Disposed - Dismissed
Property - Other Real Property
BARBARA A. MEIERS
DEBRE K. WEINTRAUB
MANLIN ROGER A. S. ESQ.
DOES 1 TO 20
STOLAR BERNADINE J. ESQ.
7/25/2017: COMPLAINT FOR: 1.NEGLIENCE ;ETC
8/8/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
8/18/2017: PROOF OF SERVICE SUMMONS
9/5/2017: NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; ETC.
9/25/2017: Minute Order
10/4/2017: NOTICE OF RULING
7/6/2018: NOTICE OF CONTINUANCE OF STATUS CONFERENCE
6/21/2018: REQUEST FOR DISMISSAL
6/20/2018: Minute Order
Docketin Department 1, Debre K. Weintraub, Presiding; Order Re: Related Cases - Denied[+] Read More [-] Read Less
DocketNotice of Continuance; Filed by Attorney for Defendant/Respondent[+] Read More [-] Read Less
DocketRequest and Entry of Dismissal (without prejudice as to the complaint ); Filed by Attorney for Plaintiff/Petitioner[+] Read More [-] Read Less
Docketat 09:00 am in Department 12, Barbara A. Meiers, Presiding; Status Conference - Status Conference continued[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by Attorney for Defendant/Respondent[+] Read More [-] Read Less
Docketat 09:30 am in Department 12, Barbara A. Meiers, Presiding; Motion to Quash - Court makes order[+] Read More [-] Read Less
DocketMotion to Quash; Filed by Attorney for Defendant/Respondent[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner[+] Read More [-] Read Less
DocketNotice-Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketComplaint[+] Read More [-] Read Less
Case Number: ****9327 Hearing Date: February 04, 2020 Dept: 24
Plaintiff Armen Agesyan’s motion for attorneys’ fees and costs is GRANTED in the reduced amount of $59,860.75 and $1,643.08 in costs.
Plaintiff Armen Agesyan (“Plaintiff”) commenced this Lemon Law action on March 23, 2018 against Defendant Keys European LLC and Mercedes-Benz USA LLC (“Defendants”). Defendants answered on June 8, 2018 and April 27, 2018 respectively. On August 8, 2019, at the FSC, the Court continued the trial to November 25, 2019. Following mediation, the parties executed a settlement agreement prior to trial.
On December 20, 2019, Plaintiff moved for an award of attorney’s fees $71,865.58 inclusive of costs. On January 23, 2020, Defendants filed an opposition. On January 28, 2020, Plaintiff filed a reply.
With respect to attorney fees and costs, unless they are specifically provided for by statute (e.g., CCP ;; 1032, et seq.), the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties. (CCP ; 1021.) The prevailing party on a contract, which specifically provides for attorney fees and costs incurred to enforce the agreement, is entitled to reasonable attorney fees in addition to other costs. (Civ. Code ; 1717(a); CCP ;; 1032, 1033.5(a)(10)(A).) The court, upon notice and motion by a party, shall determine the prevailing party and shall fix, as an element of the costs of suit, the reasonable attorney fees. (Civ. Code ; 1717(a), (b).) Any notice of motion to claim attorney fees as an element of costs under shall be served and filed before or at the same time the memorandum of costs is served and filed; if only attorney fees are claimed as costs, the notice of motion shall be served and filed within the time specified in CRC 3.1700 for filing a memorandum of costs. (CRC 3.1702; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.)
“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citation.]” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623 624.) The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys’ fees award].) 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. at 48, fn. 23.) The factors considered in determining the modification of the lodestar include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award.” (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.)
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. (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.) General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Ibid.)
Here, it is undisputed that Plaintiff is entitled to attorneys’ fees pursuant to the Song Beverly Act. As the prevailing party, Plaintiff is entitled to reasonable fees. Plaintiff requests a total amount of $71,865.58 in fees and costs. This amount consists of (1) $52,970.00 in fees for work by the Brennan firm; (2) $898.08 in costs for the Brennan firm; (3) $17,175.00 in fees for work by California Lemon Law Center (“CLLC”); and 4) $822.50 in costs for CLLC.
Defendants provide specific objections to items of billings and counsel’s rates.
The Court does not find that the nature of the suit necessarily requires a reduction in rates. Defendant does not provide a reasoned explanation or analysis as to whether a specific attorney should have billed less based on his or her own experience/education. The more senior attorneys did not spend their time on routine discovery issues or other potential improper overbilling. The mere fact that this was a “simple lemon law case” does not mean that attorneys with multiple decades of consumer law experience should be discounted. Defendants do not meet their burden to show that the rates are unreasonable. The Court further does not find the Doppes case representative of current day billing rates, as it is over a decade old, or that it shows the billing rates here are unreasonable in light of the experience of Plaintiff’s attorneys. (See Doppes v. Bentley Motors, Inc. (2009) 14 Cal.App.4th 967.) Further, the Court does not find that the mere fact that there were eight attorneys or two law firms working on this case requires an arbitrary reduction in fees. Conversely, Plaintiff demonstrates through the attorneys’ respective declarations their experience and awards which justifies their rates.
As to the specific objections, the Court agrees that there are some areas of apparent duplicative, vague, and unreasonable billing. For example, the car inspection does not appear to reasonably need both and attorney and paralegal to be present. (Greco Decl. ¶ 4.) Plaintiff argues that “they were outnumbered” by Defendants’ attorney, expert and technicians.” (Kasparian Supp. Decl., ¶ 7.) Plaintiff does not adequately justify this fee with such an argument, as clearly technicians and an expert would be required to inspect the vehicle at a vehicle inspection. Further, the Court agrees that billing for two attorneys and a paralegal to attend the mediation on October 8, 2019 appears duplicative to an extent.
There are also instances of vague billing, which will be discounted. For example, the three hours of “drafting legal documents” for $525.00 is too vague to be supported. (See Kasparian Decl., Ex. 2 [2/20/18 entry].) Other similarly vague entries will be stricken. However, the Court does not otherwise find that because a timekeeper put in multiple acts for one entry that the time would be non-compensable. Further, the Court understands that Mkrtchyan’s apparently monthly conversations with Plaintiff, keeping him up to date with the litigation in his native language, would not be improper.
As to inflated discovery entries, Defendants note that Plaintiffs’ counsel billed 12.60 hours to draft basic written discovery, including the entries at 4/4/18, 7/12/18, and 7/17/18. Plaintiffs counsel also billed a total of 17.40 hours to prepare and respond to MBUSA's basic discovery Requests. Additionally, on July 1-2, 2019 Mkrtchyan spent 3.50 and 3.30 hours, respectively "going over defendant's discovery requests with client." The Court agrees that several instances of these billings are unreasonably high and will adjust them accordingly.
As to the billings regarding the investigation on Plaintiff’s criminal history, the records indicate 12.25 hours researching and preparing for trial on this issue. The Court finds that this embraces some unreasonably incurred fees, considering the multiple hours to draft relatively simple motions in limine.
Defendants also object to the fees associated with this motion. Defendants, however, do not explain why the fees associated with this motion would not be compensable. Defendants do not explain that the requested fees for this motion or the vehicle surrender would be unreasonable. That said, the Court finds that the fees associated with the reply may be unreasonable. The reply somehow increased the fee request by $8,305.36 ($8,182.50 fees and $122.86 costs), representing approximately 15 hours of attorney time. (Kasparian Supp. Decl., Ex. 6.) While the Court appreciates that Defendants provided a number of specific objections that needed to be responded to, the Court does not find this amount to be reasonable. The Court will make adjustments accordingly.
The Court is not inclined to grant a multiplier in this case, negative or positive. While the Court appreciates that this case went up to the eve of trial, Plaintiffs’ case appears to be a typical lemon law action, with no motion work. Given the case history, this case does not appear to have significantly precluded counsel from obtaining other work. Conversely, this does not warrant a negative multiplier. The Court finds the awarded fees based on the time spent prosecuting the action to be a reasonable amount given the parties’ evidence and arguments, and enough to reasonably compensate Plaintiffs’ counsel even given the contingent nature of the case.
Based on the Court’s own review of the itemized billing statements, and taking into consideration Defendants’ specific objections, the Court finds that the total reasonable fees incurred would be $59,860.75, not including costs.
Defendant objects to specific items of costs. Plaintiff asserts that the items of costs objected to are proper under Civ. Code section 1794(d).
The Court agrees that, under the Song-Beverly Act, prevailing parties are entitled to “expenses” that are broader than costs. (Civ. Code ; 1794(d) cf. CCP ; 1033.5(a), (c).) However, plaintiff still fails to justify all these expenses under that standard. Plaintiff favorably cites to Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. There, the court noted the ambiguity of the term and determined that expert witness fees could be expenses. To come to this conclusion, the court turned to the legislative history and noted:
The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, ; 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)
(Id. at 138.) The court thus concluded that reliance on CCP section 1033.5 for denying expert witness fees was incorrect and ordered the trial court to re-assess whether the fees were “reasonably incurred by the buyer in connection with the commencement and prosecution of [the] action.” (Ibid.)
The Court notes that the supplemental declaration provides that the mediation fees were $822.50. (Kasparian Supp. Decl., Ex. 8.) These fees are proper expenses, as this was reasonably incurred in connection with the prosecution of the action. However, the Court does not find that food and drinks were reasonably incurred by Plaintiff. Thus, the apparent $77.50 in food/drink costs will be taxed. As to the attorney-travel expenses and given the broader “expenses” allowed by section 1794(d), the Court finds that these expenses were reasonably incurred by Plaintiff for the prosecution of the action. Therefore, the Court will grant the costs for a total of $1,643.08.
Moving party is ordered to give notice.
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