Case Number: BC521175    Hearing Date: September 12, 2014    Dept: 34

Moving Party: Plaintiff Nestor Reyes (“plaintiff”)

Resp. Party: Defendant Ford Motor Company (“defendant”)

Plaintiff’s motion is GRANTED. The Court awards plaintiff $67,967.50 in attorney’s fees and $4,138.70 in costs.

Plaintiff’s Request for Judicial Notice of Exh. 5 is GRANTED. The Court takes judicial notice of the existence of the order in plaintiff’s exhibit 5 because it is an order of this Court. (See Evid. Code, § 452(d).) Nonetheless, the court finds the exhibit irrelevant to its decision today.

Defendant’s Request for Judicial Notice of exhibits 1-4 is DENIED. These declarations are not proper subjects for judicial notice. (See Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192-1193.)

Defendant’s Request for Judicial Notice of exhibits 5-7 is DENIED. Defendant fails to provide certified copies of these orders. (See Super. Ct. L.A. County, Local Rules, rule 3.8(b).) Even if the court were to consider these exhibits, the court would have found them irrelevant to its decision today.

Defendant’s Request for Judicial Notice of exhibit 8 is unnecessary, since it is already a pleading on file in this action.

Defendant’s objections to the Declaration of Larry Chae:

Objection
1 OVERRULED
2 OVERRULED
3 SUSTAINED
4 SUSTAINED
5 SUSTAINED
6 SUSTAINED
7 SUSTAINED
8 SUSTAINED
9 OVERRULED

Plaintiff’s Objections to Declaration of Mary Lynn Arens, Matthew Proudfoot, Spencer Hugret, Scott Erskine, Richard Stuhlbarg :

Objection
1 OVERRULED
2 SUSTAINED
3 SUSTAINED
4 OVERRULED
5 OVERRULED
6 OVERRULED
7 OVERRULED
8 OVERRULED
9 OVERRULED
10 OVERRULED

PRELIMINARY COMMENTS:

Defendant has utterly failed to comply with California Rules of Court, rule 3.1110(f) by failing to separate with hard tabs any of the 18 exhibits attached to the declaration of Mary L. Arens or the 8 exhibits attached to the request for judicial notice. This violation of rule 3.1110(f) needlessly made consideration of its opposition more difficult. The Court would be interested in hearing from counsel at oral argument why it should not impose sanctions for this violation of the California Rules of Court.

There appears to be no dispute that the parties reached a settlement agreement dated 6/4/14. (See Chae Decl., Exh. 4; Opp., p. 1:10-12.) However, for reasons unknown to the Court, it appears that plaintiff has not complied with CRC Rule 3.1385(a)(1).) “If an entire case is settled or otherwise disposed of, each plaintiff or other party seeking affirmative relief must immediately file written notice of the settlement or other disposition with the court . . . .” (Cal. Rules of Court, rule 3.1385(a)(1).)

The dispute in this motion is over the amount of fees to be awarded, not whether attorneys fees are appropriate. For the reasons indicated below, the Court awards plaintiff his lodestar fees, without a multiplier.

BACKGROUND:

Plaintiff commenced this action on 9/12/13 against defendant for violations of the Song-Beverly Act, breach of express warranty, and breach of the implied warranty of merchantability. The action pertains to plaintiff’s allegedly defective 2012 Ford Focus. The parties appear to have reached a settlement agreement in June 2014.

ANALYSIS:

Plaintiff seeks attorney’s fees in the amount of $89,098.08. 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. (See Civ. Code, § 1794(d).) It is undisputed that plaintiff is the prevailing party pursuant to the settlement in this action. (See Opp., p. 1:10-12; Chae Decl., Exh. 4.)

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) In determining the reasonable value of the attorney services, “the court does not need separate evidence to establish the reasonable value of whatever should be justly awarded, the theory being that the trial judge is competent from his own knowledge of legal practice to fix the amount of the fees. [Citations.]” (Spencer v. Harmon Enterprises (1965) 234 Cal.App.2d 614, 621 [internal citations omitted].)

The attorney bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) While the attorney should submit contemporaneous time and billing records accurately reflecting the work done, these records may not be absolutely essential to fee recovery in state practice. (Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2011) ¶¶ 1:304-1:305, p. 1-53.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino, 182 Cal.App.3d at 559.)

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 Court Finds That Plaintiff’s Counsel’s Hourly Rate Is Reasonable.

Plaintiff provides sufficient evidence to support the requested hourly rates of the attorneys who worked on this action. (See Shahian Decl., ¶¶ 3-14.) The Court finds these rates, ranging between $325/hr. and $445/hr. to be reasonable.

The Court rejects defendant’s argument that the hourly rates should be reduced. Even if the court were to have granted judicial notice of Defendant’s Exhs. 1-4, the conclusory declarations are not sufficient to establish that plaintiff’s counsel’s rates are unreasonable. At most they establish that the reasonable rate for defense counsel is between $125 and $325/hour. And even if the court were to have granted judicial notice of Exh. 5-7, it would not change the court’s analysis; it is not surprising that courts in Tehama County, Pacer County, and the Eastern District of California might find a lower hourly rate than would be reasonable in Los Angeles.

The Court Finds the Requested Lodestar to be Reasonable

Plaintiff provides billing records in support of the requested fees. (See Shahian Decl., Exh. 6.) Plaintiff’s counsel also describes the litigation efforts taken in this action, which included propounding written discovery, conducting the depositions of five witnesses, and participating in settlement efforts. (See Chae Decl., ¶¶ 6-34.) This evidence is sufficient to support the pre-multiplier amount of $64,467.50. (See Shahian Decl., ¶ 16.) The Court rejects defendant’s arguments that the amount should be reduced. Defendant argues that the fees for the first mediation session should be cut because it was not successful. Defendant provides no authority which supports its assertion that a party may only recover fees for fully successful litigation efforts. The Court likewise declines to cut the fees incurred in bringing the motions to compel that were ultimately withdrawn. There is no showing that these motions would have been withdrawn had the parties not settled this action. To the extent that defendant is arguing that the fees should not be recovered for discovery efforts because the action settled, this argument is not well taken; there is no showing that the discovery did not aid plaintiff during settlement negotiations or could not have aided plaintiff had the action proceeded. The Court also declines to reduce the fees incurred for meet and confer efforts.

The Court Declines to Award a Multiplier in this Action

The Court agrees with defendant that a multiplier should not be awarded 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 only evidence in support of a multiplier is plaintiff’s counsel’s declaration that the case was taken on a contingent basis. (See Shahian Decl., ¶ 18.) Though plaintiff’s counsel attempts to argue that the case involved complex issues, it appears to have been a straightforward lemon law case that was settled less than nine months after it was commenced. Plaintiff’s counsel fails to show that they were required to exercise extraordinary skill in resolving this action. The unmodified amount of $64,467.50, plus $3,500.00 for the instant motion, is likely sufficient to compensate plaintiff’s attorneys for their work in this action. (See Shahian Decl., ¶ 16.)

As indicated above (when discussing reasonable hourly rates) the court recognizes that in this field of litigation, plaintiffs’ counsel’s hourly rates are often higher than defense counsel’s rates. Were there not this built-in differential, the court would consider a multiplier to compensate plaintiff for the contingent risk. “A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133.)

Further, it is this court’s experience that Lemon Law cases almost always settle. Thus, the need for a multiplier is less in Lemon Law cases than it would be in, for instance, a FEHA matter.

The Court rejects defendant’s argument that the costs attributable to the January 2014 mediation and the motions to compel should be eliminated. As stated above, defendant fails to establish that a party may only recover costs incurred for fully successful litigation efforts.

Accordingly, plaintiff’s motion is GRANTED. The Court awards plaintiff $67,967.50 in attorney’s fees and $4,138.70 in costs.