Motion for attorney fees, costs, and expenses; Motion for attorney fees, costs, and expenses following appeal
Based on the foregoing, the trial level motion for attorney fees, costs, and expenses is GRANTED, and Plaintiff is awarded a total of $77,924.03 as against Defendant.
Motion No. 2: Appellate Attorney Fees, Costs, and Expenses As noted above, Plaintiff appealed the prior judicial officer’s ruling on motion no.
1. The Court of Appeal reversed that decision and remanded the matter to this court for further proceedings. (Tidrick, supra, 112 Cal.App.5th 1147.)
By this motion, Plaintiff seeks to recover attorney fees, costs, and expenses in connection with that separate appeal. As in trial court litigation, attorney fees on appeal are recoverable if authorized by contract, statute, or law. (Code of Civ. Proc. § 1033.5, subd. (a)(10); Serrano v. Unruh (1982) 32 Cal.3d 621, 637; Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 927.)
As set forth above, the prevailing buyer on a Song-Beverly case is entitled to reasonable attorney fees, costs, and expenses under Civil Code section 1794, subdivision (d). This includes fees and costs incurred in a successful appeal. (Karapetian v. Kia Motors America, Inc. (C.D. Cal. 2013) 970 F.Supp.2d 1032, 1038, aff’d (9th Cir. 2016) 633 Fed. Appx. 476.) Plaintiff is the prevailing party on the appeal and is entitled to attorney fees.
Defendant does not dispute that a plaintiff who is successful on an appeal in a Song-Beverly case generally is entitled to recover their appellate attorney fees, costs, and expenses. Nonetheless, Defendant argues Plaintiff should be denied appellate fees in this case because the appeal was necessitated by an alleged judicial error—i.e., the prior judicial officer’s decision to apply Fresno hourly rates and otherwise make reductions not advanced by Defendant. Defendant contends it should not be required to pay Plaintiff’s appellate fees in these circumstances. Defendant, however, fails to cite any authority supporting this alleged exception to Plaintiff’s statutory right to recover attorney fees.
Accordingly, the court finds Plaintiff is entitled to her appellate attorney fees; the only question is what constitutes a reasonable amount of fees, costs, and expenses in this case. As discussed above, the standard for determining reasonableness of attorney fees starts with the lodestar and the number of hours actually expended, which is then adjusted based on reasonableness considering all the circumstances of the case. (Tidrick, supra, 112 Cal.App.5th at pp. 1157-1158.)
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By this motion, Plaintiff seeks a total award of attorney fees, costs, and expenses in the amount of $189,763.81, which is comprised of (1) $137,106 in attorney fees ($81,169 for Consumer Law Experts, PC and $55,937 for Jeff Dominic Price); (2) a multiplier of 1.35 resulting in an additional $47,987.10 in attorney fees; (3) an additional $2,800 in attorney fees for reviewing the opposition to this motion, preparing a reply, and appearing at the hearing; and (4) $1,870.71 in costs and expenses.
Hourly Rates: As stated above, the court begins its lodestar analysis by determining the reasonable hourly rate for each attorney and professional who worked on the appeal based on their experience, the prevailing rates in the Orange County legal community for work of this nature on a Song-Beverly case, and a variety of other factors identified above, including the trial court’s own experience. Plaintiff seeks approval for the following hourly rates: $917 for attorney and appellate specialist Jeff Dominic Price, $560 for partner Jordan G. Cohen, $525 for partner Nancy Zhang and associate Joseph Liu, and $195 for multiple paralegals.
Based on the information provided by the parties regarding the professionals’ experience and prevailing rates in the community for work of this nature, as well as the court’s own experience, the court finds some of these rates to be a little excessive. Mr. Price has a number of years of experience, including several as a certified appellate specialist, but he does not have any significant experience in Song-Beverly cases. Although some of the sub-issues presented were not specifically Song-Beverly issues, this case nonetheless is a Song-Beverly case. The court finds $700 to be a reasonable and appropriate hourly rate for Mr. Price in this specific case.
As for attorneys Cohen, Zhang, and Liu, they have 12 to 18 years of experience, with less than 10 years of Song- Beverly experience. The fact these fees were incurred in connection with an appeal does not warrant an increase beyond their customary hourly rates and they have little to no appellate experience among them. The court finds the appropriate and reasonable hourly rates for these three attorneys to be $500. As for the paralegal time, the court finds the requested $195 hourly rate to be reasonable and customary in the relevant community for work of the nature performed.
Hours Expended: As presented in the moving papers, Plaintiff seeks compensation for 210.1 hours of work plus an additional $2,800 in fees for reviewing the opposition to this motion, preparing a reply, and appearing at the hearing. For reference, Plaintiff sought compensation for 173 hours of time spent in the trial court as described above in connection with motion no.
1. Specifically, Plaintiff seeks compensation for 130.7 hours performed by attorney Cohen, 61 hours performed by attorney Price, 9.3 hours performed by attorney Liu, 4 hours performed by attorney Zhang, and a total of 5.1 hours performed by paralegals.
The court is familiar with the venue issue that was presented on the appeal. It was an unsettled question of law, but it was not overly complicated or unduly time consuming. There were two positions to be presented, with the Court of Appeal to decide which controlled. Entitlement to fees was not at issue; rather, the appeal focused on the appropriate amount of fees and whether the trial court applied the correct standard and decided all necessary issues.
This court is familiar with appellate practice and what is required to pursue an appeal to completion. The court did some appellate work in private practice, and before taking the bench, also worked for seven years at the Court of Appeal. Based on its familiarity with the issues presented, its review of the file in this case, its review of all briefs on this motion and the billing statements, and its overall experience, the court finds the number of hours performed by attorneys Price and Cohen to be excessive and unreasonable, and therefore worthy of reduction.
The court also finds it is not appropriate to charge Defendants for the work Plaintiff’s attorney did to request and obtain publication of the Court of Appeal’s decision. Although that may have advanced the interests of counsel in their pursuit of other cases, it did not advance Plaintiff’s case. The court finds the appropriate and reasonable number of hours expended in connection with the appeal by attorney Price to be 40 hours and for attorney Cohen to be 85 hours. The court finds the number of hours sought by the other professionals—i.e., attorneys Zhang and Liu and the paralegals—to be reasonable. This includes the time spent in connection with this motion, which the court finds reasonable.
Lodestar Totals and Adjustments: Based on the foregoing the court finds the total lodestar and lodestar for each professional to be as follows: Attorney Price: 40 hrs. x $700/hr. = $28,000 Attorney Cohen 85 hrs. x $500/hr. = $42,500 Attorney Liu 9.3 hrs. x $500/hr. = $4,650 Attorney Zhang 4.0 hrs. x $500/hr. = $2,000 Paralegals 5.1 hrs. x $195/hr. = $994.50 TOTAL $78,144.50 The court therefore fixes the lodestar at $78,144.50.
The court has discretion to increase or decrease the lodestar by looking at factors including, but not limited to, the contingent risk, “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, or other circumstances in the case.” (PCLM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 160-161.)
Plaintiff requests a multiplier enhancement of 1.35, and Defendant seeks a negative multiplier. Given the totality of circumstances, the court exercises its discretion not to apply a multiplier at all – either positive or negative. Plaintiff bore the risk of non-recovery of payment in the appeal and the appeal dealt with a novel issue regarding venue. The issues were not complex, however, and the skill employed was not so extraordinary as to warrant an upward adjustment. Furthermore, the appeal was initially prompted by the trial court’s error and abuse of discretion for which Defendant should not have to bear further expense. The court finds the foregoing hourly rates and number of hours reasonably compensates Plaintiff and her counsel for all time reasonably expended on the appeal.
Costs and Expenses: Plaintiff seeks a total of $1,870.71 in costs and expenses. Under Civil Code section 1794, subdivision (d), as the prevailing party, Plaintiff is entitled to all “costs and expenses” that were reasonably incurred in prosecuting the case, including items beyond the statutory costs enumerated in Code of Civil Procedure section 1033.5. (Jensen v. BMW of North Am. (1995) 35 Cal.App.4th 112, 137-138.) The Court of Appeal also awarded Plaintiff her costs on appeal. Defendant does not dispute the reasonableness of the costs and expenses Plaintiff identified. The court finds all such costs and expenses to be reasonable and therefore awards the entire amount of $1,870.71.
Total Award: When the amount of fees awarded ($78,144.50) is added to the costs and expenses awarded ($1,870.71) the total award is $80,015.21. Based on the foregoing, the trial level motion for attorney fees, costs, and expenses is GRANTED, and Plaintiff is awarded a total of $80,015.21 as against Defendant.
Notice: Plaintiff’s counsel is ordered to give notice of these rulings.