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Date: 04-25-2020
Case Style:
Lorik Mikhaeilpoor v. BMW of North America, LLC
Case Number: B293987
Judge: White, J.
Court: California Court of Appeals Second Appellate District, Division One on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Hallen D. Rosner and Arlyn L. Escalante
Defendant's Attorney: Thomas M. Peterson and Mark W. Allen
Description:
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On February 22, 2016, Mikhaeilpoor sued BMW and
Finchey Corporation of California (erroneously named in
the complaint as Pacific BMW), an auto dealership, asserting
causes of action under the Song-Beverly Act stemming from
her September 13, 2014 lease of the 2013 BMW 328i for
which BMW had issued a warranty. Mikhaeilpoor alleged
that defendants: (1) failed to promptly replace her car or make
restitution, in violation of section 1793.2, subdivisions (a)(2)
and (d)(1); (2) failed to commence repairs aimed at conforming the
car to its warranty, in violation of section 1793.2, subdivision (b);
(3) failed to make available service and repair facilities (including
parts and literature) sufficient to effectuate repairs, in violation
of section 1793.2, subdivision (a)(3); (4) breached the express
warranty, as defined in section 1791.2, subdivision (a); and
(5) breached the implied warranty of merchantability, as defined
in section 1791.1. Plaintiff ’s complaint sought restitution, an
award of actual damages, a civil penalty of two times actual
damages and attorney fees and costs.
1 Unless otherwise specified, subsequent statutory references
are to the Civil Code.
3
B. The Trial
The trial commenced on February 21, 2018, and spanned
six days. On February 28, 2018, the jury returned a special verdict
in favor of Mikhaeilpoor. The jury awarded $35,805.08, comprised
of $17,902.54 in compensatory damages and $17,902.54 in civil
penalties.
C. Mikhaeilpoor’s Motion for Attorney Fees
On June 8, 2018, Mikhaeilpoor filed a motion for
attorney fees pursuant to section 1794, subdivision (d), seeking
$344,639. This figure consisted of $226,426, plus a 0.5 multiplier
enhancement (totaling $113,213), and $5,000 for addressing the
attorney fee resolution process.
The fee motion was accompanied by declarations from
Payam Shahian, the managing attorney for Mikhaeilpoor’s
trial counsel, and Christine Haw, lead trial counsel. Shahian’s
declaration contained a bevy of information about his credentials
and experience in unrelated Song-Beverly Act cases where his
clients were awarded fees. Shahian’s declaration also included
18 exhibits comprised of minute orders and notices of rulings on
fee motions in unrelated cases; this despite the fact that no fees
were billed for services by Shahian. Shahian’s declaration also
identified 10 attorneys who worked on this case along with their
proffered billing information: Gregory Yu ($495 per hour), Jacob
Cutler ($385 per hour in 2016, $395 per hour in 2017, and $410
per hour in 2018), Benjamin Beck ($400 per hour), Christine Haw
($365 per hour in 2017 and $375 per hour in 2018), Eleazar Kim
($350 per hour in 2017 and $370 hour in 2018), Yoon Kim (former
attorney) ($365 per hour), Michael Robinson (former attorney)
($595 per hour), Heather Rodriguez (former attorney) ($325 per
hour), Carey Wood ($370 per hour in 2017 and $375 per hour in
4
2018), Armig Khodanian (former attorney) ($325 per hour).
Shahian’s declaration also attached a copy of the billing records
for Mikhaeilpoor’s trial counsel.
The fee motion was opposed because: the billing records
vastly overstated the work performed; the hourly rates were
excessive; and an 0.5 multiplier adjustment was unwarranted.
The defense argued that fees should be reduced by at least
$83,206.05, and the proffered hourly billing rates of $325 to $595
were not based on market value.
Mikhaeilpoor replied, defending the amounts claimed.
Before hearing the motion, the trial court issued a tentative ruling
awarding $94,864 in attorney fees: $95,900 less an offsetting
amount owed to defendants.
The court heard the motion on July 31, 2018. During
argument, Judge Hammock explained that he “went through all
the bills” and was “aghast” that counsel sought $343,000 in fees.
He “saw the motions, the discovery motion,” and “the motion for
terminating sanctions, which was much ado about nothing.” He
found before him “a very simple case, straightforward trial,” and
“not a complicated case.”
In assessing fees, the court “looked at all the bills”
and then “calculated what [it] thought was reasonable.” The
court understood that it had the “ability to exercise [its] sound
discretion,” but could not “do it arbitrarily.” The court emphasized
that its analysis was not based on limiting plaintiff ’s fees to a
proportion of the trial recovery; the court “recognize[d] that even
though [the recovery] was [$]17,000, doubled to 34, this could
justify a large attorney fee award.” Also, the court did not take
into account whether plaintiff should have accepted a Code of Civil
Procedure section 998 offer.
The court found the requested fee amount “was just not
reasonable.” The court “went through the bill and [it] decided what
5
[it] felt was a reasonable amount of hours for a reasonably
experienced attorney, in similar circumstances, to do the tasks
that [plaintiff ’s trial counsel] claim to have done. . . . [I]t added up
to 225 hours.” The court decided that $350 “is a reasonable hourly
rate for the services that were done.”
During argument, plaintiff ’s counsel made two main
arguments. First, counsel argued the court could not reduce
plaintiff ’s requested fee amount by more than the $83,206.05
reduction because that would constitute entertaining “objections
not raised by [defendants].” Second, counsel argued that
defendants had the burden to prove grounds for a fee reduction.
The court took the matter under submission in order to review
the billing records again. Ultimately, the court found that $95,900
was the reasonable amount of attorney fees for work performed on
behalf of Mikhaeilpoor. After offsetting certain fees and costs that
had been awarded to defendants, the net amount of awarded fees
totaled $94,864.
STANDARD OF REVIEW
An award of attorney fees under the Song-Beverly Act
is reviewed for abuse of discretion. (Goglin v. BMW of North
America, LLC (2016) 4 Cal.App.5th 462, 470 (Goglin).) The
reviewing court presumes that the trial court’s award is correct
and infers that a request for fees is inflated when the trial court
substantially reduces the requested amount. (Etcheson v. FCA
US LLC (2018) 30 Cal.App.5th 831, 840.) These rules apply
because the experienced trial judge is best positioned to evaluate
the professional services rendered in his or her courtroom. (Ibid.,
citing Goglin, supra, 4 Cal.App.5th at pp. 470–471.) The trial
court’s decision must not be disturbed “ ‘unless [the Court of
Appeal is] convinced that it is clearly wrong, meaning that it is
an abuse of discretion.’ ” (Graciano v. Robinson Ford Sales, Inc.
6
(2006) 144 Cal.App.4th 140, 148 (Graciano), citing In re Vitamin
Cases (2003) 110 Cal.App.4th 1041, 1052.) Accordingly, this
court’s review of an order awarding attorney fees “must be highly
deferential to the views of the trial court.” (Nichols v. City of Taft
(2007) 155 Cal.App.4th 1233, 1239.) “ ‘The only proper basis of
reversal of the amount of an attorney fees award is if the amount
awarded is so large or small that it shocks the conscience and
suggests that passion or prejudice influenced the determination.’ ”
(In re Tobacco Cases I (2013) 216 Cal.App.4th 570, 587.)
In particular, “the lodestar method vests the trial court
with the discretion to decide which of the hours expended by the
attorneys were ‘reasonably spent’ on the litigation” (Meister v.
Regents of University of California (1998) 67 Cal.App.4th 437,
449 (Meister)), and to determine the hourly rates that should
be used in the lodestar calculus. (569 E. County Boulevard LLC
v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th
426, 436-437.) The methodology embodied in this language
is consistent with California’s lodestar adjustment method of
calculating attorney fees. (See Robertson v. Fleetwood Travel
Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818
(Robertson).) As the plain wording of section 1794, subdivision (d)
makes clear, the trial court is “to base the fee award upon actual
time expended on the case, as long as such fees are reasonably
incurred—both from the standpoint of time spent and the amount
charged.” (Robertson, supra, at p. 817.) In the case of contingency
fee arrangements, “a prevailing buyer . . . is entitled to an award
of reasonable attorney fees for time reasonably expended by his
or her attorneys.” (Nightingale v. Hyundai Motor America (1994)
31 Cal.App.4th 99, 105, fn. 6 (Nightingale), italics added.)
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
7
amount of actual time expended and the monetary charge being
made for the time expended are reasonable.” (Nightingale, supra,
31 Cal.App.4th at p. 104.) 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. (Ibid.) 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.’ ” (Levy v. Toyota
Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; see Corbett
v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 926 [“[c]ourts
have uniformly held that the party moving for statutory attorney
fees or sanctions has the burden of proof”].) 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.” (Nightingale, supra,
31 Cal.App.4th at p. 104.)
The amount of attorney fees awarded pursuant to the
lodestar adjustment method may be increased or decreased. Such
an adjustment is commonly referred to as a “fee enhancement”
or “multiplier.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132
(Ketchum).) The trial court is neither foreclosed from, nor required
to, award a multiplier. (See Montgomery v. Bio-Med Specialties,
Inc. (1986) 183 Cal.App.3d 1292, 1297 [“That figure may then be
increased or reduced by the application of a multiplier after the
court has taken into consideration other factors concerning the
lawsuit”], citing Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311,
321–324 (Press); see also Rey v. Madera Unified School Dist. (2012)
203 Cal.App.4th 1223, 1242 [“the trial court is not required to
include a fee enhancement for exceptional skill, novelty of the
questions involved, or other factors. Rather, applying a multiplier
is discretionary.”].) The Supreme Court has “set forth a number of
8
factors the trial court may consider in adjusting the lodestar figure.
These include: ‘(1) the novelty and difficulty of the questions
involved, and the skill displayed in presenting them; (2) the extent
to which the nature of the litigation precluded other employment
by the attorneys; [and] (3) the contingent nature of the fee award,
both from the point of view of eventual victory on the merits and
the point of view of establishing eligibility for an award.’ ” (Press,
supra, at p. 322, fn. 12, italics omitted.)
Mikhaeilpoor argues that the trial court’s ruling must be
reversed because the court acted arbitrarily and failed to utilize the
lodestar adjustment method to calculate reasonable attorney fees.
The record belies this assertion.
In finding that $95,900 was the reasonable amount of
attorney fees in this case, the trial court expressly invoked the
lodestar method. Despite the trial court’s clarity, Mikhaeilpoor
mischaracterizes the analysis the court employed in order to create
the illusion of error where there is none.
Mikhaeilpoor claims that the trial court improperly applied
“across-the-board” percentage reductions in the fees claimed
because it found that only 274 of plaintiff ’s claimed 595 hours
of work were reasonably incurred and that a reasonable hourly
rate for these reduced hours was $350 per hour. But the record,
viewed in the light most favorable to the trial court’s decision,
does not show that the court made any “across-the-board”
percentage reductions. Thus, plaintiff ’s reliance on the decision
in Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88 (Kerkeles)
and Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th
266 (Mountjoy) is misplaced.
Kerkeles concerned an appeal from an order awarding a
plaintiff a fraction of the fees he requested following the settlement
of his civil rights case. (See Kerkeles, supra, 243 Cal.App.4th at
p. 92.) The plaintiff filed a motion seeking $1,448,397 in fees and
9
$75,255 in costs under section 1988 of title 42 of the United States
Code and Code of Civil Procedure section 1021.5. (Kerkeles, supra,
at p. 94.) This figure was based on 2,419.9 in attorney hours, with
billable rates ranging from $425 to $650 per hour. (Ibid.) Plaintiff
also requested a 1.5 multiplier to the lodestar amount. (Ibid.)
The total amount requested was $2,350,848. (Ibid.) In response,
defense counsel urged “a 50 percent reduction of the total lodestar
amount.” (Id. at pp. 95–96.) The trial court calculated the lodestar
amount by multiplying the hourly rates by the full number of hours
claimed, reaching a total of $873,615. The court then reduced the
total lodestar by 50 percent, yielding $436,807.50 in attorney fees.
(Id. at p. 97.)
In reversing, the appellate court deemed inadequate the
trial court’s explanation for its fee reduction. (Kerkeles, supra,
243 Cal.App.4th at pp. 101–102.) The Court of Appeal noted that
while trial courts may make “ ‘across-the-board percentage cuts
either in the number of hours claimed or in the final lodestar
figure,’ ” they must set forth a “ ‘concise but clear’ explanation of
reasons for choosing a given percentage reduction.” (Id. at p. 102.)
In lieu of that, the trial court in Kerkeles had simply explained that
the plaintiff ’s attorneys “expended far more time than a reasonable
attorney could ever bill a paying client for.” (Id. at p. 101.) Such
reasoning did “not meet the federal criterion of a clear and specific
explanation sufficient for meaningful appellate review.” (Id. at
p. 104.)
Similarly, in Mountjoy, the trial court awarded $59,334.60 in
fees after the moving party sought $308,425, based on 760.70 hours
of work billed at hourly rates ranging from $200 to $450. (Mountjoy,
supra, 245 Cal.App.4th at p. 269.) In reducing the fees sought,
the trial court explained: “ ‘Approximately half of [the Mountjoys’]
pleading[s] amounted to unnecessary general legal argument
warranting a reduction in the time it took to prepare that filing.
10
Approximately half of [the] “facts” [the Mountjoys] crafted in
[o]pposition to the summary judgment motion . . . were improper.
Perhaps most critically, well over 70% of the billing entries fall
into one or more of the following categories: prohibitively vague
“block billing,” excessive time spent on the stated task (including
but not limited to drafting the complaint and opposition to
summary judgment motion and document review tasks discussed
above), double billing where two attorneys completed the same
task, attorney fees for non-attorney work, fees for filings that did
not actually occur in this case, and fees for otherwise unreasonable
tasks. [¶] In light of the foregoing and the other various reasons
stated in [d]efendants’ [o]pposition, the [c]ourt in its discretion
reduces [the Mountjoys’] requested “hours worked” by 70% . . .
to a more reasonable total of 228.21.’ ” (Id. at pp. 270–271.)
The Court of Appeal reversed, explaining that the trial
court “determined that because well over 70 percent of the billing
entries suffered from one or more flaws, it was appropriate to
simply reduce the total hours claimed by 70 percent.” (Mountjoy,
supra, 245 Cal.App.4th at p. 281.) This approach was flawed
because there did not appear to be any “reasonable basis for the
conclusion that the total hours included in the 70 percent-plus time
entries that were flawed in one or more ways was even reasonably
close to 70 percent of the total time claimed.” (Ibid.) For example,
the flawed time entries may have only amounted to 50 percent
of the total hours claimed; it was unclear whether the number
of flawed billing entries were equivalent to the number of flawed
hours. (Ibid.)
In contrast to Kerkeles and Mountjoy, the court here did not
make an “across-the-board” percentage reduction of the attorney
fees claimed. Rather, the court explained that its reduction
resulted because the fees claimed “include[ed] dual billing of
attorneys when the work of only one (at times) was reasonably
11
required” and trial counsel spent time on tasks that “should
not have required anything more than [a] slight factual
modification to [an] existing boilerplate.” Plaintiff ’s counsel
spent an unreasonably excessive amount of time dealing with
this non-complex case. Thus, the trial court did not apply an
arbitrary percentage (as in Kerkeles) or use flawed logic (as
in Mountjoy). To the contrary, the court “went through the
bill” multiple times and “decided what [it] felt was a reasonable
amount of hours for a reasonably experienced attorney, in similar
circumstances, to do the tasks that they claim to have done. . . .
[I]t added up to 225 hours.”
Dissatisfied with this explanation, Mikhaeilpoor
questions how the trial court decided on the billing entries
subject to reduction. Plaintiff would impose on the trial court
the requirement of detailed explanatory orders. But this very
same argument was rejected in Mountjoy, where the plaintiff
faulted the court’s explanation of its fee reduction because it
“ ‘did not break out how many hours it thought were devoted
to double billing the same tasks, work on non-attorney tasks,
excessive billing for working on the complaint or summary
judgment opposition, or work on documents that were not filed.’ ”
(Mountjoy, supra, 245 Cal.App.4th at p. 280.)
Mikhaeilpoor also relies on Moreno v. City of Sacramento
(9th Cir. 2008) 534 F.3d 1106 (Moreno) to support her claim that
the trial court inadequately explained “which tasks were cut
or reduced and why.” Moreno, however, is not binding on this
court and it is distinguishable. (Wagner v. Apex Marine Ship
Management Corp. (2000) 83 Cal.App.4th 1444, 1451 [indicating
that federal decisions are persuasive rather than binding
authority].) In Moreno, the plaintiff prevailed in a federal
civil rights action and the district court imposed percentage
reductions on plaintiff ’s requested fees. (Moreno, supra, 534 F.3d
12
at pp. 1112-1116.) The Ninth Circuit Court of Appeals reversed.
The federal district court did not identify those fees it thought
duplicative or why it cut the costs claimed for trial preparation.
(Ibid.) But Moreno is not based on principles applied in California,
where trial courts are not required to state “each charge they find
to be reasonable or unreasonable, necessary or unnecessary. . . .
A reduced award might be fully justified by a general observation
that an attorney over[-]litigated a case.” (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 101; see also
Ketchum, supra, 24 Cal.4th at p. 1140 [“The superior court was
not required to issue a statement of decision with regard to the fee
award.”].) This view was recently reaffirmed in Morris v. Hyundai
Motor America (2019) 41 Cal.App.5th 24, 37, footnote 6 (Morris),
where the court explained that such a heightened standard of
requiring courts to explain fee determinations is not appropriate
“for appellate review of fee awards under the Song-Beverly Act.”
(Ibid.)
Mikhaeilpoor claims the trial court improperly tied the fee
award to plaintiff ’s modest amount of recovered damages. But the
trial court disclaimed tying the amount of fees to the damages and
the record, viewed in the light most favorable to the trial court, does
not show that the court tied “the fee award to some proportion” of
the damages award. (Warren v. Kia Motors America, Inc. (2018)
30 Cal.App.5th 24, 37 (Warren).)
“[I]t is inappropriate and an abuse of a trial court’s discretion
to tie an attorney fee award to the amount of the prevailing
[buyer’s] damages or recovery in a Song-Beverly Act action, or
pursuant to another consumer protection statute with a mandatory
fee-shifting provision.” (Warren, supra, 30 Cal.App.5th at p. 37.) If
the reasons for the reduction “include tying the fee award to some
proportion of the buyer’s damages recovery, the court abuses its
discretion.” (Ibid.) But the two cases plaintiff invokes, Graciano,
13
supra, 144 Cal.App.4th at page 140 and Warren, supra,
30 Cal.App.5th at page 37, help demonstrate that the court
here committed no error.
Graciano concerned a plaintiff ’s appeal from an order
awarding her attorney fees following her post-verdict settlement
with the defendant. (Graciano, supra, 14 Cal.App.4th at p. 145.)
The trial court awarded $27,570; $235,000 in fees had been
requested. (Ibid.) The trial court set the reasonable hourly rate
at $250 per hour, which was based on a local rule setting hourly
rates for expert witnesses, and applied that rate to the 367.6 hours
of legal services expended by the plaintiff ’s attorneys. (Id. at
p. 148.) After calculating the lodestar at $91,900, the court applied
several multipliers, including a .3 negative multiplier “ ‘ “to ensure
the fee awarded is within the range of fees freely negotiated in
the legal market place.” ’ ” (Ibid.) As relevant here, the trial court
explicitly tied its fee award to the plaintiff ’s damages recovery,
reasoning: “ ‘[T]he settlement amount for the [p]laintiff was
$45,000 plus whatever fees, if any, the court might award. It is
not uncommon for contingent fee agreements to require [p]laintiff
to pay forty percent (more or less) of the recovery through trial
to his/her counsel. If $45,000 represents [p]laintiff ’s sixty percent
portion of the total settlement, then the forty percent fee portion,
would be $30,000 ($75,000 x .40). In order to adjust the lodestar
amount of $91,900 “to ensure the fee awarded is within the range
of fees freely negotiated in the legal market place[,”] a “.30” factor
should be applied. $91,900 times 3 yields $27,570, which amount
is within the market place range of fees.’ ” (Id. at p. 162.) Under
this rationale, the Court of Appeal perceived an improper
downward adjustment based on the trial court’s notion of an
appropriate contingent fee percentage. (Id. at p. 164.)
In Warren, the trial court applied a 33 percent negative
multiplier to plaintiff ’s requested lodestar fees. (Warren, supra,
14
30 Cal.App.5th at p. 24.) The court noted “ ‘a disconnect’ between
the verdict amount of ‘$17,000’ and the over $500,000 in requested
attorney fees.” (Id. at p. 33.) The appellate court concluded that
the negative multiplier was applied “with at least the partial goal
of arriving at an attorney fee award that was roughly proportional
to or more in line with [the plaintiff ’s] modest $17,455.57 damages
award.” (Id. at p. 39.)
Here by contrast, the trial court did not expressly or implicitly
base any portion of its fee calculation on plaintiff ’s damage
recovery. Unlike the situation in Graciano, the trial court here did
not calculate the amount of fees using a methodology that ensured
the fee and damages awards were proportional; accorded with a
market-rate contingency agreement, or created a relationship to the
damages awarded. Instead, the trial court “went through the bill
and [it] decided what [it] felt was a reasonable amount of hours for
a reasonably experienced attorney, in similar circumstances, to do
the tasks that [plaintiff ’s trial counsel] claim to have done. . . . [I]t
added up to 225 hours.”
Warren is similarly distinguishable. Here, unlike in Warren,
the trial court was concerned because the $344,639 was shockingly
unreasonable, irrespective of the damages awarded. And, of course,
the court here unequivocally disclaimed tying the fee award to
the verdict amount because it “recognize[d] that even though [the
recovery] was [$]17,000 doubled to 34, this could justify a large
attorney fee award.”
Also, instructive here is Morris, supra, 41 Cal.App.5th at
page 24, where the court affirmed an order reducing requested
fees by more than 40 percent in a Song-Beverly Act case. In
Morris, the trial court reduced plaintiff ’s requested fees by
42 percent—from $191,688.75 to $73,864. On appeal, plaintiff
argued—as Mikhaeilpoor does here—that the “trial court engaged
in a prohibited proportionality analysis in setting the attorney fee
15
award.” (Id. at p. 35.) To support that claim, the plaintiff relied
on selective portions of the hearing transcript where the trial
judge stated, “ ‘So this is [a request for] $192,000 for a case that
you settled for $85,000 and didn’t go to trial. Don’t you think
that just on its face, that’s a little much.’ ” (Ibid.) According to
the plaintiff, the trial court “slashed the requested award by more
than 42 percent, to $73,864, to render the award ‘more in proportion
to the $85,000 damages.’ ” (Ibid.)
The Court of Appeal disagreed, explaining that the trial
court “did not suggest in any respect that the court reduced the
attorney fee award based on the size of the settlement award.”
(Morris, supra, 41 Cal.App.5th at p. 37.) To the contrary, the
court “indicated a fee reduction was warranted because it was
unreasonable to have so many lawyers staffing a [Song-Beverly
Act] case that did not present complex or unique issues, did not
involve discovery motions, and did not go to trial.” (Ibid.)
Here, as in Morris, there is no indication that the trial
court reduced fees based on the amount of damages awarded to
plaintiff. Rather, the court said a reduction of the requested fees
was warranted because: Plaintiff sought fees that “include[d]
dual billing of attorneys when the work of only one (at times)
was reasonably required”; her trial counsel spent time working on
tasks that “should not have required anything more than [a] slight
factual modification to [an] existing boilerplate”; and—overall—an
unreasonably excessive amount of time was spent on a noncomplex
matter. Additionally, the trial court “went through the bill and
[it] decided what [it] felt was a reasonable amount of hours for a
reasonably experienced attorney, in similar circumstances, to do
the tasks that [plaintiff ’s trial counsel] claim to have done. . . .
[I]t added up to 225 hours.” The court did not engage in any
proportionality analysis when it determined that $95,900 was
the reasonable amount of attorney fees for the work performed.
16
Mikhaeilpoor claims the trial court based its fee award on an
improper impressionistic basis.
In Morris, supra, 41 Cal.App.5th at page 37, the trial court
stated during a fee motion hearing that the total proposed fee
sought by the plaintiff was “ ‘a little much’ considering the case
settled for $85,000 and did not go to trial.” (Ibid.) On appeal,
plaintiff argued the court’s statement “betrayed that at least one
of the court’s intentions in reducing the fee award was to bring it
more in line with the settlement amount.” (Ibid.) Morris rejected
the plaintiff ’s argument that such trial court statements disclosed
an alternate, prohibited motive for reducing plaintiff ’s proposed
attorney fees.
Morris contends that, as in Warren, the trial court’s
comments during the hearing—suggesting that the total proposed
fee was “a little much” considering the case settled for $85,000
and did not go to trial—betrayed that at least one of the court’s
intentions in reducing the fee award was to bring it more in line
with the settlement amount. Given the court’s clear expression
in its final order of its reasons for the reductions, we will not
speculate, based on a stray remark the court made at the hearing,
that it had other, prohibited reasons that would require reversal.
(See Key v. Tyler (2019) 34 Cal.App.5th 505, 539, fn. 16 [holding
the court’s “oral comments were not final findings and cannot
impeach the court’s subsequent written ruling”]; Jespersen v.
Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633 [“a judge’s
comments in oral argument may never be used to impeach the final
order, however valuable to illustrate the court’s theory they might
be under some circumstances”].)
Mikhaeilpoor contends that the trial court impermissibly
reduced fees below the level defendants proposed. Plaintiff argues
“[a]ny objections to the fees and rates requested not made by BMW
17
should have been deemed waived by the trial court.” This argument
is meritless.
At the outset, defense counsel did not limit its request
to reduce plaintiff ’s requested fees by only $83,206.05 as
Mikhaeilpoor erroneously represents. Rather, defendants argued
that plaintiff ’s fees should be reduced by at least $83,206.05. As
such, Mikhaeilpoor’s argument that the trial court reduced her fees
below the level defendants proposed is based on a false premise.
To support its position that the trial court cannot reduce fees
absent—or below the non-moving party’s specific objection, plaintiff
cites Blum v. Stenson (1984) 465 U.S. 886, 892, fn. 5, a federal
case concerning fees in a federal civil rights action. In Blum, the
defendant waived its challenge to a district court determination
of reasonable hours billed by failing to submit any evidence
challenging the accuracy and reasonableness of the hours charged.
(Ibid.) In contrast to Blum, defendants here are not challenging the
trial court’s decision but showing it was not an abuse of discretion.
And defendants did not waive any challenge to the fee award.
Rather, defendants challenged fees in the trial court on grounds the
trial court found applicable.
The extent of a court’s discretion to unilaterally reduce
fees is also apparent in Morris. There, appellant argued that fees
were arbitrarily reduced in those circumstances where particular
fee amounts claimed were not the subject of defense objections.
(Morris, supra, 41 Cal.App.5th at pp. 38–39.) Notwithstanding
this argument, Morris was “satisfied that the trial court did not
abuse its broad discretion to determine the reasonable value of
the professional services performed by the [appellant’s] attorneys.”
(Id. at p. 40.)
Mikhaeilpoor also claims that the trial court abused its
discretion by failing to award a multiplier. The argument rests
on some of the same unmeritorious arguments advanced with
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regard to the trial court’s reduced lodestar award. There was no
abuse of discretion.
While the court’s rationale for the lodestar reduction also
influenced the denial of a multiplier, the court went further as to
the multiplier issue, emphasizing that this was “not a complicated
case,” and the “request for a multiplier was specious.” These
findings weigh on the issue of the “ ‘novelty and difficulty of the
questions involved,’ ” which is a factor that trial courts may
consider when a multiplier is requested. (Press, supra, 34 Cal.3d
at p. 322, fn. 12.) This factor is separate from the trial court’s
finding that plaintiff ’s counsel litigated the case inefficiently.
Moreover, even though the trial court did not specifically mention
other factors open to consideration when a multiplier is under
consideration, this court must presume that the trial court
considered all factors in reaching its decision, “even though the
court may not have mentioned or discussed them in its written
ruling.” (Mountjoy, supra, 245 Cal.App.4th at p. 277.)
Mikhaeilpoor argues that the attorney fee award is not
supported by the evidence. This claim has no merit. The court has
no authority to disturb the trial court’s factual findings if they are
supported by substantial evidence. (Meister, supra, 67 Cal.App.4th
at p. 453.) Here, substantial evidence amply supports the trial
court’s fee award because the record demonstrates the relative
simplicity of plaintiff ’s lawsuit and the inefficiency of her counsel’s
litigation activities.
The case concerned the simple issue of a purported engine
defect in plaintiff ’s vehicle that was—in plaintiff ’s view—not fixed
after multiple attempts. To prevail, plaintiff ’s attorneys were only
required to establish that their client purchased the vehicle, that
it had a written warranty, that the vehicle had a defect, and that
the vehicle was not repaired or replaced after the manufacturer
had a reasonable opportunity to do so. (CACI No. 3201.) Plaintiff
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was under no obligation to establish the cause of the purported
defect. (Ibid.; see Oregel v. American Isuzu Motors, Inc. (2001)
90 Cal.App.4th 1094, 1102, fn. 8 [rejecting manufacturer’s claim
that plaintiff buyer was required to prove cause of leak to establish
remedy under the Song-Beverly Act].) What follows is the trial
court’s altogether warranted conclusion that this was a noncomplex
case. The record shows that Mikhaeilpoor filed one discovery
motion, propounded a single set of discovery, took three depositions
(Jose Conde, defendants’ person most qualified; and Luis Holguin,
defendants’ expert), and retained the services of a single expert,
Dan Calef. These were modest litigation efforts.
Additionally, the record demonstrates the highly inefficient
manner in which plaintiff litigated her case. Plaintiff ’s trial
counsel claims “extensive experience with claims brought under the
Song-Beverly [Act].” Payam Shahian, the senior attorney among
plaintiff ’s trial counsel, supervises the other attorneys in his firm,
but does not “materially” get involved “unless they involve complex
legal issues, reach significant stages of litigation, or require [his]
assistance.” (Italics added.) Shahian did not bill time to this case,
confirming the case did not involve complex legal issues. Yet,
despite counsel’s experience litigating “hundreds of automotive
defect cases involving California’s consumer protection statutes,
including Song-Beverly,” an astonishing array of 10 different
attorneys litigated this case, with multiple attorneys staffed at
different times. Further, counsel’s billing entries demonstrate a
lack of efficiency in litigating the case and a lack of clarity in tasks
performed. This evidence supports the trial court’s finding that
plaintiff ’s counsel failed to act efficiently.
Similarly, plaintiff ’s lead counsel, Christine Haw, had
experience with Song-Beverly Act claims. Plaintiff sought hourly
rates of $365 and $375 for Haw, but acknowledged that similar or
more experienced attorneys had previously been awarded hourly
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billable rates of $345 and $350. As such, the trial court’s award
of a $350 hourly billable rate is supported by substantial evidence.
Additionally, at the time of the hearing on the fee motion, Haw
had been an attorney for approximately five years and had litigated
“hundreds of automotive defect cases involving [the] Song-Beverly
[Act].” Notwithstanding, the court reasonably found that Haw did
not leverage her experience to produce efficient litigation. Haw
personally billed more than 240 hours, and required the help of
nine other attorneys at various points in the litigation.
Ultimately, the trial court was in the best position to
evaluate the professional services rendered before it. (Ketchum,
supra, 24 Cal.4th at p. 1132.) The court’s decision is supported
by substantial evidence. There was no abuse of discretion.
Outcome: The order awarding fees is affirmed. Respondents are awarded their costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: