Friday, April 3, 2020
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Court of Appeal:
Slashing Fee Award to 28 Percent of Amount Claimed Was Warranted
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed Los Angeles Superior Court Judge Randolph Hammock’s award of $95,900 in attorney fees to the successful plaintiff in a “lemon law” case, holding that there was no abuse of discretion in spurning the trial lawyers’ request for $344,639.
The opinion, filed Wednesday, was not certified for publication. It was authored by Los Angeles Superior Court Judge Elizabeth Allen White, sitting on assignment to Div. One.
Plaintiff Lorik Mikhaeilpoor was represented in the trial court by Strategic Legal Practices, APC (“SLP”), a Century City firm that is headed by Payam Shahian and specializes in actions under the Song Beverly Consumer Warranty Act. Its telephone number is 888-SLP-LEMON and the firm promotes itself as providing services of “Lemon law attorneys for the toughest cases.”
Mikhaeilpoor sued BMW of North America LLC and Finchey Corporation of California alleging failed efforts to repair her 2013 BMW 328i and a refusal to replace the vehicle or make restitution.
A jury on Feb. 28, 2018, awarded her $17,902.54 in compensatory damages, which was doubled, as provided for by the Song Beverly Act, for a total of $35,805.08. The act also mandates an award of attorney fees “reasonably incurred”—although, under case law, an award may be denied where the amount sought is unconscionable.
Unreasonable Billings
In his Sept. 21, 2018 order granting $95,900 in attorney fees—reduced to $94,864 in light of awards of attorney fees and costs to the defendants—Hammock said “that the amounts billed” by SLP “are unreasonable, including dual billing of attorneys when the work of only one (at times) was reasonably required.”
The SLP attorneys sought fees at rates ranging from $325/hour to $595 an hour. Those rates, the judge found, are “reasonable in the community,” but added that attorneys who bill at such rates “should not need to research routine issue of law and should resort to boilerplate when it will serve the client’s purposes.”
Hammock commented:
“This was not a complicated case. Plaintiff was lucky, in this Court’s opinion, to win anything. This Court will not compound the generosity of the jury.”
Eliminating Award Contemplated
He added:
“Plaintiffs attorneys should be forewarned: This Court did seriously consider denying the motion for fees in its entirety, since the request of almost $350,000 was quite shocking and ‘unreasonably inflated.’
“This Court is aware of the substantial fees and costs which are incurred in bringing a case to trial before a jury. It is also aware of the pro-consumer rationale of the Song Beverly Act in liberally awarding such fees and costs….A request of almost $350,000 in fees for this particular case— which this Court has essentially handled from beginning to end—is simply unacceptable. Indeed, the request for a multiplier was specious.”
Arbitrariness Alleged
Mikhaeilpoor argued on appeal that Hammock acted arbitrarily in setting the fee award and had neglected to begin his analysis by setting a lodestar amount.
“In finding that $95,900 was the reasonable amount of attorney fees in this case, the trial court expressly invoked the lodestar method.” White wrote.
The order says:
“In light of the foregoing, the Court finds that the lodestar amount of attorney’s fees is $95,900.00, which includes the fees incurred in connection with bringing the instant motion. This was calculated by finding a total amount of 274 hours which were reasonably incurred to date, at the average rate of $350 per hour.”
‘Illusion of Error’
White remarked:
“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.”
The jurist pointed to Hammock’s findings and declared, in agreement with him:
“Plaintiff ’s counsel spent an unreasonably excessive amount of time dealing with this non-complex case.”
Rejecting Mikhaeilpoor’s contrary contention, she said Hammock did not impermissibly tie the attorney fee award to the amount of compensatory damages that were recovered.
Multiplier Not Used
The $344,639 award proposed by Mikhaeilpoor was comprised of $226,426 in fees allegedly earned, with a .50 multiplier enhancement—or $113,213—plus $5,000 for work in connection with the defendants’ objection to the amount that was sought. Hammock’s award included recompense for time spent on the fee motion but there was no enhancement.
“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,’ ” White wrote.
This, she said, has a bearing on the issue of whether an enhancement is warranted based on the “novelty and difficulty of the questions involved.”
That the case was a simple one, White noted, is borne out by evidence that Shahian only becomes personally involved in a case if it’s complex, and there was no billing for his time.
Lead Counsel
Christine Haw was lead counsel in the case. Haw, who is no longer with SLP, had been an attorney for only about five years, but, it was claimed, she had handled “hundreds of automotive defect cases involving Song-Beverly.” Hourly rates were sought for her at $365 and $375.
White said that despite that experience, Hammock “reasonably found that Haw did not leverage her experience to produce efficient litigation,” noting:
“Haw personally billed more than 240 hours, and required the help of nine other attorneys at various points in the litigation.”
She said Hammock was in the best position to determine the reasonableness of the amount sought, substantial evidence supported his decision, and there was no abuse of discretion.
The case is Mikhaeilpoor v. BMW of North America, LLC, B293987.
Attorneys on appeal were Hallen D. Rosner and Arlyn L. Escalante of Rosner, Barry & Babbitt for Mikhaeilpoor and Thomas M. Peterson and Mark W. Allen of Morgan, Lewis & Bockius for the defendants.
Copyright 2020, Metropolitan News Company