Judge Bruce G. Iwasaki, Case Number: 21STCV09414, Date: 2024-12-10 Tentative Ruling

Tentative Ruling: Plaintiff’s motion for attorney fees is granted in the reduced amount of $54,432.50 and costs are granted in the reduced amount of $9,098.35.

The parties settled this Song-Beverly matter except as to the issues of attorney fees and costs. Plaintiff now moves for an award of attorneys’ fees and costs.

Defendants Ford Motor Company and Advantage Ford Lincoln filed an opposition, arguing the amounts requested in fees and costs are excessive and unreasonable. (Opp., Ross Decl., Ex. F.)

Plaintiff’s objection to Defendants’ evidence is ruled as follows: Nos. 1-3 are overruled.

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.)

Plaintiff seeks $67,992.5 in attorneys’ fees for Strategic Legal Practices, APC, plus a 1.35 multiplier enhancement, and costs of $9,643.35, for a total of $100,208.23.

In opposition, Defendant GM argues that the Court should limit the attorney fee award to $25,092.00 in fees and not award any amount in costs.

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.)

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, Plaintiff’s counsel seeks court approval of hourly rates ranging from $350 to $595. (Shahian Decl., Ex. 22.) Defendants argue that the Plaintiff’s hourly rates are unreasonable. Specifically, Defendants note that -- five attorneys, Ivy Choderker, Joy De Leon, Ian McCalister, Elizabeth Larocque, Karin Kuemerle -- billed at a rate of $595 per hour for a routine lemon law case, which Defendants contend is “highly excessive rates for the routine and cookie-cutter work performed in this lemon law matter;” Defendants also notes that this rate was the same rate as the partner’s billing rate, but these attorneys are not partners.

While these attorneys may not be partners, the most experienced of these individuals have nearly 25 years of legal experience. (See e.g. Shahian Decl., ¶¶ 66-67 [noting McCallister graduated from New York University Law School in 1998 and was admitted to the California State Bar the same year].) Thus, a review of the declaration submitted in support of the motion for attorney’s fees – which contains a description of attorneys’ education, experience and bar passage date – supports finding Plaintiff’s attorneys’ hourly rates ranging from $350 to $595 are reasonable; the rates are supported by substantial evidence under the present circumstances. (Shahian Decl., ¶¶ 47-81.)

Based on 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 – although high – are reasonable. These high hourly rates, however, bear on the reasonableness of the hours incurred given the purported skill and expertise of these attorneys.

Plaintiff’s fee recovery is based on the 136.20 hours spent by their attorneys litigating this case. Defendants challenge the reasonableness of the number of hours incurred for various tasks during this litigation.[1]

Discovery-Related Work: Plaintiff seeks 7.5 hours (or $4,055) for drafting discovery requests, an ESI letter, and a notice of deposition of Ford’s PMQ. (Shahian Decl., Ex. 22, p. 1.) The fees incurred on these discovery related matters are excessive especially given the seemingly template discovery used in this matter and Plaintiff’s counsel extensive experience in this type of litigation. The Court will reduce the fees by 5 hours at $550 hours. (Shahian Decl., Ex. 22, p. 1 [10-11-2021].) Plaintiff also seeks to recover 2.8 hours (or $1,540) to draft and finalize Plaintiff’s discovery responses and prepare document production on May 21, 2024. (Shahian Decl., Ex. 22, p. 3.) However, Defendants represents that they did not receive additional discovery responses or document production from Plaintiff around or after this date. The Court will strike these hours. Further, in reviewing other discovery related fees, the Court will reduce the fees by 3 hours at $595 (Shahian Decl., Ex. 22, [3-18-22]) and 3 hours at $595 (Shahian Decl., Ex. 22, [1-21-24]). Accordingly, the Court will reduce discovery related fees by $7,860.

General Fees: (1.) Plaintiff also seeks to recover 1.4 hours or $525.00, to revise and finalize a declaration for a OSC Re: Plaintiff’s failure to appear. Defendant argues that Plaintiff should not be able to recover fees for their own failures in prosecuting the case. The Court agrees and fees are reduced by $525. (2.) Additionally, Plaintiff also requests 2 hours for preparing for ex parte to continue the trial and relate dates, The Court will reduce this by 1 hour for $475. Thus, these fees are reduced by a total of $1,000.

Arbitration Motion: Plaintiff requests 7.5 hours, or $3,187.50, to recover fees incurred drafting the opposition to Defendants’ motion to compel arbitration. (Shahian Decl., Ex. 22, p. 1 [7/9/2021].) These fees are excessive given the simple legal issues involved in the opposition and Plaintiff’s counsel legal experience. The Court will reduce these fees by 4 hours or $1,700.

Fee Motion: Finally, Plaintiff billed 9.20 hours or $2,990.00 to draft Plaintiff’s instant Motion for Attorneys’ Fees, with an additional $3,500 in fees anticipated for the reply and hearing. Again, these fees are excessive for a straightforward fee motion, which did not involve any complex legal analysis on whether fees were warranted and there was no apportionment or prevailing party issues. The Court will reduce these fees by $3,000.

Finally, Plaintiff seeks a 1.35 lodestar multiplier based on the risk of taking this case on contingency, the delay in payment, and the excellent outcome.

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 (Shahian Decl., ¶ 87), 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¿that 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.)

Reduction Category	Reductions Amount	Total
		$67,992.50
Discovery-Related Work	$7,860
General Fees	$1,000
Arbitration Motion	$1,700
Fee Motion	$3,000
Reduced Lodestar Amount	$13,560	$54,432.50

The Court grants Plaintiff’s motion for attorneys’ fees in the sum of $54,432.50.

Finally, Defendants challenge Plaintiff’s request for costs seeking a strike all the costs requested. Defendants argue that Plaintiff seeks unrecoverable costs and does not present any evidence to support her costs.

Here, Defendants argue that Plaintiff’s request for expert witness fees in the amount of $1,678 is not recoverable under Code of Civil Procedure section 1033.5.

In Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, the court concluded that a statute (Civ. Code § 1794, subd. (d)) which allowed the prevailing party to recover “ ‘as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees' “ (italics added), was intended “to cover items not included in the detailed statutory definition of ‘costs' “ in section 1033.5. (Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 137.) In concluding that expert witness fees could be recovered as “expenses” under that statute, the Court noted legislative history specifically supporting that conclusion. (Id. at p. 138.)

However, in interpreting section 1794, subdivision (d), the Court of Appeal in Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, held that the prevailing party still has the burden of showing that costs or expenses were (1) reasonably necessary to the conduct of litigation and (2) reasonable in amount. (Id. at p. 816.)

Here, the reply does not address the reasonableness of the expert witness fees. Nevertheless, such fees are regularly incurred in this type of litigation and are reasonably necessary to prosecuting a lemon law case.

Defendants also challenge Plaintiff’s request for costs in the amount of $300.00 for “Expense paid to WDRC for Mediation Services” on February 22, 2024 and $270 for the same on May 1, 2024. Defendant notes that the parties agreed to split the costs of mediation, but now Plaintiff seeks to recover their portion. Without any legal authority, Defendants argues that “[t]his should not be allowed.” Defendants’ objection is not well taken.

Finally, Plaintiff also seeks to recover the cost for “Expense paid to Veritext for Hearing Attendance” for $545.00 but does not specify why this cost was paid or what hearing it was for. The Reply does not address this cost. This Court will strike this request for cost in the amount of $545.

The motion for attorneys’ fees and costs is granted in part. In sum, the Court grants Plaintiff’s request for attorneys’ fees in the total amount of $54,432.50, which is a reduction of the lodestar amount by $13,560. The request for costs is granted in the amount of $9,098.35.

Defendants are ordered to pay to Plaintiff’s counsel the sum of $63,530.85 ($54,432.50+ $9,098.35) for attorneys’ fees and costs. Defendants are ordered to pay this amount on or before February 11, 2025.

[1] Defendants also argue that there is no evidence Plaintiff actually paid these fees. This, however, is not required under the law. (Lolley v. Campbell (2002) 28 Cal.4th 367, 373 [“California courts have routinely awarded fees to compensate for legal work performed on behalf of a party pursuant to an attorney-client relationship, although the party did not have a personal obligation to pay for such services out of his or her own assets.”].)

Judge Bruce G. Iwasaki

Department 58