2016-00189545-CU-BC

Charles Boyle vs. Allied Recreation Group, Inc.

Nature of Proceeding: Motion for Attorney Fees

Filed By: Gomez, Ryan H.

Plaintiffs Charles Boyle and Doris Boyle’s Motion for Attorneys Fees is granted, as follows:

This is a Lemon Law action that settled. This case involved a 2013 Fleetwood Bounder (“motorhome”) that plaintiffs purchased for $81,000. The parties’ settlement agreement provided that if they could not agree on an amount of attorneys fees to be awarded to plaintiff, plaintiff could file a motion for attorneys fess. (Gomez Decl. 7; Exh. A).

A prevailing buyer in a Song-Beverly action is entitled 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).)

The purpose these fee-shifting statutes in the Song-Beverly Warranty Act, the Magnuson-Moss Warranty Act, and the Consumer Legal Remedies Act is to make it attractive for competent counsel to represent plaintiffs who could not otherwise afford representation, and to facilitate enforcement of the law. See Serrano v. Priest (1977) 20 Cal. 3d 25, 48-49.

Here, the Court finds that while Plaintiff is entitled to fees pursuant to Civil Code § 1794(d) and the parties’ settlement, its review of the billing entries submitted with the motion reveals that a downward reduction in the lodestar amount is required to achieve an amount which was “reasonably incurred by the buyer.”

The Plaintiffs in this matter were represented by the Law Offices of Jon Jacobs and by Mr. Terry L. Baker. Mr. Baker acted as lead trial counsel, while the Law Offices of Jon Jacobs assisted in all aspects of litigation, managed the administration of the case, and acted as the primary contact with the Plaintiffs. Mr. Baker became associated with this matter only when it became apparent a jury trial would likely be necessary. Mr. Baker’s activities reflect time spent preparing for trial (which never took place), and the Law Offices of Jon Jacobs’ activities reflect necessary litigation, administration, and communication with Plaintiffs.

Although plaintiff made settlement demands since shortly after the action was filed, no settlement was reached until 11 days before trial when the parties agreed to settle the case for $100,000 plus separately negotiated attorneys’ fees and costs. Plaintiffs obtained nearly 100% of what they set out to obtain when they sent a pre-litigation notice and demand.

Under California law, in determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision , the court begins by calculating the “lodestar” amount. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393; Cruz v.Ayromloo (2007) 155 Cal.App.4th 1270.)) The “lodestar” is “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Bernardi, supra, 167 Cal.App.4th 1379,1393; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) To determine the reasonable hourly rate, the court looks to the “hourly rate prevailing in the community for similar work.” (Bernardi, supra. 167 Cal.App.4th at 1394.) The California Supreme Court has further instructed that attorney fee awards “should be fully compensatory.” Id., citing Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133. Thus, an attorney fee award should ordinarily include compensation for all of the hours reasonably spent, including those relating solely to the fee. Bernardi, supra, 167 Cal.App.4th 1379 at 1394. This lodestar fee may then be adjusted to account for “(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.” Id.

Fee award amounts are matters within the trial court’s discretion: the “trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” (Ketchum v. Moses, supra, at p. 1132; accord PLCM Group, (2000) 22 Cal.4th 1084, 1096.) The Court will reduce the hours it determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 (party seeking attorney fees has the “burden of

showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount’), Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-1329.

The hourly rates sought range from $150 per hour for the paralegal (26.8 hours), $300 per hour for the associate Gomez who passed the bar in December 2015 (107.1 hours) $495 per hour for Jon Jacobs and $495 for Kimberli Zazzi (16.4 total hours) and $525 per hour for Mr. Baker who spent 57.65 hours preparing for trial. Plaintiffs request a 2.0 lodestar enhancement for the risk undertaken for what plaintiffs counsel describes as a “truly difficult matter.” Thus, the total amount of requested fees, including a 2.0 lodestar, is $59,730.50 to Terry L. Baker and $88,896.00 to the Law Offices of Jon Jacobs, for a total award of $148,626.

In opposition, defendant contends that the hourly rates charged by plaintiffs’ counsel and paralegal are excessive, that several hours billed by the two primary attorneys should be deleted as duplicative or unnecessary, and that significant portions of time claimed to have been billed by a “paralegal” constitute secretarial or clerical work.

The billing records are attached to the Declaration of Gomez as Ex. B.

The Court agrees that the hourly rates charged are excessive for this jurisdiction. The Court will award fees for Gomez for the requested hours, but at an hourly rate of $225, which is reasonable for a relatively new associate in Sacramento. The Court is awarding $350 per hour for Mr. Jacobs and Ms Zazzi. The Court views the requested $495 as excessive for Sacramento, particularly when outside trial counsel was necessary to try the case. The Court is awarding $450 per hour for Mr. Bakers time. The Court is awarding $125 per hour for the paralegal as this is a reasonable hourly rate for Sacramento County.

The Court is subtracting the following hours from Gomez billing as duplicative. 3.9 hours are subtracted for his communications with Trial Counsel, 5.5 hours are subtracted for attending the expert depositions that were conducted by trial counsel Baker. The Court is also subtracting the 5.3 hours Gomez spent to attend the mandatory settlement conference as it was also attended by trial counsel Baker. The Court is subtracting the 1 hour of time taken to personally serve a deposition notice since counsel had indicated he would accept service by email. Thus a total of 15.7 hours are subtracted from the total 107.7 hours billed by Gomez leaving total 92 hours awarded. The Court is not reducing the fees for research and draft of case summary or for counsel’s review of the billing records.

The Court is not reducing Terry Baker’s hours.

The Court is further reducing fees for the work of Kayla Geottman, as much of her tasks could be performed by a legal assistant rather than a paralegal. The fees requested for the paralegal are reduced from 26.8 hours to 7.5 hours at a reasonable rate of $125 per hour. Although moving party contends Geottman is a paralegal, she is identified on the website as the lead legal secretary and the vast majority of functions performed were clerical functions performed by a legal secretary.

In determining the reasonableness of a fee award, the Court is required to calculate the lodestar amount, i.e., the reasonable number of hours expended in this matter

multiplied by the reasonable hourly rate. (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094.) The reasonable market value of the attorney’s services is the measure of the reasonable hourly rate. (Id.) The lodestar figure may then be adjusted based on consideration of factors specific to the case. (Id.) Among the factors the court has considered in determining what multiplier to apply are the novelty and

difficulty of the issues involved, the skill displayed by plaintiff’s counsel in overcoming the opposition of the defendant, the excellent results achieved by plaintiff, and the

importance of the rights that were vindicated by the results. (Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350.) Here, the Court is not persuaded, based on the relative simplicity of the law in a Lemon Law action, that a multiplier of the lodestar is warranted. The Court is not awarding a multiplier. In general, litigation is “difficult”; effort expended in reaching a result is the rule, not the exception. By itself, that a case is “difficult” without more, does not justify a multiplier. The legal issues presented here were neither novel nor difficult.

The Court notes that in the other Lemon Law matter in this department in which the Court awarded higher fees, (Brown v FCA US Case 2016-202429) defendant had not challenged the reasonableness of the rates charged. The Court is not bound by its prior rulings in any event.

The Court is striking the expert consulting fees ($457) and postage of $22.97. Expert fees not ordered by the court and postage are not recoverable. CCP 1033.5(b)(1). 1033.5(b)(3). The Court is allowing the mediation fees as reasonably necessary for the litigation pursuant to CCP 1033.5(c)

Therefore the total fees awarded are $4,235 for Jacobs, $25,956 for Baker, $20,700 for Gomez, $1,505 for Zazzi, and $937 for Geottman’s paralegal tasks, for a total fee award of $53,333.

The billing records show that approximately 7.5 hours have already been billed and included in the above award for preparation of this motion this motion. The Court will award an additional two hours for the Reply, at $450, bringing the total fees to $53,783.