Case Number: BC498026    Hearing Date: October 31, 2014    Dept: 34

Moving Party: Plaintiff Dennis Arzubiaga (“plaintiff”)

Resp. Party: None

Plaintiff’s unopposed motion for attorneys fees is GRANTED in the amount of $36,856.34.

PRELIMINARY COMMENTS:

Plaintiff’s motion for attorneys fees in the amount of $45,410.09 is unopposed. The lack of opposition by defendant indicates to the Court that defendant agrees that plaintiff is entitled to attorneys fees fees under the statute and that the fees requested by plaintiff’s counsel are reasonable and necessary. If defendant did not believe this, the court would have expected that defendant would have opposed this motion.

If this is so, the Court does not understand why defense counsel did not simply stipulate to the payment of these fees.

BACKGROUND:

Plaintiff commenced this action on 9/12/13 against defendants for violations of the Song-Beverly Act and the Magnuson-Moss Act. The action pertains to plaintiff’s allegedly defective 2011 Ford Fiesta.

At the final status conference on 5/27/14, the parties stated that the case had settled. (See Minute Order dated 5/27/14.)

ANALYSIS:

Plaintiff seeks attorney’s fees in the amount of $45,410.09. Attorney’s fees may only be recovered where such recovery is authorized by statute or contract. (See Code Civ. Proc., § 1033.5(a)(10)(A).) Attorney’s fees may be recovered by a prevailing buyer under the Song-Beverly Act and the Magnuson-Moss Act. (See Civ. Code, § 1794(d); 15 U.S.C. § 2310(d)(2).) Plaintiff is the prevailing party pursuant to a settlement wherein defendants agreed to repurchase, a civil penalty, and attorney’s fees and costs. (See Nita Decl., ¶ 8.) As indicated above, this motion is unopposed; in particular, Defendants have not filed an opposition disputing this characterization of the settlement.

“In determining whether the requested attorney’s fees are “reasonable,” the Court’s ‘first step involves the lodestar figure – a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.’” (Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].) In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

The various counsel working for plaintiff billed at rates between $275/hour and $400/hour (with paralegals billing at $150/hour). Plaintiff provides sufficient evidence to support the requested hourly rates of the attorneys who worked on this action. (See Nita Decl., ¶¶ 3-4, 6, 9-11; Snider Decl., ¶¶ 2, 8; Yu Decl., ¶ 2; Carlin Decl., ¶ 2.) Plaintiff provides billing records in support of the requested fees and costs. (See id., Exh. A.) The litigation efforts taken in this action included pre-litigation settlement efforts, at least one discovery motion, trial preparation (including the filing of motions in limine and other pre-trial documents), and settlement efforts. (See Nita Decl., ¶¶ 7-8; Snider Decl., ¶¶ 5-7. See generally record of this action.) These efforts are sufficient to support the pre-multiplier amount of $36,856.34. (See id., Exh. A.)

The Court declines to award a multiplier to the loadstar in this action. “The award of a multiplier is in the end a discretionary matter largely left to the trial court.” (Hogar v. Community Development Com’n of City of Escondido (2007) 157 Cal.App.4th 1358, 1371. See also Rey v. Madera Unif. Sch. Dist. (2012) 203 Cal.App.4th 1223, 1242.) The following factors may be considered in deciding whether to apply a multiplier: “(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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Plaintiff’s counsel argues, inter alia, that it was precluded from taking other employment due to this case. The court does not find this a reason for granting a multiplier. The Court recognizes that the fact that counsel is working on one particular case, in and of itself, prevents counsel from working on another case. But this is no different whether one is taking the case on contingency or is being paid for every hour billed. Though plaintiff attempts to argue that the case involved complex issues, it appears to have been a straightforward Lemon Law case that was settled before trial or the adjudication of any motions on the merits. The Court rejects plaintiff’s assertion that all Song-Beverly claims are inherently complex – especially since plaintiff’s counsel is admittedly experienced in such claims. (See Motion, pp. 10-11; Nita Decl., ¶¶ 2-3.) Presumably, plaintiff’s counsel’s skill in this specialized area of consumer law is already reflected in counsel’s hourly rate. Plaintiff’s counsel fails to show that they were required to exercise extraordinary skill in resolving this action.

The Court finds that the loadstar amount of $36,856.34 sufficiently compensates plaintiff’s attorneys for their work in this action.

The Court also declines to award fees for the additional 3.7 hours in connection with preparing a reply and attending the hearing on this motion. No opposition has been filed and therefore no reply is necessary. The fees already awarded should be sufficient to cover the costs to attend the hearing on this motion – particularly since this motion is unopposed.

Plaintiff’s motion is GRANTED. The Court awards plaintiff $36,856.34 in attorney’s fees and costs.