Yesenia Zavaleta v. Volkswagen Group of America, Inc. et al

The Song-Beverly Act provides, “[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(d)).

Thus, the statute includes a “reasonable attorney’s fees” standard. 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). “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.” (Ibid.).

B. CALCULATION FOR FEES In determining a reasonable attorney fee, the trial court considers the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 36). The lodestar may then be adjusted based on factors specific to the case in order to fix the fee at the fair market value of the legal services provided. (Ibid.) The lodestar amount “may be adjusted by the court based on factors including (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, [and] (4) the contingent nature of the fee award.” (Bernardiv.

County of Monterey (2008) 167 Cal.App.4th 1379, 1399, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132). The purpose of any lodestar and the increase thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Id.). “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72).

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount.

It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up]). “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.

In making its calculation, 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.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437, citations omitted).

“‘In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564). The court will exercise its discretion in determining if the Plaintiff’s attorney’s fees request is reasonable by considering the following factors: the nature of litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623).

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III. ANALYSIS

A. ATTORNEY’S FEES Plaintiff seeks fees in the amount of $31,112.00 for 77.4 hours for nine attorneys, who worked on the matter. Plaintiff submits its billing records for nine Quill & Arrow LLP attorneys: Kevin Jacobston, Gregory Sogoyan, Kayla Corrick, Joshua Kohanoff, Angilbert Loho, Donald Mahnke, Sarah Pfeffer, Ellen Zakharian, and Derek Chipman who worked on the matter with hourly rates ranging from $350.00 - $550.00. (Exhibit 16 attached to Declaration of Jacobson, ⁋⁋ 2-37 and 97).

Plaintiff avers that Volkswagen denied all liability and asserted twenty-six affirmative defenses, which required extensive efforts to reach a settlement. (Declaration of Jacobson ⁋⁋ 60-61). Plaintiff sets forth the initial set of written discovery propounded, meet-and-confer efforts, notice of depositions, defended the deposition of the plaintiff, prepared objections to a vehicle inspection, motion to compel further responses and ex parte applications, preparation of a joint statement of the case, and exhibit list. (Id., at ⁋⁋ 62-90).

Plaintiff counsel emphasizes that its work resulted in a higher settlement value of the case, and notes that on September 7, 2023, defense conveyed a 998 offer to compromise for $45,000.00, but by June 27, 2025 after litigation, the defense doubled its offer and conveyed a 998 offer to compromise in the amount of $90,000.00, which the plaintiff ultimately accepted. (Id., at ⁋⁋ 95-96). Plaintiff asserts that substantial work was required to prosecute a claim on behalf of an individual consumer against a large corporation. (Id., at ⁋ 94).

Plaintiff avers that the Quill & Arrow LLP undertook the case on a contingency basis, which presented a significant amount of on the grounds that if there was not a successful resolution of the case, plaintiff’s counsel would have lost all costs and fees incurred on the matter. (Id., ⁋ 100).

Defendant Volkswagen opposes the motion on three main grounds: (1) timeliness; (2) unreasonable fees based on a standard lemon law case; and (3) excessive, inflated, boilerplate, duplicate, unnecessary, and unreasonable billing. First, Volkswagen asserts that the plaintiff’ motion is untimely and cites to the Offer to Compromise agreement, which requires that plaintiff needs to file amotion for fees withing 60 days after payment, which was wired on August 1, 2025. (Declaration of Sivasangary ⁋⁋ 5-8; Exh. A-B). Defense avers the motion needed to be filed by September 30, 2025. (Id., ⁋ 8). Defendant asserts that under the agreement, that if no fees motion was timely filed, defense would pay $5,000.00 for fees and cost, and that on December 12, 2025 Volkswagen paid the plaintiff $5,000.00 in fees and costs. (Id., ⁋ 9; Exh. C).

Second, defense also challenges the fees requested by the plaintiff as excessive and emphasizes that from inception to resolution, no excessive discovery was conducted (e.g. no vehicle inspection), no mediation, no expert discovery, and no trial preparation. (Id., ⁋ 10). Defense avers that the case is not novel or difficult and did not require specialized skill or expertise. (Id.). Defendant asserts that the plaintiff submitted template and boilerplate pleadings, including the Complaint, civil cover sheet, and summons in this case and argues the same standard form was filed in similar lemon law cases. (Id., ⁋ 12; Exh. D).

Finally, defense challenges the plaintiff’s billing records as excessive, inflated, duplicate, unnecessary, and unreasonable and cites to multiple attorney’s working on the same motions, including the motion for fees. (Id., ⁋ 13- 15; Exh. F). Volkswagen also opposes the request for $4,000.00 in anticipated billing to review the opposition, file a reply, and attend a hearing. Defense also argues that the number of hours billed are excessive and that the five different attorney’s with rates ranging from $350.00 to $550.00 per hour are inflated and unnecessary given that this was a standard lemon law case with nothing unique about the motions filed by the plaintiffs. (Id., ⁋ 16-17; Exh. G).

Upon review, the Court finds that attorney’s fees are warranted in this matter, but finds that the 77.4 hours of nine attorneys’ fees time unwarranted in a straightforward Song-Beverly claim. The Court will not reduce the hourly rates requested for the attorneys, but reduces the number of total hours submitted on the grounds that the number of hours are inflated, excessive, duplicative, clerical, unnecessary, and thus unreasonable. From the time period of October 14-2022 to November 20, 2025 as submitted in Exhibit 16 to the Declaration of Jacobson, the court reduces a total of 26.5 hours (Exhibit 16, p. 1-5 reduction of 3.8 hours; p. 6-13 reduction of 5.9 hour; p. 14-16 reduction of 5.5 hours; and p. 18-19 11.3 hours). The adjusted hours awarded is 50.9.

Plaintiff counsel also seeks $4,000.00 in attorney’s fees for reviewing defendant’s opposition brief, preparing a reply brief, and attending the hearing. The Court notes that a reply brief and supplemental Declaration of attorney Jacobson was submitted. Plaintiff seeks 10.9 hours for two attorneys Joshua Kohnoff and Derek Chipman’s work on preparing the memorandum of costs, preparing the fees motion, and preparing a proposed order. The Court notes that no proposed order was submitted and the amount of hours submitted are inflated, duplicative, and unreasonable. Any time for appearance for the hearing is prospective. The Court will award two hours for the reply brief at attorney Kohnoff’s hourly rate of $425.00 for a total of $850.00.

B. MULTIPLIER Plaintiff seeks a 1.25 multiplier enhancement, which amount to $7,778.00. (Declaration of Jacobson, ⁋ 99).

The plaintiff has not met its burden of showing that a multiplier is merited under Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. In applying a multiplier for contingent risk, “the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment. . . ” (Id.).

There is no evidence that this case involved anything novel, difficult, or required exceptional skill. The case appears to be a standard lemon law action.

IV. CONCLUSION Based on the foregoing, the Plaintiff’s motion for attorney’s fees is GRANTED, the Court awards fees in the total amount of $ 21,327.50 with a total hours of 50.9 hours awarded (compromised of a $ 20,477.50 base lodestar based on a reduction of 26.5 hours and $850.00 in preparing and filing a reply brief).

The plaintiff’s request for a 1.25 multiplier enhancer is DENIED.

The Court ORDERS that upon proof that the defendant paid $5,000.00 in fees and cost, that amount is to be offset in light of these motions for fees and costs to preclude double recovery for fees and motions.

The Court will prepare the formal Order.

LINE # 7: MOTION TO STRIKE COST

I. BACKGROUND

A. BRIEF FACTUAL BACKGROUND This case stems from a Complaint under the Song-Beverely Act that was filed on December 12, 2022 regarding Plaintiff Yesenia Zavaleta’s (“Zavaleta’) 2018 Audi A5 vehicle, vehicle identification number WAUTNAF56JA000598 (Compliant and Declaration of Kevin Jacobson, ⁋ 38). The case was transferred from the Superior Court of the State of California, County of San Francisco. The parties filed a notice of settlement on July 9, 2025, as on July 3, 2025, Plaintiff Zavaleta accepted the defense offer to compromise under Code of Civil Procedure section 998. (Exhibit A of Declaration of Sivasangary).

B. RELEVANT PROCEDURAL BACKGROUND Before the court is the Defendant Volkswagen Group of America, Inc. (“Volkswagen”) s motion to strike the plaintiff’s memorandum of costs that was filed on December 19, 2025. The motion was accompanied by a proof of service indicating electronic mail service to Plaintiff’s counsel on that same day.

Plaintiff Zavaleta filed an opposition on July 30, 2026.

The Court has carefully reviewed the following: Defendant’s notice of motion to strike and memorandum of points and authorities (totaling 9 pages), Declaration of Oviya Sivasangaray and attached Exhibits A-C (totaling 44 pages); Plaintiff’s Opposition (totaling 19 pages); memorandum of costs filed on November 7, 2025 (totaling 29 pages); proofs of services; and the pleadings.

II. LEGAL STANDARD California Rules of Court, rule 3.1700(a)(1) provides, “A prevailing party who claims costs must serve and file 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.” The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (California Rule of Court, rule 3.1700(a); see also Hydratec, Inc. v.

Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927–928). The Song-Beverly Act allows a prevailing party to recover all expenses, including those not traditionally allowed. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112).

Under Code of Civil Procedure section 1032, the prevailing party is entitled to recover costs. Section 1033.5, subdivision (a) sets forth a list of allowable costs. Section 1033.5, subdivision (b) lists costs that are not allowable. If the items on a memorandum of costs appear proper on their face, the prevailing party has produced prima facie evidence the costs were reasonable and necessary (Seaver v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557; Doe v. Department of Children & Family Services (2019) 37 Cal.app.5th 675, 693), and the burden is on the party seeking to tax costs to show otherwise. (Sanford v.

Rasnick (2016) 246 Cal.App.4th 1121, 1128; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855 [if the claimed costs are expressly allowable, “ ‘the burden is on the objecting party to show them to be unnecessary or unreasonable’ ”]). 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 were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774). On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.).

Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.). However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.). Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.”(Ibid.). In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face, if so, the burden is on the objecting party to show the costs to be unnecessary and unreasonable.

Where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.

III. ANALYSIS Here, Plaintiff counsel filed a memorandum of costs on November 7, 2025 seeking a total of $6,431.12 for filing and motions fees, jury fees, deposition costs, process service fees, electronic filing service fees, and court appearance professionals and courtesy copies. (Memorandum of Costs). The memorandum of costs included exhibits with breakdown for costs along with invoices.

Defendant filed this motion to strike costs and avers that the plaintiff is not entitled to cost based on untimely as the memorandum of costs was filed 38 days after the 60 day deadline set forth under the Offer to Compromise agreement, and the issue being moot based on Volkswagen’s payment of $5,000.00 to resolve costs. (Declaration of Sivasangary, ⁋4 and 7-8). Defendant avers that it already paid for costs and any additional fees and costs needed to be filed by September 30, 2025 and thus Plaintiff’s filing of the memorandum of costs on November 7, 2025 is barred as untimely. (Id.).

In the alternative, the defendant seeks that the $6,431.12 amount of costs sought by the plaintiff should be reduced by $2,034.58. (Motion, p. 3). Defendant asserts that the plaintiff expended unnecessary filing of pleadings and associated fees and unsubstantiated deposition costs that are unrecoverable. (Id.). Specifically, Defendant Volkswagen objects to four costs listed in the memorandum of costs: (1) jury fees in the amount of $150.00 listed as item no. 2 as defense argues that the case never proceeded to trial; (2) deposition costs in the amount of $5,114.63 listed as item no. 4 as unsupported and unjustified.

Defense challenges whether these fees were reasonably necessary to conduct litigation and whether the amount is reasonable. Defendant avers that the plaintiff fails to provide additional information and invoices relating to the stated deposition charges and the requested amount is excessive and unsubstantiated and thus seeks a reduction in the amount of $1,400.00; (3) service of process costs, listed as item no. 5, including for three subpoenas and witness lees letters that were not reasonably necessary to conduct litigation.

Defendant emphasizes that the plaintiff never deposed these witnesses and seeks a reduction in the amount of $229.50; (4) “other” costs listed as item no. 15 in the amount of $255.08 for courtesy copies and remote appearances that the defense argues were incurred as a convenience and does not qualify as a reasonable recoverable cost. (Motion, p. 7-8).

Plaintiff asserts that the defendant’s motion is untimely under Rule of Court, rule 3.1700(b). (Opposition, p. 5). Plaintiff asserts that items memorandum of costs was served on November 7, 2025, and defendant hand until November 26, 2025 to file its motion. The motion was rejected by the clerk’s office on November 25, 2025, stating that a motion to strike was required and defense then filed its motion on December 9, 2025. (Id.). Plaintiff asserts that at the time the defendant filed its motion to strike., defense had not sent the $5,000.00 in fees and cost pursuant to the agreement. (Id., at p. 6).

Plaintiff also argues that the defense fails to meets its burden of showing that the costs sought are unnecessary or unreasonable. (Id., at p. 9). Plaintiff argues that the specific fees that the defense challenges are recoverable as follows: (1) the $150 jury deposit were posted and nonrefundable, but necessary to preserve the plaintiff’s right to jury trial if the case proceeded to trial under Code of Civil Procedure section 631(b); (2) deposition costs for video recording and transcription are authorized costs; (3) the deposition subpoenas on the dealership’s person most knowledgeable was necessary and reasonable, whether or not the deposition ultimately occurred or that such testimony is indispensable; and (4) the other costs for courtesy copies and appearance is required and necessary. (Opposition, at p. 9-11).

Plaintiff also seeks relief under Code of Civil Procedure section 473(b) for late filing based on mistake, inadvertence, surprise or excusable neglect. (Id., at p. 15). “Plaintiffs’ counsel was not aware that all payments had been "made" and when all payments were "made." Plaintiffs, through their counsel, made a mistake as to when the payments under the agreement were made. This mistake was honest and reasonable in light of the circumstances of this case and in light of the fact that Plaintiff did not know the amount of the check VWGoA issued to the lender, when the lender deposited the check, or the status of any overage checks issued by the lender.” (Id., at p. 12).

The Court finds the following: (1) the $150.00 nonrefundable jury deposit fee is reasonably and was necessary if the plaintiff wanted to preserve its right to a jury trial should the case have not reached a settlement agreement. Code of Civil Procedure section 631 ensure the right to trial by jury as declared under the California Constitution, Article I section 16. At least one party on each side demanding a jury trial is required to pay this nonrefundable fee to offset the state’s cost of providing a jury trial in civil matters.

Further, the nonrefundable jury deposit fee is due at the initial case management conference and no later than a year after filing or at least 25 days before the trial. This cost is reasonable and deemed necessary. The fact that the case did not go to jury trial is not relevant as it is a reasonable and necessary cost to preserve the right to a jury trial should the case proceed to a trial under Code of Civil Procedure section 1033.5(a)(1).

(2) the deposition costs for logistics, processing and electronic files for video recording and transcription for the deposition of defendant’s person most knowledgeable Joseph Kanyak dated December 13, 2024 is reasonable and necessary given the type of case under the Song-Beverly Act. Further the second cost for the deposition of plaintiff dated June 6, 2025 is warranted and reasonable. The Court finds this Cost reasonable and recoverable under Code of Civil Procedure section 1033.5(a)(3)(A).

(3) The Court finds subpoena notices as a reasonable for preparation of the case under section (a)(4).

(4) the other costs for courtesy copies and remote appearance are recoverable under section (a)(1), (14),(15), and (16). Based on the foregoing, the Court will award the costs requested.

IV. CONCLUSION Based on the foregoing, the Defendant’s motion to tax cost is DENIED and costs are awarded in the amount of $6,431.12.

The Court ORDERS that upon proof that the defendant paid $5,000.00 in fees and cost, that amount is to be offset in light of these motions for fees and costs to preclude double recovery for fees and motions.

The Court will prepare the formal Order.

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