This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:35:24 (UTC).

RUBEN SEROBYAN VS. KIA MOTORS AMERICA, INC.

Case Summary

On 04/02/2018 a Contract - Other Contract case was filed by RUBEN SEROBYAN against KIA MOTORS AMERICA, INC in the jurisdiction of Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8121

  • Filing Date:

    04/02/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

SEROBYAN RUBEN

Defendant

KIA MOTORS AMERICA INC.

 

Court Documents

Minute Order

7/31/2019: Minute Order

Request for Judicial Notice

5/9/2018: Request for Judicial Notice

Notice of Case Management Conference

5/10/2018: Notice of Case Management Conference

Notice of Motion

7/2/2018: Notice of Motion

Declaration

7/17/2018: Declaration

Notice of Motion

7/24/2018: Notice of Motion

Legacy Document

8/10/2018: Legacy Document

Reply

8/17/2018: Reply

Notice of Ruling

8/17/2018: Notice of Ruling

Minute Order

11/13/2018: Minute Order

Separate Statement

1/18/2019: Separate Statement

Opposition

1/18/2019: Opposition

Reply

1/25/2019: Reply

Reply

1/25/2019: Reply

Minute Order

2/1/2019: Minute Order

Minute Order

2/1/2019: Minute Order

Supplemental Declaration

4/22/2019: Supplemental Declaration

Minute Order

4/23/2019: Minute Order

63 More Documents Available

 

Docket Entries

  • 08/12/2019
  • DocketMemorandum of Costs (Summary); Filed by Ruben Serobyan (Plaintiff)

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  • 07/31/2019
  • Docketat 08:30 AM in Department B; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 07/31/2019
  • DocketJudgment (- Stipulated Judgment - Before Trial - 07/31/2019 entered for Plaintiff Serobyan, Ruben against Defendant Kia Motors America, Inc..); Filed by Clerk

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  • 07/31/2019
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 06/03/2019
  • Docketat 09:30 AM in Department B; Jury Trial - Not Held - Advanced and Vacated

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  • 05/23/2019
  • Docketat 08:30 AM in Department B; Final Status Conference - Not Held - Advanced and Vacated

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  • 04/23/2019
  • Docketat 08:30 AM in Department B; Ex-Parte Proceedings - Held - Motion Granted

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  • 04/23/2019
  • DocketOpposition (to Plaintiff's Ex Parte Application to Enjoin Defendant, or its Authorized Dealership(s), from Destroying, Selling, or Otherwise Disposing of the Subject Vehicle so that Vehicle's Title May be Branded; or in the alternative, Setting a Hearing on Shor); Filed by Kia Motors America, Inc. (Defendant)

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  • 04/23/2019
  • DocketOther - (Order Granting Plaintiff's Ex Parte Application to Enjoin Defendant, or its Authorized Dealership, from Destroying, Selling, or Otherwise Disposing of the Subject Vehicle); Filed by Ruben Serobyan (Plaintiff)

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  • 04/23/2019
  • DocketMinute Order ( (Plaintiff's Ex-Parte Application to Enjoin Defendant, or its ...)); Filed by Clerk

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89 More Docket Entries
  • 05/10/2018
  • DocketNotice of Case Management Conference (Amended); Filed by Clerk

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  • 05/09/2018
  • DocketMotion to Strike; Filed by Kia Motors America, Inc. (Defendant)

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  • 05/09/2018
  • DocketNotice of Hearing on Demurrer; Filed by Kia Motors America, Inc. (Defendant)

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  • 05/09/2018
  • DocketRequest for Judicial Notice; Filed by Kia Motors America, Inc. (Defendant)

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  • 04/11/2018
  • DocketProof of Service of Summons and Complaint; Filed by Ruben Serobyan (Plaintiff)

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  • 04/05/2018
  • DocketSummons; Filed by Ruben Serobyan (Plaintiff)

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  • 04/02/2018
  • DocketNotice of Case Management Conference; Filed by Court

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  • 04/02/2018
  • DocketCivil Case Cover Sheet; Filed by Ruben Serobyan (Plaintiff)

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  • 04/02/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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  • 04/02/2018
  • DocketComplaint; Filed by Ruben Serobyan (Plaintiff)

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Tentative Rulings

Case Number: EC068121    Hearing Date: November 15, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

ruben serobyan,

Plaintiff,

v.

kia motors america, inc.,

Defendant.

Case No.: EC068121

Hearing Date: November 15, 2019 (cont. from October 25, 2019)

[TENTATIVE] order RE:

motion for attorney’s fees

BACKGROUND

  1. Allegations of the Operative Complaint

Plaintiff Ruben Serobyan (“Plaintiff”) alleges that on May 8, 2016, he leased a 2016 Kia Forte vehicle (VIN no. KNAFK4A66G5613586), which was manufactured or distributed by Defendant Kia Motors America, Inc. (“Defendant”). Plaintiff alleges that despite the warranties on the vehicle, the vehicle contained or developed defects, which have manifested in smoke coming from the hood while driving, coolant leaking from the vehicle, recurrent activation of the “check engine light/malfunction indicator lamp”, the need to replace the transmission assembly, etc. Plaintiff alleges that Defendant and its representatives stated they were unable to service or repair the vehicle. As a result, Plaintiff alleges he was damaged.

The first amended complaint (“FAC”), filed May 25, 2018, alleges causes of action for: (1) violation of Civil Code, §1793.2(d); (2) violation of Civil Code, §1793.2(b); (3) violation of Civil Code, §1793.2(a)(3); (4) breach of express written warranty (Civ. Code, §§1791.2(a), 1794); and (5) breach of the implied warranty of merchantability (Civ. Code, §§1791.1, 1794).

  1. Motion on Calendar

On July 31, 2019, Judgment was entered in this action. The Judgment states that on June 18, 2019, Plaintiff presented Defendant with an offer to compromise pursuant to CCP §998, which Defendant accepted on July 23, 2019. Pursuant to the offer to compromise, Plaintiff is entitled to judgment against Defendant, such that Plaintiff shall have and recover from Defendant the sum of $18,750.00 together with attorney’s fees, costs, and disbursements in an amount to be determined by Plaintiff’s notice motion, all with interest at 10% per annum from the date of the entry of judgment until paid.

On August 12, 2019, Plaintiff filed a memorandum of costs seeking $5,810.57 in total costs, plus attorney’s fees (which was left blank).

On October 10, 2019, Plaintiff filed a motion for attorney’s fees. On October 11, 2019, Defendant filed an opposition brief. On October 18, 2019, Plaintiff filed the reply brief.

The Court held a hearing on the motion October 25, 2019. The Court ordered Plaintiff to file a brief supplemental declaration by November 6, 2019, detailing the total time spent by Cline APC and a chart detailing the time each attorney, paralegal, and assistant spent on the action.

On November 4, 2019, Plaintiff’s counsel, Brian K. Cline, filed a supplemental brief in support of the motion.

LEGAL STANDARD

The Song-Beverly Consumer Warranty Act states in relevant part that “[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civil Code, §1794(a).)

“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).) “By permitting prevailing buyers to recover their attorney fees in addition to costs and expenses, the Legislature has provided injured consumers strong encouragement to seek legal redress when a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985.)

The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) California courts have consistently held that 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. (Id.) 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. (Id.) 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.; see Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 821-22 [stating that lodestar approach and multipliers were appropriate in Song-Beverly Act cases involving a contingency fee arrangement].)

No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.) In Wershba, the trial court awarded attorney’s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court’s order.

EVIDENTIARY OBJECTIONS

Defendant submitted evidentiary objections to the declarations of Brian Cline and Michael Devlin. The Court overrules the objections to Mr. Cline’s declaration, which are directed at Mr. Cline’s statements regarding support for his claimed hourly rate. The Court overrules the objections to Mr. Devlin’s declaration regarding his hourly rate and background information on the procedural history of the case.

Plaintiff submitted evidentiary objections to the declaration of Jimmy Y. Park. The objections are overruled.

DISCUSSION

  1. Untimely Filing

According to CCP §1005(b), all moving and supporting papers shall be filed at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper.

Here, the motion was filed on October 10, 2019 and was initially set for hearing on October 25, 2019. To be timely, the motion should have been filed with the Court by latest October 2, 2019 (or 16 court days before the hearing date). Thus, the motion was not timely filed.

However, the Court notes that the motion was timely served by mail on defense counsel on September 27, 2019. Defendant also timely filed an opposition brief. Thus, any defects on the basis of untimely filing appear to be waived.

The Court will consider the motion.

  1. Merits of Motion for Attorney’s Fees

Plaintiff moves for attorney’s fees against Defendant in the total amount of $79,801.35, which consists of $66,349 in attorney’s fees, a lodestar multiplier enhancement of 0.15 for a total of $9,952.35, and an additional $3,500 for any anticipated reply brief and the hearing.

Plaintiff provides the declarations of its counsel, Brian Cline and Michael Devlin:

Plaintiff argues that the hours billed by his counsel were reasonable because the invoice shows counsel’s work expended for nearly a year and a half (the case was filed on April 2, 2018), and the law and motion practice they were required to engage in to obtain discovery from Defendant.

With the moving papers, Mr. Cline provided billing records of his staff. (Cline Suppl. Decl., ¶3, Exs. 6, 8.) In the supplemental brief, he states that the following hours were incurred by his office:

NAME

HOURS AND RATE

BILLING RATE

Brian Cline (owner, attorney)

20 hours at $515/hour

$10,300

Michael Devlin (of counsel, trial counsel)

119 hours at $470/hour

$55,930

Camille Galanto (paralegal)

43.1 hours at $135/hour

$5,818.50

Pegah Kashani (paralegal)

3.5 hours at $135/hour

$472.50

Mary Garcia (legal assistant)

9.3 hours at $95/hour

$883.50

John Evans (legal assistant)

2.5 hours at $95/hour

$237.50

Shawnee Cummings (legal assistant)

3.6 hours at $95/hour

$342.00

TOTAL

201 hours

$73,984.00

Plaintiff also seeks a multiplier of .15 in this action based on the risks presented in the action and the result obtained (or $9,952.35). (Mot. at pp.11-12.) Plaintiff argues that his counsel took this case on a contingency basis, such that counsel would only be paid if Plaintiff recovered. Plaintiff also argues that his counsel achieved an excellent outcome of the full statutory repurchase of the subject vehicle, which was due to the efforts of counsel to obtain discovery, schedule depositions, and make a 998 offer to Defendant (which Defendant accepted).

In opposition, Defendant seeks an outright denial of Plaintiff’s motion, arguing this was a small Song-Beverly case replete with unnecessary and exaggerated billing. Alternatively, it seeks a reduction of fees sought to a total of $21,290 and that no multiplier be applied based on the short 16-month duration of the case, the unnecessary motion practice, 1 deposition taken, and no vehicle inspection or trial.

The Court declines to outright deny this motion as overreaching, as characterized by Defendant. Instead, the Court will make appropriate adjustments to the hourly rates of counsel and time billed.

Although the Court does not doubt the abilities of Plaintiff’s counsel or the results they obtained in litigating this action on Plaintiff’s behalf, the Court finds that the billing rates for a consumer protection case such as this is somewhat steep. Even comparing the rates stated in Michael Vachon’s declaration (Mot., Ex. 3), Mr. Cline and Mr. Devlin have practiced nearly 10 to 30 years less than the attorneys described in Mr. Vachon’s declaration. Thus, the Court finds that a reasonable hourly rate for Mr. Cline and Mr. Devlin is more appropriate at $300/hour and $250/hour, respectively. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095 [stating that the trial court has broad authority to determine the amount of a reasonable fee and the experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion].) The tasks of legal assistants and paralegals billing to the matter are predominantly secretarial and administrative, and the Court cannot segregate what legitimate paralegal work was done. For this reason, the Court declines to award hours for legal assistants and paralegals.

Thus, the Court will make the appropriate adjustments as follows (underlined):

NAME

HOURS AND RATE

BILLING RATE

Brian Cline (owner, attorney)

20 hours at $300/hour

$6,000

Michael Devlin (of counsel, trial counsel)

119 hours at $250/hour

$29,750

TOTAL

201 hours

$35,750

The Court also declines to impose a multiplier for this action and does not find that it is warranted in this relatively uncomplicated Song-Beverly case. While Plaintiff’s counsel has obtained a positive result on behalf of Plaintiff, the Court does not find that the risks posed by the litigation were of a substantial character that a multiplier is warranted. Further, the Court finds that the attorney’s fees that will be awarded to Plaintiff’s counsel is already sufficiently high based on counsels’ experience and the hours incurred in litigating this action. It is also unclear whether a repurchase demand was made prior to litigation. Finally, while the Court did enter the ex parte order requested, it did so because there was little harm that could have occurred. The entire exercise appears to have been unnecessary. The Court cannot tell the extent to which the discovery exercises were unnecessary, and gives Plaintiffs’ counsel the benefit of the doubt as to those items as both sides’ should have been able to work out such disputes.

CONCLUSION AND ORDER

The Court grants Plaintiff’s motion for attorney’s fees in the total sum of $35,750.

Plaintiff shall provide notice of this order.

Case Number: EC068121    Hearing Date: October 25, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

ruben serobyan,

Plaintiff,

v.

kia motors america, inc.,

Defendant.

Case No.: EC068121

Hearing Date: October 25, 2019

[TENTATIVE] order RE:

motion for attorney’s fees

BACKGROUND

  1. Allegations of the Operative Complaint

Plaintiff Ruben Serobyan (“Plaintiff”) alleges that on May 8, 2016, it leased a 2016 Kia Forte vehicle (VIN no. KNAFK4A66G5613586), which was manufactured or distributed by Defendant Kia Motors America, Inc. (“Defendant”). Plaintiff alleges that despite the warranties on the vehicle, the vehicle contained or developed defects, which have manifested in smoke coming from the hood while driving, coolant leaking from the vehicle, recurrent activation of the “check engine light/malfunction indicator lamp”, the need to replace the transmission assembly, etc. Plaintiff alleges that Defendant and its representatives stated they were unable to service or repair the vehicle. As a result, Plaintiff alleges he was damaged.

The first amended complaint (“FAC”), filed May 25, 2018, alleges causes of action for: (1) violation of Civil Code, §1793.2(d); (2) violation of Civil Code, §1793.2(b); (3) violation of Civil Code, §1793.2(a)(3); (4) breach of express written warranty (Civ. Code, §§1791.2(a), 1794); and (5) breach of the implied warranty of merchantability (Civ. Code, §§1791.1, 1794).

  1. Motion on Calendar

On July 31, 2019, Judgment was entered in this action. The Judgment states that on June 18, 2019, Plaintiff presented Defendant with an offer to compromise pursuant to CCP §998, which Defendant accepted on July 23, 2019. Pursuant to the offer to compromise, Plaintiff is entitled to judgment against Defendant, such that Plaintiff shall have and recover from Defendant the sum of $18,750.00 together with attorney’s fees, costs, and disbursements in an amount to be determined by Plaintiff’s notice motion, all with interest at 10% per annum from the date of the entry of judgment until paid.

On August 12, 2019, Plaintiff filed a memorandum of costs seeking $5,810.57 in total costs, plus attorney’s fees (which was left blank).

On October 10, 2019, Plaintiff filed a motion for attorney’s fees.

On October 11, 2019, Defendant filed an opposition brief.

LEGAL STANDARD

The Song-Beverly Consumer Warranty Act states in relevant part that “[a]ny buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civil Code, §1794(a).)

“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).) “By permitting prevailing buyers to recover their attorney fees in addition to costs and expenses, the Legislature has provided injured consumers strong encouragement to seek legal redress when a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985.)

The fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) California courts have consistently held that 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. (Id.) 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. (Id.) 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.; see Robertson v. Fleetwood Travel Trailers of Cal., Inc. (2006) 144 Cal.App.4th 785, 821-22 [stating that lodestar approach and multipliers were appropriate in Song-Beverly Act cases involving a contingency fee arrangement].)

No specific findings reflecting the Court’s calculations are required. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 254-255.) The record need only show that the attorney fees were awarded according to the ‘lodestar' approach. (Id.) In Wershba, the trial court awarded attorney’s fees to the plaintiffs based upon declarations evidencing the reasonable hourly rate for their services and establishing the number of hours spent working on the case. There were no time sheets submitted describing work done, there was no evidence establishing the rate charged as a reasonable hourly rate, and there was no evidence from which the Court could make findings regarding the various factors considered in the lodestar approach. The Court of Appeal found that no specific findings were required and affirmed the trial court’s order.

EVIDENTIARY OBJECTIONS

Defendant submitted evidentiary objections to the declarations of Brian Cline and Michael Devlin. The Court overrules the objections to Mr. Cline’s declaration, which are directed at Mr. Cline’s statements regarding support for his claimed hourly rate. The Court overrules the objections to Mr. Devlin’s declaration regarding his hourly rate and background information on the procedural history of the case.

Plaintiff submitted evidentiary objections to the declaration of Jimmy Y. Park. The objections are overruled.

DISCUSSION

  1. Untimely Filing

According to CCP §1005(b), all moving and supporting papers shall be filed at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper.

Here, the motion was filed on October 10, 2019 and is set for hearing on October 25, 2019. To be timely, the motion should have been filed with the Court by latest October 2, 2019 (i.e., 16 court dates before the hearing date). Thus, the motion was not timely filed.

However, the Court notes that the motion was timely served by mail on defense counsel on September 27, 2019. Defendant also timely filed an opposition brief. Thus, any defects on the basis of untimely filing appear to be waived.

The Court will consider the motion.

  1. Merits of Motion for Attorney’s Fees

Plaintiff moves for attorney’s fees against Defendant in the total amount of $79,801.35, which consists of $66,349 in attorney’s fees, a lodestar multiplier enhancement of 0.15 for a total of $9,952.35, and an additional $3,500 for any anticipated reply brief and the hearing.

Plaintiff provides the declarations of its counsel, Brian Cline and Michael Devlin:

Plaintiff argues that the hours billed by his counsel were reasonable because the invoice shows counsel’s work expended for nearly a year and a half (the case was filed on April 2, 2018), and the law and motion practice they were required to engage in to obtain discovery from Defendant.

Though Mr. Cline provides the billing records of his staff, the records fail to state how many total hours were spent by his firm and specifically how many hours were spent by each attorney, paralegal, and assistant. Without such figures, the Court cannot ascertain whether the hours expended by Plaintiffs’ counsel was reasonable nor can the Court engage in a lodestar analysis (i.e., taking the number of hours reasonably expended multiplied by the reasonably hourly rates) and make adjustments where appropriate.

Thus, the Court will continue the hearing on this motion to provide time for Plaintiff’s counsel to file and serve a supplemental declaration detailing the hours spent on this action.

CONCLUSION AND ORDER

The Court continues the motion for attorney’s fees to November 15, 2019 at 8:30 a.m.

Plaintiff’s counsel is ordered to file a brief supplemental declaration detailing the total time spent by Cline APC, as well as a chart detailing the time that each attorney, paralegal, and assistant spent on this action. This supplemental brief shall be electronically filed with the Court no later than November 6, 2019 so that the Court has adequate time to consider the parties’ respective briefs and this supplemental declaration. The parties are ordered to lodge with the court Chamber’s copies of the motion, opposition, reply and supplemental declaration no later than November 6, 2019.

Plaintiff shall provide notice of this order.