Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KC045799. Robert A. Dukes, Judge.
Bannan, Green, Frank & Terzian, C. Forrest Bannan and Mark P. Estrella for Defendant and Appellant.
Alexander Wick, Previn A. Wick; Krohn & Moss, Ltd. and Todd M. Friedman for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Mercedes-Benz USA, LLC (MBUSA) appeals from an order awarding attorney fees following a judgment in favor of plaintiff and respondent Marisa Isip. MBUSA contends the amount of the fee award was unreasonable and the trial court should have apportioned fees. We conclude the trial court did not abuse its discretion, and therefore, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Isip purchased a car from a Mercedes-Benz dealership. She experienced several problems with the car that were not corrected despite multiple attempts at repair. On March 14, 2005, Isip filed a complaint against MBUSA for breach of a written warranty in violation of the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C. § 2301 et seq.), breach of the implied warranty of merchantability under Magnuson-Moss, revocation of acceptance of a car that was substantially impaired in violation of section 2310(d) of title 15 of the United States Code, failure to repair defects in violation of the Song-Beverly Consumer Warranty Act (Song-Beverly) (Civ. Code § 1790 et seq.), and breach of the implied warranty of merchantability under Song-Beverly.
A jury trial was held in March 2006. The jury found that MBUSA breached the written warranty by failing to repair the car, but the breach caused no monetary damages to Isip. The jury also found that the car did not have defects covered by the warranty that substantially impaired its use, value, or safety. However, the jury found that MBUSA also breached the implied warranty of merchantability under Magnuson-Moss and Song-Beverly, causing damages of $20,000 to Isip. On April 19, 2006, the trial court entered judgment in favor of Isip in the amount of $20,000 for breach of the implied warranty of merchantability under Magnuson-Moss and Song-Beverly. MBUSA filed a notice of appeal and this court affirmed the judgment.
We have taken judicial notice of the opinion in case No. B192382 affirming the judgment.
On June 18, 2006, Isip filed a motion requesting attorney fees and litigation expenses in the amount of $51,765.60. She submitted the declaration of her attorney, Todd Friedman, in support of the motion for attorney fees. Attorney Friedman listed his qualifications as an attorney and his experience working on consumer warranty cases for the law firm Krohn & Moss. He declared that lawyers in his field typically charge between $300 and $400 per hour in California. He stated, “Lemon law cases are contingent, in that, in the event we lose, K & M waives its fees and the court costs that it advances on behalf of our client.” Attorney Friedman attached orders awarding fees in similar actions. He provided the names of ten attorneys practicing in the same field and the rates that they charge. He also declared that he and his partner, Attorney Jennifer Basola, had recently been awarded a rate of $324 per hour in a different California case against MBUSA, and he attached a copy of the ruling. He declared that he had spent 67.4 hours performing services in the instant case.
The time records attached to Attorney Friedman’s declaration listed the time that various attorneys, law clerks, and paralegals at Krohn & Moss had spent on the case. The records showed that Attorney Friedman spent 88.4 hours performing services in the case. A lodestar chart submitted with the time records stated that the total amount requested for fees and expenses was $51,765.60, which included fees of $37,516.80, costs of $3,895.68, and a lodestar multiplier of 1.25 or $10,353.12. The lodestar chart erroneously listed that Attorney Friedman had performed 89.9 hours of work on the matter and based the fee calculation in part on that number.
On July 11, 2006, MBUSA filed an opposition to the motion for attorney fees. MBUSA’s attorney submitted a declaration stating that he had been practicing law for 30 years, of which 20 years were specifically in lemon law litigation, and he charged $315 per hour. MBUSA noted that the time records reflected Attorney Friedman had performed 88.4 hours of services in the instant case.
Isip filed a reply. She submitted her declaration that she had never received a bill for attorney fees from Krohn & Moss and never made a payment to Krohn & Moss. She submitted the declaration of Attorney Friedman in which he stated that he made a typographical error in his prior declaration and he had spent 89.9 hours performing services in the instant case. She also submitted the declaration of a lemon law expert in support of the amount of fees requested.
The trial court issued a tentative ruling finding the requested fees were reasonable and had been reasonably expended by the attorneys. “Together, counsel tried to verdict 23 cases in the area of lemon law and breach of warranty and have participated in mediations and arbitrations on behalf of hundreds of [consumers] in California and Illinois. Further, their rates were deemed reasonable in [another case], which involved identical [causes] of action and the same defendant. Counsel has submitted a declaration attesting to other rates charged by litigators in the field, which ranges from $300-$400 per hour. The court finds counsel’s rate of $324 to be reasonable. Further, counsel has attested that he expended 89.9 hours on this matter [citation] and that Exhibit D reflects time records of other attorneys and clerks who performed services in connection with the case [citation].” On the issue of apportionment, the trial court found all of Isip’s causes of action were related to the purchase of the vehicle from MBUSA and her subsequent efforts to obtain repairs of its defects. Therefore, the counts involved a common core of facts and were based on related legal theories. The court declined to apportion the fees. The court also declined to apply a multiplier.
A hearing was held on July 24, 2006. Counsel for both parties agreed that there was a discrepancy as to Attorney Friedman’s total hours requiring a reduction of $574.80. Therefore, the total amount awarded was $40,837.68. The trial court adopted the tentative ruling. MBUSA filed a timely notice of appeal from the July 24, 2006 order awarding attorney’s fees and costs to Isip.
DISCUSSION
Standard of Review
We review the trial court’s award of attorney fees for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.)
Attorney Fees Based on Time Expended
MBUSA contends the trial court’s award of attorney fees was an abuse of discretion, because Isip did not actually incur the fees, the hourly rates were unreasonable, and fees were awarded for unnecessary work. MBUSA’s contentions have no merit.
Civil Code section 1794, subdivision (d), provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as 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.”
“The plain wording of the statute requires the trial court 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. As summarized in Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104, with respect to hourly fee cases: ‘It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended is not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.’ In the situation of a contingency fee arrangement, the court in Nightingale stated, ‘for purposes of [Civil Code] section 1794, subdivision (d), a prevailing buyer represented by counsel is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorney.’ (Nightingale v. Hyundai Motor America, supra, 31 Cal.App.4th at p. 105, fn. 6.) In either case, a prevailing party has 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.)” (Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144 Cal.App.4th at pp. 817-818.)
MBUSA’s contention that Isip was not entitled to an award of attorney fees because she had a contingent fee agreement with her attorneys and did not actually incur the requested fees has been rejected by the courts. (See Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144 Cal.App.4th at p. 818.) “Under fee-shifting provisions contained in remedial statutes, courts have routinely allowed fees to be recovered to compensate for legal services performed for a client even though the client did not have a personal obligation to pay for such services out of his or her own assets. (See Lolley v. Campbell (2002) 28 Cal.4th 367, 373; Hayward v. Ventura Volvo (2003) 108 Cal.App.4th 509, 510-513, [contingency fee contract].)” (Ibid.) The evidence was that Isip had a contingent fee arrangement with her attorneys and she requested an award of fees based on the time expended by her attorneys, which was appropriate under the statute and the case law.
MBUSA’s contention that Isip failed to substantiate the reasonableness of the attorneys’ hourly rates is equally unavailing. In addition to the qualifications of her attorneys, Isip provided evidence of similar and higher rates commanded by several attorneys who practice law in the same field. She also provided evidence that Attorney Friedman and Attorney Basola had received an attorney fee award based on the same rates in another case with similar issues against the same defendant. Isip submitted an expert declaration that substantiated the requested rates as well. Attorney Friedman’s defense counterpart in this case charges $315 per hour. There was substantial evidence to support the hourly rates requested.
MBUSA contends that the amount of fees should have been reduced in accordance with the statement in Attorney Friedman’s first declaration that he had performed 67.4 hours of work in this case. This contention has no merit. The time records submitted in support of the declaration clearly show that Attorney Friedman performed 88.4 hours of work in connection with this case. MBUSA has not identified a single entry that was for unnecessary work. Attorney Friedman also submitted a second declaration clarifying that there was a typographical error in the first declaration as to the number of hours that he had worked. The amount of the fee award was not an abuse of discretion.
Apportionment
MBUSA contends that the trial court should have apportioned the fee award between the causes of action, because Isip should not recover attorney fees for time spent on unsuccessful claims. We find no abuse of discretion.
“The judge who presided at trial is in the best position to determine the reasonableness of the fees. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The exercise of the trial court’s discretion in awarding fees will not be disturbed unless it is clearly wrong. (Ibid.) Where the issues are so interrelated that it is impossible to separate them into claims for which fees are and are not awardable, no apportionment need be made. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.)” (LeVine v. Weis (2001) 90 Cal.App.4th 201, 214, disapproved on another issue in Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1183.)
In this case, the causes of action arose out of the same set of facts, namely, the purchase of the car and Isip’s attempts to have the car repaired. The legal theories were interrelated based on state and federal lemon law statutes. On appeal, MBUSA does not even attempt to show that the facts and legal theories of the unsuccessful claims could be separated from those of the successful claims. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed. Marisa Isip is awarded her costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.