Narek Davtian v. Jaguar Land Rover North America LLC et al

Filing 146

ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES IN PART AND DENYING THE MOTION IN PART 125 by Judge Dean D. Pregerson: The court awards Plaintiff $157,341.10 in fees and $29,373.02 in costs, for a total of $186,714.12. (lc). Modified on 3/3/2017 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NAREK DAVTIAN,

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Plaintiff,

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v.
JAGUAR LAND ROVER NORTH
AMERICA LLC,

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Defendant.
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___________________________

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Case No. CV 14-05417 DDP (Ex)

ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES IN PART AND
DENYING THE MOTION IN PART

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Presently before the court is Plaintiff’s Motion for

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Attorney’s Fees.

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and heard oral argument, the court grants the motion in part,

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denies the motion in part, and adopts the following Order.

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I.

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Having considered the submissions of the parties

Background
Plaintiff’s Complaint, originally filed in state court and

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then removed to this court on the basis of diversity jurisdiction,

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alleged a single “lemon law” cause of action under California’s

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Song-Beverly Consumer Warrant Act (“Song Beverly”).

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§ 1790 et seq.

Cal. Civ. Code

Plaintiff alleged that a vehicle he had leased was

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defective, and that Defendant failed to remedy the problems after

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several repair attempts.

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the assistance of this Court, the parties settled.

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agreement provided that Defendant would pay $17,750, plus

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Plaintiff’s “reasonably incurred attorney’s fees, costs, and

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expenses pursuant to California Civil Code Section 1794(d) in an

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amount to be determined by the Court by motion.”

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Erika N. Kavicky in Support of Motion, Ex. N at 5.)

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moves for attorney’s fees.

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II.

Ultimately, on the eve of trial, and with
The settlement

(Declaration of
Plaintiff now

Legal Standard
In a diversity action, this court applies state law in the

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method of calculating attorneys’ fees.

Mangold v. California

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Public Utilities Commission, 67 F.3d 1470, 1478 (9th Cir. 1995).

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Song Beverly entitles a prevailing plaintiff to recover “ a sum

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equal to the aggregate amount of costs and expenses, including

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attorney’s fees based on actual time expended, determined by the

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court to have been reasonably incurred by the buyer in connection

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with the commencement and prosecution of [the] action.”

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Code § 1794(d).

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all the circumstances of the case the amount of actual time

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expended and the monetary charge being made for the time expended

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are reasonable.”

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4th 99, 104 (1994).

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of the case, the skill demonstrated in prosecuting the case, and

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the results achieved.

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charged are not reasonable, the reviewing court must award fees in

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a lesser amount than that sought.

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burden of demonstrating that the fees sought were allowable,

Cal. Civ.

The reviewing court must determine “whether under

Nightingale v. Hyundai Motor Am., 31 Cal. App.
Relevant circumstances include the complexity

Id.

If the time expended or the money

Id.

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The plaintiff bears the

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reasonably necessary to the conduct of the litigation, and

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reasonable in amount.

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F.Supp.2d 1032, 1036 (C.D. Cal. 2013).

Karapetian v. Kia Motors Am., Inc., 970

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III. Discussion
The “lodestar” method is appropriate to fee motions pursuant

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to Section 1794(d).

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Cal.App.4th 967, 997 (2009).

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figure based upon actual time spent and reasonable hourly

Doppes v. Bentley Motors, Inc., 174
The court must first determine a

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compensation, then augment or reduce that figure by taking various

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factors into account, such as the complexity of the issues

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presented and the results achieved.

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Cal.App.4th at 104.

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by Plaintiff are reasonable in comparison with rates charged in the

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Los Angeles area for similar work.

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Plaintiff contends that counsel expended 740.2 hours on this

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matter, for which they seek $195,125.00 in fees.2

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Id. at 998; Nightingale, 31

The court is satisfied that the rates sought

(Kavicky Decl. ¶¶ 38 ,40.)1

This Court may, in its discretion, reduce a fee award where

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the fees incurred were not reasonable, such as where a case is

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overlitigated.

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that appears to be the case here.

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complicated, and involved a relatively simple vehicle suspension

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problem related to a compressor and a fuse.

Karapetian, 970 F.Supp.2d at 1036.

At first blush,

The issue here was not

Nevertheless, eight

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Although the Kavicky declaration includes information about
rates charged in various communities throughout California, it does
include examples of rates in the Los Angeles area sufficient to
establish the reasonableness of Plaintiff’s counsel’s rates.
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Although counsel claim they expended 740.2 hours, they do
not seek payment for 28.8 of those “no charged” hours. (Kavicky
Decl. ¶ 6, Ex. A at 34.)
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different Plaintiff’s lawyers from the Bickel Firm worked on this

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case in some capacity.3

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fully occupy one attorney for over four months.

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Collectively, they billed enough hours to

Furthermore, although Plaintiff’s counsel have provided

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billing records in connection with the instant motion, the

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credibility of counsel’s representations regarding the necessity of

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the items billed and the time required to complete those tasks is

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weakened by the nature of counsel’s fee arrangement with Plaintiff.

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Counsel’s standard retainer agreement requires clients such as

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Plaintiff to pay a flat fee of $2,000, even though counsel will

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also recover for their actual expenses from defendants.

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(Declaration of Richard Stuhlbarg, Ex. 17 at 1.)

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the discretion however, regardless of the client’s wishes, “to

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refuse to submit to fee motion to the Court for determination.”

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(Id. at 2.)

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settlement which includes a provision for submission of fees and

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costs to the court, “Law Firm shall have a lien on Client’s

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recovery for the full amount of fees, costs, and expenses billed or

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advanced by Law Firm, regardless of the amount awarded by the

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Court.”

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does not cover counsel’s costs, the client “will remain obligated

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to pay Law Firm for all unrecovered costs and expenses.”

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2.)

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contingent work, that does not appear to be the case.

Counsel retain

If a client, absent counsel’s approval, accepts a

(Id. at 3.)

If a client accepts a settlement offer that

(Id. at

Thus, despite counsel’s representations that they perform
Counsel’s

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Although eight different attorneys worked on this case for
Plaintiff, Plaintiff’s counsel’s firm “no charged” all of the time
billed by two of those attorneys. Plaintiff seeks fees for 711.4
hours billed by six attorneys. Nearly 75 percent of those hours
were billed by attorney Isaac Agyeman. (Kavicky Decl., Ex. C.)
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firm’s retainer agreement is structured in a way that guarantees

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that counsel will be paid, either by a defendant or by the client,

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for all costs and fees.

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disincentives to litigate efficiently, let alone settle a case in

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its early stages.

Such an arrangement creates obvious

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The court’s review of Plaintiff’s billing records is further

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complicated by counsel’s block-billed entries, particularly those

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of attorney Isaac Agyeman.

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No. 11-CV-01786 MJS, 2014 WL 2801243 at *3 (reducing by half vague,

See, e.g., Gordillo v. Ford Motor Co.,

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block-billed entry).

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together over a dozen tasks, some as vague or seemingly unnecessary

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as “Receive e-mail from opposing counsel regarding potential

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settlement.”

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40.6 of attorney Agyeman’s hours impossible to verify due to

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vagueness and the block-billed nature of the entries.

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further finds 49.2 of the hours billed by attorney Agyeman as

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unnecessary or duplicative, many of them involving redundant

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meetings with other lawyers and, in particular, excessive time

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spent opposing motions in limine and preparing for oral argument.

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The court also finds 3.2 hours billed by attorney Kyle Fellenz for

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meeting with other lawyers to be duplicative and unnecessary.

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Attorney Carol McBirney also billed 20.2 unjustifiable hours for

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trial preparation, particularly in light of the simplicity of the

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issues in this case, with which attorney Agyeman was sufficiently

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well-versed to try the case unaided.

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appear to have spent an unreasonable amount of time scanning

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documents, meriting a 2.1 hour decrease in the paralegal time

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billed.

Counsel’s entries, in some cases, lump

(Kavicky Decl., Ex. A at 15, 23.)

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The court finds

The court

Counsel’s paralegals also

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Lastly, the court finds it appropriate to reduce the fees

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awarded for attorney travel time.

Although the court would

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typically award fees for attorney travel time, Plaintiff has

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provided no explanation why he could not obtain counsel in the Los

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Angeles area, and instead retained a San Diego-based firm.

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Plaintiff’s own submissions establish that there are experienced

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lemon law lawyers in the Los Angeles area who would not have had to

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travel such great distances to attend court proceedings and vehicle

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inspections.

Indeed,

Accordingly, the court reduces the fee award by

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$8,500.4

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demonstrate that $37,783.90 of the $195,125.00 sought was

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reasonably incurred.

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$157,341.10 in fees and $29,373.02 in costs, for a total of

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$186,714.12.

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All told, the court finds that Plaintiff has failed to

The court therefore awards Plaintiff

Defendant submits that a total award of approximately $20,000

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is appropriate.

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here were not complex.

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$17,750 recovery was hardly an “outstanding result.”

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4:2.)

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settlement did not entitle Plaintiff to retain possession of a

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$65,000 vehicle.

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law suits may allow some plaintiffs to keep their vehicles, the

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vehicle at issue here was leased.

(Opposition at 20.)

As noted above, the issues

And, as Defendant points out, Plaintiff’s
(Mot. at

Contrary to Plaintiff’s counsel’s representation, the

(Mot. at 4.)

Although resolution of some lemon

Indeed, Plaintiff’s lease

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The court will also reduce the costs awarded by $3,236.59
for travel-related costs that would not have been incurred by local
counsel.
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payments on the allegedly defective vehicle significantly exceeded

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the amount of his monetary recovery.5

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Defendant, however, bears some responsibility for protracting

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this matter.

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as early as August 2015, on financial terms not significantly

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different from those ultimately reached.

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Plaintiff’s fees were less than 65% of those ultimately sought.

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Defendant, however, refused to agree to fairly standard “prevailing

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party” language, apparently because it wished to preserve an

The parties appear to have been close to a settlement

At that point,

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argument that Plaintiff is not entitled to any attorney’s fees at

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all.

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ultimately agreed that Plaintiff had met the requirements of

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California Civil Code Section 1794(d), the delay in agreeing to

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that term cannot be laid solely at Plaintiff’s feet.6

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although Defendant asks that the court award fees for only one

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hundred hours of work (Opp. at 20:21), the court learned at oral

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argument that Defendant’s counsel themselves billed approximately

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600 hours on this matter.

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joint responsibility for prolonging these proceedings, and the

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totality of the circumstances, an award significantly higher than

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that suggested by Defendants is appropriate.

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IV.

(Stuhlbarg Decl., Exs. 32, 35.)

Although the parties

Furthermore,

In light of that fact, the parties’

Conclusion

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For these reasons, the court declines to apply a positive
multiplier to the award. See, e.g. Ketchum v. Moses, 24 Cal. 4th
1122, 1139 (2001) (“[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 . . .
.”).
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The court notes, however, that the nature of Plaintiff’s fee
arrangement with counsel may well have affected his calculus.
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For the reasons stated above, Plaintiff’s motion is GRANTED in

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part and DENIED in part.

The court awards Plaintiff $157,341.10 in

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fees and $29,373.02 in costs, for a total of $186,714.12.

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IT IS SO ORDERED.

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Dated: March 3, 2017
DEAN D. PREGERSON
United States District Judge

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