Judge: Anne Richardson, Case: 21STCV17319, Date: 2023-12-20 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 21STCV17319    Hearing Date: December 20, 2023    Dept: 40

Superior Court of California

            County of Los Angeles

Department 40

Background

Plaintiff Geraldine Jaimerena sues Defendants Jaguar Land Rover North America, LLC, Penske Jaguar Land Rover Cerritos (Cerritos), and Does 1 through 50 pursuant to a May 7, 2021 Complaint alleging claims of (1) Breach of Express Warranty Obligations Under the Act, (2) Breach of Implied Warranty Obligations Under the Act, and (3) Negligent Repair.

On June 6, 2023, Plaintiff Jaimerena filed a notice of settlement of entire case.

That same day, the Court set an Order to Show Cause (OSC) Hearing Re: Dismissal (Settlement) for December 8, 2023. The Court also advanced and vacated all previously scheduled hearings in Department 40.

On November 17, 2023, Plaintiff’s counsel Normal F. Taylor of Norman Taylor and Associates filed a memorandum of costs for $1,890.73.

That same day, Plaintiff’s counsel Richard M. Wirtz of Wirtz Law APC filed a memorandum of costs for $5,732.04.

On November 22, 2022, Plaintiff filed a motion for attorney’s fees.

On December 7, 2023, Defendant Jaguar filed an opposition to Plaintiff’s motion.

On December 13, 2023, Plaintiff Jaimerena replied to the opposition.

The motion for attorney’s fees is now before the Court.

Evidentiary Objections

Plaintiff’s Objections to Reply

Objection Nos. 1-2, 4, 6-9: OVERRULED.

Objection Nos. 3, 5, 10-11: OVERRULED.

Motion for Attorney’s Fees

Legal Standard 

A prevailing party is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) Attorney’s fees are also recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) A prevailing buyer in a Song-Beverly Act action is entitled to recover their attorney’s fees and costs under the Act’s express terms. (Civ. Code, § 1794, subd. (d); see Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 464, 471.)

The Court begins this inquiry “with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant multiplier factors include “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

No specific findings reflecting the court’s calculations for attorney’s fees are required; the record need only show that the attorney’s fees were awarded according to the “lodestar” or “touchstone” approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349, disagreed with on other grounds in In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236, fn. 7 [disagreement as to statement of decision requirements].) The Court has broad discretion to determine the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)

Order Granting Fees: GRANTED, in Part.

Plaintiff requests $73,255 in lodestar fees, plus $36,267.50 as a multiplier, for a total of $109,882.50. (Reply, p. 1.) [Note: in the notice of motion, the amounts are slightly different: $75,070 in lodestar, plus $37,535 as a multiplier, for a total of $112,605.00.] Plaintiff’s motion cites verified time sheets from counsel showing a detailed breakdown of the hours expended on this action by Norman Taylor and Associates and Wirtz Law APC. (Mot., pp. 2-8; Reply p. 10, Wirtz Decl., Ex. 1.)

In opposition, Jaguar argues that Plaintiff was required to prove reasonableness in fees and is only entitled to approximately $27,000 in attorneys’ fees, $10,000 to Taylor, and $17,000 to Wirtz. (Opp’n, p. 10.)

I. Reasonable Fee Rate

Plaintiff seeks a fee rate of $645 per hour for Norman F. Taylor and $250 per hour for Mr. Norman’s paralegals. (Mot., Taylor Decl., Ex. 1.) Plaintiff also seeks rates ranging from $400 to $750 per hour for Wirtz Law associate, senior, senior trial, and managing attorneys, as well as rates of $250 to $300 per hour for paralegals. (Mot., Wirtz Decl., Ex. 1.)

Plaintiff’s motion argues that the hours requested are reasonable, as confirmed in decisions made by other Courts, and based on the complexity of the litigation, the skill of the two law firms justifying the fees sought, and counsels’ evidence of other courts approving the fees sought by counsel. (Mot., pp. 8-12.) This includes going from a $7,000 cash offer in May 2020 to a post-mediation section 998 offer consisting of $99,750, buyback, penalties, and fees and costs. (Mot., pp. 1, 11.)

The motion is supported by a declaration executed by Norman F. Taylor, which provides a professional background for Mr. Taylor and otherwise supports the hours expended on this action by Norman Taylor and Associates. The declaration attached a verified time record for the hours expended by Norman Taylor and his paralegals, three declarations from long-time practitioners that support the requested fee rates, a copy of the Laffey Matrix, and copies of documents related to a January 15, 2020 demand letter. (Mot., Taylor Decl., ¶¶ 6-10, Exs. 1-6.)

That motion is also supported by a declaration from Richard M. Wirtz, who provides the academic and/or professional background for the attorneys and paralegals who worked on this action for Wirtz Law APC. The motion also attaches verified time records, a copy of the United States Consumer Law attorney Fee Survey Report (Report), the 2021 Real Rate Report, a chart breaking down orders confirming rates sought by Wirtz Law APC in other actions, and other exhibits supporting fees in this case. (Opp’n, Wirtz Decl., ¶¶ 4-13, 14-26.)

In opposition, Jaguar argues that the fee rates sought for the attorneys and paralegals in this matter are excessive, suggesting a blended fee rate of $350 for all the attorneys who worked on this action, and $150 per hour for the paralegals who worked on this action. Jaguar relies on a variety of case law finding that lemon law cases could warrant reductions in fee rates based on the nature of the work, even, for example, where counsel has 30-plus years of experience. Jaguar also argues that the clerical and administrative work performed by paralegals should not be compensated at the high rates requested. (Opp’n, pp. 6-8.)

In reply, Plaintiff argues that she has met her burden in filing this motion but that Jaguar has not, that the Court has legal but not arbitrary discretion as to fees, that Plaintiff should be awarded fees for hours reasonably spent on this action, and that the hourly rates sought for Plaintiff’s counsel are reasonable as to both attorneys and paralegals. (Reply, pp. 1-4, 8-9.)

The Court finds the fee rates reasonable, although at the high end for this area of law, based on the level of education, skill, experience, and the wide range of rates charged in Los Angeles County. However, the fact that Plaintiff’s attorneys charged top dollar for their experienced attorneys and professionals will be relevant when the Court comes to evaluating the appropriateness of a multiplier.

II. Reasonable Hours

Plaintiff’s motion supports the hours expended on this action by counsel through incorporation of summaries of those hours into the body of the points and authorities. (Mot., pp. 2-8.) Verified billing records are attached to Plaintiff’s counsel’s declarations. (Mot., Taylor Decl., Ex. 1; Mot., Wirtz Decl., Ex. 1.)

In opposition, Jaguar argues that Plaintiff has the burden of showing reasonableness and that the hours sought by Plaintiff are excessive for an action, where the major litigation events were limited to propounding discovery, the taking of four depositions for less than nine hours total, and the filing of standard motions in limine prior in advance of the final status conference. Jaguar also argues that, without justification, Plaintiff employed two law firms to represent her, thus driving up fees based on the inefficiencies created by the joint representation. Jaguar also argues that hours spent on clerical or administrative work should be reduced. (Opp’n, pp. 4, 5-6, 8-9.)

The opposition attaches charts showing the specific fee entries challenged. (Opp’n, Reynolds Decl., Exs. A-B.)

In reply, Plaintiff argues that she has met her burden in filing this motion but that Jaguar has not, that the Court has legal but not arbitrary discretion as to fees, that Plaintiff should be awarded fees for hours reasonably spent on this action, and that the hours billed are reasonable. The reply updates the request for fees based on the hours spent or not spent related to costs and to this motion. (Reply, pp. 1-4, 4-8.)

The Court finds in favor of Plaintiff for the majority of the hours requested.

The two verified billing records are well detailed. (Mot., Taylor Decl., Ex. 1; Reply, Wirtz Decl., Ex. 36.) They show tasks performed in increments of time that seem commensurately reasonable. Though Jaguar argues that the litigation history in this action was not extensive enough to merit the fees requested, the verified time records do set out a picture of hours expended by counsel to bring this case to a positive resolution for their client, ultimately accomplished through mediation, and only after rejecting an $7,000 initial cash offer and litigating to a post-mediation section 998 offer consisting of $99,750, a buyback, penalties, and fees and costs. The billing entries reflect reasonable time spent achieving that result. (See Almanor Lakeside Villas Owners Assn v Carson (2016) 246 Cal.App.4th 761, 775-777 [whether to reduce fee award based on prevailing party’s degree of success is within judge’s discretion; even nominal award may represent complete success, and degree of success may be considered alongside other appropriate factors in determining reasonable attorney’s fees].)

While Jaguar provides a well-detailed analysis of what it thinks the reasonable hours expended on this action should have been by Plaintiff’s counsel (Opp’n, Reynolds Decl., Exs. A-B), the Court disagrees with Jaguar’s conclusions because the results achieved in this action merit compensation for the hours shown to have been expended by Plaintiff’s counsel in this action.

Nonetheless, in the Court’s discretion, after reviewing the documents in support and in opposition, the Court reduces the fees requested by 10% to account for work performed by attorneys that is too vague to be able to determine its reasonableness and that was performed by a higher level professional than was necessary.  Thus, Plaintiff’s counsel is entitled to $73,255 less 10% ($7,322.50) = $65,932.50.

III. Multiplier Enhancement

Plaintiff Jaimerena argues that a 1.5 multiplier is merited in this action based on the contingent nature of the action and on the public interest supporting consumers in lemon law actions. (Mot., pp. 13-14.)

In opposition, Jaguar argues that there was nothing extraordinary in the settlement for this case, which came about more from mediation than by efforts by Plaintiff’s counsel to force Jaguar to accept a demand for settlement. (Opp’n, pp. 9-10.)

In reply, Plaintiff argues that the requested 1.5 multiplier is proper because of the risk of contingency contracts and because of the delay in compensation to counsel. (Reply, pp. 9-10.)

The Court finds in favor of Defendant.

While a multiplier is often appropriate based on the contingency nature of representation and the skill employed by counsel achieving the results secured for Plaintiff Jaimerena, here the Court finds it would be inequitable because the Court has already considered these factors in awarding the high fee rates requested by Plaintiff’s counsel. (Robles v. Employment Dev. Dep’t (2019) 38 Cal.App.5th 191, 205 [to account for the lengthy delay in obtaining a fee award for the work associated, the court should use current prevailing hourly rates]; La Mesa-Spring Valley School Dist. V. Otsuka (1962) 57 Cal.2d 309, 316 [the court may consider the skill and learning, including age and experience, of the attorneys in determining hourly rates].) The Court finds that this was not a particularly complex or novel case.

The total attorney’s fee awarded thus remains $65,932.50.

IV. Costs

On November 17, 2023, Plaintiff’s counsel Normal F. Taylor of Norman Taylor and Associates filed a memorandum of costs for $1,890.73.

That same day, Plaintiff’s counsel Richard M. Wirtz of Wirtz Law APC filed a memorandum of costs for $5,732.04.

It would appear there is no opposition to the costs. (Reply, p. 10.)

Accordingly, the Court is inclined to award costs in the amounts requested. 

Conclusion

Plaintiff Geraldine Jaimerena’s Motion for Attorney’s Fees is GRANTED, in part, in the amount of $65,932.50.

Costs are awarded to Plaintiff’s counsel Normal F. Taylor of Norman Taylor and Associates in the amount of $1,890.73, and to Plaintiff’s counsel Richard M. Wirtz of Wirtz Law APC in the amount of $5,732.04.