Judge: Christian R. Gullon, Case: 22PSCV00949, Date: 2024-02-27 Tentative Ruling

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Case Number: 22PSCV00949    Hearing Date: February 27, 2024    Dept: O

Tentative Ruling

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS is GRANTED, but in the reduced amount of $21,547.00 for attorney fees. [Should Defendant not take issue with the amended Memorandum of Costs, the court will add the cost of $1,665.13 for a total award of $23,202.13.]

Background

This is a lemon law case arising from Plaintiff Paul G. Mark’s lease of a 2020 Maserati Ghibli which encountered various defects including, but not limited to a defective engine, defective electrical system, and defective connectivity system.

On August 30, 2022, Plaintiff filed suit against Defendant for Violations Of Statutory Obligations (Song- Beverly Consumer Warranty Act Ca Civil Code §§ 1790-1795.8).[1]

On September 30, 2022, Defendant filed its answer.

On January 16, 2024, Plaintiff filed the instant motion.

On February 13, 2024, Defendant filed its opposition.

On February 20, 2024, Plaintiff filed its reply (and a new/amended memorandum of costs).

Legal Standard

Plaintiff brings forth the motion pursuant to Civil Code section 1794 subdivision (d).

In turn, the statute provides the following:

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. (Civ. Code §1794(d) (emphasis added).)

As for determining the “reasonableness” of attorney costs incurred in fee shifting cases, the inquiry in California ordinarily begins with the “lodestar” method which embraces a two-step method. (See also Motion p. 7.)

The first step requires a trial court to multiply the time reasonably spent by Plaintiff counsel on the case by a reasonable hourly rate. 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.

The second step allows a trial court to adjust or enhance the lodestar by applying a multiplier to consider the contingent nature and risk associated with the action, as well as other factors, such as degree of skill required, ultimate success achieved, and “extraordinary legal skill.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130, 1132, 1137; see also Serrano v. Priest (1977) 20 Cal.3d 25, 49 (Serrano III) [identifies seven factors that a trial court properly considers in its decision to augment the lodestar calculation].) The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App. 4th 770, 774, emphasis added and underline added).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.) The amount of the multiplier lies within the court’s sound discretion. (Ketchum, supra, 24 Cal.4th 1122, 1138 [“To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether.”], see also Motion p. 8:11-12.)

After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.) 

Discussion

Plaintiff moves the court to issue an Order awarding Plaintiff attorneys’ fees and costs in the amount of (1) $37,711.30; (2) a multiplier in the amount of $37,711.30; and (3) an additional $5,000 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this Motion. Accordingly, Plaintiff requests a total award of $80,422.60 in attorneys’ fees (which includes the requested multiplier).

Defendant takes issue with the number of hours Plaintiff’s Counsel devoted to the litigation, the reasonableness of the hourly fee, and the justification of a multiplier.

For all the reasons to be more specifically discussed below, the court agrees with Defendant on all points.

A.    Step #1: Hours x Rate

i.                 Billable Hours are Unreasonable

According to the appellate court in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, as cited in Plaintiff’s Motion, attorney fees are meant to “fully compensate counsel for . . . services reasonably provided to his or her client.” (Id. at p. 395.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case.” (Ibid, emphasis added.) In assessing the actual hours spent, when counsel presents verified time records, there is a “presumption of credibility” such that the time records are “entitled to credence in the absence of a clear indication the records are erroneous.” (Id. at p. 396.) That said, while a trial court abuses its discretion in “rejecting wholesale counsels’ verified time records,” (ibid) it may deny compensation for “inefficient or duplicative” work. (Id. at p. 394, quoting Ketchum, supra, 24 Cal.4th at p. 1132, emphasis added.)

Plaintiff’s fee recovery is based on 91.32 hours spent by his attorney’s firm litigating this case. (Motion p. 10, citing Jiang Decl., Ex. 17.)

Here, despite Plaintiff’s contention that the litigation involved a “sheer amount of detail” (Reply p. 7:12-14), the billing records indicate otherwise. Instead, the records illustrate inefficient work, duplicative work, and “vague” entries as they are largely dedicated to routine tasks, excessive interoffice communications, and administrative tasks. (See also Opp. pp. 12-14.) For example, see the following entries:

-        Vague or duplicative entries for “reviewing” costs and expenses (see e.g., 12/16/23 and 11/22/23).

-        Duplicative/inefficient billing regarding a tracking number for a check (11/14/23 and 11/09/23 billing entries).

-        Duplicative, vague, and inefficient entries for “review[ing] emails from defendant re. status on overage payments” (see e.g., 10/02/23, 10/03/23, 10/12/23, 10/23/23, 9/27/23, 9/15/23, 9/07, 23).

-        Plaintiff’s attorneys billed 11.75 hours (totaling $4,910.25) for multiple entries vaguely described as “draft [redacted]” “prepare [redacted]” or “calculate [redacted]” which provides no clarity as to the exact tasks performed.

-        Duplicative entries for emailing Defense Counsel re: vehicle surrender (see e.g., 8/17/23 and 6/28/23).

(See generally Jiang Decl., Ex. 17, starting p. 728 of 780 of PDF.)

In sum, there are many emails, calls, and reviews of the same things, about the same things, and to the same people, impressing upon the court that the entries are grossly exaggerated. Therefore, Plaintiff’s Counsel's billing entries demonstrate a lack of efficiency in litigating the case and a lack of clarity in tasks performed.

Therefore, the court reduces the billable hours to those presented by Defendant in opposition. (Opp. p. 18.)

ii.               The Hourly Rates are Unreasonable[2]

The hourly rates for the attorneys who worked on this case is Corinna Jiang ($415/hour) and Nancy Zhang ($500/hour); Counsel Jiang performed most of the work with 76.22 hours of work. Plaintiff contends (without citation to evidence) that “[t]hese rates are similar to the rates of Los Angeles County awarded to attorneys in other Song-Beverly cases.” (Motion p. 9:15-16.)

However, the inquiry is not whether other attorneys are doing identical work but “comparable legal services in the community.” (Ketchum, supra, 24 Cal.4th at p. 1132, italics added.)[3] Accordingly, the work could be done with someone versed in contract law (i.e., as issues involve breaches of warranties). Additionally, the mere fact that other Judges have found these hourly rates reasonable is inapposite as the issue rests in the sound discretion of this court. And even taking Plaintiff’s citation to Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1110 (Morion p. 9), that supports a court’s decision to grant hourly rate of $250/hour, notably when the work can be performed by an associate.

Therefore, the court reduces the hourly rate for the attorneys to $350/hour.[4]

Step #2: Augmenting Lodestar With a Multiplier

Plaintiffs seek a Lodestar multiplier enhancement of 2.0. (Motion p. 12.)

Here, the court finds no reason to award a multiplier considering that:

1.     the billing records show no substantive work/motions

2.     discovery was conducted informally due to the routine nature of these cases,[5]

3.     allegations were boilerplate.

To the extent that Plaintiff argues a multiplier is warranted because counsel “tenaciously” litigated the case (Motion p. 14:20-21), that is but a mandatory, ethical obligation of an attorney. (See Rule 1.3 [Diligence] “A lawyer shall . . . act with reasonable diligence in representing a client.”]; see also generally California Model Rules of Professional Conduct Rules 1.1-1.18 [a lawyer shall be diligent].)

To the extent that Plaintiff argues a multiplier is warranted because Counsel obtained an excellent outcome (Motion p. 12), not so. “The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.” (Thayer, supra, 92 Cal.App.4th at p. 838.) The ‘results obtained’ factor is incorporated into the ‘quality’ factor: “i.e., high-quality work may produce greater results in less time than would work of average quality, thus justifying a multiplier.” (Ibid.) Here, however, Defendant did not file a substantive motion (i.e., demurrer, motion for judgment on the pleadings, summary judgment) to dispute Plaintiff’s factual or legal claims, suggesting the results obtained were the predicted results.[6] To the extent that Plaintiff relies upon the 7 months it took to settle in principle, both parties claim the other caused the delay. Who caused it is inapposite; the protracted negotiations delayed execution of the settlement agreement and did not substantial value to the settlement.[7] (Id. at p. 839.)

To the extent that Plaintiff argues a multiplier is warranted because of the skill required in litigating this case, perhaps Defendant summarizes it best: “This case involved the same law firms, same filings, same issues, and same efforts as hundreds of other lemon law cases Plaintiff’s counsel’s firm routinely handles.” (Opp. p. 17:1-3.) Therefore, absent extraordinary advocacy, a multiplier is not warranted under this factor.

iii.             Memorandum of Costs

In opposition, Defendant argues that Plaintiff fails to attach any support for any of the costs incurred and thus, should be stricken in its entirety. (Opp. p. 17.) Plaintiff, though without addressing the matter in opposition, appear to concede the point as they file an amended memorandum of costs.

As Defendant has presumably not had a chance to review the memorandum of costs, the cost is TBD at the hearing. Should Defendant not object to the $1,655.13 amount, it will be added to the $21,547.00 total.

Conclusion

In sum, this is a garden variety lemon law case that did not present any complex or novel issues, involved no law and motion, settled early in litigation, and required no extraordinary legal skill justifying augmentation of the lodestar. With that, the hourly rate is reduced, the billable hours are reduced, and no multiplier is awarded yielding total recovery for attorney’s fees of $21,547.00 (subject to increase with costs).