Tentative Rulings
Case Number: 22STCV11793 Hearing Date: June 9, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
MARK PHILIP SCHMID, et al.,
Plaintiffs,
vs.
JAGUAR LAND ROVER NORTH AMERICA, LLC, et al.,
Defendants. Case No.: 22STCV11793
Hearing Date: June 9, 2023
[TENTATIVE] RULING RE:
PLAINTIFFS MARK PHILIP SCHMID, NADRA MALAKZAD, AND FISHERVILLE CAPITAL, LLC’S MOTION FOR ATTORNEY’S FEES.
Plaintiffs Mark Philip Schmid, Nadra Malakzad, and Fisherville Capital’s Motion for Attorney’s Fees is GRANTED in the amount of $32,985.75.
Plaintiffs Mark Philip Schmid, Nadra Malakzad, and Fisherville Capital’s Request for Costs and Expenses is GRANTED in the amount of $3,742.53.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an action brought under the Song-Beverly Consumer Warranty Act (the “SBA”). The Complaint alleges as follows.
On April 23, 2021, plaintiffs Mark Philip Schmid, Nadra Malakzad, and Fisherville Capital, LLC (“Plaintiffs”) leased a new 2021 Land Rover Discovery (the “Subject Vehicle”) manufactured and/or distributed by defendant Jaguar Land Rover North America (“JLRNA”). (Compl. 8, 10.) The Subject Vehicle was sold with JLRNA’s new car warranty. (Compl. 9.)
During the warranty period, the Subject Vehicle began exhibiting substantial nonconformities to the warranty. (Compl. 14.) Plaintiffs delivered the Subject Vehicle to JLRNA’s authorized repair facility, defendant Jaguar Land Rover Santa Monica (“JLRSM”). (Ibid.) Despite a reasonable number of attempts, Defendants were unable to make the Subject Vehicle conform to warranty. (Compl. 16.)
Defendants failed to provide Plaintiff restitution or replacement of the Subject Vehicle as required by the SBA. (Compl. 20.)
PROCEDURAL HISTORY
On April 27, 2022, Plaintiff filed the Complaint asserting four causes of action:
1. Violation of Song-Beverly Act – Breach of Express Warranty;
2. Violation of Song-Beverly Act – Breach of Implied Warranty;
3. Violation of Song-Beverly Act – Section 1793.2; and,
4. Negligent Repair.
On May 23, 2022, JLRNA filed an Answer.
On August 17, 2022, JLRSM filed an Answer.
On February 23, 2023, Plaintiffs filed a Notice of Settlement.
On May 16, 2023, Plaintiffs filed the instant Motion for Attorney’s Fees and Memorandum of Costs.
On May 26, 2023, Defendants filed an Opposition.
On June 2, 2023, Plaintiffs filed a Reply.
DISCUSSION
I. EVIDENTIARY OBJECTIONS
Plaintiffs’ Evidentiary Objection to the Declaration of Matthew C. Wolf is OVERRULED.
II. MOTION FOR ATTORNEYS’ FEES
Plaintiffs seek reasonable attorneys’ fees pursuant to Civil Code section 1794(d).
Section 1794(d) provides a prevailing buyer the right “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.” In enacting section 1794, “the Legislature envisioned an objective, nonarbitrary, and easy way to administer calculation of attorney fees based on the ‘lodestar’ method (reasonable hours and rates plus a multiplier) ‘in order to fix the fee at the fair market value for the legal services provided.” (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1117.) “Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.” (Id.)
In awarding fees, “the court's analysis must begin with the ‘actual time expended, determined by the court to have been reasonably incurred.’” (Hanna v. Mercedez-Benz USA, LLC (2019) 36 Cal.App.5th 493, 510.) The “prevailing party has the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-18.) The trial court “must initially determine the actual time expended.” (Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240, 247.) The court must then “ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable” relative to the “complexity of the case and procedural demands, the attorney skill exhibited and the results achieved,” among other factors. (Id.)
After the lodestar amount is fixed, it may be adjusted. An adjustment to the lodestar “is commonly referred to as a ‘fee enhancement’ or ‘multiplier’” and the trial court “is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor, supra, at 247.) In adjusting the lodestar figure, trial courts may consider: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322 fn. 12.) “The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.” (Graham v. DaimlerChrysler Corp. (2005) 34 Cal. 4th 553, 582.)
A. Initial Lodestar
Plaintiffs seek $43,981.00 in attorney’s fees. (Motion at p. 1.) This amount consists of $9,843.50 billed by Norman Taylor & Associates (“NTA”), and $34,137.50 billed by Wirtz Law (“WL”). (Taylor Decl., Exh. 1; Wirtz Decl., Exh. A.) NTA recorded 24.20 hours of attorney and paralegal time, billed at between $250 and $645 an hour. WL recorded 105.8 hours of paralegal and attorney time, billed at between $200 and $695 an hour. (Wirtz Decl., Exh. A.)
In Opposition to this initial lodestar, JLRNA make several arguments as to why the Court should reduce the amount.
1. Hourly Rates
First, JLRNA contend that Plaintiffs’ hourly rates are excessive and should be reduced.
NTA’s managing partner billed at $645 an hour, while NTA’s paralegal billed at $245 an hour. (Taylor Decl., Exh. 1.) NTA only logged 1.2 hour of associate time, billed at $350 an hour. (Ibid.)
WL’s managing partner billed $645 an hour. (Wirtz Decl., Exh. A.) WL’s associates billed between $400 and $500 an hour. (Ibid.) WL’s paralegals billed between $200 and $300 an hour. (Ibid.)
JLRNA contends that these rates are unreasonable for the nature of this litigation. JLRNA notes that under the 2017-2018 United States Consumer Law Attorney Fee Survey Report, the median rate for attorneys in this practice was $450 an hour.
However, on Reply, Plaintiffs note that this report is out of date and does not account for factors such as inflation. Additionally, Plaintiffs provide affidavits from similarly situated attorneys, attesting that Plaintiffs’ proffered rates are reasonable.
The Court finds that the proffered hourly rates are reasonable and will not reduce them based on an outdated wage report.
2. Inflated Hours
Next, Defendants contend that there are indications of overbilling and overstaffing in the hour logs.
First, Defendants note that Plaintiffs bill hours for the time and cost expended to serve JLRSM, to enter default as to JLRSM, and to stipulate to vacate that default. However, Defendants argue that this time was unreasonably expended, as JLRSM’s default and the subsequent stipulation was a result of Plaintiff’s failure to properly serve JLRSM.
On Reply, Plaintiffs contend that service was proper, and that JLRNA do not offer any evidence of improper service.
However, as JLRNA points out in their Opposition, the hour log states that Plaintiffs’ attorneys had a “telephone conversation with attorney who will represent the dealership regarding incorrect service of Summons & Complaint and Request for Entry of Default.” (Taylor Decl., Exh. 1 at p. 3.)
The Court finds that it is unreasonable to seek compensation for the time spent improperly serving a defendant, then the time spent to correct that mistake.
Accordingly, the Court reduces the initial lodestar by $856.75, and costs by $135.96, to reflect this error.
Next, JLRNA notes that NTA indicates that WL was brought on to help with settlement negotiations, which were going nowhere. However, NTA notes that NTA’s billing records indicate that no hours were expended in settlement negotiations prior to the association of WL.
However, on Reply, Plaintiffs note that NTA brought on WL because of a stall in settlement negotiations, and because of Taylor’s excessive workload. (Taylor Decl. 33.)
The Court will not punish an attorney for recognizing that his or her workload has become unmanageable and seeking help absent any indication that the association of counsel led to overstaffing or overbilling.
Next, JLRNA argues that Plaintiffs overstaffed the case. JLRNA notes that four attorneys and six paralegals worked on Plaintiff’s case, though the case involved no motion practice, no contested discovery disputes, no novel issues of law, no FSC, and no trial preparation.
JLRNA urges the Court to include only Ms. Rotman’s and Ms. Evans’ hours, reducing the initial lodestar to $16,030.00.
On Reply, Plaintiffs contend that it is irrelevant how many attorneys worked on the case, so long as those attorneys were billing efficiently. Plaintiffs argue that the billing shows that Plaintiffs’ Counsel never overbilled.
While the Court concurs that the number of attorneys assigned to a case is not a sure indicator of overbilling, the Court finds that over 130 hours of total attorney time dedicated to a case with no motion practice no depositions, no contested discovery disputes, and no novel issues is excessive.
Accordingly, the Court reduces Plaintiffs’ initial lodestar by 25%.
This reduction, together with the reduction for the initial improper service of JLRSM, equals an initial lodestar amount of $32,985.75.
B. Lodestar Multiplier
Next, Plaintiffs seek a lodestar multiplier of 1.5. Plaintiffs contend that such a multiplier is warranted due to the contingent nature of SBA actions, and because of the public interest inherent in consumer protection actions.
The Court finds that the contingent nature of the instant litigation and the benefits to the public interest are adequately compensated by Plaintiffs’ Councils hourly rate. Moreover, the Court finds that a lodestar multiplier is unwarranted in a routine and straightforward lemon law action such as this.
Accordingly, Plaintiffs’ request for a lodestar multiplier is denied.
Plaintiffs’ Request for Attorney’s Fees is GRANTED in the amount of $32,985.75.
III. COSTS AND EXPENSES
Next, Plaintiffs seek costs and expenses in the amount of $3,878.49 pursuant to Civil Code section 1794(d).
Civil Code section 1794, subdivision (d) provides that a prevailing 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 . . . determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”
Civil Code section 1794, subdivision (d) “permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’ Examining the language of the statute [citation], it is clear the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs.’” (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 Legislature included awards of “costs and expenses” in the statute “‘to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc.’” (Id. at 138 (quoting Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) at 2.))
Here, Plaintiffs have filed a complete Memorandum of Costs which “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.)
Upon review of the memorandum of costs, and without further opposition from JLRNA, the Court finds that these costs are reasonable, minus the costs deducted above attributed to improper service of JLRSM.
Accordingly, Plaintiffs’ Request for Costs and Expenses in the amount of is GRANTED in the amount of $3,742.53.
DATED: June 9, 2023
Hon. Jill T. Feeney
Judge of the Superior Court
