Judge: Bruce G. Iwasaki, Case: 18STCV10101, Date: 2023-05-24 Tentative Ruling

Case Number: 18STCV10101    Hearing Date: May 24, 2023    Dept: 58

Judge Bruce Iwasaki 

Department 58 

. . .

Hearing Date:                May 24, 2023   

Case Name:                 Pedro V. Espinoza Alberto, et al. v. Ford Motor Company, et al.             

Case No.:                    18STCV10101                    

Motion:                       Attorney Fees   

Moving Party:             Plaintiffs Pedro V. Espinoza Alberto and Nancy T. Espinoza 

Responding Party:      Defendant Ford Motor Company

Tentative Ruling:       Plaintiffs’ Motion for Attorneys’ Fees is granted in part.

Plaintiffs are awarded attorneys’ fees under the lodestar method in the amount of $111,110.75 (divided between two law firms: $95,944.50 for Knight Law Group and $15,166.25 for Boucher).

Plaintiffs’ request for costs of $33,716.33 is granted. 

The total awarded is $144,827.08  

Background

This is an action brought under the Song-Beverly Act by Plaintiffs Pedro V. Espinoza Alberto (Alberto) and Nancy T. Espinoza (Espinoza) (collectively “Plaintiffs”) against Defendants Ford Motor Company (Ford) and Cerritos Ford, Inc. dba Norm Reeves Ford Superstore/Norm Reeves Lincoln (Norm Reeves).  Plaintiffs are co-owners of a 2015 Ford Explorer (Vehicle) purchased for $39,123.12 in April 2017.  The Complaint alleged defects in the Vehicle, which was purchased from Ford of Montebello.[1]  The Complaint alleged claims for (1) breach of express written warranty, (2) breach of implied warranty, (3) violation of Civil Code section 1793.2, and (4) negligent repair.  

The parties agreed to settle when Plaintiffs accepted Defendant Ford’s November 17, 2022, Code of Civil Procedure section 998 offer in the amount of $44,000. On December 6, 2022, Plaintiffs accepted the offer.    

Plaintiffs move for an order awarding attorneys’ fees and costs. 

Objections

Plaintiffs’ objections numbers 1, 2 and 3 are overruled.

Civil Code section 1794, subdivision (d)

A prevailing buyer in an action under Song-Beverly “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.”¿¿ (Civ. Code, § 1794,¿subd. (d).)  

Here, Plaintiffs are the prevailing buyer in a Song-Beverly action and, therefore, are entitled to an order awarding reasonably incurred attorneys’ fees and costs under Civil Code section 1794 subdivision, (d).  Plaintiffs request attorneys’ fees under the lodestar method in the amount of $175,207.00 (divided between two law firm: $156,937.00 for Knight Law Group, LLP and $18,270.00 for Boucher LLP).  Plaintiffs also request an enhancement of 1.5, in the amount of $87,603.50, and costs of $33,716.33.  The total requested is $296,526.83. 

Attorneys’ Fees

The calculation of attorneys’ fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate.  (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)  “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.”  (Graciano, 144 Cal.App.4th at p. 154.)  “The purpose of such adjustment is to fix a fee at the fair market value for the particular action.”  (Ibid.)  “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.”  (Ibid.)  An attorney’s time spent and hourly rate are presumed to be reasonable.  (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.)  ¿Reasonable hourly compensation does not include inefficient or duplicative efforts, aka “padding.” ¿(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580) ¿¿ 

Further, prevailing parties are compensated for hours reasonably spent on fee-related issues. ¿(Serrano v. Unruh¿(1982) 32 Cal.3d 621, 635). ¿A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ¿(Ibid.) Our Supreme Court stated:¿¿ 

¿ 

 ‘If . . . the Court were required to award a reasonable fee when¿an outrageously unreasonable one has been asked for, claimants¿would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would¿be reduction of their fee to what they should have asked in the¿first place. To discourage such greed, a severer reaction is needful¿….’ [Citation.] 

(Ibid.) ¿¿ 

Reasonable Hours Expended

Although¿detailed¿time records are not required, California Courts have expressed a preference for¿contemporaneous billing and an explanation of work.  (Raining Data Corp. v.¿Barrenechea¿(2009) 175 Cal.App.4th 1363, 1375.)  “Of course, the attorney’s testimony must be based on the attorney’s personal knowledge of the time spent and fees incurred.  (Evid. Code, § 702,¿subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].)  Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.”  (Mardirossian¿& Associates, Inc. v.¿Ersoff¿(2007) 153 Cal.App.4th 257, 269.)  A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)  It is also appropriate to reduce an award based on inefficient or duplicative efforts.  (Id.,¿at p. 38.)

Here, Plaintiffs retained two separate law firms: Knight Law Group, LLP (“Knight Law Group”) and Boucher, LLP (“Boucher”).  Billing records of Knight Law Group reflect 411.5 hours billed to Plaintiffs.  (Kirnos Decl., ¶ 2; Ex. “A.”)  Also, billing records of Boucher reflect 43.8 hours billed to Plaintiffs.  (Boucher Decl., ¶ 15; Ex. “3.”) 

In opposition, Defendant Ford opposes the numbers of hours sought by Plaintiffs. 

Defendant Ford argues that the Court should decline to award fees for any hours incurred

after Defendants’ 998 offer was conveyed on November 17, 2022. The Court finds it reasonable for a party and counsel to take time to consider a settlement offer.  The Court reduces the fee claim beginning seven days after the 998 offer was sent, other than fees concerning Defendant’s offer, Plaintiffs’ offer, and settlement.

As to fees for hours incurred after Plaintiffs’ acceptance of the 998 offer on December 6, 2022, the Court finds these were fees for hours expended for settlement/dismissal and bringing the instant motion.  The Court declines to strike these particular fees for hours because Plaintiffs are entitled to an order awarding reasonably incurred attorneys’ fees and costs under Civil Code section 1794 subdivision, (d). 

Defendant Ford further argues that the hours expended for bringing the instant motion are unreasonable because Knight Law Group billed 13.3 hours or $6,583.50, and 7.0 of those hours are for future events that have not occurred yet (i.e., review and analyze Defendant Ford’s opposition, draft reply to opposition, and prepare and appear at hearing).  (Opposition, pp.. 9-10.)  However, the Court does not find this persuasive.  First, based on the Court’s experience overseeing Song Beverly Act actions, 13.3 hours for bringing the instant motion is reasonable.  Second, while Defendant Ford argues that Plaintiffs should not have billed for time not actually incurred, this argument is moot given Plaintiffs have filed its reply in response to Defendant Ford’s opposition.  

Also, Defendant Ford argues that the number of hours expended by Plaintiffs should be reduced because the hours incurred do not reflect the efficient use of templates.  This fails to consider that Plaintiffs’ attorneys must conform the facts of this case to each document.  The Court finds Plaintiffs’ attorneys’ hours reflect the efficiency of the use of form documents.

Lastly, Defendant Ford argues that the billing entries include unnecessary billing related to internal, duplicative, block-billed, and clerical tasks.  (Id., pp. 10-12; Cox Decl., ¶ 5; Ex. “E.”)  As to Defendant Ford’s contention that the billing entries reflect inefficient work due to the involvement of twenty timekeepers and seek recovery for many internal and duplicative tasks, the Court finds that three attorneys accounted for the bulk of the time incurred by Knight Law Group and, thus, the Court declines to reduce the number of hours awarded merely because several attorneys worked on this matter.  However, the Court has reviewed the itemized entries and makes the following reductions:

·       Vague entries: While counsel should not disclose information subject to the attorney-client privilege, there should at least be some brief specificity as to what these conversations involved.

o   The Court strikes the Knight Law Group billing entries on 4/12/2019 for “Communication with Clients” and 2/10/2022 for “Draft correspondence to client” for lack of specificity.

o   The Court strikes the Knight Law Group billing entries on 12/1/2022 for “Communication with client” and “Draft correspondence to client” for lack of specificity.

·       Duplicate entries

o   The Court cuts in half the fifteen Boucher billing entries on 4/2/2020 and 4/3/2020 and the two Knight Law Group billing entries on 11/3/2022 as they are duplicative (draft and revise/finalize motions in limine; and the Boucher set was never filed).

o   The Court cuts in half the five Boucher billing entries on 5/21/2020 and the five Knight Law Group billing entries on 3/10/2020 as they are duplicative (analyze deposition transcripts of Fernando Cervantes, Jose Franco, Jose Lemus, James Ryan, and Diego Uribe).

o   The Court cuts in half the Boucher billing entry on 6/16/2020 and the Knight Law Group billing entry on the same day as they are duplicative (review amended notice of deposition of Fords’ PMK).

·       Improper entries

o   The Court strikes the Boucher billing entry on 10/13/2020 as clerical.

Based on the foregoing, the Court reduces the total number of hour expended by Knight Law Group from 411.5 hours to 279.45 hours.  Also, the Court reduces the total number of hours expended by Boucher from 43.8 hours to 38.65 hours.

 Reasonable Hourly Rate

Plaintiffs claim fees for work at an hourly rate ranging from $200 to $495.  Defendant Ford argues that both Knight Law Group’s and Boucher’s requested rates are excessive and well above the rates charged for similar work in Los Angeles County, especially for an ordinary lemon law case.   Defendant Ford contends that fees should be based on rates no higher than $325 for partners, $275 for associates, and $150 for paralegals. 

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿ 

The Court denies Defendant Fords’ request to award rates no more than $325 for partners, $275 for associates, and $150 for paralegals.  First, the Court notes that it is not tied to the determinations of other judicial bodies on the reasonableness in fees.  Further, Plaintiffs submitted declarations in support of the motion for attorneys’ fees that provide the descriptions of each attorneys’ experience and qualifications.  (Kirnos Decl., ¶¶ 36-56; Boucher Decl., ¶¶ 3-16.) Nevertheless, the Court finds that given the relatively simple nature of the case, the specialized law firm’s use of forms and templates, and the high volume, high division of labor business model, an hourly fee of no more than $425 is appropriate.

Based on the adjusted hourly rates and adjusted hours expended, Plaintiffs are entitled to $111,110.75 in attorneys’ fees ($95,944.50 for Knight Law Group and $15,166.25 for Boucher). The hourly rates, adjusted hours expended, and adjusted lodestar are as follows:

Knight Law Group:

Boucher:

Multiplier

Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)  

Here, Plaintiffs request a lodestar multiplier of 1.5, in the amount of $87,603.50.  (Kirnos Decl., ¶¶ 2, 80.)  The Court does not find that this matter involved complex or novel legal issues warranting a multiplier.  (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.)  Plaintiffs’ attorneys have extensive experience litigating similar matters.  (See, e.g., Kirnos Decl. ¶¶ 37-38; Boucher Decl., ¶ 4.)  Although Plaintiffs ultimately were successful, there are no indications Plaintiffs’ attorneys engaged in any actions different from their usual strategy to achieve this result.  Further, the¿contingent risks, skill, and difficulty¿Plaintiffs’ attorneys¿assert are absorbed by¿their¿hourly rates.¿¿(See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.) 

Plaintiffs’ request for a lodestar multiplier is denied. 

Costs

A “‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.’”  (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.)  The “‘failure to file a motion to tax costs constitutes a waiver of the right to object.’”  (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) 

Here, Plaintiffs submit a Memorandum of Costs seeking a total of $33,716.33.  Defendant Ford argues that the request for costs should be denied because Plaintiffs do not present evidence to support it.  However, a verified memorandum of costs is prima facie evidence concerning the necessity and reasonableness of costs incurred.  Further, Defendant Ford does not point to any evidence demonstrating that the costs are excessive, unnecessary, or unreasonable, and failed to file a responsive motion to tax costs.  Because Defendant Ford does not make a proper challenge to the costs, the Court finds that Plaintiffs have met their burden.

Therefore, Plaintiffs’ requests for a total of $33,716.33 in costs is granted.

Conclusion

Plaintiffs’ Motion for Attorneys’ Fees is granted in part.

Plaintiffs are awarded attorneys’ fees under the lodestar method in the amount of $111,110.75 (divided between two law firms: $95,944.50 for Knight Law Group and $15,166.25 for Boucher).

Plaintiffs’ request for an enhancement is denied.

Plaintiffs’ request for costs of $33,716.33 is GRANTED. 

The total awarded is $144,827.08.

Defendant is ordered to pay such fees to Plaintiffs’ counsel within 45 days of this order.