Judge Bruce G. Iwasaki, Case Number: 19STCV07470, Date: 2024-08-08 Tentative Ruling

Tentative Ruling: The Court grants Plaintiff Cipriana Mejia’s Motion for Attorney’s Fees in part and awards fees and costs in the amount of $118,329.29.

This is a Song-Beverly Act case. Plaintiff Cipriana Mejia (Plaintiff) purchased a 2015 Kia Sedona manufactured and/or distributed by Defendant Kia America, Inc. (Defendant). Plaintiff alleged that the vehicle contained or developed serious defects and nonconformities during the warranty period. (Compl., ¶9.) Plaintiff further alleged that Defendant failed to conform the vehicle to standard within a reasonable number of attempts after presenting it for repair. (Id. at ¶23.)

On May 14, 2024, Plaintiff filed the instant motion for attorney’s fees, costs, and expenses. Plaintiff also filed a Memorandum of Costs.

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).)

The prevailing party has the burden of showing that the requested attorney fees were “reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].’ ” (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the “time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿

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.) However, the analysis must be “reasonably specific” and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.)

“A prevailing party is entitled ‘as a matter of right’ to recover costs in any action or proceeding unless a statute expressly provides otherwise.”¿(Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)¿ “Section 1033.5 sets forth the types of expenses that are and are not allowable as costs under section 1032. Specifically, subdivision (a) of section 1033.5 describes items that are ‘allowable as costs,’ subdivision (b) describes items ‘not allowable as costs, except when expressly authorized by law,’ and section 1033.5(c)(4) provides that ‘[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion.’”¿(Ibid.)¿

To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)¿ On the other hand, 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. (Id.)¿¿¿

Plaintiff moves for attorney’s fees, costs, and expenses as the prevailing party under Civil Code Section 1794(d) and the parties’ settlement agreement. Plaintiff obtained a settlement of $70,500.00 from Defendant after five years of litigation wherein Defendant agreed that Plaintiff would be prevailing party for purposes of a fee motion. (Kirnos Decl., ¶30, Ex. D.)

Plaintiff seeks a fee award in the amount of $183,428.62 based on (1) $110,096.50 in attorney’s fees including time to be spent on preparing a reply and attending the hearing on this instant motion; (2) a 0.5 multiplier enhancement in the amount of $54,548.25; and (3) $19,783.87 in costs and expenses.

Plaintiff’s attorney’s fees are based on 287.2 hours of attorney time. (Kirnos Decl., ¶2, Ex. A.) Plaintiff’s counsel identifies twenty-two attorneys and one paralegal who worked on this case. The hourly rates of these attorneys and paralegal ranged from $200.00 to $645.00. (Id. at ¶¶36-58.)

Defendant does not dispute that Plaintiff is entitled to attorney’s fees as prevailing party under Civil Code Section 1794(d). However, Defendant argues the requested fees are excessive, duplicative, and unreasonable. Thus, Defendant contends Plaintiff’s attorney’s fees should be reduced to $59,450.00 or less. Furthermore, Defendant asserts the hourly rates of Plaintiff’s attorneys and the number of attorneys assigned to the case are artificially inflated, arbitrary, excessive and unreasonable given the non-complex nature of this case. As such, Defendant argues the hourly rate should be set at no more than $350/hr for all attorneys.

Defendant’s Opposition includes a table addressing each of the time entries submitted by Plaintiff, which Defendant objects to as being unreasonable and excessive.

Plaintiff counsel expended 287.2 hours on this litigation, which was pending for approximately five years and was litigated up until a week before trial was to commence. Plaintiff’s proposed lodestar total is $110,096.50.

· Unreasonably excessive time entries. Plaintiff’s attorneys spent (1) 7.6 hours on reviewing the trial calendar and case file @ $349.30/hr for a total of $2,654.50. There is nothing indicating that reviewing the trial calendar and case file would require 7.6 hours. The amount billed is reduced from 7.6 hours to 3.8 hours @ $349.30.00/hr for a total of $1,327.34, a reduction of $1,327.16.

· Duplicative time entries. (1) Counsel RH spent 1.6 hours on October 5, 2023 preparing for hearing on motion to compel deposition of Gavin Labeet, Counsel RH spent an additional 2.4 hours on October 6, 2023 preparing for and attending hearing on the motion @ $550.00/hr for a total of $2,200.00; (2) Counsel EK spent 0.4 hours on January 19, 2023 drafting notice of deposition of Gavin Labeet, Counsel EK spent an additional 0.4 hours on January 20, 2023 drafting notice of deposition of Gavin Labeet @ $295.00/hr for a total of $236.00; (3) Counsel CWR spent 2.0 hours on November 7, 2023 drafting trial brief @ $350.00/hr and 0.9 hours on February 28, 2024 to draft and revise the trial brief @ $375.00/hr for a total of $1,037.50, Counsel DF spent 1.4 hours on February 29, 2024 finalizing the trial brief @ $250.00/hr for a total of $350.00, and Counsel SW spent 13.2 hours preparing the trial brief @ $645.00/hr for a total of $8,514.00; and (4) Counsel SS spent 2.3 hours on August 5, 2022 drafting mandatory settlement conference (MSC) brief, 1.6 hours on August 11, 2022 preparing for MSC, Counsel SS spent an additional 2.2 hours on September 12, 2022 drafting a MSC brief @ $325.00/hr for a total of $1,982.50, Counsel THS spent 3.1 hours on September 27, 2022 preparing for MSC @ $500.00/hr for a total of $1,550.00, Counsel EEK spent 3.4 hours on January 22, 2024 drafting MSC brief @ $295.00/hr for a total of $1,003.00, and Counsel JKM spent 2.6 hours on March 4, 2024 preparing for MSC @ $495.00/hr for a total of $1,287.00.

· The amount billed for preparing and attending the hearing on the motion to compel deposition of Gavin Labeet is reduced from 4.0 hours @ $550.00/hr to 2.0 hours @ $550.00/hr for a total of $1,100.00, a reduction of $1,100.00.

· The amount billed for drafting the notice of deposition of Gavin Labeet is reduced from 0.8 hours @ $295.00/hr to 0.4 hours @ $295.00/hr for a total of $118.00, a reduction of $118.00.

· The amount billed for drafting, revising, and finalizing the trial brief is reduced from 17.5 hours @ $540.00/hr to 10.0 hours @ $540.00/hr for a total of $5,400.00, a reduction of $4,501.50.

· The amount billed for drafting the MSC brief and preparing for MSC is reduced from 15.2 hours @ $404.32/hr to 6.5 hours @ $404.00/hr for a total of $2,628.08, a reduction of $3,194.42.

In total, the requested fees are reduced by $10,241.08 due to excessive hours and duplicative time entries. This leaves a balance of $99,855.42 ($110,096.50 – $10,241.08.)

The hourly rates to be used in computing the lodestar must be “within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work.” (Children's Hospital & Medical Center v. Bonta´ (2002) 97 Cal.App.4th 740, 783; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (“The reasonable hourly rate is that prevailing in the community for similar work”). Particularly where it is difficult to obtain evidence of market based rates for the same type of work, the courts look at fees charged for cases requiring similar skills. (The Utility Reform Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, 536–537; Prison Legal News v. Schwarzenegger (9th Cir.2010) 608 F.3d 446, 454–455 (“all attorneys in the community engaged in ‘equally complex Federal litigation,’ no matter the subject matter”).

In determining the reasonable rate and reasonable hours, the Court looks to that “prevailing in the community for similar work.” (PLCM Group, Inc., supra, 22 Cal.4th at 1095; Ketchum, supra, 24 Cal.4th at 1132 (“the lodestar is the basic fee for comparable legal services in the community”). “A reasonable trial court might determine that the ‘similar work’ or ‘comparable legal services’ related to insurance defense litigation, rather than to civil litigation in general. Were the court to so conclude, it could view the relevant ‘market’ to be that of insurance defense litigation and litigators, rather than general civil litigation. The “market rate” for such services might be limited accordingly. Again, we emphasize that such determinations lie within the broad discretion of the trial court.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702–703.)

The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar work. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) “Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The trial court is not required to adopt counsel’s opinion as to the “market rate” for services of the type performed. (Syers Properties III, supra, 226 Cal.App.4th at 702.) The trial court may accept the actual rate charged as the reasonable rate. (Id.)

Plaintiff’s counsel consisted of twenty-two attorneys and one paralegal who performed work at hourly rates of $200.00, $250.00, $270.00, $275.00, $295.00, $325.00, $345.00, $350.00, $375.00, $390.00, $395.00, $400.00, $415.00, $425.00, $450.00, $495.00, $500.00, $550.00, $595.00, and $645.00. (Kirnos Decl., ¶¶35-58.) Counsel Kirnos attests to his experience and knowledge regarding Song-Beverly litigation. (Id. at ¶35.) Counsel further attests to the background and experience of the other attorneys and paralegal who assisted him in this case. (Id. at ¶¶36-58.) However, in reviewing the attorney’s backgrounds and the market rate charged for similar services according to the Court’s own experience, the hourly rates charged above $575.00 by Counsel SW are excessive. Those hours billed at $595 and $645.00 are recalculated at the hourly rate of $575.00 as follows:

· Scott Wilson (SW). 17.4 hours @ $595.00 for a total of $10,353.00 reduced to $10,005.00, for total reduction of $348.00.

· SW. 13.8 hours @ $645.00 for a total of $8,901.00 reduced to $7,935, for total reduction of $966.00.

In total, the requested fee award is reduced by $1,314.00 for excessive hourly rates. Applying this further reduction to the balance of $99,855.42, yields the total attorney’s fees total: $98,541.42.

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.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 351.)

“Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation.” (Id.) The court may not consider the contingent nature of the representation in both setting the lodestar and applying a modifier. (Id.)

Another factor considered by a court in applying a multiplier is the “result obtained.”

“The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582.) “The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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.” (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.)

Plaintiff fails to present any facts that would require a multiplier to compensate counsel for their services at fair market value. First, the case was not particularly complex case as it did not involve any novel legal issues. Next, the lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. Therefore, no justification to apply a multiplier exists.

Plaintiff includes a request for an award of costs in the amount of $19,783.87. Defendant filed a separate motion to tax these claimed costs. The motion to tax costs is addressed more thoroughly below.

Defendant argues that $14,118.55 of Plaintiff’s claimed costs must be stricken or in the alternative, taxed on the grounds that (1) the deposition costs are not allowable under Code of Civil Procedure Section 1033.5(b); (2) the service of process costs were not reasonably necessary to the conduct of litigation; (3) the expert witness costs are not reasonable in amount; (4) the court reporter fees were no reasonably incurred by Plaintiff; and (5) the travel expenses and court appearance are not properly claimed as a cost in this action.

Here, Plaintiff seeks $7,806.65 in deposition costs for the notice of subpoenas and taking of deposition of several party and non-party witnesses. Despite Defendant’s assertion that deposition costs are not allowable, Code of Civil Procedure Section 1033.5(a)(3) expressly states: “Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed” are allowable costs. Furthermore, Plaintiff contends the deposition subpoenas for the dealership personnel, i.e., service advisors and technician were necessary for Plaintiff to obtain testimony regarding the communications she had with various employees about the defects with the Vehicle and repair orders. Moreover, Plaintiff presents evidence that depositions costs are for transcripts of depositions that actually took place and the corresponding invoices. Similarly, service of process fees are allowable costs under Code of Civil Procedure Section 1033.5(a)(4). Plaintiff seeks $1,038.70 for service of process fees for the service of the summons and deposition subpoenas. As discussed above, Plaintiff explains the deposition subpoenas for the dealership personnel were reasonably necessary to ensure they would provide testimony concerning Plaintiff’s Vehicle repair history.

Likewise, Plaintiff seeks $4,487.50 for court reporter fees, which are allowable costs under Code of Civil Procedure Section 1033.5(a)(11) as established by statute. Defendant argues these claimed costs were not reasonably necessary to the conduct of litigation, unreasonable in amount, and not properly claimed. However, Plaintiff asserts the court reporter was used for motions deemed important in efforts to preserve the record in case of appeal and Defendant stipulated to the use of these reporters. Additionally, Plaintiff has presented invoices to support these costs were actually incurred. Plaintiff also seeks $3,736.00 for expert witness fees, which are allowable under Civil Code Section 1794(d). (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) Plaintiff further contends that her expert witness Thomas Lepper was hired as a counter to Defendant’s own expert, was deposed, and provided critical testimony regarding how the defect substantially impaired the use of the Vehicle, and the value or safety of the Vehicle. Moreover, Plaintiff submitted the invoices from Mr. Lepper demonstrating the claimed costs were actually incurred.

Lastly, Plaintiff seeks $459.80 for travel expenses and court appearances, which are neither expressly allowed or prohibited costs. Plaintiff argues that these costs were necessary because this Court requires in-person appearance for Mandatory Settlement Conferences and using her own attorneys for the court appearances would have been more expensive. Also, Plaintiff has provided evidence that these costs were actually incurred.

Plaintiff is awarded attorneys’ fees and costs in the amount of $118,329.29. Defendant Kia is ordered to pay this sum to Plaintiff’s counsel on or before September 13, 2024.

Department 58