Richardson vs. FCA US LLC

For example, the Song-Beverly Act states that:

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, subd. (d).)

The legislature understood that “the prospect of having to pay attorney fees even if one wins a lawsuit can serve as a powerful disincentive to the unfortunate purchaser of a malfunctioning automobile.” (Murillo v. Fleetwood Enter., Inc. (1998) 17 Cal.4th 985, 994.)

Thus, by allowing an award of attorney’s fees to the prevailing plaintiff in a Song-Beverly Act case, “our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Ibid.)

On a motion for attorney’s fees, the moving party has the burden of establishing entitlement to an award. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.)

Prevailing Party

The Song-Beverly Act does not define the term “prevailing buyer”.

As explained by the Court of Appeal in Duff v.

Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, “the courts have split regarding how to define this term when it comes to the award of attorney fees.” (Id. at p. 501.) Plaintiff’s provides evidence that the parties entered into a settlement agreement on June 13, 2025 that provided “for full restitution, just over a one-time civil penalty, and an agreement that Defendant would pay Plaintiff’s attorney’s fees and costs with Plaintiff deemed the prevailing party should a motion become necessary.” (Decl. of Vaness J. Oliva in Supp. of Pltf.’s Mot. for Att’y Fees, Costs, and Expenses (Oliva Decl.), ¶ 50.)

Defendant agrees that Plaintiff is entitled to attorney’s fees. (See Opp’n of Def. to Pltf.’s Mot. for Att’ys’ Fees, Costs, and Expenses (Opp’n) at p. 2:10-11 [“Defendant does not contend that Plaintiff is not entitled to their legal fees . . . .”].)

Thus, there is not dispute that Plaintiff is the “prevailing buyer” who is entitled to attorney’s fees.

Lodestar Calculation of Attorney’s Fees

The calculation of attorney’s fees under the Song- Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate. (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817- 819.)

When using this method, the court begins by determining the reasonable hours the prevailing party’s attorney spent on the case and multiplying that number by the reasonable hourly rate. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131- 1134; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)

However, the prevailing party should not receive a “windfall” through an award of reasonable attorney’s fees. (Ketchum vs. Moses, supra, 24 Cal.4th at p. 1132.)

Thus, a prevailing buyer under the Song-Beverly Act 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.” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.)

“To that end, the court may require [a] defendant[] to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.’ The court also may properly reduce compensation on account of any failure to maintain appropriate time records.” (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1020, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 437, fn.12.)

However, once an attorney has presented evidence of her or his actual time spent and hourly rate charged, the time and hourly rate are presumed to be reasonable. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761; see Horsford v Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous."]; Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel are "sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements”].)

“As the trial court ‘is in the best position to value the services rendered by the attorneys in his or her courtroom,’ we leave it in the trial court's discretion to determine the amount of reasonable attorney fees and costs to award . . . under the lodestar method.” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 622, quoting 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437; see also Ketchum v. Moses, supra, 24 Cal.4th at p. 1132 [“The trial judge is ‘the best judge of the value of professional services rendered in his court.’”].)

Reasonable Hourly Rate

The reasonable hourly rate is based on the reasonable market value of the attorney’s services. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095 or PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1094-1095.)

This standard applies regardless of how much the attorney actually charged the client. (See ibid.) Thus, the same reasonable hourly rate will apply whether the attorney charged nothing for their

services, charged below-market or discounted rates, represented the client on a contingent fee basis, or are in-house counsel paid a fixed salary.

To determine the reasonable market value of the legal services provided, the court must look to the range of reasonable rates charged by and judicially awarded to comparable attorneys for comparable work. (See Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 783; see also PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095 [“[The] reasonable hourly rate is that prevailing in the community for similar work.”].)

The party requesting fees has the initial burden of producing evidence sufficient to support the reasonableness of the billing rates requested. (See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.)

If the moving party meets its burden, the burden shifts to the opposing party to produce admissible evidence sufficient to show that the rates requested are not reasonable. (See Graciano v. Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 155 [finding court erred in reducing rates where evidence of reasonableness of rate requested was undisputed].)

“In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, citations omitted; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The value of legal services performed in a case is a matter of which the trial court has its own expertise. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) “It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)

Here, Plaintiff requests the following hourly rates for her counsel: attorney Vanessa J. Oliva at $470- $530 per hour; attorney Jessica Anvar at $530- $575 per hour; attorney Carey Wood at $450-$520 per hour; and paralegal Robert Aguilar at $200- $215 per hour.

Plaintiff provides support these requested hourly rates. (See Oliva Decl., ¶¶ 65-70.)

Plaintiff also submits evidence that similar rates were approved by this court for Oliva, Anvar, Wood, and Aguilar. (See id., ¶¶ 54-59, Exh.s 3-8.)

Plaintiff also seeks hourly rates of $215 per hour for Araceli Alatorre, $200 per hour for Sergio Hernandez, and $200-$215 per hour for Melanie Say.

Plaintiff does not provide any information about these individuals nor does he submit any evidence to support their qualifications to earn these hourly rates.

Thus, the court cannot approve the hourly rates for Alatorre, Hernandez, and Say.

With respect to Oliva, Anvar, Wood, and Aguilar, Defendant contends that their hourly rates are excessive and requests the court to apply the rates articulated in the 2023 Real Rate Report. (See Arias v. Ford Motor Company (C.D. Cal. 2020) 2020 WL 1940843, *3-*4 [court compared requested hourly rates with 2018 Real Rate Report].)

Defendant asserts that, pursuant to the 2023 Real Rate Report, Plaintiff’s senior attorneys should be capped at $495 per hour, associates should be capped at $295 per hour and paralegals should be capped at $100 per hour. (See Decl. of Hector E. Zurita-Cruz in Supp. of Opp’n of Def. to Pltf.’s Mot. for Att’ys’ Fees, Costs, and Expenses (Zurita-Cruz Decl.), ¶ 3, Exh. A.)

Plaintiff responds that the portion of the 2023 Real Rate Report offered by Defendant is not specific to the Southern California area.

In Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, a Song-Beverly Act case litigated in this county, the court noted that a $650 hourly rate was “not an extraordinary, high hourly fee” and, rather,

was a fee “we see somewhat routinely.” (Id. at p. 350.)

Recently, in Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147, the Court of Appeal acknowledged that plaintiff’s “request for attorney fees was based on a lodestar calculation of 173 hours at hourly rates of $415–$500 per hour, the prevailing hourly rate in Orange County.” (Id. at p. 1152.)

Further, in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, a Song-Beverly Act case litigated in San Diego county, the court found that an hourly rate of $575 to be reasonable. (Id. at pp. 473-474.)

Based on the evidence presented and its own knowledge and familiarity with the relevant legal market, the court finds the hourly rates requested by Plaintiff to be reasonable with the exception of the rates for Araceli Alatorre, Sergio Hernandez, and Melanie Say, which should be set to $0 per hour, and the rates for Jessica J. Oliva, which should be capped at $500 per hour.

Hours Reasonably Expended

“An award of attorney fees ‘should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.’” (Frym v. 601 Main Street LLC (2022) 82 Cal.App.5th 613, 619, quoting Ketchum v. Moses, supra, 24 Cal.4th at p. 1131; see also id. at p. 1141 [award of attorney’s fees “may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees.”].)

The prevailing party has the burden to present verified time records showing the hours spent on the case.” (Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359, 396.)

However, once they are properly admitted, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Ibid.)

In addition, the declarations of counsel are “sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the

need to produce copies of counsel's detailed billing statements." (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367.)

Nonetheless “[a] trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271-272.)

Therefore, prevailing parties should be compensated only for hours reasonably spent on fee-related issues. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

As the Court of Appeal has explained:

Although [] billing statements in support of a fee request form the “’starting point’” for determining the “‘hours reasonably expended’” in a lodestar calculation, the trial court is not bound to accept these hours and may reduce them if it concludes the attorneys performed work unrelated to the [matter], or represented work that was unnecessary or duplicative or excessive in light of the issues fairly presented.

(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th at p. 441, quoting Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at pp. 1324, 1326; see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580 [court need not include inefficient or duplicative efforts when awarding attorney’s fees].)

In addition:

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. “If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . ."

(Ibid., quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1069.)

For example, the court may reduce the number of hours based on considerations of “whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)

In challenges to the reasonableness of the number of hours billed, “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 Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Ibid.; see 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.’”].)

In this case, Plaintiff presented “computerized billing records of attorney hours spent litigating this case” showing that Plaintiff’s Counsel or their staff spent 89.20 hours on this case, representing attorney’s fees of $37,418. (See Oliva Decl., ¶¶ 61, 63, Exh. 10.)

Plaintiff also estimates that his counsel will expend an additional $4,500 to review the opposition to the motion, to draft a reply to the opposition, and to attend the hearing in this matter. (See id., ¶ 62.)

As an initial matter, the court will not include the 1.4 hours billed by Alatorre, Hernandez, and Say because Plaintiff has not supported their hourly rates, which must then be set to $0 per hour.

In addition, Defendant raises three categories of objections to the number of hours requested by Plaintiff.

First, Defendant requests the court remove $3,838.50 in attorney’s fees that was “billed and associated with plaintiff’s motion to compel further responses to requests for production of documents, and subsequent motion to compel compliance.” (Opp’n at p. 6:8-10; see also Opp’n, Exh. A at pp.

19, 44, 46 [yellow highlighted entries].)

Defendant initially suggests that this billing was excessive, asserting that “[t]he legal arguments and templates of these motions were undoubtedly copied from previous sample motions – and identical to motions which counsel has likely filed in similar Song-Beverly actions.” (Opp’n at p. 6:14- 16.)

However, Defendant provides no evidence to support this assertion, such as a declaration or exhibits to demonstrate that Plaintiff’s Counsel overbilled for this work.

Defendant also argues that Plaintiff waived his right to recover these attorney’s fees, which were associated with discovery motions, because Plaintiff failed to seek sanctions pursuant to Civil Procedure Code section 2023.040 when the motions were first brought. (See Opp’n at pp. 6:21-7:11.)

Civil Procedure Code section 2023.040 states:

A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.

(Code Civ. Proc., § 2023.040.)

However, Defendant does not point to any part of Section 2023.040 or any statute or case law that indicates that failure to abide by the above requirement waives a party’s right to seek attorney’s fees for the remainder of the action.

Defendant also fails to cite to any authority for the proposition that the failure seek sanctions pursuant to Section 2023.040, which is part of the Civil Discovery Act, bars a prevailing buyer from later requesting compensatory attorney’s fees pursuant to Civil Code section 1794, which is part of the Song-Beverly Act.

The court will deny Defendant’s request to reduce the award of attorney’s fees by 7.5 hours ($3,838.50).

Second, Defendant challenges $2,711.00 in attorney’s fees that Defendant claims are related to clerical tasks. (See Opp’n at p. 7:13-8:4, Exh. A at pp. 3-4, 6-8, 10, 13, 16-18, 22, 25-26, 28-33, 35, 37-49, 51, 53, 55-58, 62, 64-66, 69-72 [purpled highlighted entries].)

“Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” (Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288, fn.10.)

Courts have described tasks such as preparing binders for a hearing, printing briefs for reference during hearings, tagging cites to the administrative record, calendaring and scheduling, and scanning documents, as clerical. (See Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1187.)

The court will remove time spent reviewing documents to “ensure filing acceptance,” “sav[ing] documents,” and updating the calendar, as these tasks are clerical and are not recoverable.

However, the court will not strike entries wherein the attorney or staff member drafted documents, reviewed invoices in preparation of the Memorandum of Costs, or calculated statutory deadlines, as this work is legal and is recoverable.

The court also will not remove 0.5 hours that attorney Oliva billed to communicate discrete tasks to a paralegal.

Third, Defendant objects to the billing incurred in connection with drafting this motion, asserting that the motion is “a routine fee motion” and that there are not unique circumstances that would cause Plaintiff’s Counsel to request $8,233 to prepare the motion and reply, and to attend the hearing on the motion. (Opp’n at p. 8:8-15.)

Plaintiff’s Counsel indicates that they spent 4.9 hours drafting this motion, (see Oliva Decl., Exh. 10 at pp. 1-2), and 2.9 hours reviewing the opposition and drafting the reply, (see Supp. Decl. of Vanessa J. Oliva in Supp. of Pltf.’s Mot. for Att’y Fees, Cost and Expenses (Oliva Supp. Decl.), ¶5).

Plaintiff Counsel also states that they anticipate spending an additional 2 hours preparing for and

attending the hearing on this motion. (See id., ¶6.)

The court finds this amount to be excessive in light of the routine nature of this motion and limited scope of the opposition, and will reduce the time by 2 hours.

Therefore, the court calculates the lodestar as follows:

• 2.5 hours billed by attorney Oliva at $470 per hour = $1,175 • 20.8 hours billed by attorney Oliva at $490 per hour = $10,192 • 41.0 hours billed by attorney at $500 per hour = $20,500 • 0.7 hours billed by attorney Anvar at $530 per hour = $371 • 0.4 hours billed by attorney Anvar at $575 per hour = $230 • 0.1 hours billed by attorney Wood at $500 per hour = $50 • 1.8 hours billed by paralegal Aguilar at $200 per hour = $360 • 11.4 hours billed by paralegal Aguilar at $210 per hour = $2,394 • 6.3 hours billed by paralegal Aguilar at $215 per hour = $1,354.50

Total $36,626.50

Multiplier

The court also has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure. (Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, supra, 144 Cal.App.4th at p. 154.)

As the Court of Appeal has explained:

The lodestar . . . may be adjusted by the court based on factors including, as relevant herein, (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. at p. 154, quoting Ketchum v. Moses, supra, 24 Cal. 4th at p. 1132.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.” (Ketchum v. Moses, supra, 24 Cal. 4th at p. 1132.)

Nonetheless, the court is not required to impose a multiplier; the decision is discretionary. (See Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th 1063, 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

In addition, “[a]lthough discussions in the case law of the use of multipliers to adjust a lodestar figure relate primarily to the use of multipliers to increase fees, our Supreme Court has repeatedly observed that a lodestar figure may be adjusted not just upward but also, where appropriate, downward.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 840, italics original.)

Defendant requests that a negative multiplier be applied to the lodestar in this case because this action was not novel or difficult, and there were “numerous entries where Plaintiff counsel’s work is excessive, unreasonable, and not necessary to prosecute this case.” (Opp’n at p. 10:10-15.)

However, “for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar.” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1138–1139.)

The court has already considered the difficulty or simplicity of the issues presented in this case when determining the reasonable number of hours and the reasonable hourly rate.

Further, to the extent that Defendant pointed to billing that was excessive, the court has already removed those time entries from lodestar calculation.

The court will exercise its discretion and decline to apply a negative multiplier in this case.

Costs

Generally, the prevailing party is entitled, as a matter of right, to recover costs in any action or proceeding. (See Code Civ. Proc., § 1032, subd. (b); Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)

In addition, the Song-Beverly Act specifically states that “[i]f 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, subd. (d).)

Civil Procedure Code section 1033.5 enumerates the specific costs that are recoverable by the prevailing party in a civil action. (See Code Civ. Proc, §§ 1032, subd. (b), 1033.5.)

Section 1033.5 also provides that the court may award costs not expressly described in the statute for expenses that are “reasonably necessary to the conduct of the litigation” and are “reasonable in amount.” (Code Civ. Proc, § 1033.5, subd. (c)(2)- (4).)

While the trial court has discretion to decide whether a cost item was reasonably necessary, the trial court does not have discretion to award a cost item that is not statutorily authorized. (See Ladas v. California State Auto. Ass’n (1993) 19 Cal.App.4th 761, 774.)

To recover costs, the prevailing party must file and serve a memorandum of costs “within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a).)

The nonprevailing party then has 15 days after service of the memorandum of costs to file a motion to strike a cost altogether, or to tax the cost and reduce it. (Cal. Rules of Court, rule 3.1700, subd. (b).)

If the items on a memorandum of costs appear to be proper on their face, the verified memorandum of costs is prima facie evidence of their validity and the burden is on the party seeking to strike or tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Ass’n, supra, 19 Cal.App.4th at p. 774.; see also Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131 [“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they are not reasonable or necessary.”].)

Here, Plaintiff filed and served his Memorandum of Costs on August 12, 2025. (See ROA #106.) Thus, a motion to strike or tax costs was due no later than August 29, 2025. (fn.1)

(fn.1) Here, Plaintiff’s motion for costs appears to be premature as it was filed before entry of judgment or dismissal of the action. However, “a request for fees incurred before the rendition of the judgment in the trial court may be timely even if it is filed prematurely prior to the entry of judgment.” (Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1086.) “Such a premature [motion] is to be liberally construed in favor of its sufficiency and treated as filed in accordance with [the rule], particularly where the opposing party is neither misled nor prejudiced by the premature filing.” (Ibid.)

However, no motion to strike or tax costs has been filed and Defendant has not opposed the award of costs requested by Plaintiff.

In fact, Defendant in its opposition appears to be assuming that the court will award $6,037.53, the full amount of costs requested by Plaintiff. (See Opp’n at p. 10:23-11:4 [“Defendant respectfully requests that the Court award no more than $21,775.83 to Plaintiff’s counsel in attorneys’ fees. Adding the claimed out-of-pocket costs and expenses of $6,037.53, this Court should award no more than $27,813.36 for attorneys’ fees, costs, and expenses (inclusive of fees charged in connection with the Motion) prior to implementing a negative multiplier.”], italics omitted, bold omitted.)

The memorandum of costs constitutes prima facie evidence of the validity of the costs and Defendant

has not presented any argument or evidence opposing an award of costs.

Therefore, the court will award Plaintiff his requested costs.

Plaintiff shall give notice of this ruling.