Judge: Armen Tamzarian, Case: 21STCV13936, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV13936    Hearing Date: March 24, 2023    Dept: 52

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Plaintiffs Forrest Will and Nehemiah Lewrel move for $118,442.64 in attorney fees and other expenses under Civil Code section 1794, subdivision (d).   

Evidentiary Objections

            Defendants Hyundai Motor America and South Bay Hyundai make seven objections to the declaration of Norman F. Taylor.  All seven objections are overruled. 

            Defendants make 16 objections to the declaration of Richard M. Wirtz.  All 16 objections are overruled.

Plaintiffs make two objections to the declaration of Sasha Bassi.  Both objections are overruled.    

Lodestar

            Plaintiffs seek attorney fees based on the following hours and rates:

Hourly Rates

For hourly rates, “the trial court is in the best position to value the services rendered by the attorneys.”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436.)  Courts may rely on their “own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Id. at p. 437, citations omitted.)

Based on its knowledge of the legal market, its review of the credentials and experience of plaintiffs’ attorneys and paralegals, the routine nature of this Song-Beverly Consumer Warranty Act case, and the particular tasks performed by the attorneys and paralegals, the court reduces the hourly rates as shown below:

Hours

In calculating the lodestar, the court must determine whether the tasks performed by an attorney were necessary and whether the amount of time billed for each task was reasonable.  (Baxter v. Bock (2016) 247 Cal.App.4th 775, 793.)  The moving party has the burden of proof on these issues.  (Ibid.)  The number of hours billed may be unreasonable if the case is “overstaffed” with too many lawyers, resulting in redundant or unnecessary work.  (Hensley v. Eckerhart (1983) 461 U.S. 424, 434).  A reduced award is justified when a case is “overlitigated” and the bills are “padded.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38 (Morris).)  “ ‘[J]ust as there can be too many cooks in the kitchen, there can be too many lawyers on a case.’ ”  (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.)

 For a “voluminous fee application,” courts may “make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41; accord Morris, supra, 41 Cal.App.5th at p. 40 [“The court could properly have made an across-the-board reduction of 30 percent to accomplish the same purpose”].)

After reviewing counsel’s billing records (Taylor Decl., Ex. 1; Wirtz Decl., Ex. A), the court finds that some of plaintiffs’ attorney fees were not reasonably incurred.  Attorney Norman F. Taylor spent excessive time drafting discovery requests.  On September 27, 2021, Taylor spent 5.2 hours drafting form interrogatories, special interrogatories, requests for production, and requests for admission to Hyundai Motor America and another 3.6 hours for the written discovery to South Bay Hyundai.  (Taylor Decl., Ex. 1, p. 4.)  Taylor is an expert on the Song-Beverly Act.  (Taylor Decl., ¶¶ 9-12.)  He has represented consumers in Song-Beverly cases for 36 years.  (Id., ¶ 6.)  He has propounded similar discovery many times before.  The court finds these tasks should have taken 5.5 hours instead of 8.8 hours.    

Plaintiffs also billed numerous entries for paralegals doing clerical work that should not be billed at paralegal rates.  “[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”  (Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 288, fn. 10.)  There are too many examples to list in this order.  The court will provide a few to illustrate the point.  On May 27, 2022, senior paralegal Andrea Beatty billed 0.1 hours at $250 hourly to receive and review the proof of service of a motion and save the document.  (Wirtz Decl., Ex. A, p. 5.)  On August 2, 2022, paralegal Florence Goldson billed 0.2 hours at $200 hourly to draft the notice of posting jury fees.  (Id., p. 7.)  On August 25, 2022, Goldson billed 0.1 hours to receive and review an email with the link for a remote deposition.  (Id., p. 11.)  On August 29, 2022, Beatty billed 0.1 hours to review JAMS’ notice of closing file.  (Id., p. 12.)  On September 30, 2022, senior managing paralegal Rebecca Evans billed 0.2 hours at $300 hourly to receive and review the court’s notice of continuance of plaintiffs’ motion to compel South Bay Hyundai’s deposition.  (Id., p. 17.)  On December 12, 2022, senior paralegal Danielle Viviani billed 0.3 at $250 hourly to reserve the hearing on this motion and update the firm’s calendar.  None of these and many other entries should have been billed because they are for administrative tasks.

Defendants argue plaintiffs’ counsel billed an excessive amount for communicating with their clients.  Plaintiffs’ counsel show they did not incur an unreasonable amount of fees for communicating with their clients.  The total of over $5,000 and 60 entries seems large, but those fees span nearly two years of litigating this case.  Defendants also argue plaintiffs should have provided a better description of these communications.  They rely on authority about attorney-client privilege, not attorney fees.  “[V]erified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (Horsford).)  The verified time statements show no indication they are erroneous.  The court has no basis to conclude that plaintiffs’ counsel billed for unnecessary communications with their clients.

Defendants further contend plaintiffs’ counsel overworked the case and did duplicative or unnecessary work by using six different attorneys and 10 paralegals on this case.  The court agrees that many of the charges by paralegals were unjustified.  For example, on February 27, 2023, a paralegal billed 3.4 hours ($850) to “review and revise” attorney declarations and proofs of service.  A few days earlier, another paralegal billed a substantial amount of time to “set up” attorney declarations.  The billing records, however, do not demonstrate that plaintiff’s lawyers were inefficient or duplicated one another’s work, though many lawyers worked on the case.  Further, plaintiff’s counsel did not charge for numerous entries for internal communications. 

After reviewing all the billing records, the court reduces Norman F. Taylor’s hours by 3.3 and reduces the paralegals’ hours across-the-board by 20 percent. 

Multiplier

Plaintiffs seek a 1.5 multiplier to the lodestar.  No multiplier is appropriate.  Multipliers may be awarded based on factors including “(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, (4) the contingent nature of the fee award.”  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) 

This case did not involve novel or difficult questions.  Plaintiffs’ counsel achieved a successful result but did not demonstrate exceptional skill in litigating the case.  Counsel’s hourly rates adequately account for representation on contingency.  (See Horsford, supra, 132 Cal.App.4th at p. 395.)

Other Costs

            Plaintiffs provide adequate evidence of their other costs totaling $10,341.39.  A “verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.”  (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285.)  Each firm representing plaintiffs submitted a separate verified memorandum of costs.  In their opposition, defendants argue they “will timely file a motion to tax costs” (Opp., p. 8) but have not done so.  The opposition also states defendants “challenge the following costs from Plaintiffs’ Memorandum of Costs:” but it instead jumps straight to the next heading, the conclusion.  (Opp., p. 9.)

            Defendants did not identify the precise costs challenged, but they argue plaintiffs should not recover expenses for their expert witness because the vehicle inspection never occurred before the parties settled the case.  (Opp., p. 9.)  Wirtz Law APC’s memorandum of costs shows they billed half an hour—a total of $187.50—for expert witness Anthony Micale.  (Memo. of Costs, ¶ 8.b.)  Though they ended up settling, plaintiffs still needed to prepare for trial.  They reasonably incurred this expense.

DISPOSITION

            Plaintiffs’ motion for attorney fees and costs is granted in part.  After accounting for reductions in hourly rates, reducing Norman F. Taylor’s fees by 3.3 hours, and a 20 percent across-the-board cut in paralegal hours, the court calculates the award this way:

            Plaintiffs Forrest Will and Nehemiah Lewrel shall recover $58,096.89 in expenses and attorney fees from defendants Hyundai Motor America and South Bay Hyundai.

                                                            IT IS SO ORDERED

Date:   March 24, 2023

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