Judge Bruce G. Iwasaki, Case Number: 20STCV12160, Date: 2023-10-16 Tentative Ruling

Tentative Ruling: The Motion for Attorney’s Fees is granted in part for a total of $82,150.50 in attorney fees. The request for costs is granted in the reduced amount of $38,421.65.

Plaintiffs move for an award of attorneys’ fees and costs. The parties settled this Song-Beverly matter except as to those issues.

This is an action under the Song-Beverly Act in which Jaime and Phyllis Martinez (Plaintiffs) alleged defects in a 2013 Ford Escape (Vehicle). Plaintiffs sued Cerritos Ford, Inc. and Ford Motor Company (Defendant or Ford) for breach of express and implied warranties. The Vehicle was purchased certified pre-owned on May 11, 2013 from Cerritos Ford Lincoln and received a 1-year/48,000 mile basic warranty and a 7-year/100,000 miles powertrain warranty. Plaintiff Jaime is listed on the Retail Installment Sale Contract, but Phyllis is the primary driver.

Plaintiffs brought the Vehicle in for repair on at least seven occasions. The first visit was on February 10, 2014 for a recall relating to the engine cylinder. On January 9, 2015, the Vehicle began to idle high, and the check engine light turned on. A month later, Plaintiffs claimed the Vehicle “idles rough when accelerating from a stop.” On May 1, 2015, the check engine light came on again and Plaintiffs complained that the Vehicle “did not crank over two days.” On December 30, 2016, the check engine light came on again and there was coolant leaking. One year later, Plaintiffs complained of a loud chirping from the engine and coolant leakage. Finally, on February 5, 2018, there was a reported “major fuel leak in engine compartment,” but Plaintiffs declined the repair.

Plaintiffs argue that, as the prevailing party, they are entitled to fees and costs under Civil Code section 1794, subdivision (d). They seek lodestar attorneys’ fees of $99,714.00, plus a 1.5 multiplier -- in the amount of $49,857-- and costs of $38,639.05. The total requested in attorney fees and costs is $188,210.05.

Defendants Ford Motor Company and Cerritos Ford Lincoln (Ford) filed an opposition arguing the amounts requested in fees and costs are unreasonable and excessive.

The Court grants the motion for attorneys’ fees in part. The request for costs is also granted in a slightly reduced amount.

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.)

Plaintiffs seek $99,714.00 in attorneys’ fees for Knight Law Group, LLP (Knight Law), plus a 1.5 multiplier enhancement, and costs of $38,639.05, for a total $188,210.05.

Defendant Ford does not dispute that Plaintiffs are the prevailing parties under the settlement agreement. Instead, Defendant argues the that hours incurred to litigate this routine, non-complex case that settled before trial is unreasonable. Defendant Ford argues that fees should be reduced to a total of $49,293.63, which represents a reasonable number of hours incurred based on the purported experience level of Plaintiffs’ attorneys and the nature of the litigation. Defendant Ford also argues the amount requested in costs should be taxed.

A calculation of attorneys’ fees for a Song-Beverly action¿begins with the “lodestar” approach, under which the Court fixes the lodestar¿at¿“the number of hours reasonably expended multiplied by the reasonable hourly rate.”¿ (Margolin v. Regional Planning Com.¿(1982) 134 Cal.App.3d 999, 1004-1005.)¿ “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.”¿ (Ibid.)¿ “ ‘The reasonable hourly rate is that prevailing in the community for similar work.’ ”¿ (Id.¿at p. 1004.)¿ The lodestar figure may then be adjusted, 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.¿ (Serrano v. Priest¿(1977) 20 Cal.3d 25, 49;¿PLCM Group, Inc. v. Drexler¿(2000) 22 Cal.4th 1084, 1095.)

“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

Defendant Ford first contends that Plaintiffs’ attorneys’ hourly rates are unreasonable.

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” ’ ”].)¿

Here, Defendant Ford argues the rates sought are excessive for these “cookie-cutter lemon law cases.” Of note, Defendant Ford points to the hourly rates of non-partner Attorneys Kamau Edwards and Attorney Brian Plummer, who each billed at a rate of $550, while somewhat inexplicably, Amy Morse, who is a partner, billed at a lower rate of $450 per hour.

Further, citing several unpublished federal cases on lemon law, Defendant Ford argues that the Court should limit Knight Law’s attorneys’ rates to $225-$275 for associates and $325- $450 for partners. Specifically, in Olague v. Ford Motor Company (C.D. Cal., June 29, 2021, No. 518CV02215MCSKKX) 2021 WL 9095731, the federal district court specifically considered the rates sought by this law firm, Knight Law, and reduced the hourly rates on the basis that the hourly rates sought seemingly “outpace[d] the prevailing rate for similar work” (Id. at *3.) The Olague court cited Arriaga v. Ford Motor Co., CV 18-09089 DSF (KSx), Dkt. No. 36, at *4–*7 (C.D. Cal. May 8, 2020), which adjusted counsels' hourly rates to $325 for partners and $225 for associates after reviewing the 2018 Real Rate Report: The Industry's Leading Analysis of Law Firm Rates, Trends, and Practices (Real Rate Report). In Hernandez v. FCA US LLC (C.D. Cal., Jan. 4, 2019, No. CV 17-5452-GW(ASX)) 2019 WL 2932637, which involved a Song-Beverly Act case, the court relied on the first quartile rates in the 2017 Real Rate Report to determine attorney hourly rate given the “lack[] [of] any serious complexities.” (Id. at *3.)

Here, Ford includes the 2022 Real Rate Report: The Industry's Leading Analysis of Law Firm Rates, Trends, and Practices, which states that the Median rate for Consumer Goods cases for partners was $366 and $281 for associates. (Biemann Decl., ¿ 4, Ex. E, p. 64.)

Ford’s cases are well taken. However, there are also cases that have found rates similar to those sought in this motion reasonable. (See e.g, Nai Hung Li v. FCA US LLC (C.D. Cal., July 1, 2019, No. 2:17-CV-06290-R-JEM) 2019 WL 6317769, at *2; Zargarian v. BMW of North America, LLC (C.D. Cal. 2020) 442 F.Supp.3d 1216, 1227.)

Additionally, a review of the Kirnos Declaration in support of the motion for attorney’s fees – which contains the descriptions of each attorneys’ education and experience – supports finding Plaintiff’s attorneys’ hourly rates ranging from $200 to $550 were reasonable; the rates are supported by substantial evidence under the present circumstances. (Kirnos Decl., ¶¶ 34-48.)

Based on the Court's review of the recent Real Rate Report, and the Court's familiarity with the current local market, and Plaintiff’s evidence of the experience and skills of the various attorneys – the Court finds that Plaintiff's requested rates per hour are reasonable.

Defendant Ford also challenges the hours incurred, arguing that the amounts are excessive, duplicative, and otherwise unreasonable.

Ford’s opposition challenges several specific entries. The Court will address these in each in turn:

12/15/2021 Entries for Zachary Powell seeking 4.5 hours to “Review and analyze deposition transcript”: Defendant Ford suggests that these 4.5 hours incurred is unreasonable because “most” of these depositions were less than an hour long. However, Ford fails to note that these entries pertained to six different depositions. The Court cannot find that spending 4.5 hours to review and summarize six different depositions – even ones that may have been less than hour – is unreasonable.

1/14/2022 -1/15/2022 for Attorney Matthew Kreymer: Defendant Ford argues that that it was unreasonable for Attorney Matthew Kreymer spent a total of 4.3 hours drafting a four-page meet and confer letter regarding the deposition of Ford’s Person Most Knowledgeable (PMK). In response, Plaintiffs argue that this letter was necessary because Julie Moore, Ford’s PMK, was only produced on limited categories and lacked personal knowledge of the prelitigation repurchase evaluation in this case. Therefore, it was reasonable for Plaintiffs to review the transcript and create a detailed meet and confer with Ford about producing an additional PMK witness. Upon review of the entries underlying this challenge, the Court acknowledges that the billing entries identify more discrete tasks than simply drafting a single letter – such as reviewing the deposition transcript at issue. Nonetheless, the amount of time incurred is still excessive for all the underlying tasks. The fees for these entries will be reduced by two hours or $590.

Kamau Edwards also seeks 2.3 hours or $1,035.00 to review and draft a summary of Plaintiff Phyllis Martinez’s deposition: This amount is unreasonable to review and summarize a single deposition. The Court will reduce this amount by 1 hour or $550.

3/21/23 entry for Attorney Deepak Devabose: Plaintiff seeks 2.2 hours for the time incurred by Attorney Deepak Devabose for traveling to and from the MSC/FSC.[1] In support of the request to reduce these fees, Defendant Ford suggests travel time fees are not recoverable as a matter of law. This is not the law: “[A]ttorney's fees for travel hours may be awarded if the court determines they were reasonably incurred [citations].” (Roe v. Halbig (2018) 29 Cal.App.5th 286, 312-313.) A reasonableness standard applies to whether travel time fees can be recovered; under the circumstances here, it was not unreasonable for Plaintiffs’ counsel to appear at this hearing in-person. (See Reply 8:15-25.) The request to reduce these hours is denied.

2/15/23 entries of Attorney Brian Plummer: Plaintiffs seek 3.5 hours or $1,925.00 to “review and analyze” Plaintiffs’ first set of discovery responses. Defendant Ford argues that there is no explanation for why Plaintiffs’ counsel is reviewing discovery responses over two years after these responses were served. Plaintiff argues that hours were incurred to review evidence to prepare a trial strategy. The time for such review is excessive. The Court reduces the amount sought by 2.5 hours or $1,375.

3/8/23 entries of Attorney Brian Plummer: Plaintiffs request 2.8 hours or $1,540 for the time incurred by Attorney Plummer to review and analyze Ford’s Motions in Limine. Defendant Ford contends this amount was already billed previously by Deepak Devabose on March 7, 2023, who drafted the opposition to the motion in limine. These amounts are duplicative and will be reduced by 2.8 hours or $1,540.

Fees incurred on the instant motion: Plaintiffs billed 12.90 hours (or $6,385.50) related to the Plaintiffs’ instant motion for attorney fees, with 7.0 of those hours being for the reply and hearing. Defendant argues that these amounts are excess given Knight Law’s use of cookie-cutter templates. (Bieman Decl., ¶ 3, Exs. B-C [identifying similar fee motions filed by Plaintiffs’ counsel].) The reply submits evidence to support the estimated costs for the reply sought in the moving papers. (Cutler Reply Decl., ¶¶ 13-16.) The opposition is well taken. The fee motions are substantially similar to other fee motions by Knight Law, rendering the amount sought excessive. The fees here will be reduced by $3,000.

Additionally, Defendant Ford seeks to exclude fees that were block billed tasks (18.50 hours or $6,749.50), internal tasks (15.90 hours or $6,723.00), duplicative tasks (15.70 hours or $7,121.50), and tasks that are clerical in nature (7.60 or $2,887.00). (Bieman Decl., Ex. F.)[2]

In reviewing the entries underlying these requested reductions, these requests are largely well taken. The Court will reduce the fees requested by Plaintiffs as follows: reducing block billed tasks by $2,000, internal tasks by $4,500, duplicative tasks by $3,121.50, and tasks that are clerical in nature by $887.

Finally, Plaintiff seeks a 1.5 lodestar multiplier based on excellent result, the risk of taking on the case on contingency, and the substantial delay in payment of attorney fees.

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.)

Although this matter was taken on contingency (Kirnos Decl., ¶ 9), none of the other factors support the application of a multiplier. This was a garden variety Song-Beverly case; there were no novel or difficult questions presented. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.) Further, the¿contingent risks, skill, and difficulty¿Plaintiff’s attorneys¿assert are absorbed by¿their¿already high (albeit reasonable) hourly rates. (See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.)

The Court grants Plaintiff’s motion for attorneys’ fees in the sum of $82,150.50.

First, Ford challenges the service of process fees as unreasonable and duplicative. The Memorandum of Costs properly identifies the numerous depositions and civil subpoenas that required service in this matter. Defendants Ford’s conclusory assertion that service of these subpoenas was unnecessary is without explanation. Further, as the reply explains “individuals who happen to work at the dealership were nonparties, and as such the law requires that each witness be served his own subpoena.” (Culter Reply Decl., ¶ 8.) Admittedly, however, there is no explanation for the four PMK civil subpoenas. As such, costs incurred for these items will be reduced by $217.35.

Second, Defendant challenges Plaintiffs’ request for costs in Item 8. Specifically, Plaintiffs seek costs for in the amount of $175 for witness fees for James Ryan, Rudy Sanchez, Miguel Gonzalez, Ricardo Cuevas, and Fernando Cervante. Additionally, Plaintiffs request $13,830.67 in expert witness fees for two experts, Barry Bookman and Anthony Micale. In opposition, Defendant requests the Court strike both the entirety of Plaintiffs’ expert witness fees and Plaintiffs’ ordinary witness fees to not allow any costs for witnesses. In making this argument, Defendant argues that none of these ordinary witnesses testified at trial. Further, Defendant Ford argues that the fees for the expert witness have not been substantiated by any evidence. In reply, Plaintiffs submit the expert witness invoices to substantiate the costs incurred.[3] (Cutler Reply Decl., Ex. A.) Also, contrary to Defendant’s opposition argument, the fees incurred by Anthony Micale are not for $8,000 in a single day but span fees incurred from 2/13/2023 to 3/22/2023. (Culter Reply Decl., Ex. A.) Further, the witness ordinary witness costs were reasonable and necessary expenses as Plaintiffs prepared for trial. Ford’s motion to tax these costs is denied.

Defendant Ford also challenges Item 12, which seeks $600 for “Steno” fees associated with some undescribed “TBD” event. Plaintiff does not specifically address this cost in reply, but the evidence substantiating the costs indicates that this was an anticipated cost for the court reporter at the hearing on the motion for attorney fees. (Culter Reply Decl., Ex. A.) The request to strike this cost is denied.

Finally, Defendant Ford challenges the “Other” costs in Item 13. The memorandum of costs seeks $730.22 in the amount of “Attorney Services and Messenger Court Filings and Service,” $93.34 for “mediation,” and $130.00 for “Appearance Attorney.” Ford argues none of these costs are authorized by Code of Civil Procedure section 1033.5. However, only costs expressly identified as a non-recoverable costs cannot be recovered. (Code Civ. Proc. § 1033.5, subd. (b).) All other costs are either expressly allowed or subject to the “reasonably necessary to the conduct of the litigation” requirement. (Code Civ. Proc. § 1033.5, subd. (c)(3); Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 892 [“The statute also authorizes the trial court in its discretion to award or deny an item of costs not mentioned in this section.”]; Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.) Here, the fees appear reasonably necessary to the litigation.

Defendants Ford Motor Company and Cerritos Ford Lincoln are ordered to pay to Plaintiffs’ counsel the sum of $120,572.15 ($82,150.50 + 38,421.65) for attorneys’ fees and costs. This amount shall be paid on or before November 17, 2023.

[1] Defendant Ford cites, Valdez v. FCA US LLC (C.D. Cal., July 21, 2020, No. CV1909009ABJEMX) 2020 WL 5088093, at *2. Valdez v. FCA US LLC involved the costs incurred by an expert witness’s travel time.

[2] In reply, Plaintiffs argue that these charts violate California Rules of Court rules 3.1113(d), (g) and (h) because these charts impermissibly adds about fifty-two (52) pages of argument in the Declaration of Hannah Biemann Exs F-G, effectively making FMC’s Opposition sixty-six (66) pages long. Although this argument is technically correct, the chart clarified amounts identified in the moving papers. Alternatively, these amounts would have required the court to sift through numerous entries without the benefit of the specific entries challenged. Ford’s opposition chart was extremely helpful to identifying the numerous entries challenged based on the numerous entries submitted by Plaintiffs in their evidentiary exhibits.

[3] Defendant Ford argues that no evidence may be submitted in reply, citing Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537-1538 for the proposition that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” This argument is not well taken in the context costs because of the burden shifting that occurs. “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 were not reasonable or necessary.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774; accord, Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486–1487.) “If the items are properly objected to, they are put in issue” (Ladas, supra, at p. 774), and “the burden shift[s] to” the party claiming costs to provide the necessary documentation to prove those costs (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265; accord, Rappenecker v. Sea–Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

	Reductions	Total
Original Lodestar Amount		$99,714
1/14/2022 -1/15/2022 for Attorney Matthew Kreymer	$590
Kamau Edwards also seeks 2.3 hours or $1,035.00 to review and draft a summary of Plaintiff Phyllis Martinez’s deposition	550
2/15/23 entries of Brian Plummer	1,375
3/28/23 entries of Brian Plummer	1,540
Fee motion	3,000
Block billing	2,000
Internal tasks	4,500
Duplicative tasks	3,121.50
Clerical tasks	$887

Reduced Lodestar Amount	$17,563.50	$82,150.50

Department 58