Judge Bruce G. Iwasaki, Case Number: 21STCV11734, Date: 2024-07-17 Tentative Ruling

Tentative Ruling: Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED in the amount of $70,212. As to Plaintiff’s costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700.

Plaintiff purchased a 2018 Honda Odyssey manufactured and distributed by Defendant American Honda Motor Co., Inc. Plaintiff alleges that the vehicle contained or developed defects during the warranty period. Plaintiff alleges that shepresented the vehicle to Defendant for repairs and Defendant was unable to repair the vehicle within a reasonable number of attempts. Plaintiff alleges Defendant failed to provide her with restitution pursuant to Song-Beverly Consumer Warranty Act.

Plaintiff filed the operative Second Amended Complaint on November 8, 2021. Plaintiff filed a Notice of Conditional Settlement on May 3, 2024.

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 and Defendant request judicial notice of court opinions in other Song Beverly cases discussing counsel’s rates. The request for RJN is granted.

Plaintiff moves for attorney’s fees as prevailing party under Civil Code §1794(d) and the parties’ settlement agreement. Plaintiff obtained a settlement of $82,500 from Defendant after three years of litigation wherein Defendant agreed that Plaintiff would be prevailing party for purposes of a fee motion. (Castro Dec., ¶78, Ex. 4.) Plaintiff argues she is clearly the prevailing party under Civil Code §1794(d) and is entitled to a mandatory fee award in the amount of $129,110.59 based on (1) $84,751.50 in attorney’s fees for Strategic Legal Practices, APC (“SLP”); (2) a 1.35 multiplier enhancement; (3) $11,196.06 in costs and expenses for SLP; and (4) an additional $3,500 for Plaintiff’s counsel to review the Opposition, draft the Reply and attend the hearing on the Motion.

Plaintiff’s attorney’s fees are based on 164.6 hours of attorney time. Plaintiff’s counsel identifies no fewer than nineteen attorneys who worked on this case. The hourly rates of these attorneys ranged from $350 to $650.

Defendant does not dispute that Plaintiff is entitled to attorney’s fees as prevailing party under Civil Code §1794(d). Defendant argues, however, that when the parties were negotiating settlement, Plaintiff represented that the attorney’s fees would range from $40,000 to $50,000. Defendant argues Plaintiff’s request for $129,110.59 in fees is excessive. Defendant argues Plaintiff is, at most, entitled to $21,000 for this cookie cutter litigation.

Defendant objects to the hourly rate and number of attorneys assigned to the case as excessive. Defendant argues the hourly rate should be set at no more than $350/hr for all attorneys.

Defendant objects to the number of hours as excessive given the cookie-cutter nature of Song Beverly litigation. Defendant attached as Exhibit A to the Opposition a table addressing each of the time entries submitted by Plaintiff. Defendant also objects to the costs requested and requests a reduction of $6,023.

Plaintiff counsel expended 164.6 hours on this litigation, which was pending for approximately three years and was litigated up to the eve of trial. Parties’ submitted motions in limine and engaged in a last minute mediation before Judge Stern. (Minute Order dated January 4, 2024.)

· Improper redactions. Based on a review of Plaintiff’s time entries, the entries on the following dates are so heavily redacted that the court cannot determine their reasonableness or the nature of the task performed: (1) 3/15/22, Avelino, .5 hours @ $595/hr for a total of $297.50; (2) 9/29/22, Mkrdech, 7.6 hours @ $350/hr for a total of $2,660; (3) 11/9/22, Carvalho, .7 hours @ $550/hr for a total of $385; (4) 11/10/22, Mkrdech, 1.4 @ $350/hr for a total of $490; (5) 6/28/23, Carvalho and .7 hours @ $570/hr for a total of $399. As such, the requested fee award is reduced by $4,231.50 for failure to provide sufficient detail regarding the work performed. (Shahian Dec., Ex. 20, pp. 1 and 2.)

· Unreasonably excessive time entries. Counsel Deleon spent (1) 2.4 hours on 5/10/23 preparing for deposition of Defendant’s PMQ; (2) 3.4 hours on 5/11/23 preparing for deposition of Defendant’s PMQ; and (3) 7.8 hours on 5/12/23 preparing and taking the deposition of Defendant’s PMQ. The billable rate for the task was $575/hr. Counsel’s entry on 5/12/23 also improperly block billed multiple tasks. (Shahian Dec., Ex. 20, p. 2.) The amount billed for the PMQ deposition totaled $7,820. The amount of billable time for both preparation and taking the deposition is reduced from 13.6 hours @ $575/hr to 8 hours @ $575/hr for a total of $4600, a reduction of $3,220.

Counsel Miller indicates that he spent 10 hours preparing for, travel to and attend continued FSC on January 5, 2024. (Shahian Dec., Ex. 20, p. 3.) The Jury Trial/FSC began at 9 a.m. and the settlement was put on the record. (Minute Order dated 1/8/24.) There is nothing indicating that preparation for and attendance at the FSC on 1/5/24 would have required 10 hours. The 1/5/24 entry by Miller for 10 hours @ $595/hr for a total of $5,950 is reduced to 5 hours @ $595/hr for a total $2,975, a reduction of $2,975.

· Estimated time for reply prep and hearing attendance. Plaintiff’s counsel estimates $3,500 for preparation of the reply and hearing attendance. Counsel does not provide an hourly rate for this estimate. However, using the maximum rate allowed as discussed below ($575/hr), the number of hours spent would be 6 hours @ $575/hr for a total of $3,500. Given the reply, including objections and additional evidence, six hours for opposition review, reply prep and hearing attendance is reasonable.

In total, the requested fees are reduced by $10,426.50 due to excessive hours or improperly redacted time entries. This leaves a balance of $72,073.50.

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 nineteen attorneys who performed work at hourly rates of $350, $385, $400, $450, $460, $475, $495, $550, $570, $575, $595, $610, $620 and $650. (Shahian Dec., Ex. 20, p. 5.) Counsel Shahian testifies as to his extensive experience in Song Beverly litigation, but he does not seek recovery for his time supervising this matter. (Id. at ¶¶1-45, 86.) The experience and background of the remaining attorneys is set forth in Shahian’s declaration. (Id. at ¶¶46-84.) Based on a review of the attorneys’ profiles and the market rate charged for similar services based on the court’s own experience, the hourly rates charged above $575 are excessive. Those hours billed at $595, $610, $620 and $650 are recalculated at the hourly rate of $575.

· Avelino. 7.8 hours @ $595 for a total of $4,641 reduced to $4,485, for total reduction of $156.

· Carvalho. .9 hours @ $595 for a total of $535 reduced to $517, for total reduction of $18.

· Lunn. 4.9 hours @ $620 and 9.8 @ $650 for a total of $9,408 reduced to $8,452.50, for a total reduction of $955.50.

· McCallister and Miller. 34.5 hours @ $595 for a total of $20,527.50 reduced to $19,837.50, for a total reduction of $690.

· Vaziri. 1.2 hours @ $610 for a total of $732 reduced to $690, for a total reduction of $42.

The adjustment of hourly rates claimed by six of the nineteen attorneys will also address the overstaffing issue raised by Defendant. In total, the requested fee award is reduced by $1,861.50 for excessive hourly rates. Applying this further reduction to the balance of $72,073.50, the total remaining attorney’s fees total $70,212.

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. The lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. The cases did not involve any novel legal issues. There is no justification to apply a multiplier.

Plaintiff includes a request for an award of costs in the amount of $11,196.06. (Shahian, Dec., Ex. 20, pp. 4-5.) Defendant objects to the costs on grounds that no supporting documentation is provided, several entries associated with the demurrer provide no explanation as to the nature of the $896.95 in costs, the basis for $2,837.89 in deposition costs when the deposition only lasted a few hours and $4,614 in unnecessary reporter fees on 1/3/24, 1/8/24 and 1/10/24.

Parties stipulated that Defendant would pay Plaintiff’s reasonable fees and costs. (Castro Dec., Exs. 2 and 4, ¶2.) Parties also referenced a “Motion for Attorneys’ Fees and Costs” and stipulated that Plaintiff would be prevailing party for purposes of such a motion. However, there is nothing explicitly stating that Plaintiff would not be required to file a memorandum of costs under California Rules of Court, rule 3.1700. Based on the mandatory language of California Rules of Court, rule 3.1700, Plaintiff must comply with the procedure for recovery of costs under California Rules of Court, rule 3.1700, which requires submission of a verified memorandum of costs within 15 days of mailing of notice of entry of judgment. Submission of a memorandum of costs would organize the requested costs into categories under Code of Civil Procedure section 1033.5. A memorandum of costs would also trigger Defendant’s right to tax those costs by noticed motion, with an opportunity to reply to any opposition.

Plaintiff’s request for fees by noticed motion is denied. Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700.

Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED as to the request for attorney’s fees in the amount of $70,212. As to Plaintiff’s costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700.

Department 58