This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 01:02:07 (UTC).

YOSSI SABAG VS FCA US LLC

Case Summary

On 08/01/2016 YOSSI SABAG 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 Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9189

  • Filing Date:

    08/01/2016

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

SABAG YOSSI

Defendants and Respondents

FCA US LLC

DOES 1 THROUGH 10

RAM RYDELL CHRYSLER DODGE JEEP

SAN FERNANDO MOTOR COMPANY

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

STRATEGIC LEGAL PRACTICES APC

ROSNER HALLEN D. ESQ.

Defendant Attorneys

SCHIRM BARRY R. ESQ.

THOMAS W. BURCH III ESQ.

PROUDFOOT MATTHEW M. ESQ.

 

Court Documents

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES; MEMORANDUM OF POINTS AND AUTHORITIES

3/8/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES; MEMORANDUM OF POINTS AND AUTHORITIES

DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES

3/8/2018: DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES

DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DEEMING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, COSTS, AND EXPENSES TIMELY FILED OR, IN THE ALTERNATIVE, AN ORDE

3/12/2018: DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER DEEMING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, COSTS, AND EXPENSES TIMELY FILED OR, IN THE ALTERNATIVE, AN ORDE

DECLARATION OF JEFFREY T. THAYER IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES

3/14/2018: DECLARATION OF JEFFREY T. THAYER IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES

PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ESTABLISHING THE COURT'S JURISDICTION OR, IN THE ALTERNATIVE, TO VACATE DISMISSAL PURSUANT TO CCP 473(B) OR SHORTEN TIME AND/OR ADVANCE THE HEARING DATE TO H

3/15/2018: PLAINTIFF'S EX PARTE APPLICATION FOR ORDER ESTABLISHING THE COURT'S JURISDICTION OR, IN THE ALTERNATIVE, TO VACATE DISMISSAL PURSUANT TO CCP 473(B) OR SHORTEN TIME AND/OR ADVANCE THE HEARING DATE TO H

PROOF OF SERVICE

3/15/2018: PROOF OF SERVICE

Minute Order

3/22/2018: Minute Order

DEMAND FOR JURY TRIAL

9/2/2016: DEMAND FOR JURY TRIAL

DEMAND FOR JURY TRIAL

12/2/2016: DEMAND FOR JURY TRIAL

ANSWER TO FIRST AMENDED COMPLAINT

12/2/2016: ANSWER TO FIRST AMENDED COMPLAINT

Unknown

2/15/2017: Unknown

Minute Order

3/1/2017: Minute Order

PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATION OF MATTHEW PROUDFOOT SUBMITTED IN SUPPORT OF DEFENDANT FCA US, LLC'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S REQUE

4/19/2017: PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATION OF MATTHEW PROUDFOOT SUBMITTED IN SUPPORT OF DEFENDANT FCA US, LLC'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S REQUE

REPLY TO DEFENDANT?S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)

4/19/2017: REPLY TO DEFENDANT?S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE)

MOTION IN LIMINE NO. 6 BY DEFENDANTS FCA US LLC AND SAN FERNANDO MOTOR COMPANY TO PRECLUDE PLAINTIFF'S EXPERT WITNESSES FROM DISCLOSING OFINIONS OF OTHERS DURING DIRECT EXAMINATION AT TRIAL; DECLARATI

9/8/2017: MOTION IN LIMINE NO. 6 BY DEFENDANTS FCA US LLC AND SAN FERNANDO MOTOR COMPANY TO PRECLUDE PLAINTIFF'S EXPERT WITNESSES FROM DISCLOSING OFINIONS OF OTHERS DURING DIRECT EXAMINATION AT TRIAL; DECLARATI

MOTION IN LIMINE NO. 1 BY DEFENDANTS FCA US LLC AND SAN FERNANDO MOTOR COMPANY TO PRECLUDE PREJUDICIAL REFERENCES AND CHARACTERIZATIONS AT TRIAL; DECLARATION OF JEFFREY T. THAYER

9/8/2017: MOTION IN LIMINE NO. 1 BY DEFENDANTS FCA US LLC AND SAN FERNANDO MOTOR COMPANY TO PRECLUDE PREJUDICIAL REFERENCES AND CHARACTERIZATIONS AT TRIAL; DECLARATION OF JEFFREY T. THAYER

PLAINTIFF'S MOTION IN LIMINE NO.3 TO EXCLUDE ANY DOCUMENTS INAPPROPRIATELY WITHHELD FROM PRODUCTION

9/14/2017: PLAINTIFF'S MOTION IN LIMINE NO.3 TO EXCLUDE ANY DOCUMENTS INAPPROPRIATELY WITHHELD FROM PRODUCTION

Minute Order

10/2/2017: Minute Order

76 More Documents Available

 

Docket Entries

  • 07/12/2018
  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

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  • 07/12/2018
  • Ntc to Reptr/Mon to Prep Transcrpt; Filed by Clerk

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  • 07/12/2018
  • Notice; Filed by Clerk

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  • 05/24/2018
  • APPELLANT''S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

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  • 05/16/2018
  • NOTICE OF FILING OF NOTICE OF APPEAL

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  • 05/16/2018
  • Ntc to Attorney re Notice of Appeal; Filed by Clerk

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  • 05/15/2018
  • NOTICE OF APPEAL AND ELECTION TO PROCEED UNDER RULE 8.124, ETC

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  • 05/15/2018
  • Notice of Appeal; Filed by Yossi Sabag (Plaintiff)

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  • 05/09/2018
  • Association of Attorney; Filed by Yossi Sabag (Plaintiff)

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  • 05/09/2018
  • Notice of Entry of Judgment; Filed by Yossi Sabag (Plaintiff)

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167 More Docket Entries
  • 09/02/2016
  • NOTICE TO PLAINTIFF AND THE CLERK OF THE SUPERIOR COURT OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT UNDER 28 U.S.C. SECTIONS 1332 AND 1441

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  • 09/02/2016
  • DEMAND FOR JURY TRIAL

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  • 09/02/2016
  • Notice; Filed by FCA US, LLC (Defendant)

    Read MoreRead Less
  • 09/02/2016
  • Demand for Jury Trial; Filed by FCA US, LLC (Defendant)

    Read MoreRead Less
  • 09/02/2016
  • Answer; Filed by FCA US, LLC (Defendant)

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  • 09/01/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 09/01/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/01/2016
  • SUMMONS

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  • 08/01/2016
  • COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS

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  • 08/01/2016
  • Complaint; Filed by Yossi Sabag (Plaintiff)

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Tentative Rulings

Case Number: BC629189    Hearing Date: December 15, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

YOSSI SABAG,

vs.

FCA US LLC, a Delaware Limited Liability Company, et al.

Case No.: BC629189

Hearing Date: December 15, 2020

Plaintiff Yossi Sabag’s motion for attorneys’ fees is granted in the reduced total amount of an additional $68,359.

Plaintiff’s motion for attorneys’ fees on appeal is granted in the reduced total amount of $53,469.50.

A. Motion for Attorneys’ Fees

Plaintiff Yossi Sabag (“Plaintiff”) moves for an order awarding him attorney fees and costs against Defendants FCA US LLC (“FCA”) and San Fernando Motor Company (“SFMC”) (collectively, “Defendants”) in the total amount of $102,130.63 pursuant to Song-Beverly, Civil Code §1794(d) and the California Court of Appeals Remittitur in this matter (“Remittitur”). (Notice of Motion, pg. 1; Notice of Errata, pg. 1.) The $102,130.63 requested is based on attorneys’ fees in the amount of $138,637.70 (reflecting $76,718 in attorneys’ fees from 7/28/16 – 3/7/18, plus $23,384 in attorneys’ fees from 3/8/18 – 1/15/20, plus $35,053.70 in a “lodestar” enhancement (1.5), plus $3,500 in anticipated fees for reviewing Defendant’s opposition and attendance at the hearing) minus the $38,359 FCA previously paid plus $1,851.93 in additional costs and expenses. (Notice of Errata, pg. 1.) The Court notes Plaintiff includes the $9,704.22 in original costs in his summary, which is entirely offset by Defendants’ full payment of those costs. As such, Plaintiff’s motion is for $100,278.70 in attorneys’ fees and $1,851.93 in costs.

As a preliminary matter, at the initial hearing on the instant motion on September 4, 2020, the Court granted Plaintiff’s motion for costs in the requested amount of $1,851.93. Accordingly, the request for costs is no longer before the Court, and only the request for attorneys’ fees in the amount of $100,278.70 remains at issue. The Court notes Plaintiff modifies his request for attorneys’ fees in his supplemental briefing. Specifically, while Plaintiff previously sought fees in the amount of $23,384 from March 8, 2018 to January 15, 2020, Plaintiff has increased this amount by $13,713 to $37,097 for fees incurred from January 15, 2020 to present, including over 11 hours incurred for reviewing the Court’s September 4, 2020 ruling and drafting supplemental briefing. [The Court notes the updated request does not include the anticipated $3,500 for reviewing the opposition and attending the hearing; however, it appears given Plaintiff requests $13,713 for fees incurred through present, such fees are included in that amount.] In addition, Plaintiff has applied his proposed lodestar enhancement to this new total amount, increasing the enhancement to $39,835.25 and thereby increasing the total attorneys’ fees award request to $115,291.25 after subtracting the $38,359 in attorneys’ fees already paid by FCA. (Supp-Brief, pg. 7.)

On September 4, 2020, the Court continued the hearing on the motion as to attorneys’ fees and requested Plaintiff provide further support for the fees requested for the Court to determine whether they are reasonable and supported. On November 2, 2020, Plaintiff filed supplemental briefing, a supplemental Declaration of Shahian, an index of exhibits, and a request for judicial notice as further support of the fees requested. On November 3, 2020, Defendants, without leave of Court, filed a response and evidentiary objections to the supplemental filings.

Plaintiff’s 11/2/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents. (Supp-RJN, Exhs. 1-16.)

Defendant’s 11/3/20 evidentiary objections to the Declaration of Shahian are overruled.

As previously ruled, as the prevailing party, Plaintiff is entitled to recover reasonable attorneys’ fees. In addition, as noted in the Court of Appeal’s Remittitur, Defendants waived any argument that the hourly rates or hours incurred are unreasonable by not previously raising these issues. However, Defendants may raise these arguments as to fees that were not previously at issue in the original motion for attorneys’ fees. Finally, Plaintiff’s request for attorneys’ fees must be sufficiently supported.

As a preliminary matter, the Court denies Plaintiff’s request for a multiplier. (Motion, pgs. 12-15.) 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, nothing before the Court suggests the underlying case required extraordinary legal skill and/or required counsel to bear unnecessary risk, notwithstanding Plaintiff ultimately prevailing on appeal of the Court’s original fee award.

The Court previously ruled Plaintiff had not submitted competent evidence supporting the hourly rates of counsel given it sustained Defendants’ evidentiary objections to the Shahian Declaration and given Plaintiff did not submit competent evidence as to the hourly rates and work performed by attorneys who incurred fees on Plaintiff’s behalf and only Shahian’s Declaration as to the rates of other attorneys. After review of the supplemental briefing and declaration by Plaintiff, the Court finds sufficient evidence supports the hours incurred and the hourly rate.

The Court’s previous ruling also noted that while Plaintiff submitted billing records for the 186.7 hours (litigation from outset of action to first fee motion) and 54.7 hours (litigation since filing of first fee motion to January 15, 2020) incurred as evidence that the time spent was reasonable, Plaintiff had not submitted a breakdown as to the hours spent by each attorney for the Court to determine whether the total hours incurred at the respective hourly rates claimed for each attorney sum up to the amount of fees requested in Plaintiff’s motion. (Ruling, pg. 8; Motion, pgs. 9-10; Decl. of Shahian ¶44-45, Exhs. 14, 15.) Shahian’s Supplemental Declaration provides the breakdown of fees requested based on the number of hours incurred by each attorney and the corresponding hourly rates. (Supp-Decl. of Shahian ¶51, Exh. 18.) Accordingly, the Court finds an award of $76,718 in fees for 186.7 hours is sufficiently supported. In support of the 54.7 hours, Shahian’s Supplemental Declaration increases the fees requested and actually sets forth a chart in support of 88.2 hours incurred from March 8, 2018 to present, which adds 34 hours of work and $14,705.50 in fees for reviewing Defendant’s opposition to the fee motion, drafting a reply, performing work on the tax costs motion, responding to evidentiary objections, review of the tentative, and drafting supplemental briefing. (Supp-Decl. of Shahian ¶52, Exh. 19.) The Court finds the hours from March 8, 2018 to January 15, 2020 are sufficiently supported, but the subsequent 34 hours are excessive, particularly the hours billed in connection with drafting and finalizing the reply and fees incurred in reviewing the tentative and submitting supplemental briefing, which was only made necessary as a result of Plaintiff’s insufficiently supported fee motion. The Court will consider this in its final lodestar determination.

The Court finds Accordingly, Plaintiff is entitled to attorneys’ fees in the base lodestar amount of $106,718. Considering the Court’s denial of Plaintiff’s request for a multiplier and FCA’s previous payment of $38,359 in attorneys’ fees, Plaintiff is entitled to an additional $68,359 in fees.

Based on the foregoing, Plaintiff’s motion for attorneys’ fees is granted in the reduced total amount of $68,359.

B. Motion for Appellate Attorneys’ Fees & Costs

Plaintiff moves an order awarding him attorneys’ fees and costs incurred for the appeal in this action. (Notice of Motion, pg. 1.) Specifically, Plaintiff moves for a total appellate fee award of $90,407.70, which he asserts is the sum of $55,953 in appellate fees ($54,189.50 for RBB plus $1,763.50 for SLP) plus $34,445.70 for a lodestar enhancement (0.7 multiplier), which is not applied to fees requested for the present motion. (Motion, pg. 1; Decl. of Rosner ¶2, Exh. 1; Decl. of Shahian ¶12.) Plaintiff also moves for costs, in the amount of $1,544.18. (Motion, pg. 1; Memorandum of Costs.)

On September 4, 2020, the Court granted Plaintiff’s unopposed request for appellate costs in the amount of $1,544.18. Accordingly, appellate costs are no longer at issue. The Court also denied Plaintiff’s request for a multiplier, and as such, the request is no longer at issue.

By way of background, Plaintiff prevailed on appeal in an unpublished opinion for which a Remittitur issued on September 18, 2019, in which the Court of Appel Second Appellate District awarded Plaintiff his costs on appeal. (Decl. of Rosner ¶26, Exh. 3; CRC Rule 8.272(d).)

“Unless specifically provided otherwise, a statute or contract allowing recovery of attorney fees at trial also authorizes attorney fees on appeal.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 637; CRC Rule 8.278.) Song-Beverly provides a statutory basis for allowing recovery of attorneys’ fees at trial, and as such, attorneys’ fees on appeal are also recoverable. (Civil Code §1794(d).)

Plaintiff’s request for a lodestar of $55,953 is based on 147.6 total hours of work performed by five attorneys and/or paralegals. (Motion, pg. 5.) On September 4, 2020, the Court noted the while the chart Plaintiff submitted in support of incurred fees did not set forth the number of hours billed at the different rates, the amount billed fell within the range as provided by the applicable billing rates and was supported by the invoices submitted in support of the motion.

The Court also noted the Declarations of Hallen Rosner and Arlyn Escalante of appellate counsel Rosner, Barry & Babbit, LLP (“RBB”) sufficiently set forth their experience, hourly rate, and hours billed in the matter, but noted that in support hours billed by Jacob Cutler (“Cutler”) of Strategic Legal Practices (“SLP”), Plaintiff submitted the declaration of Payam Shahian (“Shahian”), and accordingly requested Cutler submit his own declaration. It appears Cutler has not filed a declaration in support and justifying his hourly rate, as requested by the Court. As such, the Court reduces the award by $1,763.50.

In its September 4, 2020 ruling, the Court addressed Defendant’s objection to certain fees as unreasonable and found Defendant’s arguments conclusory and unsupported by evidence. However, the Court agreed travel time of 6 hours for an argument was unreasonable given the ability to appear remotely, and the Court reduced fees by two hours ($720). (Decl. of Rosner, Exh. 1, pg. 4.) The Court also found Defendant’s argument that the claimed hourly rates should be reduced to be conclusory and unsupported. Finally, the Court found there was no basis to award a multiplier.

Based on the foregoing, Plaintiff’s motion for appellate attorneys’ fees is granted in the reduced total amount of $53,469.50.

Dated: December _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

Case Number: BC629189    Hearing Date: September 04, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

YOSSI SABAG,

vs.

FCA US LLC, a Delaware Limited Liability Company, et al.

Case No.: BC629189

Hearing Date: September 4, 2020

Defendant FCA US LLC’s motion to tax costs is denied.

Plaintiff Yossi Sabag’s motion for attorneys’ fees is continued to November 5, 2020. Plaintiff is to submit evidence supporting the fees claimed, as set forth in the ruling. Plaintiff’s motion for costs is granted in the requested amount of $1,851.93.

Plaintiff’s motion for attorneys’ fees on appeal is continued to November 5, 2020. Plaintiff is to submit evidence supporting the fees claimed, as set forth in the ruling. Plaintiff’s unopposed motion for costs on appeal is granted in the amount of $1,544.18.

A. Motion to Tax Costs

Defendants FCA US LLC (“FCA”) and San Fernando Motor Company (“SFMC”) (collectively, “Defendants”) move for an order taxing costs Plaintiff Yossi Sabag (“Plaintiff”) seeks in this action. (Notice of Motion, pgs. 1-2.)

Background & Lack of Filed Memorandum of Costs

By way of background, Defendants have already paid $9,704.22 in costs previously awarded by the trial court in ruling on the original motion for attorneys’ fees, and Plaintiff currently seeks $1,851.93 in additional costs incurred between March 8, 2018 and January 15, 2020. (Motion, pg. 1, fn. 1; Decl. of Thayer, Exh. 1; Decl. of Shahian iso Motion for Attorney Fees, Costs and Expenses ¶48.) Defendants’ motion to tax costs is as to these additional costs. The Court notes in reply, Defendants withdraw their motion as to certain costs for which Plaintiff provided documentary support, and accordingly, only request the Court tax costs in the total amount of $215.08. (Reply, pg. 6.)

The Court notes Plaintiff has not filed an amended Memorandum of Costs pertaining to the costs at issue in his renewed motion for attorneys’ fees, and instead, Plaintiff requests additional costs via the invoice attached to the Declaration of Payam Shahian (“Shahian”). (Motion, fn. 1.) As such, Defendants’ motion to tax costs is made as to this invoice, and not as to a Memorandum of Costs. In addition, after a review of the case file, Plaintiff did not file an initial Memorandum of Costs for costs originally sought and awarded by the Court in the amount of $9,704.22, and in that motion, Plaintiff similarly requested costs by attaching an invoice to the declaration of Shahian in support of the motion. (See 3/8/18 Declaration of Shahian ¶¶43, 45, Exh. 17.) Defendants did not object to Plaintiff’s failure to file a Memorandum of Costs in their opposition to the original motion, and the Court awarded all costs requested. (See 3/14/18 Opposition.) Similarly, here, Defendants have not objected to Plaintiff’s failure to file an amended Memorandum of Costs, and instead moves to tax costs on the grounds that they are unsupported. As such, Defendants waives the argument that Plaintiff is not entitled to seek costs for which a Memorandum of Costs was not filed.

The purpose of a Memorandum of Costs is to allow verification by the party claiming costs asserted that the costs claimed are correct and were necessarily incurred in the case, such that it serves as prima facie evidence that the costs were incurred. (See CRC Rule 3.1700(a)(1) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under [C.C.P. §664.5] or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”) Here, given that Defendants do not take issue with the lack of a Costs Memo or that the costs claimed were not verified, the Court finds the declaration of Shahian that Exhibit 15 is a “true and correct copy of [his] firm’s computerized billing records which [Shahian] [had] reviewed and audited for the time period of March 8, 2018 up to and including January 15, 2020… [and from which Shahian] removed or reduced any entry [he] believed may be unnecessary, duplicative, excessive, or otherwise” and that, “Plaintiff’s counsels seek reimbursement for cost and expenses in the amount of $1,851.93” sufficient for the purpose of verifying the costs were incurred and were necessary to the case. (Decl. of Shahian iso Motion for Attorneys’ Fees ¶¶45, 48, Exh. 15.)

The Court will rule on the motion to tax costs and accepts the invoice Plaintiff submitted as a costs bill setting forth the costs claimed.

Motion to Tax Costs

“‘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 they 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.’” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

“[T]he mere filing of a motion to tax costs may be a ‘proper objection’ to an item, the necessity of which appears doubtful, or which does not appear to be proper on its face. [Citation] However, ‘[i]f the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].’ [Citations]” (Id.)

“The court’s first determination, therefore, is whether the statute expressly

allows the particular item, and whether it appears proper on its face. [Citation] If so, the burden is on the objecting party to show them to be unnecessary or unreasonable. [Citation]” (Id.)

Costs and expenses may be recovered by a prevailing buyer under the Song-Beverly Consumer Warranty Act (“Song-Beverly”). (See Civil Code §1794(d).) Section 1794(d) provides:

If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.

On or about September 28, 2017, Defendants agreed to settle the case with Plaintiff. (9/28/17 Notice of Settlement.) As the prevailing party in this action, Plaintiff is entitled to “costs and expenses” pursuant to Civil Code §1794(d).

Defendants argue Plaintiff seeks unreasonable and unrecoverable costs (under C.C.P. §1033.5), including filing fees, court reporter fees, copying and printing charges, service of pleading fees, and other costs, and requests Plaintiff’s request for costs be stricken or taxed a total of $1,851.93 due to a lack of evidence and legal authority regarding the legitimacy and reasonableness of the costs. (Motion, pgs. 2-5.) However, Defendants did not properly challenge Plaintiff’s claimed costs as costs that were not “reasonably incurred by the buyer in connection with the commencement and prosecution of [the] action.” (Civil Code §1794(d).) Rather, Defendants challenged Plaintiff’s costs as not allowable under C.C.P. §1033.5. Moreover, the “Legislature intended the word ‘expenses’ [in Civil Code §1794(d)] to cover items not included in the detailed statutory definition of ‘costs’ [in C.C.P. §1033.5], including expert fees.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.) In reply, Defendants maintain C.C.P. §1033.5 defines items allowable as costs; however, concedes that in reading C.C.P. §1033.5 and Civil Code §1794(d) together, recoverable costs are still limited to those which are reasonably incurred, reasonably necessary to the conduct of the litigation, and reasonable in amount and Defendants’ motion to strike costs should accordingly be granted as to those costs for which “Plaintiff has failed to demonstrate reasonableness.” (Reply, pgs. 4-5.) The Court will address the costs challenged by Defendants.

Filing Fees

Defendants argue Plaintiff’s request for filing fees should be taxed in the amount of $374.01 since Plaintiff fails to provide documentary evidence establishing such costs. (Motion, pg. 3; Decl. of Thayer, Exh. 1.) However, Plaintiff’s assertion that these costs were incurred for their stated purpose is prima facie evidence that they were reasonably incurred. In addition, in opposition, Plaintiff submitted documentation supporting the costs. (Decl. of Ngyuen ¶1, Exh. 1.) In reply, Defendants withdraw their motion to tax costs as to all costs for which Plaintiff submitted documentation; however, assert that the $46.28 for filing a reply lacks documentation and should be struck. (Reply, pg. 5.) However, Defendants’ assertion a certain claimed cost lacks documentation does not meet their burden of demonstrating this cost was unreasonably incurred by Plaintiff, since including the cost is prima facie evidence it was reasonably incurred.

Based on the foregoing, Defendants’ motion to tax filing fees is denied.

Court Reporter Fees & Copying and Printing Charges

Defendants argue Plaintiff’s entire request for court reporter fees in the amount of $1,062 should be taxed. (Motion, pg. 3.) In reply, Defendants withdraw their motion to tax these costs. (Reply, pg. 5.) Based on the Defendants’ withdrawal of their motion to tax court reporter fees and copying and printing charges, the motion as to these costs is moot.

Service of Pleadings Fees

Defendants argue Plaintiff’s request for $116.39 in connection with serving pleadings should be taxed because Plaintiff failed to provide invoices or documentation establishing such costs. (Motion, pg. 4.) However, Plaintiff’s assertion that these costs were incurred for their stated purpose is prima facie evidence that they were reasonably incurred. In addition, in opposition, Plaintiff submitted documentation supporting the costs. (Decl. of Ngyuen ¶6, Exh. 4.) In reply, Defendants withdraw their motion to tax costs as to all costs for which Plaintiff submitted documentation; however, Defendants assert the $60.00 incurred on March 14, 2018 for “ex parte” and a $0.47 charge on March 30, 2018 for “postage” lack documentation and should be taxed. (Reply, pg. 5.) However, Defendants’ assertion a certain claimed cost lacks documentation does not meet their burden of demonstrating this cost was unreasonably incurred by Plaintiff, since including the cost is prima facie evidence they were reasonably incurred.

Based on the foregoing, Defendants’ motion to tax service of pleadings fees is denied.

Other Costs

Defendants argue Plaintiff’s request for other costs in the amount of $204.89 should be taxed in its entirety for Plaintiff’s failure to provide invoices establishing such costs. (Motion, pg. 4.) These costs all appear to be for travel, mileage, and parking expenses for Plaintiff’s appearance at various hearings. (Decl. of Thayer, Exh. 1.) The Court notes under C.C.P. §1033.5, Plaintiff would not be entitled to recover travel costs. (See Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775 [“The only travel expenses authorized by section 1033.5 are those to attend depositions. ([C.C.P. §1033.5(a)(3)].) Routine expenses for local travel by attorneys or other firm employees are not reasonably necessary to the conduct of litigation.”].) However, Plaintiff is entitled to costs and expenses pursuant to Civil Code §1794(d), which requires that costs be reasonably incurred. Moreover, in opposition, Plaintiff submitted documentation supporting the costs. (Decl. of Ngyuen ¶7, Exh. 5.) In reply, Defendants withdraw their motion as to items for which Plaintiff submitted documentation. (Reply, pg. 5.) Defendants assert the undocumented costs totaling $108.33, which consist of $35.21 on March 15, 2018, the $35.56 on April 13, 2018, and $37.56 on November 13, 2019 should be taxed. (Reply, pgs. 5-6.) However, Defendants’ assertion a certain claimed cost lacks documentation does not meet their burden of demonstrating these costs were unreasonably incurred by Plaintiff, since including the cost is prima facie evidence they were reasonably incurred.

Based on the foregoing, Defendants’ motion to tax other costs is denied.

Conclusion

Based on the foregoing, Defendants’ motion to tax costs is denied. Plaintiff is therefore entitled to costs in the requested amount of $1,851.93.

B. Motion for Attorneys’ Fees & Costs

Plaintiff moves for an order awarding him attorney fees and costs in the total amount of $102,130.63 pursuant to Song-Beverly, Civil Code §1794(d) and pursuant to the California Court of Appeals Remittitur in this matter (“Remittitur”). (Notice of Motion, pg. 1; Notice of Errata, pg. 1.) The $102,130.63 requested is based on the total amount of attorneys’ fees of $138,637.70 (reflecting $76,718 in attorneys’ fees from 7/28/16 – 3/7/18, plus $23,384 in attorneys’ fees from 3/8/18 – 1/15/20, plus $35,053.70 in a “lodestar” enhancement (1.5), plus $3,500 in anticipated fees for reviewing Defendant’s opposition and attendance at the hearing) minus the $38,359 FCA previously paid plus $1,851.93 of additional costs and expenses. (Notice of Errata, pg. 1.) The Court notes Plaintiff includes the $9,704.22 in original costs in his summary, which is entirely offset by Defendants’ full payment of those costs. As such, Plaintiff’s motion is for $100,278.70 in attorneys’ fees and $1,851.93 in costs.

Plaintiff’s 1/15/20 request for judicial notice is denied. (P-RJN, Exhs. 1-13.)

Defendants’ 1/28/20 evidentiary objection to the Court taking judicial notice of Exhibits 1-13 are moot in light of the Court’s ruling on Plaintiff’s request for judicial notice. In light of the Court’s ruling on Plaintiff’s request for judicial notice, Defendants’ evidentiary objection to ¶¶8-20 of the Declaration of Shahian are sustained. Defendants’ evidentiary objections to ¶¶21-43 of the Declaration of Shahian, which set forth the billable rates of other attorneys at Shahian’s firm are sustained.

The Court is in receipt of Plaintiff’s 1/30/20 response to Defendants’ evidentiary objections.

By way of background, after the parties reached a settlement, Plaintiff filed a motion for attorneys’ fees and costs, heard on April 13, 2018, which the Court granted in part, by cutting off fees as of the date of FCA’s initial settlement offer, at which point Plaintiff had incurred $38,359 in fees. (Motion, pg. 1; Decl. of Cutler ¶11, Exh. 2.) Plaintiff appealed the ruling on the motion, and on July 16, 2019, the Court of Appeal, Second Appellate District, Division Two, held that, “[t]he trial court did not award fees based on actual time expended, but instead concluded that all attorney fees [Plaintiff] incurred following FCA’s initial settlement offer were unreasonable… [which] in effect applied the penalty provisions of [C.C.P. §998], even though FCA’s settlement offer did not meet the requirements of that section and [Plaintiff] ultimately recovered about twice what FCA offered.” (Decl. of Cutler ¶13, Exh. 3, pgs. 2-3.) The Court of Appeal reversed and remanded with directions that, “the trial court award [Plaintiff] reasonable attorney fees for his counsel’s services, including those performed after FCA’s September 6, 2016 settlement offer, based on actual time expended.” (Decl. of Cutler ¶13, Exh. 3, pg. 15.) The Court of Appeal noted that, “FCA did not object below to the hourly rates of [Plaintiff’s] counsel and did not provide any ground to conclude that the attorney time spent on particular tasks was unreasonable.” (Decl. of Cutler ¶13, Exh. 3, pg. 14.) The Court of Appeal therefore instructed that, “the trial court should use [Plaintiff’s] calculated lodestar as the foundation for its fee award” and “[s]hould [the trial court] apply any negative multiplier, [it should clearly explain its reasons for doing so…” (Decl. of Cutler ¶13, Exh. 3, pg. 14.)

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

As the prevailing party, Plaintiff is entitled to recover reasonable attorneys’ fees. In addition, as noted in the Court of Appeal’s Remittitur, Defendants waived any argument that the hourly rates or hours incurred are unreasonable by not previously raising these issues. However, the Court notes that Defendants may raise these arguments as to fees that were not previously at issue in the original motion for attorneys’ fees. Finally, Plaintiff’s request for attorneys’ fees must be sufficiently supported.

In support of the claimed attorneys’ fees, Plaintiff submitted a declaration of Shahian which set forth the hourly rates and experience of all the eleven attorneys who performed work in the instant case. (See Decl. of Shahian ¶¶8-43.) However, the Court sustained Defendants’ objection to Shahian’s declaration as evidence of the reasonableness of the hourly rate of other attorneys. Notably, while Shahian’s declaration sets forth his own experience and hourly rate, the request for attorneys’ fees does not include any hours Shahian spent working on the case, and as such, this information is irrelevant and does not assist the Court in determining whether the rate and hours claimed are reasonable. (Decl. of Shahian ¶¶3-7.) Plaintiff has not submitted competent evidence as to the hourly rate and work performed by any of the attorneys who incurred fees on Plaintiff’s behalf including Michael Weiser, Christine Haw, Angela Daily, Benjeman Beck, Jacob Cutler, Michael Devlin, Gregory Yu, Anna Cronk, Michael Resnick, Michael Le, and Daniel Tai. (Motion, pg. 9.) Plaintiff asserts his fee recovery is based on the 186.7 hours spent by his attorneys litigating the action through the first fee motion and the 54.7 hours spent litigating since the first fee motion was filed. (Motion, pg. 9.) Plaintiff submits the billing records for time billed in this matter as evidence that the time spent was reasonable. (Motion, pg. 10; Decl. of Shahian ¶44-45, Exhs. 14-15.) However, Plaintiff does not submit a breakdown as to the hours spent by each attorney for the Court to determine whether the total hours incurred at the respective hourly rates claimed for each attorney sum up to the amount of fees requested in Plaintiff’s motion. In addition, Shahian’s declaration that Plaintiff’s counsel expects to incur over $3,500 in fees in connection with reviewing the opposition, drafting a reply, and attending the hearing on the motion is unsupported since it fails to set forth the number of hours anticipated to complete these tasks and the hourly rate at which they would be billed so as to reach the total amount of (greater than) $3,500. (Decl. of Shahian ¶46.) Plaintiff is entitled to reasonable attorneys’ fees; however, Plaintiff must submit further support for the fees requested for the Court to determine whether they are reasonable and supported.

Based on the foregoing, Plaintiff’s motion for attorneys’ fees is continued. Plaintiff’s motion for costs is granted in the requested amount of $1,851.93.

C. Motion for Appellate Attorneys’ Fees & Costs

Plaintiff moves an order awarding him attorneys’ fees and costs incurred for the appeal in this action. (Notice of Motion, pg. 1.) Specifically, Plaintiff moves for a total appellate fee award of $90,407.70, which he asserts is the sum of $55,953 in appellate fees ($54,189.50 for RBB plus $1,763.50 for SLP) plus $34,445.70 for a lodestar enhancement (0.7 multiplier), which is not applied to fees requested for the present motion. (Motion, pg. 1; Decl. of Rosner ¶2, Exh. 1; Decl. of Shahian ¶12.) Plaintiff also moves for costs, “as requested in the previously filed memorandum of costs.” (Motion, pg. 1.) The Court notes that while Plaintiff’s motion does not set forth the amount of appellate costs requested, a review of the Memorandum of Costs on Appeal filed on October 25, 2019 demonstrates that Plaintiff seeks $1,544.18 in costs.

Appellate Attorneys’ Fees

As a preliminary matter, while the total requested amount of $90,407.70 is the correct sum of the two figures cited by Plaintiff, the $34,445.70 lodestar enhancement is unsupported, given that 0.7 multiplied by $55,953 is $39,167.10. It appears this discrepancy is based on Plaintiff’s assertion that the 0.7 lodestar multiplier is not applied to fees incurred or anticipated for the fee motion as noted in the Notice; however, Plaintiff does not submit support for the lodestar enhancement amount requested, namely, to what amount it is applied.

By way of background, Plaintiff prevailed on appeal in an unpublished opinion for which a Remittitur issued on September 18, 2019, in which the Court of Appel Second Appellate District awarded Plaintiff his costs on appeal. (Decl. of Rosner ¶26, Exh. 3; CRC Rule 8.272(d).)

“Unless specifically provided otherwise, a statute or contract allowing recovery of attorney fees at trial also authorizes attorney fees on appeal.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 637; CRC Rule 8.278.) Song-Beverly provides a statutory basis for allowing recovery of attorneys’ fees at trial, and as such, attorneys’ fees on appeal are also recoverable. (Civil Code §1794(d).)

Plaintiff’s request for a lodestar of $55,953 is based on 147.6 total hours of work performed by five attorneys and/or paralegals. (Motion, pg. 5.) Specifically, Plaintiff sets forth the following chart in support of the requested lodestar amount:

Timekeeper

2018 Rate

2019 Rate

Hours Billed

Fees Billed

Hallen D. Rosner (RBB Lead Counsel)

$620

$660

22.1

$14,396.00

Arlyn L. Escalante (RBB Associate)

$330

$360

109.1

$37,986.00

Lee Garcia (RBB Paralegal)

$150

$150

10.0

$1,620.00

Richard Garcia (RBB Paralegal)

$125

1.5

$187.50

Jacob Cutler (SLP Associate)

$410

$435

4.1

$1,763.50

147.6

$55,953.00

(Motion, pg. 5.)

The Court notes Plaintiff’s table does not set forth the number of hours billed at the different rates cited for each time keeper so as to determine whether the hours claimed adds up to the fees billed. However, the amount billed falls within the range as provided for by the 2018 and 2019 billing rates and are supported by the invoices submitted in support of the motion. (Decl. of Rosner ¶¶2-3, Exh. 1.) In support of the fees claimed on behalf of appellate counsel Rosner, Barry & Babbit, LLP (“RBB”), Plaintiff submitted declarations of Hallen Rosner and Arlyn Escalante, each of which sufficiently set forth their own experience, hourly rate, and hours billed in this matter as well as the experience and hours billed of RBB’s paralegals. (Decl. of Rosner ¶¶11-14; Decl. of Escalante ¶¶2-6.) In support of the time billed by Jacob Cutler of Strategic Legal Practices (“SLP”), Plaintiff submitted the declaration of Payam Shahian in which Shahian sets forth the experience of Cutler, his hourly rate, and that based on Shahian’s review of the time records, that he billed for the requested amount of $1,763.50. (Decl. of Shahian ¶¶8-12.) However, Plaintiff has not submitted a declaration from Cutler himself as to his experience, hourly rate, and time billed, and as such the requested fees are not sufficiently supported.

In opposition, Defendant argues that some of the time billed appears “unreasonable under the circumstances,” by citing hours billed. (Opposition, pgs. 3-4.) For instance, Defendant argues Plaintiff unreasonably billed 4.5 hours for review of the record on 10/17/18 after another attorney billed 3.6 hours for similar work on 4/27/18, that hours spent outlining issues, at internal meetings, and reviewing Defendant’s brief was unreasonable and/or duplicative, and that billing 42 hours to prepare the reply brief was unreasonable given counsel spent 40.2 hours preparing the opening brief. (Opposition, pgs. 3-4.) However, these arguments are conclusory, are unsupported by evidence, and do not demonstrate that the hours billed by Plaintiff’s counsel were unreasonable, unnecessary, or not actually incurred. Defendant also argues that the anticipated preparation, travel time of 6 hours for argument on 10/24/19 is unreasonable and should be reduced. (Opposition, pg. 3.) The hearing did not take place on that date. However, given the ability to appear remotely, the court would the fees for the appearance by two hours ($720). Defendant also argues that the hourly rates claimed by Plaintiff’s counsel should be reduced. (Opposition, pg. 4.) However, this argument is also conclusory and unsupported. Finally, Defendant argues that no positive multiplier is warranted because there was no novelty to this case and no special skill was required to handle this case given that Plaintiff’s appellate counsel specializes in consumer protection laws and handles numerous claims involving vehicle manufacturers. (Opposition, pgs. 5-6.) The Court notes this argument does not address the bases underlying Plaintiff’s requested multiplier of 0.7, which are discussed below. Notably, Plaintiff does not request the enhancement on the grounds that the action involved novelty or difficulty of issues.

Plaintiff requests an 0.7 enhancement based on a 0.3 enhancement for the risks associated with taking the case on contingency, plus a 0.2 enhancement for delay of payment, plus a 0.2 enhancement for the “result – a win on appeal”. (Motion, pgs. 9-10.) However, 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 the relatively straight forward case required extraordinary legal skill and/or required counsel to bear unnecessary risk.

Based on the foregoing, Plaintiff’s motion for appellate attorneys’ fees is continued. Plaintiff is to submit support for the fees claimed by Cutler.

Appellate Costs

The Memorandum of Costs on Appeal filed on October 25, 2019 demonstrates that Plaintiff seeks $1,544.18 in costs. The Court notes that Defendant’s opposition does not oppose the amount of costs requested. In addition, on January 7, 2020, the Court denied Defendant’s motion to strike or tax costs on appeal. (See Court’s 1/7/20 Minute Order.) In addition, the costs asserted in the Memorandum of Costs on Appeal appear proper on their face.

Based on the foregoing, Plaintiff’s unopposed motion for appellate costs is granted in the amount of $1,544.18.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

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