Judge: Cynthia A Freeland, Case: 37-2020-00020953-CU-BC-NC, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 29, 2024

03/01/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00020953-CU-BC-NC JEONG VS FCA US LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 02/06/2024

Plaintiffs Nam Su Jeong and GDGS, Inc. (collectively, 'Plaintiffs')'s motion for attorney's fees and costs is granted.

California Civil Code ('CC') § 1794 entitles the prevailing buyer to recover as part of the judgment the total amount of costs and expenses, including attorneys' fees based upon the actual time expended, determined by the court to have been reasonably incurred in connection with the commencement and prosecution of the case. See Cal. Civ. Code § 1794(d). Where 'the prevailing buyer has a contingency fee arrangement, he or she is entitled to recover 'reasonable attorney fees for time reasonably expended.'' Warren v. Kia Motors America, Inc. (2018) 30 Cal. App. 5th 24, 35-36 (quoting Nightingale v. Hyundai Motor America (1994) 31 Cal. App. 4th 99, 105 n. 6). The prevailing buyer bears the burden of establishing that his or her requested attorneys' fees are allowable, reasonable, and reasonably necessary to the conduct of the litigation. See Goglin v. BMW of North America, LLC (2016) 4 Cal. App. 5th 462, 470. On September 14, 2023, the parties executed a Settlement Agreement under which Defendant agreed to pay $77,000.00 ($62,188.92 to Plaintiffs and $14,811.08 to Plaintiffs' lender, Wells Fargo Auto) and accept the return of the subject vehicle, a 2018 Ram ProMaster 2500, VIN 3C6TRVDG3JE115277 (the 'Vehicle'). The Settlement Agreement includes a mutual general release of all claims and requires that Plaintiffs dismiss this action without prejudice within 10 days of receiving all payments due under the Settlement Agreement. Under ¶ 3(C) of the Settlement Agreement, Defendant has stipulated that Plaintiffs are the prevailing party under CC § 1794(d) for purposes of a motion for attorney's fees, costs, and expenses. See Johnson Decl., Ex. 2. Defendant does not argue otherwise in its opposition. Accordingly, the court must determine the amount of attorney's fees Plaintiffs reasonably and necessarily incurred in prosecuting this action.

The approach for determining reasonable attorneys' fees under CC § 1794(d) is the lodestar method, which is the number of hours reasonably expended multiplied by the reasonable hourly rate. See Warren, 30 Cal. App. 5th at 36. Once the lodestar figure is calculated, the court can adjust it based upon case-specific factors such as: '(1) the novelty and difficulty of the questions involved, (2) the skills displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.' Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1112. See also Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132. The case's procedural demands can also be considered. See Nightingale, 31 Cal. App. 4th at 104. The most critical factor in evaluating reasonableness, however, is the degree of success obtained. See Etcheson v. FCA US LLC (2018) 30 Cal. App. 5th 831, 847.

Plaintiffs' Counsels' Reasonable Hourly Rates Calendar No.: Event ID:  TENTATIVE RULINGS

3070814 CASE NUMBER: CASE TITLE:  JEONG VS FCA US LLC [IMAGED]  37-2020-00020953-CU-BC-NC In determining a reasonable hourly rate, the court must consider the prevailing market rates in the relevant community, which typically means comparable attorneys' rates in the forum district. See Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal. App. 4th 972, 1009. The court should consider the requesting attorney's experience, skill, and reputation, and may also rely upon its own knowledge and familiarity with the legal market. Ibid. In addition, the court can review attorney affidavits regarding prevailing fees in the community and rate determinations in other cases. Ibid. The litigation's difficulty or complexity is also relevant. See Syers Properties III, Inc. v. Rankin (2014) 226 Cal. App. 4th 691, 700.

Plaintiffs bear the initial burden 'to produce satisfactory evidence – in addition to the attorney's own affidavits – that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.' Kerkeles v. City of San Jose (2015) 243 Cal. App. 4th 88, 105. Affidavits of the applicant attorney and other attorneys are satisfactory evidence of the prevailing market rate. Ibid. 'If a fee applicant presents such evidence, the opposing party ' 'has a burden of rebuttal that requires submission of evidence ... challenging the accuracy and reasonableness of the ... facts asserted by the prevailing party in its submitted affidavits.' [Citation.]' Ibid.

(quoting Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110-1111 (9th Cir. 2014)).

In this case, Plaintiffs' counsel has provided the court with substantial evidence that their hourly rates in other lemon law cases have been approved in multiple cases in various departments with the San Diego Superior Court, including this department. See Johnson Decl., ¶¶ 135-147; Exs. 10-20. The hourly rate charges are not out of line with what experienced counsel might charge in a similar case. See Goglin, 4 Cal. App. 5th at 474 (affirming an award of an hourly rate of $575.00 for counsel in a lemon law case in San Diego County). In addition, Mr. Johnson's declaration provides sufficient information for the court to conclude that the hourly rates charged in this matter were reasonable. See Johnson Decl., ¶¶ 152-157.

The hourly rates also are consistent with the court's understanding of the prevailing market rates for similar situated attorneys and paralegals in the San Diego legal community. Moreover, while this case was not overly complex, it did occasion law and motion practice (including two summary judgment motions by Defendant), fact discovery from multiple parties/entities including the taking of depositions, a vehicle inspection, attendance at mediation, and communications/negotiations that ultimately resulted in an informal resolution of this action.

The burden thus shifts to Defendant to submit evidence challenging the accuracy and reasonableness of the facts asserted by Plaintiffs in support of their hourly rate request. Defendant fails to meet its burden.

More specifically, Defendant, without supporting evidence, generally argues that Plaintiffs' counsel's hourly rates are unreasonable and should be reduced. In so positing, Defendant contends that the 'hand-picked orders' attached to Mr. Johnson's declaration are hearsay and therefore inadmissible evidence of the prevailing rates in the community. The court respectfully disagrees. Courts, in determining a reasonable hourly rate, do not abuse their discretion by considering declarations and orders evidencing hourly rates approved by other state and federal courts. See, e.g., Goglin, 4 Cal. App. 5th at 473-474. Defendant cites Arias v. Ford Motor Company, 2020 WL 1940843 (Jan. 27, 2020) ('Arias'), an unpublished opinion from the Central District of California, in support of the proposition that Plaintiffs' counsel's hourly rates should be reduced to $300.00 for Mr. Cline, $250.00 for Mr. Johnson, and $225.00 for Mr. Lopez and Mr. Moses. It appears that Defendant does not take issue with the paralegal hourly rates in this matter. That being said, the court finds Defendant's reliance upon Arias unpersuasive. In Arias, Judge Gutierrez relied on the 2018 Real Rate Report: The Industry's Leading Analysis of Law Firm Rates, Trends, and Practices (the 'Real Rate Report') as a guidepost to assess the reasonableness of hourly rates in the Central District. However, the hourly rates set forth in the Real Rate Report (a copy of which Defendant has not provided to the court and/or Plaintiffs' counsel) do not necessarily reflect the prevailing market rates for similarly situated attorneys in the San Diego legal community. This is especially true given that the Real Rate Report relied upon in Arias was published in 2018 whereas Plaintiffs' counsel began billing in the pending matter on April 20, 2020. Moreover, Judge Gutierrez relied on the Real Rate Report to determine a reasonable hourly rate for work in the Central District of California – not San Diego County. In addition, Arias is devoid of any discussion and/or analysis of the requesting attorneys' experience, skill, and reputation, concluding merely that counsels' requested rates outpaced the prevailing rate for similar work.

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3070814 CASE NUMBER: CASE TITLE:  JEONG VS FCA US LLC [IMAGED]  37-2020-00020953-CU-BC-NC Accordingly, the court approves Plaintiffs' attorneys' hourly rates as requested.

The Number of Hours Plaintiffs' Counsel Reasonably Expended Defendant next argues that the number of hours expended in this case was unreasonable. As the objecting party, Defendant bears the burden of referring to the specific items challenged, with a sufficient argument and citations to evidence. See Premier Medical Management Systems, Inc. v. California Ins.

Guarantee Assn. (2008) 163 Cal. App. 4th 550, 564. 'General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.' Ibid. At the same time, Plaintiffs' counsels' verified time statements are entitled to credence absent a clear indication that the records are erroneous. See City of Colton v. Singletary (2012) 206 Cal. App. 4th 751, 785. The billing statements merely form the basis for the hours reasonably expended and the court may reduce the number of hours if it concludes that Plaintiffs' counsels' efforts were unnecessary, duplicative, or excessive in light of the issues fairly presented. See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 440.

The court finds that Defendant has carried its burden in part. Defendant identifies 81 individual entries in the billing invoices attached as Exhibit 4 to Mr. Johnson's declaration which, according to Defendant, pertain to work Plaintiffs' counsel conducted as it relates to other defendants in this matter, namely Phenix Truck Body Management ('Phenix') and Thermo King Corporation ('Thermo King'). See Haddad Decl., ¶ 17. The court finds this argument persuasive and agrees with Defendant that it would be inequitable to award Plaintiffs such attorneys' fees. Toward that end, the court respectfully must disagree with Plaintiffs that the underlying facts are so inextricably intertwined that it is not possible to parse the billing statements and award attorneys' fees for work connected solely to Defendant. Plaintiffs offer nothing more than speculation that they would not have obtained as favorable an outcome without the work performed as to Phenix and Thermo King. Consequently, the court reduces the lodestar amount by $16,098.00.

Other than the foregoing, Defendant fails to challenge specific items with a sufficient argument and citations to the evidence. Additionally, the court, having independently assessed the reasonableness of the time spent, finds that the remaining charges were reasonably and necessarily incurred. See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal. App. 4th 123, 128; Donahue v. Donahue (2010) 182 Cal. 4th 259, 271.

Based on the foregoing, the court awards Plaintiffs attorneys' fees in the base lodestar amount of $102,315.00 plus $5,040.00 for fees incurred in reviewing the opposition, drafting the reply, and attending the hearing on the pending motion, for a total of $107,355.00. See Johnson Reply Decl., ¶¶ 5-6.

Plaintiffs' Entitlement to a Fee Enhancement/Multiplier The court is not persuaded that this case's circumstances merit an upward adjustment to the lodestar figure. The court has broad discretion in determining whether to award a fee enhancement. See Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal. App. 5th 240. The factors the court may consider in determining whether to apply a multiplier include: '(1) the novelty and difficulty of the questions involved, and the skill displayed in present them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.' Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 322, fn. 12. To start, the court already took the foregoing factors into account in its lodestar calculation and finds that the base lodestar amount reflects the reasonable value of Plaintiffs' counsels' services in this matter. In addition, this was a relatively straightforward lemon law case, albeit one that was litigated over a somewhat protracted period of time, that did not involve unusually heavy discovery or motion practice (aside from what appears to be standard fact discovery as well as defending against Defendant's motions for summary Calendar No.: Event ID:  TENTATIVE RULINGS

3070814 CASE NUMBER: CASE TITLE:  JEONG VS FCA US LLC [IMAGED]  37-2020-00020953-CU-BC-NC judgment) and resulted in settlement. Though lemon law is a specialized area of the law, the expertise required to handle it appears to be accounted for in counsels' relatively high billing rates. Furthermore, while Plaintiffs' counsel accepted representation on a contingency basis and undoubtedly displayed skill in prosecuting this action and achieving a favorable outcome for their client, there is no evidence that Plaintiffs' counsels' representation in this case precluded other employment.

Accordingly, Plaintiffs' request for a fee enhancement/multiplier is denied.

Plaintiffs' Requested Costs On January 18, 2024, Plaintiffs filed and served a Memorandum of Costs under which they claimed $9,848.15 in costs. See ROA No. 166; Johnson Decl., Ex. 3. California Rules of Court, Rule 3.1700(b)(1) provides that '[a]ny notice of motion to strike or tax costs must be served and filed 15 days after service of the cost memorandum.' Cal. R. Ct. 3.1700(b)(1). 'The failure to file a motion to tax costs constitutes a waiver of the right to object.' Douglas v. Willis (1994) 27 Cal. App. 4th 287, 289. 'After the time has passed for a motion to strike or tax costs or for determination of that motion the clerk must immediately enter the costs on the judgment.' Cal. R. Ct. 3.1700(b)(4). Defendant did not file and serve a motion to strike or tax costs within 15 days of service of the Memorandum of Costs nor does Defendant challenge Plaintiffs' claimed costs in its opposition to the pending motion. Accordingly, the court awards Plaintiffs $9,848.15 as reflected in the Memorandum of Costs plus the $540.44 in costs incurred in prosecuting the pending motion, for a total of $10,388.59 in costs. See Johnson Reply Decl., ¶ 5.

In light of the foregoing, the court grants the motion and awards Plaintiffs $107,355.00 in attorneys' fees and $10,388.59 in costs, for a total award of $117,743.59.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 1, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 1, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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