Integrated Power Module (“TIPM”), and that Defendant, FCA US, LLC (“FCA”) had superior and exclusive knowledge of TIPM defects, including the one in the Subject Vehicle. Plaintiff’s Complaint alleges an extensive history of recalls and Technical Service Bulletins (“TSB”) regarding the TIPM defects. Further, Plaintiff’s Complaint also names as a defendant JRDTSP LLC, doing business as Scott Robinson Chrysler Dodge Jeep Ram (“Scott Robinson”).

Plaintiff’s Complaint, filed October 20, 2016, alleges the following causes of action: (1) violation of the Song-Beverly Act – Breach of Express Warranty (against FCA), (2) violation of the Song-Beverly Act – Breach of Implied Warranty (against FCA), (3) fraudulent inducement- concealment against FCA, (4) negligent repair against Scott Robinson.

FCA and Scott Robinson filed their answers to the Complaint on November 23, 2016.

On January 27, 2017, trial in this matter was set for November 20, 2018. At the final status conference on November 13, 2018, the court continued trial in this matter to October 8, 2019.

On September 24, 2019, Plaintiff filed a Notice of Conditional Settlement, indicating that a request for dismissal would be filed no later than February 19, 2020. On July 28, 2020, the court continued the Order to Show Cause re Settlement hearing to September 28, 2020 and ordered that the parties file their proposed motion for attorney’s fees and to tax costs prior to this date.

On July 31, 2020, Plaintiff filed a motion for attorney’s fees as to fees incurred by his counsel, Knight Law Group. (“First Fee Motion”)

On August 13, 2020, Plaintiff filed a motion for attorney’s fees as to fees incurred by her counsel, Hackler Daghighian Martino & Novak, P.C. (“Second Fee Motion”)

On August 14, 2020, FCA filed its Motion to Tax Costs.

On September 3, 2020, Plaintiff’s First Fee Motion came on for hearing. The court continued the hearing on Plaintiff’s First Fee Motion and FCA’s Motion to Tax Costs to January 29, 2021.

Each of the above motions now come on for hearing. FCA opposes Plaintiff’s First Fee Motion and Plaintiff opposes FCA’s Motion to Tax Costs.

PLAINTIFF’S COUNSEL KNIGHT LAW GROUP’S MOTION FOR ATTORNEY FEES

Evidentiary Objections

Plaintiff’s Objections to Declaration of Mellania E. Safarian

 

Overruled: 1-2

Discussion

Plaintiff requests an award of attorney fees in the total amount of $30,566.25, broken down as follows: (1) $20,377.50 lodestar amount, (2) lodestar enhancement of .5, in the amount of $10,188.75. Plaintiff’s request for costs will be addressed in connection with the court’s ruling on Defendant’s motion to tax costs.

  1. Plaintiff’s Entitlement to Attorney Fees

Plaintiffs request attorney fees as the prevailing party under the Song-Beverly Act, which allows a prevailing buyer to recover “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).) 

  1. Reasonable Amount of Attorney Fees Award

“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 Inst. v. Alnor Barrenechea

  1. Billing Rates Requested

Plaintiff submits the declaration of Steve Mikhov (“Mikhov”) in support of the rates requested by his attorneys. Mikhov attests that he has been admitted to practice since April 2003 and that he is a managing partner of Knight Law Group, Plaintiff’s counsel of record. (Mikhov Decl. ¶ ¶ 19, 21-22.) Mikhov attests that his billing rate is $550 per hour for this matter. (Mikhov Decl. ¶ 22.)

Mikhov further attests that the following attorneys from his office billed on this matter: Amy Morse (“Morse”), Kristina Stephenson-Cheang (“Stephenson-Cheang”), Deepak Devabose (“Devabose”), Michelle Lumasag (“Lumasag”), Daniel Kalinowski (“Kalinowski”). (Mikhov Decl. ¶¶ 23-27.) Mikhov attests to each of their billing rates as follows:

              1. Morse (partner): $350/hour, admitted to practice since 2013

              2. Stephenson-Cheang: $375/hour, admitted to practice since 2008

              3. Devabose: $275/hour, admitted to practice since 2014

              4. Lumasag: $200/hour, admitted to practice since 2015

              5. Kalinowski: $250/hour, admitted to practice since 2015.

(Mikhov Decl. ¶ 23-27.)

In opposition, FCA contends that the requested rates and times for all other attorneys must be deducted because they are not supported by appropriate affidavits from each attorney. (Opposition, 3-5.) FCA also contends that Plaintiff’s requested rates are unreasonable because the only evidence submitted in support of these rates is that “other” lemon law attorneys bill at similar rates and Plaintiff has failed to offer proof of the various attorney’s experience or qualifications (Id.) The court disagrees. FCA has not cited to authority that stands for the proposition that Plaintiff was required to demonstrate these rates were actually paid. Further, FCA does not offer any specific argument challenging Plaintiff’s requested rates, other than general statements that they are excessive and cannot be supported by comparisons to the prevailing market.

The court finds that the requested rates are somewhat on the high end but still reasonable given each attorney’s experience and the prevailing market.

  1. Hours Requested

Plaintiff requests attorney’s fees in connection with a total of 63.2 hours of attorney time. (Mikhov Decl., Exhibit A.) The court notes that the individualized time records begin on December 26, 2017 even though the complaint was filed in October 2016. It appears one or more pages of the records are missing. While detailed time records are not required, they may be the best evidence of the work actually performed. Notwithstanding the missing time records, the court accepts the totals as being calculated from the total bills Plaintiff contends that this amount is warranted because this action involved “a range of specialized knowledge” on consumer protection laws, and also involved responding to FCA’s litigation tactics of maintaining that it had no liability. (Motion, 5-6.) Further, Plaintiff contends that this amount is warranted because Plaintiff’s counsel obtained a favorable result in the form of a $86,032.85 settlement, over $40,000 more than the Subject Vehicle’s purchase price. (Motion, 6-7.)

In opposition, FCA first contends that all hours besides those billed by Mikhov must be deducted because Mikhov is the only attorney to submit a declaration in support of his requested hours. (Opposition, 3-5.) Alternatively, FCA contends that at a minimum, former attorneys Lumasag and Stephenson-Cheang’s hours must be cut because Mikhov was not permitted to verify hours of former attorneys. FCA relies on Ajaxo Inc. v. E Trade Group, Inc. (2005) 135 Cal.App.4th 21 (Ajaxo) for this argument.

In Ajaxo, a tech company prevailed against E Trade regarding a trade secret dispute and appealed the trial court’s ruling on its motion for attorney’s fees. (Ajaxo, supra, 135 Cal.App.4th at 26.) In ruling on the tech company’s attorney’s fees motion, the trial court found that evidence was insufficient to award the tech company fees for its prior counsel’s work. (Id. at 64.) Specifically, the trial court noted that none of the former counsel had submitted declarations or billing records. (Id. at 64-65.) The Court of Appeal agreed that tech company’s evidence submitted in support of its former counsel’s request for fees was insufficient, as the only evidence submitted was “a declaration…that identified how many hours each attorney allegedly worked, each attorney's billing rate and the resulting fees.” (Id. at 65.)

The court finds that Ajaxo is not applicable to the instant action as the instant action is not factually similar. Although it is true that no attorney beyond Mikhov submitted a declaration in support of the instant motion, Mikhov does attest that he is managing partner for Knight Law Group, Plaintiff’s counsel of record. Further, Mikhov submits a copy of all billing records on this matter, including billing entries from Lumasag and Stephenson-Cheang that were recorded in the ordinary course of business on the firm’s billing records. Thus, the court will not deduct Lumasag and Stephenson-Cheang’s hours, as Ajaxo court held that attorney’s fees could not be awarded for prior counsel’s work because no evidence whatsoever was submitted in support of prior counsel’s work. Here, Mikhov has submitted some evidence to support the rates and hours requested for Lumasag and Stephenson-Cheang and thus, Plaintiff may recover attorney fees for work performed by these attorneys.

Additionally, the court will not deduct fees for the remaining attorneys in their entirety based on the argument that these attorneys should each have submitted a declaration in support of the instant motion. FCA has cited to no authority which stands for the proposition that failing to do so is an automatic bar to recovering any fees by attorneys who did not individually submit declarations. As discussed above, Mikhov has attested that he is the managing partner of Knight Law Group and submits a copy of his firm’s billing records, which he attests is true and correct. (Mikhov Decl. ¶ 2, Exhibit A.) This is sufficient to substantiate the billing rates of the remaining attorneys in Knight Law Group.

Finally, FCA also contends that billing regarding reviewing and auditing billing entries should be deducted from the requested hours. (Opposition, 8-9.) Specifically, FCA contends that Mikhov’s October 4, 2019 entry to review and audit billing for 0.5 hours, in the total amount of $275 should be deducted. Plaintiff does not respond to this argument. It appears that the review of the billing records was for the preparation of counsel’s declaration in support of the fee motion and is totally appropriate to prepare to submit a declaration under penalty of perjury.

The court notes, however, that Plaintiff estimated 6.5 hours for review of the opposition and drafting a reply. The reply was short and a good portion of it was simply a repeat of the motion briefing. On that basis the court will reduce half of that time, or 3.25 hours, amounting to a reduction of $893.75.

For these reasons, the court awards attorney fees in connection with 59.05 hours of attorney time for fees of $19,443.75.

  1. Multiplier

The court’s objective is to award a fee at the fair market value for the particular action.  (Ketchumsupra, 24 Cal.4th at p. 1132.)  The analysis generally begins with the lodestar figure—i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.  (Id. at pp. 1131-1132.)  The lodestar is the basic fee for comparable legal services in the community.  (Id. at p. 1132.)  The court may then adjust the lodestar to arrive at the fair market value of the legal services provided.  In adjusting the lodestar, the court considers factors including: (1) the contingent nature of the fee award, (2) the novelty and difficulty of the questions involved, (3) the skill displayed in presenting them, and (4) the extent to which the nature of the litigation precluded other employment by the attorneys.  (Ibid.)

Plaintiff requests a multiplier of 0.5. (Motion, 9-11.) Specifically, Plaintiff contends that 0.2 of the multiplier is warranted because Plaintiff and his counsel bore substantial risk of not prevailing and suffering a substantial loss of uncompensated fees, and that 0.3 is warranted because FCA “dragged this case out for nearly three (3) years.” (Motion, 10.)

In opposition, FCA contends that no multiplier is warranted because Plaintiff has failed to demonstrate that the difficulty of this action and the extent to which this action precluded Plaintiff’s counsel from taking other matters warrants a multiplier. (Opposition, 6-8.)

While the court recognizes that Plaintiff’s counsel was retained under a contingency agreement, the court does not find that Plaintiff has satisfied the second, third, or fourth Ketchum factors.  Accordingly, the court DENIES Plaintiff’s request for a fee enhancement.

Conclusion

Plaintiff’s motion is granted in part. Plaintiff’s counsel Knight Law Group is awarded attorney fees in the total amount of $20,240. Plaintiff is to give notice.

PLAINTIFF’S COUNSEL HACKLER DAGHIDIAN’S MOTION FOR ATTORNEY FEES

Discussion

Plaintiff’s Second Fee Motion asks for an award of attorney fees for time spent by his counsel, Hackler Daghighian Martino & Novak, P.C. (“HDMN”) The Second Fee Motion requests a total amount of $29,521.88, broken down as follows: (1) $19,681.25 lodestar amount, (2) lodestar enhancement of .5, in the amount of $9,840.63.

  1. Plaintiff’s Entitlement to Attorney’s Fees

Plaintiffs request attorney’s fees as the prevailing party under the Song-Beverly Act, which allows a prevailing buyer to recover “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).) 

  1. Reasonable Amount of Attorney’s Fees Award

“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 Inst. v. Alnor Barrenechea

  1. Billing Rates Requested

Plaintiff submits the declaration of Sepehr Daghighian (“Daghighian”) in support of the Second Fee Motion. Daghighian attests that he represented Plaintiff in this action in association with Knight Law Group as lead trial counsel. (Daghighian Decl. ¶ 2.) Daghighian’s billing rate is $550 per hour. (Id., ¶ 3.) Daghighian also attests to the following billing rates for associates and staff at his firm who worked on this action:

1. Kevin Jacobson: $250/ hour, admitted to practice since 2018.

2. Erik Schmitt: $225/hour until December 31, 2017, $250/hour until January 1, 2019, $275/hour as of January 1, 2019, admitted to practice since 2017.

3. Lauren c. Martin: $275/hour, admitted to practice since 2017.

4. Asa O. Eaton: $225/hour, admitted to practice since 2017

5. Andrea Plata (paralegal): $75/hour.

(Daghighian Decl. ¶¶ 7-11.)

FCA did not file an opposition to this motion and does not challenge the requested rates. The court finds that the rates requested in Plaintiff’s Second Fee Motion are reasonable given each attorney’s experience and the prevailing market.

  1. Hours Requested

Plaintiff’s Second Fee Motion requests fees of $19,681.25 and in support cites to the Declaration of Sepehr Daghighian, which attaches as Exhibit A detailed billing records listing hours worked and amounts billed. Plaintiff contends that all of the hours requested were reasonably incurred given that HDMN was heavily involved in preparing for trial by defending and taking depositions, including expert depositions, preparing trial documents and motions in limine, and opposing Defendant’s motions in limine. (Motion, 2-7.) Plaintiff also contends that the total amount requested is reasonable given that FCA maintained that it had no liability and declined to settle for three years. (Motion, 5-7.)

FCA did not file an opposition to this motion and does not challenge Plaintiff’s requested hours.

The court has reviewed the billing records attached as Exhibit A to the Daghighian Declaration. Based upon this review, the court will deduct a total of 5.5 hours from the requested time. Exhibit A includes one entry for 1.5 hours to “review and analyze Defendant’s Opposition to Motion for Attorney’s Fees,” and another for 6.5 hours to draft the reply brief and attend the hearing. However, as no opposition was filed to the instant motion, the court reduces Plaintiff’s requested hours, which were billed at $2,200. In addition, the cumulative billings, including those excluded billings just mentioned, total $17,187.50 rather than $19,681.25.

Accepting the amount on Exhibit A and adjusting for the excluded fees, the court approves a loadstar amount of $14,987.50.

  1. Multiplier

The court’s objective is to award a fee at the fair market value for the particular action.  (Ketchumsupra, 24 Cal.4th at p. 1132.)  The analysis generally begins with the lodestar figure—i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.  (Id. at pp. 1131-1132.)  The lodestar is the basic fee for comparable legal services in the community.  (Id. at p. 1132.)  The court may then adjust the lodestar to arrive at the fair market value of the legal services provided.  In adjusting the lodestar, the court considers factors including: (1) the contingent nature of the fee award, (2) the novelty and difficulty of the questions involved, (3) the skill displayed in presenting them, and (4) the extent to which the nature of the litigation precluded other employment by the attorneys.  (Ibid.)

Plaintiff requests a multiplier of 0.5. (Motion, 9-11.) Specifically, Plaintiff contends that 0.2 of the multiplier is warranted because Plaintiff and his counsel bore substantial risk of not prevailing and suffering a substantial loss of uncompensated fees, and that 0.3 is warranted because FCA “dragged this case out for nearly three (3) years.” (Id.)

While the court recognizes that Plaintiff’s counsel was retained under a contingency agreement, the court does not find that Plaintiff has satisfied the second, third, or fourth Ketchum factors.  Accordingly, the court DENIES Plaintiff’s request for a fee enhancement.

Conclusion

Plaintiff’s motion is granted in part. Plaintiff’s counsel HDMN is awarded $$14,987.50 in attorney’s fees. HDMN is to give notice.

DEFENDANT’S MOTION TO TAX COSTS

Timeliness of Motion 

Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service.  (Cal. Rules of Court, rule 3.1700(b)(1); Code Civ. Proc., § 1013, subd. (a).) 

Plaintiff filed his memorandum of costs on July 31, 2020, served by email. Defendant’s motion was filed on August 14, 2020 and is thus timely.

Discussion 

  1. Legal Standard

     

    Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right.  (Code Civ. Proc., § 1032.)  “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Id. § 1032, subd. (a)(4).)  Pursuant to section 1033.5, subdivision (c), “(1) Costs are allowable if incurred, whether or not paid.  (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.  (3) Allowable costs shall be reasonable in amount.”  (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3).)  Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion.  (Id. § 1033.5, subd. (c)(4).)  

    “[I]tems Krepel

  2. Analysis

    FCA challenges three items on Plaintiff’s memorandum of costs: (1) deposition costs in the amount of $1,127.85, (2) expert fees in the amount of $4,739.22, (3) other costs in the amount of $830.80.

  1. Item 4: Deposition Costs of $1,127.85

    FCA contends that $980.75 should be taxed from item 4 because it appears from the face of Plaintiff’s memorandum that this amount is duplicative of another request. (Motion, 2-3.) In addition, FCA contends that $147.10 should be taxed for “travel” because Plaintiff does not specify what travel such deposition cost was incurred for. (Id.)

    In opposition, Plaintiff contends that $980.75 is not duplicative because the first “PMK” costs relates to taking a Certificate of Nonappearance when FCA initially refused to produce its PMK. (Opposition, 6; Mikhov Decl., ¶ 6.) Additionally, Plaintiff’s counsel Steve Mikhov submits a copy of his firm’s internal Worksheet used to draft the Memorandum of Costs as well as receipts in support of the travel expenses requested in item 4. (Mikhov Decl. ¶¶ 4-5, Exs. A-B.)

    The court finds that these amounts were reasonable incurred.

  2. Item 8b: Expert Fees of $4,739.22

    FCA contends that Plaintiff’s claimed expert fees should be taxed because they do not appear to be reasonably incurred in connection with this action, are excessive, and are insufficiently substantiated. (Motion, 3.)

    In opposition, Plaintiff contends that the requested amount should not be taxed because expert witness fees are recoverable under the Song-Beverly Act even though Code of Civil Procedure section 1033.5 disallows expert witness fees unless ordered by the court. (Opposition, 7.) Additionally, the Mikhov Declaration submits invoices from experts Barbara Luna and Anthony Micale in support of this request. (Mikhov Decl., Exs. A-B.)

    Expert witness fees by a prevailing party in a Song-Beverly Act may be recovered if they were “reasonably incurred” in connection with commencing and prosecuting the action. (Jensen v. BMW of North America, Inc.(1995) 35 Cal.App.4th 112.

    The court finds that Plaintiff’s requested expert witness fees are reasonable and will not tax these costs.

  3. Item 16: Other Costs of $830.80

    FCA contends that item 16 must be taxed in full because “it is unlikely” that these requests are reasonably incurred. (Motion, 3.) For example, FCA contends that $38.04 must be deducted for “travel” and “$319.61” because they constitute improper expenses. (Id.)

    Plaintiff contends that although attorney services and messengers are not specifically recoverable as costs, the court should permit Plaintiff to recover these costs because they are not specifically prohibited and were incurred for such matters as “filing documents with the court, complying with appellants’ document demands.” (Opposition, 7-8.) Plaintiff cites to Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 776 (Ladas) for this argument.

    In Ladas, the Court of Appeal held that “routine expenses for local travel by attorneys or other firm employees” are not reasonably necessary to the conduct of litigation. (Id. at 775-776.) However, the Court of Appeal found that $2,518.91 for “courier and messenger charges” were reasonably incurred, because the supporting declaration demonstrates that these charges were “related to trial preparation, and were incurred for such matters as filing documents with the court, complying with appellants' document demands, and transporting exhibits to and from the courtroom.” (Id. at 776.)

    The court finds that $740.34 of the costs requested in item 16 are not reasonably incurred. Although FCA is correct that the court may allow costs for courier charges in its discretion, the court declines to award such costs in this instance. The Mikhov Declaration is insufficient to demonstrate that these costs were reasonably incurred. Additionally, the total amount taxed also includes the $24.00 Plaintiff requests for copying costs. Such costs are not reasonably incurred in connection with this action.

    Conclusion

    FCA’s motion is granted in part. Plaintiff’s memorandum of costs is taxed in the amount of $740.34. FCA is to give notice.

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