On 11/14/2017 ISRAEL GONZALES filed a Contract - Other Contract lawsuit against MERCEDES-BENZ USA, LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MITCHELL L. BECKLOFF. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MITCHELL L. BECKLOFF
DARMONT CONSTRUCTION CORP.
MERCEDES-BENZ USA LLC
SHANGRI-LA CONSTRUCTION L.P.
DEVLIN MICHAEL G.
ROSENSTEIN MARK H.
SHIPPEN-MURRAY BRIAN TATE
OAKS ASHLEY E.
OAKS ASHLEY ELISE
DOUGLAS BENSON YEAGER
9/13/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL
9/13/2019: Declaration in Support of Ex Parte Application
9/16/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL)
3/12/2019: Association of Attorney
6/7/2019: Exhibit List
6/7/2019: Special Verdict
6/7/2019: Statement of the Case
6/10/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
5/1/2020: Notice of Lien
2/21/2020: Objection - OBJECTION OF DEFENDANT MERCEDES-BENZ USA, LLC TO PLAINTIFFS' SPECIAL JURY INSTRUCTIONS
2/21/2020: Exhibit List
2/21/2020: Statement of the Case
2/25/2020: Minute Order - MINUTE ORDER (JURY TRIAL)
2/25/2020: Brief - BRIEF BENCH BRIEF RE FAILURE TO MAINTAIN DISPUTE RESOLUTION PROGRAM
3/13/2019: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE
3/25/2019: Memorandum of Points & Authorities
3/29/2019: Statement of the Case
DocketNotice of Lien; Filed by Shangri-La Construction, L.P. (Defendant)Read MoreRead Less
DocketNotice of Lien; Filed by Shangri-La Construction, L.P. (Defendant)Read MoreRead Less
DocketMemorandum of Costs (Summary); Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketNotice of Entry of Judgment / Dismissal / Other Order; Filed by ClerkRead MoreRead Less
DocketObjection (MBUSA's Objections to Plaintiffs' Proposed Judgment); Filed by MERCEDES-BENZ USA, LLC (Defendant)Read MoreRead Less
DocketDeclaration (of GS ISO MPJI); Filed by ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketMotion re: (for Prejudgment Interest); Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketJudgment (on Jury Verdict); Filed by ISRAEL GONZALES (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department M; Jury Trial - Held - ContinuedRead MoreRead Less
DocketJury InstructionsRead MoreRead Less
DocketAnswer to Complaint Filed; Filed by Attorney for DefendantRead MoreRead Less
DocketNotice; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketNotice (NOTICE OF CASE MANAGEMENT CONFERENCE 3-14-18 8:30 AM DEPT M ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketProof-Service/Summons; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketComplaint; Filed by DARMONT CONSTRUCTION CORP. (Plaintiff); ISRAEL GONZALES (Plaintiff)Read MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
Case Number: SC128379 Hearing Date: December 08, 2020 Dept: M
CASE NAME: ISRAEL GONZALES v. MERCEDES-BENZ USA, LLC
CASE NUMBER: SC128379
MOTION: Plaintiff’s Motion for Attorneys’ Fees
Plaintiff’s Motion for Prejudgment interest
HEARING DATE: 12/8/2020
Plaintiff prevailed at trial against Defendant Mercedes-Benz USA, LLC. Plaintiff moves for attorneys’ fees pursuant to the Song-Beverly Consumer Warranty Act, Civil Code § 1794(d). Plaintiff seeks attorneys’ fees in the amount of (1) $100,961.00 for Strategic Legal Practices, APC ("SLP"); (2) $61,502.50 for the Law Office of Michael Rosenstein; (3) a 1.35 multiplier enhancement on the attorney fees (or $56,862.23); and (4) $7,500 in connection with time incurred on this motion, the motion for prejudgment interest, and the motion to tax costs, for a total of $226,825.73. While Plaintiff references $262,697.25 in the motion, this amount also includes the costs that are not properly included in a motion for attorney’s fees.
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES
“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.” (Civ. Code § 1794(d) (emphasis added).)
In determining whether requested fees are reasonable, courts consider the following factors: (1) the number of hours spent on the case, (2) reasonable hourly compensation for the attorney, (3) the novelty and difficulty of the questions involved, (4) the skill displayed in presenting them, and (5) the extent to which the litigation precluded other employment by the attorney. (Aetna Life & Cas. Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865, 880.)
Defendant’s objections to Declaration of Payam Shahian
Objection no. 1 – 5 overruled
Defendant’s objections to Declaration of Jacob W. Cutler
Objections nos. 1 – 3 overruled.
Plaintiffs’ objections to the Declaration of Ashley Oaks
Objection no. 1 – overruled.
Objection no. 2 – sustained.
Objection no. 3 – overruled.
Objection nos. 4 – 9, sustained.
Objection no. 10 - 14 – overruled.
Basis for attorney fees
Plaintiffs are entitled to attorney’s fees under the Song-Beverly Consumer Protection Act since they prevailed at trial.
Reasonableness of attorney’s fees and rates
“Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. [Citations omitted.]” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [quoting United Steelworkers of America v. Phelps Dodge Corp. (9th Cir.1990) 896 F.2d 403, 407].)
The parties dispute whether the hourly rate is reasonable. In general, Defendants argue that the hourly rates are unreasonable, but fail to provide evidence showing that such hourly rates are actually unreasonable. Plaintiffs list eleven attorneys, but respond that two attorneys, Gregory Sogoyan and Brian Murray, billed over 70 percent of the time expended by Plaintiff. As noted above, Plaintiff seeks Plaintiff seeks attorney’s fees in the amount of $100,961.00 in attorney fees for SLP and (2) $61,502.50 in attorney fees for the Law Office of Michael Rosenstein. (See Shahian Decl. ¶ 40.) Here, this case was filed on November 14, 2017 and trial was February 2020. Plaintiffs also provided evidence showing that their rates are reasonable. The hourly rates range from $350 to $600. (See Mot. at 8:12 -17.) The Court finds that these hourly rates are reasonable.
The parties also dispute whether the time spent on the case was reasonable. Plaintiffs provide evidence that they spent a total of 410.2 hours on this case. “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Defendant created a table purporting to contain Plaintiffs’ attorney’s billing entries. However, the Court sustained objections to the tables created by Defendant. Defendant had the burden of “point[ing] to the specific items challenged” and did not have the burden of creating its own separate billing table in support of its argument. Here, Plaintiffs provided their billing entries. (See Ex. 14 to Shahian Decl. at 196 – 204; see also Ex. A to Rosenstein Decl.) Plaintiff also submitted a declaration in support of the motion for attorney’s fees in the amount of $7,500 incurred in connection with the pending post-trial motions. (See Reply Nguyen Decl.) The Court is satisfied that, after reviewing the billing entries provided by counsel and the supporting declarations, the Court finds that the time spent by Plaintiffs’ counsel in litigating this action was reasonable.
Therefore, Plaintiffs’ request for attorney’s fees in the amount of $162,463.50 and $7,500 is granted.
A trial court is “not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum v. Moses The Court finds that a multiplier is not necessary here. This was a standard lemon law action. Therefore, Plaintiff’s request for a 1.35 multiplier is Denied.
PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST
“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.” (Civ. Code, § 3287, subd. (a).) Civil Code section 3287(a) “is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.” (Ibid.)
In addition, “[e]very person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” (Civ. Code, § 3287(b).) “Under subdivision (b) the court has discretion to decide whether prejudgment interest should be awarded on an unliquidated contractual claim. It is up to the judge to determine the date from which interest runs, but in no event may the court fix a date earlier than the filing of the action.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 829.) The statutory rate is 10 percent interest on breach of contract damages. (Civ. Code, § 289(b).). The discretionary provision in Civil Code section 3287 allows the court the flexibility to determine whether an award of prejudgment interest is appropriate in light of the particular facts and circumstances in the case. (A & M Produce Co. v. FMC Corp.
The Court finds that Plaintiffs are not entitled to prejudgment interest under Civil Code section 3287(a). The amount at issue in this case was not capable of being made certain by calculation.
In the alternative, Plaintiffs argue that the Court should exercise its discretion to award prejudgment interest under Civil Code § 3287(b). Defendant’s opposition is silent as to whether Plaintiffs’ claims arise from contract or whether Plaintiffs should be awarded discretionary prejudgment interest under section 3287(b). Plaintiffs, on reply, argue that Defendant has thus conceded the issue. The Court agrees that Defendant failed to rebut Plaintiffs arguments. However, in light of the facts and circumstances of this case, the Court exercises its discretion and declines to award discretionary prejudgment interest.
The motion for prejudgment interest is denied.
Case Number: SC128379 Hearing Date: October 22, 2020 Dept: M
CASE NAME: Israel Gonzales, et al. v. Mercedes-Benz USA, LLC, et al
CASE NO.: SC128379
MOTION: Motion to Tax Costs
Plaintiffs prevailed at trial on February 27, 2020. Plaintiffs’ memorandum of costs was filed on April 21, 2020. On May 8, 2020, Defendant Mercedes-Benz USA, LLC filed their motion to strike, or in the alternative, tax costs.
A prevailing party in litigation may recover costs, including but not limited to filing fees. (Code Civ. Proc., §1033.5(a)(1). Under Code of Civil Procedure section 1033.5(c)(2), allowable costs are only recoverable if they are “reasonably necessary to the conduct of the litigation.” Even mandatory costs, when incurred unnecessarily, are subject to section 1033(c)(2). (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Section 1033.5(c)(4) provides that “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., §1033.5(c)(4).)
Under California Rules of Court Rule 3.1700, a party may file and serve a motion to tax costs listed in a memorandum of costs. Under Rule 3.1700(b)(1), “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”
A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (Id.)
Under the Song-Beverly Act, “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.” (Civ. Code, § 1794(d).)
This motion is timely. Defendant requests that the court strike the entire memorandum of costs or, in the alternative, tax thirteen categories of items in the memorandum of costs.
Item 1 – filing fees
Defendant seeks to tax $573.75 of the costs claimed by Plaintiffs under Item 1. Plaintiffs claim $1,008.75 in filing fees and those fees are itemized at page 1 of the Memorandum of Costs. Defendant argues that the fees for the summary judgment are not recoverable because the Court did not hear a motion for summary judgment and because Plaintiffs reserved a summary judgment after the deadline to hear such a motion. Defendant also argues that the costs associated with the motion for prejudgment interest are not recoverable. The Court agrees that the filing fee for the motion for summary judgment was not reasonably incurred. However, the costs associated with reserving a motion for prejudgment interest is still a cost in the prosecution of this action. Therefore, the motion to tax $513.75 from item 1 is GRANTED IN PART.
Item 4 – deposition costs
Defendant seeks to tax $3,726.95 of the deposition costs. Plaintiffs claims a total of $5,396.20 in deposition costs. Defendant argues that the depositions of certain individuals were not reasonably necessary to conduct this litigation. Defendant argues that it paid for the deposition of Gregory Barnett. (See Ex. E. to Oaks Decl.) In opposition, Plaintiffs argue that Defendant did not pay the full costs of the deposition and provides the invoice. (See Ex. 2 at 2 to Nguyen decl.) Defendant has not shown that the $1,784.80 was not reasonably incurred. Defendant argues that the PMQ deposition of the Mercedes-Bez dealership was not warranted because the PMQ only read from the repair orders and Plaintiffs had no intention of calling this PMQ to testify at trial. These arguments are not persuasive. Defendant has not shown that these costs were not reasonably incurred at the time they were incurred. Therefore, the motion to tax these costs is DENIED as to item 4.
Item No. 5 - service of process costs, Item no. 8 - ordinary witness fess, and Item No. 12 – exhibits
Plaintiffs claim $1,613.80 in service of process costs, $70.00 in witness fees, and $993.02 in exhibits. Defendants seek to tax $1,535.50 for service of process costs for 17 individuals who were served subpoenas, but the vast majority were never deposed. The Court GRANTS the motion to tax $1,535.50 for service of process in item 5. Defendant has shown that such fees were not reasonably incurred. The motion to tax the witness fees under item 8 is DENIED since these costs are recoverable under Song-Beverly. Finally, the court DENIES the motion to tax item 12 as to exhibits since Song-Beverly provides for costs reasonably incurred and Defendant has not shown that such costs were not reasonably incurred.
Item No. 11 claiming $9,353.75 for court reporter fees
Defendant argue that the Court should strike item no. 12 for court reporter fees because only $5,616 appear to be related to the four-day trial. Defendant argues that the Court should tax item no. 12 in the amount of $3,737.75 because such transcripts were not ordered by the Court. Specifically, Defendant argues that there was no hearing on August 9, 2019. Defendant also argues that the Court did not order transcripts for the hearings on June 10, 2019, September 3, 2019, February 18, 2020 and February 21, 2020, and therefore, these costs are not recoverable under Section 1033.5(b)(5).
In opposition, Plaintiffs argue that the costs are allowable under the Song-Beverly Act. Plaintiffs argue that Courts have permitted court reporter costs under Civil Code section 1794(d). (See Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42 [holding that trial court erred in disallowing costs for transcripts not ordered by the Court under Civil Code section 1794(d).]). Plaintiffs argue that on August 9, 2019, Plaintiffs took the deposition of Defendant’s PMQ, Mario Haro, which Defendant concedes was “reasonable and necessary.” Plaintiffs argue that the $735 was mislabeled as an expense for an August 9, 2019 hearing and instead is supposed to be for an April 5, 2019 hearing. In reply, Defendant argues that the costs associated with the court reporters were not reasonably incurred but does not give reasons why the costs are unreasonable. Since the court reporter transcript costs are recoverable under Civil Code section 1794 and since the Cost appear to have been reasonably incurred, the Court DENIES the request to tax $3,737.75 in costs as to item 12.
Item No. 16 – “Other”
Plaintiffs seek $17,011.15 in costs labeled as other. Defendant argue that the Court should tax item no. 16, by taxing six line-item costs in item 16. Defendant seeks to tax: (1) $416.05 for the various “other” filing fees claimed under Item 16; (2) $2,454.30 for the video-conference deposition costs claimed under Item 16; (3) $932.00 for the additional service of process costs claimed under Item 16; (4) $907.96 for delivery and messenger fees, claimed under Item 16; (5) $623.43 for travel, mileage, parking and meals, claimed under Item 16; and (6) $308.67 for additional “other” costs, claimed under Item 16; and (7) $10,485.10 for expert witness fees not ordered by the Court, claimed under Item 16.
Fees of $416.05 other – electronic fling
Defendant argues that the $416.05 are not recoverable under section 1033.5 because e-filing fees are costs of convenience. In opposition, Plaintiffs argue that these fees are recoverable under the Song-Beverly Act. On reply, Defendant argues that the costs are not reasonably incurred. Defendant has not provided any substantive reasons as to why e-filing costs were not reasonably incurred. Here, such costs are recoverable under the Song-Beverly Act. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137, as modified on denial of reh'g (June 22, 1995).) The Court of Appeal concluded that the legislature intended that the phrase costs and expenses to be broad. (See id. at 138.) Since Defendant has not shown that the costs were not reasonably incurred, the motion to tax these costs is DENIED.
Fees of $2,454.30 for the video-conference deposition costs
Defendant argues that the videoconferencing costs should be taxed because Plaintiffs did not take a video deposition of the expert. In opposition, Plaintiffs argue that such fees were incurred as a result of having to video conference Plaintiffs’ expert for the trial. On reply, Defendant argues that the $2,454.30 in fees for videoconferencing services for Plaintiffs’ expert, Greg Barnett, to appear at trial should be taxed as unreasonable in amount and not reasonably incurred because, at the 11th hour, Plaintiffs attempted to convince the Court that his expert was unavailable for trial based on a false declaration from Plaintiffs’ expert. Defendant has shown that this cost was not reasonably incurred under Civil Code section 1794(d). Therefore, the Court GRANTS Defendant’s request to strike $2,454.30 (line 7 and line 12 on page 7) in fees associated with video conferencing the expert.
Fees of $932.00 for the additional service of process costs and fees of $907.96 for delivery and messenger fees
Defendant argues that the costs of $932.00 for service of trial subpoenas and the $907.96 incurred for delivery and messenger fees were not reasonable and not properly claimed under Code of Civil Procedure section 1033.5. Defendant concludes that these costs were not reasonably incurred. On reply, Defendant insists that the costs are not recoverable under Code of Civil Procedure section 1033.5 As noted above, such costs are recoverable under the Song-Beverly Act and Defendant has not provided evidence to rebut the prima facie showing that the costs incurred were reasonably necessary. The motion to tax these costs is DENIED.
Fees of $308.67 for additional “other” costs, claimed under Item 16 and Fees of $623.43 for travel, mileage, parking and meals
Defendant argues that $308.67 and $623.43 for travel, milage, parking, and meals in costs were not reasonably necessary under Code of Civil Procedure section 1033.5. Defendant has failed to make argument as to Civil Code section 1794(d) with respect to these costs. Defendant has not shown that the costs were not “reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794(d).). Therefore, the motion to tax these costs is DENIED.
Fees of $10,485.10 for expert witness fees
Defendant argues that the $10,485.10 in expert fees are not recoverable under Code of Civil Procedure section 1033.5. Defendant argues that the cost of $4,185.00 to prepare Plaintiff’s expert for his deposition are excessive and unsubstantiated. In opposition, Plaintiffs argue that the expert fees are recoverable under Song-Beverly. Plaintiffs provide the expert invoices for the deposition and the trial. (See Ex. 5.) Plaintiffs also point out that Defendant admits that these costs are recoverable under the Song-Beverly Act. It appears that the expert’s hourly rate is $200 per hour and that the expert’s hourly trial testimony rate is $350 per hour. Defendant argues that the expert did not need to spend as much time to prepare for the deposition as was incurred. The expert spent two days preparing for the deposition and two days preparing for trial testimony, or 30 hours combined, at a rate of $200 per hour. These costs are permissible under the Song-Beverly act so long as they are reasonably incurred. The Court finds that the time spent by the expert was not reasonable given the complexity of this case and expert’s testimony at trial. Therefore, the Court grants the motion to tax. The Court taxes $3,000 in preparation time, which the Court believes to have been excessive, such that Plaintiffs’ expert costs read as $7,485.10
For the reasons stated above, the motion to tax costs is GRANTED IN PART AND DENIED IN PART. Defendant to prepare a proposed order consistent with this ruling.
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