Jessica Gibson vs. Benz Boyz

Motion for Attorney Fees

Cal. Super. - 4th Dist.April 28, 2015

O O 0 N N O N U n B R W N N O N N N N N O N O N N O N m m m e m e m E m e m e e 0 ~ ~ O N W n B R W N = O O e N N R W N e o Kasra Sadr, SBN 183765 k.sadr@carlawfirm.com Nima Heydari, SBN 301518 n.heydari@carlawfirm.com THE SADR LAW FIRM, APLC 1455 Frazee Rd, Suite 500 San Diego, CA 92108 Tel: (877)577-7237 Fax: (877)747-3297 Attorney for Plaintiff, JESSICA GIBSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA ANA CENTRAL JUSTICE CENTER UNLIMITED JURISDICTION JESSICA GIBSON,an individual, PLAINTIFF, Vs. BENZ BOYZ, a California Corporation; GATEWAY ONE LENDING & FINANCE LL a Limited Liability Company; and DOES 1 through 30, inclusive, DEFENDANTS. ) ) ) ) ) ) ) c) ) ) Learns Case No.: 30-2015-00784932-CU-CO-CJC JESSICA GIBSON’S NOTICE OF MOTION AND MOTION FOR ATTORNEY’S FEES AND COSTS TOTALING $77,715.10 Hearing Date: January 5,2017 ) Time: 1:30 PM ) N e ” N e e r ? N e ” N a e ” Dept: C33 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 5, 2017 at 1:30 PM or as soon thereafter as the matter maybe heard, in Department C33 of the County of Santa Ana Central Justice Center located at 700 Civic Center Dr, Santa Ana, CA 92701, Plaintiff Jessica Gibson (“Plaintiff”) will and hereby N O 0 0 N N N N n n R R W N N O N O R N N N N N N N R m e e e e e s e m © ~ ~ O& O W h b h W N = O O 0 N N N R W N N O does move the Court for an award of attorneys’ fees and costs in the amount of $77,715.10 against Defendants Benz Boyz (“Benz Boyz”) and Gateway One Lending & Finance LLC (“Gateway One”) and in favor of Plaintiff. The motion is made pursuant to Civil Code Section 1780(¢) and is based on the following grounds: (1) Plaintiff was the prevailing plaintiff in litigation filed pursuant to Civil Code 1750 et. seq. (2) Judgment having been entered in Plaintiffs favor, Plaintiff is entitled to recoverits attorneys’ fees and costs incurred in this action under Civil Code 1780(e); and (3) the fees and costs Plaintiff incurred in obtaining the judgment in this action (and in seeking its attorneys’ fees) are reasonable and fully recoverable. The motion is supported by this Notice of Motion, the attached Memorandum of Points and Authorities, the concurrently filed declarations ofNima Heydari and Kasra Sadr, the pleadings and papers on file in this action, and such other and further support as Plaintiffmay provide at or before the time of hearing. Dated: November 16, 2016 THE SADR LAW FIRM, APLC NIMA HEYDARI,Esq. Attorney for Plaintiff(s) © 0 ~ ~ O& O w n H W N d N o N O N N D N N N N m e e s e e e s e e N N E R B E R O D O R S 0 8 © » 3 o a x n 2 © 0 = © I INTRODUCTION This matter arises from the installment sale of a used 2008 Saturn Outlook XE, VIN number 5GZER137681293076 (the “Vehiclefrom Benz Boyz to Jessica Gibson (“Plaintiff”). During the transaction to purchase the Vehicle, Plaintiff was subjected to deceptive practices under the Consumer Legal Remedies Act [C.C. Sec 1750, et seq]. Plaintiff hired counsels and brought forth a lawsuit against Benz Boyz alleging a violation of the CLRA among other violations. Plaintiff prevailed on her CLRA cause ofaction in trial and was rewarded rescission of the Vehicle. II DETERMINING ATTORNEY’S FEES 1. The Lodestar Adjustment Method is the Appropriate Method for Calculating the Fee Award. California law requires use of the lodestar adjustment method to determine attorney fee awards. Press v. Lucky Stores, 34 Cal. 3d 311, 322 (1983) (attorney fee awards “must be based on the lodestar adjustment method,” and it is “extremely important” and “fundamental” that the method be used in orderto fulfill the purposes of California’s fee shifting statutes); City ofSanta Rosa v. Patel, 119 Cal. App. 4™ 65, 71 (2010) (lodestar method must be used to calculate attorney’s fees unless statute expressly specifies another method). The lodestar method has the three following steps: (1) determine the number of hoursto include in the lodestar; (2) multiply the hours by the appropriate hourly rate; and (3) adjust the lodestar to account for applicable “multiplier” factors. PLCM Group, Inc. v. Drexler, 22 Cal. 4" 1084, 1095 (2000). The lodestar should generally include all time spent litigating the prevailing party’s claims. Weeks v. Baker & McKenzie, 63 Cal. App. 4™ 11128, 1175-1176 (1998) (fee awards should include “every hour spentlitigating a claim against even the most polemical opponent”); Moreno v. City ofSacramento, 534 F.3d 1106, 1112, Ce Cir. 2008). The only fees that should be excluded by a court are those which are “excessive, redundant, or otherwise unnecessary.” Van Gerwin v. Guarantee Mutual Life Co., 214 F.3d 1041, 1045 (9™ Cir. 2000) (quoting Hensley 3 © © 2 O N w n B R W N N O N N N N N N m m m m E m e m e m e e e e e e N N O R S I I 2 8 0 8 o o I a o n 2 ® 0 ~ ~ © v. Eckerhart, 461 U.S. 424 (1983). Where an attorney submits a fee bill to the court and swears that it is accurate, the billing entries therein are entitled to presumption ofcredibility. Horsford v. Board ofTrustees ofCalifornia State University, 132 Cal. App. 4M 359,396 (2005) (“the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence ofa clear indication the records are erroneous”). Here, Plaintiffs attorneys Mr. Kasra Sadr and Mr. Nima Heydari have lodged a fee bill that itemizes the total time billed, and Mr. Sadr has sworn under penalty of perjury that the billing entries are accurate and reasonable, and without duplicative or unnecessary legal work having been performed. 2. Plaintiffs Counsels’ Ordinary Hourly Rates Are Reasonable And Presumptively Correct For The Lodestar Calculation. Here, Plaintiff>s attorneys’ rates are fair and reasonable given the following reasons: (1) Plaintiffs’ attorneys’ ordinary rates and are thus presumptively correct, (2) Plaintiffs’ attorneys represent clients on a contingency basis, (3) The ordinary hourly rates of other California Plaintiffs’ attorneys who practice in similar areas of law are generally higher, and (4) according to the Laffey Matrix, the average attorney fee rates are greater than the rates requested by Plaintiff’s counsels. A. Plaintiffs’ Counsels Request Their Ordinary Hourly Rate. The hourly rate ordinarily charged by the attorney who provided the services is presumptively correct for the lodestar calculation. Mandel v. Lackner, 92 Cal. App. 3d 747, 761 (1979). Plaintiffs’ counsels billing rates are those Plaintiffs’ counsels ordinarily bill and should be presumptively correct under the lodestar calculation. Kasra Sadr is a 20th year attorney who specializes in consumer protection litigation and handles exclusively consumer related cases such as the one here. He is the founder ofthe law firm that bears his name, has represented over 1000 consumers in cases involving the Consumer Legal Remedies Act, and his current ordinary hourly rate is $550 per hour. In fact, Mr. Sadr has been awarded as high as $650 per hour for his 4 O O 0 3 O N W n k A W N N O N R N N D N D N N N m E e e e s e s p e Ww W ~ ~ O N n n R A W N R R O O O N N R W N m O O time in these types of cases. (Archibeque v. Value Cars, AAA case no. 73 434 E 00124 13 hepo.). The rate of his other staff members range from $135-$325. Mr. Sadr billed under the initials of KS. The other attorney on the matter, Nima Heydari, is an associate at the Sadr Law Firm and received his juris doctorate from the Gould School of Law at the University of Southern California, and ordinarily bills at $325 per hour, under the initials NH. Mr. Sadr’s other staff members, Ms. Liz Peralta and Ms. Narissa Nelson each have over 10 years of experience in litigation, and were billed at their ordinary hourly rates of $135, under the initials of LP and NN. B. Plaintiffs’ Counsels’ Hourly Rates are Reasonable Given The Fact That Plaintiffs’ Counsels Represented Plaintiff and Represent Other Clients On A Contingency Fee Basis. When an attorney represents a client on a contingency fee basis and there exists a significant risk that the attorney will not be paid for his or her legal work, the fee should be increased to compensate the attorney for the contingency risk he or she bore. Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2002). “A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.” (Posner, Economic Analysis of Law (4™ ed. 1992) pp. 534, 567.) “A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.” (Leubsdorf, The Contingency Factor in Attorney Fee Awards (1981) 90 Yale L.J. 473, 480; see also Rules Prof. Conduct, rule 4-200(B)(9) [recognizing the contingency nature of attorney representation as an appropriate component in considering whether a fee is reasonable]; ABA Model Code Prof. Responsibility, DR 2-106(B)(8) [same]; ABA Model Rules Prof. Conduct, rule 1.5(a)(8)). While a court is not required to award risk multipliers in all cases, multipliers must be considered by the court where contingent risk is present, and if so, and O O 0 N N ni t B A W N N O N N N N N N N N m e e m e e e e E e e e 0 ~ ~ O N W n B R W N R O O N N N A W N O o California courts have recommended fee awards be adjusted to compensate for the higher risk involved. Pellegrino v. Robert Half International, Inc. Cal. App. 4th 359, 402 (2005) (contingency risk may not be excluded from calculation of what constitutes reasonable attorneys’ fees). Plaintiffs’ counsels’ rates are particularly fair and reasonable considering Plaintiff’s counsels typically represent clients on a contingency fee basis, and here, represented Plaintiff on a contingency basis. Plaintiff's counsels are exposed to major financial risks in taking clients on consumer protection matters involving the Consumer Legal Remedies Act. Plaintiff’s counsels pay for 100% of all court and service costs, and thus must accept the complete risk of not being reimbursed for court costs, or their time on cases in which there is not enough evidence to reward the plaintiff. As such, Mr. Sadr’s $550.00 hourly rate is in essence a $225.00 hourly rate, given the fact that around half of the cases Mr. Sadr takes to trial or arbitration are cases under which Mr. Sadr prevails upon. Similarly, Mr. Heydari’s rate of $325.00 is in essence a rate of a mere $162.50/hour, when losing cases are taken into account. These rates do not even take into consideration court costs Plaintiff's counsels are liable for in cases which Plaintiff's counsels’ clients do not prevail. Mr. Heydari and Mr. Sadr represent many low income consumers who have been defrauded by large-scale businesses, and would have to take less cases, and leave vulnerable consumers with less avenues for relief if provided a substantially reduced rate. C. Plaintiffs’ Counsel’s Hourly Rate Is Reasonable Given The Hourly Rate Of Other Attorneys In The Community Who Perform Similar Work. California Courts generally look to similar types oflitigation to determine which market rates apply to determining reasonable attorneys’ fees (Pearl, Cal. Attorney Fee Awards, supra Section 9.109, p.9-93). Plaintiff’s attorneys in California have been awarded rates of $625.00 per hour for very similar cases involving violations of the CLRA in the sale of an automobile to a consumer. See Goglin v. BMWofNorth America LLC, et al (Certified for publication; Super. Ct. No. 37-2013-00065336-CU-BC-CTL). In Goggins, as recently as October 2016, the appeals court sustained the trial court’s ruling that awarded the prevailing Plaintiff’s counsel $575.00 per O O 0 ~ ~ O& O Ww » B A W N e s N O N O N D O N N N N N N m e e e s e s e s e e e m 0 ~ ~ O0 8 h h B A W N = O Y C N N U R W N D m o O hour for a portion of the work done, and $625.00 per hour for the majority. The plaintiff’s attorney in Goglin, Michael E. Lindsey, who works out of the same community as Mr. Sadr, has been an active member of the state bar of California since 1993." Plaintiff’s counsels’ rates are very reasonable given the rate of other plaintiff's attorneys performing similar type oflitigation (automotive fraud/negligent misrepresentation/CLRA based litigation) in California. The court in Goglin made clear that attorneys working in the same field in the same community (San Diego) very recently have made $625/hour for a very similar case to this matter. Mr. Lindsey, the attorney for the prevailing plaintiff in Goglin, has been an active member of the state bar since 1993, only three years before Mr. Sadr. In addition, other similarly situated plaintiff's attorneys with similar legal practices have a higher ordinary hourly rate than Mr. Sadr. Mr. Louis Liberty is an attorney whose practice typically consists of representing consumers against used vehicle dealerships who typically files suit for violation of the CLRA. Mr. Liberty works out of Foster City, California, has been practicing since 1990, and charges $650/hour as his ordinary hourly rate. In addition, Mr. Ian Otto, another California attorney also involved with CLRA claims and working out of Heyward, California has been practicing law since 2012 and charges $595.00 as his ordinary hourly rate. As such, Mr. Sadr’s $550.00/hour rate, which is an entire $75.00/hour less than Mr. Edwards’s rate in Goglin, $100.00/hour less than Mr. Louis Liberty’s hourly rate and $45.00/hour less than Mr. Ian Otto’s hourly rate is clearly reasonable. D. Plaintiffs’ Counsel’s Hourly Rate Is Reasonable Given The Average Rate Provided By The Laffey Matrix. California courts have used the Laffey Matrix to determine reasonable hourly rates for attorneys. See Syers Properties III, Inc. v. Rankin, 226 Cal. App. 4" 691, 702 (2014) (Laffey Matrix attached as Exhibit 1 of the Sadr Declaration). The Laffey Matrix “is an official source of attorney hourly fee rates based in the District of Columbus area” that is updated every year Id. ! This information was discovered on Mr. Lindsey’s Attorney Profile hitp://members.calbar.ca.gov/fal/Member/Detail/99044 O O 0 0 N N Y N w n R e W N N O D N N N N N m m e s e m = e e e s 2 8 R O S E S 0 8 © » 9 a a 2 0 0 ~ ~ © Under the current Laffey Matrix, reasonable fees for an attorney of 20 years in the Washington/Baltimore area is $826 per hour. In addition, under the Laffey Matrix, and reasonable fees for an attorney of 1-3 years is $331 per hour. Plaintiffs counsels’ rates are plainly reasonable giventhe Laffey Matrix. Mr. Sadr’s regular hourly rate is significantly less than what are considered to be reasonable fees under the Laffey matrix. Mr. Sadr charges $550.00 per hour for his work, despite the Laffey index suggesting $826.00 per hour is a more appropriate amount. In addition, Mr. Heydari’s regular hourly rate is also less than that under the Laffey Matrix ($325 vs. $343). 3. The Legal Work Done By Plaintiff’s Counsels Was Reasonably Necessary In Order For Plaintiff To Obtain Relief. “The court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have had he been more of a slacker.” Moreno v. City ofSacramento, 534 F.3d 1106, 1112 ot Cir. 2008). Plaintiffs are entitled to recover fees for “every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client’s interest.” Moore v. Jas. H Matthews & Co., 682 F.2d 830, 839 (9™ Cir. 1982). “It must be kept in mind that lawyers are not likely to spend necessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee.” Moreno, 534 F.3d at 1112. The amountof time spent in prosecuting the Plaintiff’s claims by Plaintiff’s counsels was reasonably necessary in order for Plaintiff to prevail on the merits. Mr. Sadr and Mr. Heydari do not have any incentive to perform unnecessary work, especially considering they works on a contingency fee basis, and as such never receive a single penny from clients for cases under which they do not prevail. Therefore, the amount of hours worked by Plaintiff's counsels, and displayed in the fee bill must be presumptively taken as reasonable and necessary. In addition, the knowledge Mr. Sadr has derived from practicing in this field allows most O O 0 N N L t A W N N O N R N N N N N N N R m e m e m e m e R e d e R p e 0 J O N W n R A W N = O V V X N R W N = O o cases to move forward withlittle legal research being necessary to be conducted. Mr. Sadr spent just over an hour drafting a CLRA Demand Letter, and only an hour and a half drafting a complaint. Mr. Sadr effectively billed for less than three hours for tasks that other lesser experienced attorneys could reasonably and necessarily bill 10 to 15 hoursfor. Plaintiffs’ counselis entitled to additional fees for the hours expected in researching and drafting a Reply to Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs. Because a Reply has not been drafted yet,it is not included in the fee bill. Assuming Defendants’ counsel drafts an Opposition to Plaintiffs’ Attorneys’ Fees motion, a Reply would reasonably and necessarily have to be drafted in order to respond to any of Defendants’ objections to the fees requested. Mr. Heydari expects the Reply will take an additional three (3) hours to draft. Four hours at Mr. Heydari’s ordinary hourly rate of $325.00 per hour equals $975.00. As such, the Court should allow Plaintiff the requested fees of $72,469.25 in addition to $975.00 expected to research and draft a Reply, for a grand total of $73,434.25. | III DETERMINING COSTS Plaintiff’s counsel kept costs to a minimum (only for expert witnesses and required court costs). It is requested that the cost of expert witnesses in the total amount of $2,400 be included. Under the circumstances, the costs are recoverable pursuant to Civil Code 1780(e) because they were necessary to be able to show that the dealer had knowledge ofthe prior damage ofthis Vehicle, and to show that a similar pattern and practice existed with other consumers, and to assess the level of damage to the vehicle. As such, the Court should allow the requested costs of $4,270.85. Vv CONCLUSION The costs and fees associated with this matter, are attached. The fee bill has been reviewed to ensure accuracy as much as possible and is verified by Mr. Sadr. All the work done was necessary for Plaintiff to obtain relief after in this matter. The total hourly fees are © © ~ ~ O O W n B h W N b o N O N O N N N m m m m e s e e e e e s $73,434.25, and costs requested are $4,270.85, totaling $77,715.10 (See Fee Bill, attached as Exhibit 2 of the Sadr Declaration). Dated: November 16, 2016 THE SADR LAW FIRM, APLC a Fl NIMA HEYDARI, Esq. Attorney for Plaintiff(s) 10 B O W O o 0 N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I, the undersigned, declare that I am over the age of 18 years and not a party to this action. I am employed in the county of San Diego. My business address is 1455 Frazee Rd, Suite 500, San Diego, CA 92108. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service. On this day I served the document(s) entitled, 1. JESSICA GIBSON’S NOTICE OF MOTION AND MOTION FOR ATTORNEY’S FEES AND COSTS 2. DECLARATION OF KASRA SADR IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS 3. DECLARATION OF NIMA HEYDARI IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEY'S FEES AND COSTS on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: James G. Lewis James G. Lewis and Greg Eisner 10520 Venice Blvd. 10520 Venice Blvd. Culver City, CA 90232 Culver City, CA 90232 Attorney for Defendant, Attorney for Defendant, Benz Boyz Gateway One Lending & Finance LLC [ X 1 (BY MAIL) I caused each such envelope, with postage thereon fully prepaid to be placed in the United States mail at 1455 Frazee Rd, Suite 500, San Diego, CA 92108. I am readily familiar with this firm’s business practice for collection and processing of correspondence for mailing with the U.S. Postal Service pursuant to which practice the correspondence will be deposited with the U.S. Postal Service this same day in the ordinary course of business. [ 1 BY EXPRESS MAIL) I caused each such envelope to be deposited for delivery via overnight express mail at 1455 Frazee Rd, Suite 500, San Diego, CA 92108. [ ]1(BY EMAIL) I sent the attached documents via email to addressees’ office: spotso@aol.com, spotso@aol.com, 1 i» PROOF OF SERVICE B A O W N O o 0 N N N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [ ](BY FACSIMILE) I transmitted a true copy to the following fax no. ( ). I faxed the documents from the fax machine located at The Sadr Law Firm, APLC, 1455 Frazee Rd, Suite 500, San Diego, CA 92108. A transmittal confirmation sheet confirms delivery of the fax. There was no error reported. [ X ]1 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [ X 11 declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on November 16, 2016, at San Diego, California. ; (bf Liz Peralta 2 PROOF OF SERVICE