Judge: Cherol J. Nellon, Case: 21STCV39086, Date: 2024-04-04 Tentative Ruling
Case Number: 21STCV39086 Hearing Date: April 4, 2024 Dept: 14
Moore v. Kia
Case Background
Lemon law involving Plaintiff’s 2019
Kia Rio.
On October 22, 2021, Plaintiffs filed
their Complaint for (1) Breach of Express Warranty and (2) Breach of Implied
Warranty against Defendants Kia America, Inc. (“Kia”) and DOES 1-20. On November
29, 2021, Defendant Kia filed its Answer.
(1) Motion for
Attorney Fees
Plaintiff
now moves this court, per Civil Code § 1794(d), for an award of
$128,418.00 in attorneys’ fees.
Decision
Plaintiff’s Evidentiary Objections
to the Declaration of Benson Douglas are OVERRULED.
The motion is GRANTED, in part.
Plaintiff is awarded $75,987.00 in attorney’s fees.
Governing Standard
“In determining the amount of
reasonable attorney fees to be awarded under a statutory attorney fees
provision, the trial court begins by calculating the ‘lodestar’ amount…[t]he
‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable
hourly rate.’ (Citation.) To
determine the reasonable hourly rate, the court looks to the ‘hourly rate
prevailing in the community for similar work.’ (Citation.) Using the lodestar
as the basis for the attorney fee award ‘anchors the trial court's analysis to
an objective determination of the value of an attorney's services, ensuring
that the amount awarded is not arbitrary. (Citation.)’” Bernardi v. County
of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.
“Some federal courts require that
an attorney maintain and submit ‘contemporaneous, complete and standardized
time records which accurately reflect the work done by each attorney’ in
support of an application for attorney fees…[i]n California, an attorney need
not submit contemporaneous time records in order to recover attorney
fees…[t]estimony of an attorney as to the number of hours worked on a
particular case is sufficient evidence to support an award of attorney fees,
even in the absence of detailed time records.” Martino v. Denevi (1986)
182 Cal.App.3d 553, 559. “[A]n award of attorney fees may be based on counsel's
declarations, without production of detailed time records.” Raining Data
Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.
“‘“[P]adding’ in the form of inefficient or duplicative efforts is not subject
to compensation.’” Premier Medical Management Systems, Inc. v. California
Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 556.
Discussion
As a preliminary matter, Defense
asks this court to deny the motion pursuant to Code of Civil Procedure
§ 1033(a). That section vests an unlimited jurisdiction court with
discretion to deny (in whole or in part) the plaintiff’s recovery of costs and
fees if the prevailing party recovers an amount which could have been awarded
by a limited jurisdiction court. Chavez v. City of Los Angeles (2010) 47
Cal.4th 970, 982-983.
In this case, Plaintiff settled for
$15,000. (Plaintiff’s Exhibit E). The settlement agreement says that “Defendant
will pay Plaintiff’s costs, expenses and attorney fees, in accordance with
Civil Code section 1794 subdivision (d), as determined by noticed Motion.”
(Id.). Because the court is deciding this motion pursuant to a settlement
agreement, and the settlement agreement provides that Defendant will pay
attorney fees, this court cannot deny fees pursuant to Code of Civil Procedure
§ 1033(a). To do so would be to re-write the parties’ settlement
agreement.
Plaintiffs have submitted detailed
billing statements which indicate the following hours spent and requested
hourly rates:
1.
Ms. Amy Morse, 6.5 hours at rates varying between $425
and $500 per hour;
2.
Ms. Angelica Zamudio, 3.6 hours at $175 per hour;
3.
Ms. Caitlin Rice, 27.9 hours at rates varying between
$295 and $350 per hour;
4.
Mr. Devin Bissman, 10.1 hours at $375 per hour;
5.
Mr. Deepak Devabose, 17.2 hours at rates varying
between $375 and $425 per hour;
6.
Ms. Diana Folia, 8.3 hours at $250 per hour;
7.
Mr. Daniel Gopstein, 3.4 hours at $175 per hour;
8.
Ms. Elvira Kamosko, 11.7 hours at $295 per hour;
9.
Mr. Jeffery Mukai, 3.4 hours at $495 per hour;
10. Mr.
Jacob Cutler, 20.6 hours at rates varying between $425 and $495 per hour;
11. Ms.
Maite Colon, 10.7 hours at rates varying between $345 and $425 per hour;
12. Mr.
Maxwell Kreymer, 13.4 hours at rates varying between $295 and $350 per hour;
13. Ms.
Marisa Melero, 9.5 hours at rates varying between $345 and $395 per hour;
14. Mr.
Sundeep Samra, 26.1 hours at rates varying between $325 and $375 per hour;
15. Mr.
Scot Wilson, 4.7 hours at $645 per hour;
16. Mr.
Theodore Swanson, 23.9 hours at rates varying between $500 and $550 per hour;
17. Mr.
Timothy Lupinek, 31.5 hours at rates varying between $375 and $415 per hour.
(Declaration of Roger Kirnos Exhibit A). This brings
Plaintiff to a total of 232.5 hours billed and $90,002.00 in fees
Hourly Rates
In a case
taken on contingency, the court must make some adjustment to account for the
risk incurred by counsel in prosecuting a case where they may come away with
nothing at all. See Ketchum v. Moses (2001) 24 Cal.4th 1122,
1132-33. The court may do this in one, and only one, of two ways – by adjusting
the hourly rates before the lodestar is calculated, or by awarding a multiplier
after the lodestar is calculated. Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 394-395.
It is this court’s practice to do this at the initial stage, by including the
contingent factor in its assessment of the hourly rates. The court does so
here.
The rates
requested by Plaintiffs, peaking at $645 per hour, are above what rates
ordinarily should be for cases of this type. However, given that this is a
contingency case, the court finds that the rates are reasonable.
Hours Expended
Defendant presents
a chart of the hours they wish to challenge, at page 7 of their Opposition. While
the court has reviewed the entire chart and corresponding billing entries, the
following discussion addresses only the one challenge which the court finds meritorious,
and two other issues which arise from prior court orders.
Defense
challenges Mr. Timothy Lupinek’s expenditure of 27.9 hours[1]
(a) reviewing Defense’s responses to a single set of requests for production,
and (b) composing a “meet and confer letter” in response. Of those 27.9 hours,
only 7 were spent reviewing the responses. The remaining 20.9 were spent
drafting a memo and writing the meet and confer letter.
Spending 7 hours to review
responses to one set of requests for production is not completely out of the
ballpark. But spending nearly three times that long to write a letter in
response is unreasonable, especially in light of the fact that this court issued
a minute order on March 1, 2022, directing counsel to meet and confer “in
person or by video conference.” Counsel cannot reasonably bill for conduct in
violation of a direct order from the court. Those 20.9 hours will be removed
from the lodestar calculation.
On that same theme, this court
issued an order on a motion to compel in which it instructed Plaintiff’s
counsel to exclude any time spent on that motion from their bill. (Order filed
November 10, 2022). Nevertheless, the bill includes 3 hours expended by Mr.
Maxwell Kreymer (at $295 per hour) and 2.3 hours expended by Mr. Sundeep Samra
(at $325 per hour) on that motion. Those hours will also be removed from the
lodestar calculation.
Finally, on
two previous occasions, this court awarded monetary sanctions to compensate
Plaintiff for the expense of having to bring discovery motions. Plaintiff has
included the time spent on those motions here. But Plaintiff can only recover
once for that time, and she has already recovered via the discovery sanctions.
On March 8, 2023, this court awarded Plaintiff $2,420 in sanctions; on July 25,
2023, it awarded $2,125.00. Those amounts will be removed from the final
lodestar figure.
Multiplier
Plaintiff requests a multiplier of 1.5 on the fees. The
factors for consideration in a multiplier are “(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,
supra, 24 Cal.4th at 1132.
The award
already takes into account the fact that Plaintiff’s counsel worked on
contingency, as required by Ketchum. Id. at 1133. The other
factors do not call for a multiplier here. This was a simple lemon law case,
indistinguishable from the tens or hundreds of others of its kind that pass
through this courthouse every year. It was not novel or difficult. And while
this court does not doubt the skill of Plaintiff’s counsel, not every case
calls forth counsel’s full powers, or occupies so much of their time as to
prevent them from doing their ordinary business. This case certainly did not.
No multiplier is appropriate here.
Conclusion
Plaintiff
seeks to recover for 232.5 hours expended. For the reasons given above, this
court will remove 20.9 of Mr. Lupinek’s hours, 3 of Mr. Kreymer’s hours, and
2.3 of Mr. Samra’s hours from that total. This brings Plaintiff to 206.3 hours
expended and $80,532.00 in fees. To avoid double recovery, the court will also
subtract the $2,420 and $2,125.00 in monetary sanctions previously awarded to
Plaintiff. That brings Plaintiff’s fee award to $75,987.00. This is a
reasonable fee amount for the work done in this case.
(2) Tax Costs
Defendant
Kia now moves this court for an order striking the memorandum of costs filed by
Plaintiff on October 20, 2023. In the alternative, they request that the court
strike certain costs from the memorandum.
Decision
The motion
is DENIED.
Governing Standards
Code of
Civil Procedure § 1794(d) provides:
“If the buyer prevails in an action
under this section, the buyer 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.”
Under this section, Plaintiffs may
recover costs which would be otherwise barred by the ordinary cost statutes. Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112,
137-138.
The party filing a memorandum of
costs is not required to attach any supporting documents. Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1267. The burden is on the party opposing the
memorandum to either (a) show that the request is facially improper or (b)
produce some evidence to show that the request is improper. Bender v. County
of Los Angeles (2013) 217 Cal.App.4th 968, 989.
Discussion
Many of
Defendant Kia’s arguments consist of the flat assertion that the expenses were
unnecessary. But since the expenses are in allowable categories, and they are
not facially improper, Defendant Kia has the burden to show how and why the
expenses are unnecessary. They have not met that burden.
Defendant
Kia challenges the court reporter fees because they don’t match the Los Angeles
Superior Court fee schedule. But as counsel must know, the fee schedule only
applies to the Probate and Family divisions, where the reporter is provided by
the court. In the Civil division, where a court reporter is privately hired and
appointed by the court pro tem, the compensation of the court reporter is not
limited by the court’s fee schedule.
Finally,
Defendant Kia challenges messenger fees and travel expenses because those fees
are excluded under Code of Civil Procedure § 1033.5. The problem with this
objection is that, as noted above, Section 1794(d) allows the recovery of
“expenses” even if they are otherwise barred by Section 1033.5(b). See Jensen,
supra, 35 Cal.App.4th at 137-138. Since these costs are
allowable, and there is no facial defect in the amounts, Plaintiff may recover
them.
Conclusion
Defendant
has failed to bear its burden to challenge any of the items of costs claimed by
Plaintiff. Therefore, the motion to tax costs is DENIED.