Judge: Alison Mackenzie, Case: 21STCV19032, Date: 2023-11-28 Tentative Ruling
Case Number: 21STCV19032 Hearing Date: November 28, 2023 Dept: 55
NATURE OF PROCEEDINGS: Plaintiffs’ Motion for Attorneys’ Fees, Costs,
and Expenses
The motion is granted, in a reduced sum, not as
prayed.
The Court awards plaintiffs JOSE MEZA and LEONARDO
JUAREZ attorneys’ fees in the amount of $79,126.00 and costs in the amount of $20,171.20,
for a total amount of $99,297.20 against Defendant FORD MOTOR COMPANY.
On 5/20/21, JOSE MEZA and
LEONARDO JUAREZ (“plaintiffs”) filed a Complaint against FORD MOTOR COMPANY (“Defendant”), alleging that they
purchased a 2018 Ford F-150 having engine and electrical defects, and the
manufacturer failed to replace the vehicle or make restitution after a
reasonable number of repair attempts. The
causes of action are: 1) Violation Of
Song-Beverly Act - Breach Of Express Warranty;
2) Violation Of Song-Beverly Act - Breach Of
Implied Warranty.
On 6/9/23, plaintiffs filed a notice of settlement of
this case.
Presently under consideration is plaintiffs’ motion for
an award of attorneys’ fees, expenses and costs, pursuant to Civil Code §
1794(d) of the Song-Beverly Consumer Warranty Act. As the prevailing parties, pursuant to a
Section 998 offer served by Defendant that plaintiffs accepted on 6/9/23, they
move for an award of attorneys’ fees under the lodestar method, in the amount
of $79,126.00. Additionally, plaintiffs
request a lodestar enhancement of 0.5, in the amount of $39,563.00, for a total
of $118,689.00 as the attorneys’ fees actually and reasonably expended.
Plaintiffs also move this Court for reimbursement of verifiable costs and
expenses in the amount of $20,171.20. The total amount requested by the motion
is $138,860.20. Defendant has opposed and advocated various amount reductions,
down to
a total of no more than $31,575.75, based on a variety of arguments, including
(1) Plaintiffs’ counsel’s hourly rates are excessive and “outpace” the
prevailing hourly rates for Song Beverly Act litigation in Los Angeles County,
(2) Plaintiffs’ use of eighteen different timekeepers for this run-of-the-mill
matter is the very definition of unreasonable and unnecessary, (3) Plaintiffs’
counsel’s time entries reflect excessive work, (4) a lodestar multiplier is not
justified, and (5) Plaintiffs provide no documentation to support that their
costs were reasonably incurred.
Attorneys’ Fees
Moving
Burden
Civil
Code Section 1794(d) requires a court to base the attorneys’ fee award in a
Lemon Law case on actual time expended on the case, and reasonably incurred, as
to time spent, and amount, under all circumstances including complexity of the
case, procedural demands, skill exhibited, and results achieved. McKenzie v. Ford Motor Co. (2015) 238
Cal. App. 4th 695, 698, 703 (reversing a judge’s denial of fees where based on
instances of duplicative work). “The
‘plain wording’ of section 1794, subdivision (d) requires the trial court to
‘base’ the prevailing buyer's attorney 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.’ ”
Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24,
35. Accord Robertson v. Fleetwood Travel Trailers of
California, Inc. (2006) 144 Cal.App.4th 785, 817. But see Reynolds v. Ford Motor Co. (2020) 47
Cal. App. 5th 1105, 1110 (as to the Song-Beverly Act, fee awards must be based
on the judge’s calculation of actual time expended determined to have
been incurred reasonable, and the Act does not include a requirement that the
court also determine that the amount of attorneys’ fees is
reasonable).
As to
Song–Beverly warranty claims, prevailing buyers have the burden to show that
the fees incurred were reasonably necessary to the conduct of the litigation
and were reasonable amounts. Doppes
v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998. Under the Song-Beverly Act, the question
whether attorneys’ fees were reasonably incurred may depend on circumstances
including, “factors such as the complexity of the case and procedural demands,
the skill exhibited, and the results achieved.”
Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462,
470. The appellate court reviews awards
of attorney fees under Civil Code section 1794, subdivision (d), for abuse of
discretion. Doppes, supra, at 998.
“[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/plaintiff's damages or recovery
in a Song-Beverly Act action, or pursuant to another consumer protection
statute with a mandatory fee-shifting provision.” Warren v. Kia Motors Am., Inc. (2018)
30 Cal. App. 5th 24, 37. Accord Morris v. Hyundai Motor Am. (2019) 41
Cal. App. 5th 24, 35. Under the
Song-Beverly Act, awards of attorney fees are limited to actual hours expended
and reasonably incurred, and not based on the amount of the prevailing
plaintiff's damages or recovery, or the fact of a contingency fee
agreement. Reynolds v. Ford Motor Co.
(2020) 47 Cal.App.5th 1105, 1112-1117.
In calculating a reasonable
value of attorney services and hourly rates, courts may consider their
knowledge and familiarity with the legal market, the experience, skill, and
reputation of the attorney requesting fees, the difficulty or complexity of the
litigation, affidavits from attorneys regarding prevailing fees in the
community, and rate determinations of other cases. 569 East County Boulevard
LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 437.
In supporting attorneys’ fees
motions, “ ‘there is no required level of detail that counsel must achieve.’
” Syers Properties III, Inc. v.
Rankin (2014) 226 Cal.App.4th 691, 699.
Attorney billing records are not required, but there must be some
evidence in support of fees. Weber v. Langholz (1995) 39 Cal. App. 4th
1578, 1587. “It is not necessary to
provide detailed billing timesheets to support an award of attorney fees under
the lodestar method…. Declarations of counsel setting forth the reasonable hourly
rate, the number of hours worked and the tasks performed are sufficient.” Concepcion v. Amscan Holdings, Inc.
(2014) 223 Cal.App.4th 1309, 1324. In
calculating a reasonable value of attorney services and hourly rates, courts
may consider their knowledge and familiarity with the legal market, the
experience, skill, and reputation of the attorney requesting fees, the
difficulty or complexity of the litigation, affidavits from attorneys regarding
prevailing fees in the community, and rate determinations of other cases. 569
East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal. App. 5th 426, 437.
Records
amounting to vague block billing are not objectionable per se, but are a risky
choice, because moving parties have the burden to support fees requests, and
the strategy may lead to trial courts’ discretionary curtailing of the number
of compensable hours. Christian
Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1325.
Here,
the Court finds that the declarations and billing summaries provided by the two
law firms representing Plaintiffs suffice to shift the burden to Defendant. The invoice entries are clearer than that usually
seen with motions for fees and do not contain overly vague block billing. Rather, the entries provide clear
descriptions of the work performed dating back to the inception of the case in 2021.
Opposing Burden
The Court finds that the
opposing declaration offers insufficient detail to support a ruling disallowing
any fees sums. The opposition consists of a short declaration, background
documents as exhibits, other trial court rulings, and a chart (ex. G) proposing
many small reductions without supportive explanations (Sara Ross decl., filed
11-13-23).
“ ‘In challenging attorney
fees as excessive because too many hours of work are claimed, it is the burden
of the challenging party to point to the specific items challenged, with a
sufficient argument and citations to the evidence. General arguments that fees
claimed are excessive, duplicative, or unrelated do not suffice.’ ” Lunada Biomedical v. Nunez (2014) 230
Cal.App.4th 459, 488. Accord Etcheson v. FCA US LLC (2018) 30
Cal.App.5th 831, 848. Parties opposing
motions for attorneys' fees fail to show any abuse of discretion where they
merely contend that amounts of attorneys' fees are excessive without providing
a specific analysis or factual support. Mallard
v. Progressive Choice Ins. Co.
(2010) 188 Cal.App.4th 531, 545; Raining
Data Corp. v. Barrenechea (2009) 175
Cal.App.4th 1363, 1376 (an “‘assertion [that] is unaccompanied by any citation
to the record or any explanation of which fees were unreasonable or
duplicative’ is insufficient to disturb the trial court's discretionary award
of attorney fees.”); Maughan v.
Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1250; Avikian v. Wtc Fin. Corp. (2002) 98
Cal. App. 4th 1108, 1119; Premier
Medical Management Systems, Inc. v. California Insurance Guarantee Association
(2008) 163 Cal.App.4th 550, 560
(emphasizing that opposing parties “submitted no evidence that the hours
claimed by counsel were excessive,” and declining to “declare as a matter of
law that the hours were unreasonable”); Villanueva
v. City of Colton (2008) 160 Cal.App.4th 1188, 1204 (opposing party
“offered no evidence of any kind which might have warranted a reduced fee
award.”). In one Lemon Law case, there
was substantial evidence amply supporting the trial court's reduced fee award,
based on a record demonstrating the relative simplicity of plaintiff's lawsuit,
and inefficiency of counsel’s activities.
See Mikhaeilpoor v. BMW of North America, LLC (2020) 48
Cal.App.5th 240, 255.
Reasonable
Amount
The determination of
reasonable amount of attorney fees is within the sound discretion of trial
courts. PLCM Group v. Drexler
(2000) 22 Cal.4th 1084, 1095;
Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127,
1134.
Plaintiff’s counsel have evidenced
various efforts to avoid duplicative work notwithstanding staffing with
multiple attorneys (e.g., Brian Williams
decl., filed 10/27/23, ¶ 11; and Roger
Kirnos decl., filed 10/27/23, ¶ 41).
Additionally, the Court has reviewed the law firm’s invoices attached to
the declarations, and finds that there is nothing apparently duplicative or
unreasonable in amount, or work just clerical in nature done by more expensive
attorneys.
Billing
Rates
Judges are not required to
award the lower market rate of attorneys’ fees, and may have discretion to
determine that the actual rate charged was reasonable. Syers Properties III, Inc. v. Rankin
(2014) 226 Cal.App.4th 691, 702. In
setting the hourly rate for an attorney fees award, courts are entitled to
consider the rate of “‘fees customarily charged by that attorney and others in
the community for similar work.’" Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 (affirming rate of $450 per
hour), overruled on other grounds by Lakin
v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664. Based on an undisputed record, a trial
court's award of $550 per hour was lower than the comparable, market rate for
similarly experienced attorneys in the area, and thus the order was
reversible. See Caldera v. Dept. of Corrections &
Rehab. (2020) 48 Cal.App.5th 601, 611.
The rates for Plaintiffs’
attorneys range from $295 on the low end (for an associate in 2021) to $875 on
the high end, for the partner tasked with trying the case. The Court finds that
the billing rates are standard in the local profession, and reasonable. The rates are especially reasonable when considering
that, based on the Court’s review of the billing entries, associates working at
a relatively lower hourly rate ($295 to $425) performed much of the work on the
case. The hourly rates proposed by Defendant ($350 for partner and $275 for
associate) are clearly at the very low end of what attorneys have locally
billed for many years and are not reasonable.
Moving counsel’s occasional billings at rates of $650 and $875 are not
outside of a common range for experienced and skilled attorneys.
Staffing
“[I]t is appropriate for a
trial court to reduce a fee award based on its reasonable determination that a
routine, non-complex case was overstaffed to a degree that significant
inefficiencies and inflated fees resulted.”
Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 39. A court “ ‘indicated a fee reduction was
warranted because it was unreasonable to have so many lawyers staffing a … case
that did not present complex or unique issues, did not involve discovery
motions, and did not go to trial.’ ” Mikhaeilpoor
v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 253.
Here, the Court has reviewed
the law firm’s invoices attached to the declarations and finds that the
staffing of many attorneys has not resulted in unreasonable attorneys’ fees,
because each attorney worked only a small amount of time on separate tasks and
charged relatively small sums The fact that Plaintiffs’ attorneys employed
numerous timekeepers does not, therefore, militate against awarding fees.
Templates
A trial court’s referencing
counsel’s use of templates, as one part of reasoning that a reduced number of
attorneys was needed in a case, was affirmed.
See Morris v. Hyundai
Motor Am. (2019) 41 Cal. App. 5th 24, 31-33, 39 (“asserted that even though her counsel used
‘form documents’ in the case, work was necessary to conform those templates to
the actual facts of this case.”).
In the matter at hand,
although moving counsel’s declarations make clear that they are experienced in
the specialty of Lemon Law, which implies they have been doing similar tasks in
many other cases they handled, legal research indicates that there is no
governing California authority requiring reduced fees for efficiently reusing
information derived from other cases that counsel handled. “A legal proposition asserted without
apposite authority necessarily fails.”
People v. Taylor (2004) 119 Cal.App.4th 628, 643. Further, the evidence does not state that
moving counsel had used templates for this case.
Multiplier
“The award of a multiplier is
in the end a discretionary matter largely left to the trial court.” Hogar v. Community Development Com'n of
City of Escondido (2007) 157 Cal.App.4th 1358, 1371. “[T]he 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.” Rey v. Madera Unif. Sch. Dist. (2012)
203 Cal.App.4th 1223, 1242.
The Court agrees with
Defendant that, “there was nothing novel or complex about this case, it
involved no special skill or ability, and it did not result in an extraordinary
award (opp., 17:12-13). A multiplier is
not justified because the case was relatively simple, essentially involving a
short Complaint having two causes of action and allegations typical of Lemon
Law cases, and a relatively light amount of activity showing on the Court
docket—basically a typical amount of discovery motions and then filings of
trial documents.
Costs/Expenses
The Song-Beverly Act requires
allowing costs “determined by the court to have been reasonably incurred by the
buyer in connection with the commencement and prosecution” of the case, which
is reviewed under the abuse of discretion standard. Levy v. Toyota Motor Sales, U.S.A., Inc.
(1992) 4 Cal. App. 4th 807, 813. See also generally Duff v. Jaguar Land Rover N. Am., LLC
(2022) 74 Cal. App. 5th 491, 501
(summarizing Civ. C. § 1794(d)).
“[I]n enacting Civil Code
section 1794, subdivision (d) the Legislature intended the phrase ‘costs and
expenses’ to cover items not included in “ ‘the detailed statutory definition
of ‘costs’ ” set forth in Code of Civil Procedure section 1033.5.” Warren v. Kia
Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 42, 43 (“it is indisputable that Warren ‘reasonably
incurred’ the $5,882 cost of the trial transcripts ‘in connection with the ...
prosecution of [the] action.’ ”).
Vehicle buyers are entitled to
reasonably incurred expert witness fees under Civil Code Section 1794(d)
allowing costs and expenses. Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-38.
If items appear on their face
to be proper, the verified memorandum of costs is prima facie evidence of their
propriety, shifting the burden of proof to the attacking party. Adams
v. Ford Motor Co. (2011) 199
Cal.App.4th 1475, 1486-87; Benach v.
County of L. A. (2007) 149 Cal. App. 4th 836, 855; Nelson v. Anderson (1999) 72 Cal. App.
4th 111, 131-32 (“trial court erred in requiring additional proof from” the
party claiming costs, where the party attacking costs had the burden); Santantonio v. Westinghouse Broad. Co.
(1994) 25 Cal. App. 4th 102, 116, 121 (after a prima facie showing based on
verified cost memorandum, objecting party has the burden to prove costs should
be disallowed); Ladas v. Cal. State
Auto. Assn. (1993) 19 Cal.App.4th 761, 773;
Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256,
266. Where they do not appear regular on
their face, the burden is on the claiming party. Jones v. Dumrichob (1998) 63
Cal.App.4th 1258, 1267. But see Acosta v. SI Corp. (2005) 129 Cal. App.
4th 1370, 1380 (“if the items are properly objected to, they are put in issue
and the burden of proof is on the party claiming them as costs.” ); Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 ("Only after such costs are challenged
by a motion to tax do the parties need to justify their claims by submitting
documentation of the costs they have incurred.").
As to parties prevailing in an
action on a contract with terms for recovery of attorney fees and costs,
counsel's disbursement costs, such as secretarial, copying, telephone, expert
fees and travel, are recoverable as a part of attorney fees, “if they represent
expenses ordinarily billed to a client and are not included in the overhead
component of counsel's hourly rate.” Bussey
v. Affleck (1st Dist. 1990) 225 Cal. App. 3d 1162, 1166-67, abrogated by Hsu v. Semiconductor
Sys., Inc. (2005) 126 Cal. App. 4th 1330, 1342. But
see, e.g., Benson v. Kwikset Corp. (4th Dist. 2007) 152
Cal. App. 4th 1254, 1283 (recognizing split of authority); Fairchild v. Park (2d Dist.
2001) 90 Cal. App. 4th 919, 930 (disagreeing with Bussey opinion, and
following view that attorney fees and expenses are distinctly different by
statute); Robert L. Cloud &
Assocs., Inc. v. Mikesell (1st
Dist. 1999) 69 Cal. App. 4th 1141, 1154
(“attorney fees do not include expenses….”). Support services, including expenses related
to secretaries and paralegals, are includable in an award for attorneys’
fees. City of Oakland v. McCullough
(1996) 46 Cal.App.4th 1, 7.
In this case, plaintiffs’
Memorandum of Costs, filed 10/27/23, list only costs expressly allowed by Code
of Civil Procedure section 1033.5, and that are normally pursued by competent
counsel, such that there is no further burden of proof by Plaintiff, and it is
Defendant that has the burden to disprove the costs. Alternatively, costs are separately
recoverable as costs and expenses under Civil Code section 1794, subdivision
(d), or as a component of attorneys’ fees. So, for example, the other statutory
requirements to obtain expert witness fees as costs are not mandatory under
Section 1794.
Conclusion
The motion is granted, in a reduced sum, not as
prayed.
The Court does not award a multiplier and therefore
reduces the requested about by $39,563.00, for a total of $79,126.00 as the attorneys’
fees, plus costs and expenses in the amount of $20,171.20, for a total amount awarded
in the sum of $99,297.20 (see notice of
motion, filed 10/27/23, p. i (setting forth proposed calculations)).
All other fees, costs and expenses are allowed, and
the objections to those are rejected.