Zilola Khashimova v. General Motors LLC

If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as a 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.”

Plaintiff is the prevailing party in this matter. (See Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1263)

DISCUSSION

Plaintiff succeeded on the merits and the case settled at mediation. Defendant GM raises four arguments in opposition to the prevailing party fee motion. First, GM questions the requested reasonable rate of $600.00/$550.00 per hour for attorney time. Second, GM argues that the hours billed are excessive. Third, GM argues that a multiplier of the fee is unwarranted. Finally, GM argues this case does not warrant a multiplier to account for the risk taken by Plaintiff’s counsel, arguing that this was a “typical” lemon law case that required no skill or expertise.

Attorneys’ Fees

The court will scrutinize the reasonableness of the fee petition under the “lodestar” method by determining the lodestar, which consists of the number of hours reasonably spent by the reasonable hourly rates for that work on a non-contingency basis. The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo v. Las Virgenes Water District, (2000) 79 Cal.App.4th 440, 445-446.)

Reasonable Rate.

Plaintiff’s counsel Timothy Whelan, Esq., has been practicing law for 18 years. He states in his declaration that he has worked on over a thousand consumer rights claims against various manufacturers and dealers: taking depositions, attending motion hearings and arguing motions, attending mediation sessions, attending settlement conferences attending arbitration hearings, drafting moving papers and pleadings, and otherwise participating in the day-to-day litigation of over 220 cases at a time. Aliaksandra Valitskaya filed a declaration in support of the fee application. S/he has been practicing law for over 11 years, with a career primarily dedicated to consumer litigation such as the matter before the bar. S/he seeks recovery of compensable billing time at $550 per hour.

The lodestar method requires the trial court to determine a lodestar figure based on careful examination of reasonable hourly compensation of each attorney and consideration of the time spent to perform each task. (Vo, 79 Cal.App.4th 445-446.). “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095, citing Serrano v. Priest (Serrano III) (1977) 20. Cal.3d 25, 49.)

GM objects to the requested hourly rate as being excessive, arguing that a compensable fee for Marin County is $400 per hour for an attorney with 18 and 11 years of experience, for each lawyer.

Counsel bears the burden of proof to establish “reasonable rates in the local community as a basis for [the fee] award.” (Nemecek & Cole v. Horn (2012) 208 Cal. App. 4th 641, 652; see also Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 155 [explaining the reasonable hourly rate is that prevailing in the community for similar work].) “The relevant ‘community’ is that where the court is located.” (Altavion, Inc. v. Konica Minolta Sys. Lab., Inc. (2014) 226 Cal.App.4th 26, 71.) “[U]se of reasonable rates in the local community, as an integral part of the initial lodestar equation, is one of the means of providing some objectivity to the process of determining reasonable attorney fees.” (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.).

The court has reviewed the declarations submitted by counsel. The court finds the hourly rates requested by both lawyers to be eminently reasonable, and well in-line with the reasonable compensable rates charged by Marin County attorneys with similar experience.

Hours Worked.

A party who seeks attorney’s fees has the initial burden of “documenting the appropriate hours expended.” (ComputerXpress Inc. v. Jackson, (2001) Cal.App.4th 993, 1020.) Once a documented hour total has been submitted, the opposing party may make objections to the hours claimed. General objections that work is “excessive” or “unreasonable” are insufficient. The objections should be specific. (Premier Med. Mgmt. v California Ins. Guarantee Ass’n, (2008) 163 Cal.App. 4th 550, 563.)

The basis for calculating the lodestar “must be the actual hours counsel devoted to the case, less those resulting from ineffective or duplicative use of time.” (Horsford v. Board of Trustees of Cal. State, (2005) 132 Cal.App. 4th 359, 395.) The court also recognizes these billing records of counsel constitute “verified time statements of the attorneys, as officers of the court, and are entitled to credence in the absence of a clear indication that the records are erroneous.” Id. at 394.

GM argues that the time billed is excessive and that based on a review of the billing, the Court would be reduce the fees because the hours billed are “unsupported and unreasonable”. For example, GM argues that Plaintiff’s counsel should not charge for client intake and initial review. GM also argues that the 1 hour charged by the Plaintiff to draft a complaint that resulted in a six figure settlement was excessive. GM argues that counsel should have committed 10 minutes, not:30, for review of GM’s answer. GM also alleges that too much time was spent by Plaintiff while drafting and responding to discovery, asking for a reduction of almost 5 hours of compensable time. GM argues, and is correct to highlight, the Plaintiff’s compensable time devoted to clerical tasks and asks for a reduction of time of 1.9 hours.

Defense counsel does not disclose the number of defense hours committed to drafting and replying to the complaint, crafting a careful answer, and creating relevant discovery, which makes it difficult for the court to gauge the correctness of whether the time spent by the Plaintiff was reasonable. The plaintiff’s billable time and time records are viewed as verified and accurate record of time billing by the lawyers. (See, Horsford v. Board of Trustees of Cal. State, (2005) 132 Cal.App. 4th 359, 395). Defense counsel argues that this case was a typical car case. If so, the court presumes that plaintiff counsel routinely expects to be paid for the hours they worked if they prevail. Therefore, fee awards are to be expected if the parties do not settle the fee after client settlement negotiations have concluded.

California courts have consistently held that verified time statements from attorneys carry a presumption of accuracy when submitted in support of fee requests. In Horsford, the court articulated the standard that attorney billing records are presumed credible unless there is "a clear indication the records are erroneous." This principle has been repeatedly affirmed. In the City of Colton v. Singletary, the court applied this exact standard, holding that "the verified time statements of (an) attorney (), as (an) officer() of the court, are entitled to credence in the absence of a clear indication the records are erroneous". (City of Colton v. Singletary, (2012) 206 Cal.App.4th 751.) The court further noted that when a party fails to point out specific errors in counsel's declaration, it is proper for the trial court to rely on that declaration.

Plaintiff’s counsel submitted detailed contemporaneously created billing statements that were attached to the declarations of the lawyer. The billing indicates the firm lawyers dedicated 31.2 hours on this matter.

The court has reviewed the billing statements provided by counsel attached as Exhibit 2 to the Valitskaya Decl. and finds the records to be credible, reasonable and contemporaneously created. The court notes that Defendant is not being charged for administrative time. This declaration is submitted under penalty of perjury by an officer of the court. The court has no basis to suspect that the statements contained in the declaration relating to the work associated with prevailing in this case are not accurate.

The total compensable time approved for plaintiff’s counsel is 29.3 hours, including a 1.9 hour cut from time worked by attorney Valiskaya. This reduces the requested lodestar fee from $17,300 to $16,430.

Multiplier.

Plaintiff seeks a multiplier of 20%.

In considering whether to apply a multiplier, the Court should not consider factors which are already included in the lodestar amount, such as extraordinary skill and the difficulty of the question involved. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139.) “Thus, a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.” (Id. at p. 1139.)

The Court recognizes that Plaintiff’s counsel must be compensated for the risk associated with contingency cases. (Ketchum, 24 Cal. 4th 1132-1133.) As noted in Ketchum, there are two methods a Court may employ to compensate for this risk. One method is to use an adorned lodestar rate, as discussed above. The other method is to use an unadorned lodestar rate and then to award a multiplier to compensate for the

contingent nature of the case. The unadorned lodestar rate is the starting point, as it “reflects general local hourly rate[s] for fee-bearing case; it does not include any compensation for contingent risk, extraordinary skill, or other factors.” (Id. at 1132-33.) To justify an enhancement, Counsel needed to show: (1) that the case involved novel or complex questions and required a high level of skill; (2) that taking the case precluded other employment by Counsel; and (3) that the fee was contingent in that success was uncertain and Counsel risked nonpayment. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 4th 785, 819; Ketchum, supra, 24 Cal.4th at 1132, 1139.)

The California Supreme Court has that the “contingent risk” in lemon-law cases is significantly mitigated by the statute’s fee-shifting provision, which guarantees reasonable fees and costs to a prevailing buyer. (Graham v DamlerChrysler Corp., (2004) 34 Cal.4th 553, 579; see also Aispuro, 2020 WL 4582677 at *6 (rejecting any enhancement in Song-Beverly case because the risk to counsel for taking the case on contingency was reduced by the possibility of recovering statutory fees).)

The Court elects to use the method of using an unadorned lodestar rate and applying a multiplier to compensate for the contingency risk in this case. The multiplier may also be used to compensate for other factors such as the novelty of the case, the exceptional skill of the representation, and “the extent which the nature of litigation precluded other employment by attorneys.” Id. at 1132.

The court concludes that this case does not warrant a multiplier. The record does not indicate that this case involved hard fought litigation. Rather, this case involved good lawyers who recognized the value of quickly resolving the case, thereby serving their clients by providing a high level of professionalism.

Hours Spent Drafting the Fee Motion

Plaintiff’s counsel is awarded 9.4 hours for the time committed to preparing and filing this motion, drafting supporting declarations, gathering the time billing and summation of costs, and final argument. GM expresses a concern regarding the appropriateness of the time spent on fees on fees. GM recognizes that this case was a routine car case, which settled quickly. That same recognition might have assisted the parties to resolve the fee issue without the need of motion practice, given that statute specifically provides for an award of prevailing party fees. Counsel for Plaintiff would not have had to put fingers to keypad and generate this motion had GM agreed Plaintiff’s fee request.

Costs

Exhibit 11 attached to Valiskaya Decl. is a request cost recovery of $1,790.42 for deposition and filing fees. Plaintiff’s request for recovery of reasonable costs is GRANTED over GM’s objection.

CONCLUSION

In summary, Plaintiff’s counsel requested payment for a net total hours of 23.9 hours of compensable time totaling $16,430.

The hourly rates requested by Timothy Whelan, Esq., of $600.00 per hour, and by Aliaksandra Valitskaya of $550 per hour, are eminently reasonable and in-line with what the court would expect a Marin County attorney of equal skill and experience to charge.

Additionally, the Court awards costs of 1,790.40 to Plaintiff for the cost of suit.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).