Judge Daniel M. Crowley, Case Number: 21STCV16626, Date: 2023-12-14 Tentative Ruling

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Plaintiffs Mario Galicia Rangel aka Mario Galicia’s and Daniela Espinosa De Los Monteros Gonzalez aka Daniela Espinosa’s motion for attorneys’ fees, costs, and expenses is granted in the total reduced amount of $92,490.20. Plaintiffs’ request for attorneys’ fees is granted in the reduced amount of $70,043.50, and Plaintiffs’ costs is granted in the amount of $22,446.70.

Plaintiffs Mario Galicia Rangel aka Mario Galicia (“Galicia”) and Daniela Espinosa De Los Monteros Gonzalez aka Daniela Espinosa (“Espinosa”) (collectively, “Plaintiffs”) move for an order awarding their attorneys’ fees, costs, and expenses against Defendant American Honda Motor Co., Inc. (“AHM”) (“Defendant”). (Notice of Motion, pg. 1; Civ. Code §1794(d); C.C.P. §998.)

Plaintiffs move for an order for attorneys’ fees under the “lodestar” method in the amount of $70,043.50, a modest “lodestar” enhancement of 0.5 in the amount of $35,021.75, for a total of $105,065.25 in attorneys’ fees, and reimbursement of verifiable costs and expenses in the amount of $22,446.70, for a total amount requested by this motion of $127,511.95. (Notice of Motion, pg. 1.) Plaintiffs make this motion pursuant to a C.C.P. §998 Offer to Compromise (“998 Offer”) made by Defendant on February 17, 2023, and accepted by Plaintiffs on February 27, 2023. (Notice of Motion, pg. 1.)

Plaintiffs’ 12/7/23 evidentiary objections to the Declaration of Theodore Dorenkamp (“Dorenkamp”) are sustained as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11.

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). Defendant served Plaintiffs with a 998 Offer in this matter on February 17, 2023, which Plaintiffs accepted on February 27, 2023, in the amount of $65,000.00 plus attorney’s fees, costs and expenses by motion wherein Plaintiffs would be the prevailing party (“The Settlement”). (Decl. of Kirnos ¶30, Exh. D at pgs. 1, 3, ¶¶1, 8.)

On November 15, 2023, Plaintiffs filed this motion for attorneys’ fees and a memorandum of costs. Defendant filed its opposition on December 4, 2023. Plaintiffs filed their reply on December 7, 2023.

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer.” (C.C.P. §998(c)(1).) “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.” (C.C.P. §998(c)(2)(A).) “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.” (C.C.P. §998(e).)

Section 998’s plain language only penalizes plaintiffs who “fail[] to obtain a more favorable judgment or award” than a §998 offer by cutting off their post-offer costs and requiring them to pay “defendant’s [post-offer] costs” out of any “damages awarded.” (C.C.P. §§998(c)(1), (e).)

A party who settles cannot “fail” to obtain a more favorable “judgment or award.” “Fail[ure]” connotes defeat, abandonment, or “[i]nvoluntarily” falling short of one’s purpose. (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, 413-414, citing Burton’s Legal Thesaurus (3d ed. 1998) p. 228, col. 1, Black’s Law Dict. (rev. 4th ed. 1968) at pg. 711, col. 1; accord Cambridge Dict. Online (2023) [“fail” means “to not succeed in what you are trying to achieve”].) Section 998(d) is explicit: A “judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.” (C.C.P. §998(d).)

Here, Plaintiffs are the prevailing party and is entitled to attorneys’ fees and costs pursuant to the 998 Offer.

Civil Code §1794(d) provides, “[i]f 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.”

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the Plaintiff’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, emphasis added.)

Plaintiffs’ Counsel declares the following hourly rates for attorneys who worked on this case: (1) Roger Kirnos ($500.00/hour); (2) Amy Morse ($350/hour for 2013-2020, $400/hour for 2021, $425/hour for 2022, and $450/hour for 2023); (3) Angelica Zamudio ($175.00/hour); (4) Deepak Devabose ($275/hour for 2015-2020, $325/hour for 2021, $375/hour for 2022 and $425/hour for 2023); (5) Daniel Gopstein ($175/hour); (6) Daniel Kalinowski ($250/hour for 2017-2020, $295/hour for 2021, $350/hour for 2022 and $400/hour for 2023); (7) Heidi Alexander ($325/hour for 2019-2021 and $350/hour for 2022); (8) Jacob Cutler ($425/hour for 2020/2021, $450/hour for 2022, and $495/hour for 2023); (9) Katherine Smith ($175/hour as a law clerk and $295/hour as an associate for 2021-2022); (10) Maite Colón ($300/hour for 2017-2020, $345/hour for 2021, $395/hour for 2022, and $425/hour for 2023); (11) Marisa Melero ($225/hour for 2017-2020, $295/hour for 2021, $345/hour for 2022, and $395/hour for 2023); (12) Samantha Doody ($175/hour); (13) Sundeep Samra ($225/hour for 2018-2020, $270/hour for 2021, and $325/hour for 2022); (14) Thomas Dreblow ($250/hour for 2020, $295/hour for 2021, and $350/hour for 2022); (15) Theodore Swanson Ramirez ($500/hour for 2022 and $550/hour for 2023); (16) Thach Tran ($350/hour for 2022 and $395/hour for 2023); and (17) Zachary Powell ($250/hour for 2017-2020, $325/hour for 2021, $375/hour for 2022, and $425/hour for 2023). (Decl. of Kirnos ¶¶35-51.) Plaintiffs have sufficiently demonstrated their counsel’s hourly rates are reasonable in their community of practice in their specialized area of law. (Decl. of Kirnos ¶¶35-51.)

Defendant challenges Plaintiffs’ counsel’s hourly rates as unreasonable on the basis there were too many lawyers and law clerks who billed on this case and their rates are excessive given the simplicity of the work and the experience level of the lawyers involved. (Opposition, pgs. 8-9.) The Court finds Plaintiffs’ counsel’s rates to be reasonable and do not warrant a reduction.

The party seeking fees and costs bears the burden to show “the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

In this case, the declarations and billing records provided by Plaintiffs’ counsel are sufficient to meet the burden of proving the reasonableness of the claimed fees in terms of amounts and tasks. To satisfy this burden, evidence and descriptions of billable tasks must be presented in sufficient detail, enabling the court to evaluate whether the case was overstaffed, the time attorneys spent on specific claims, and the reasonableness of the hours expended. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486-487.)

Plaintiffs’ fee recovery is based on 192.6 hours Plaintiffs’ counsel spent litigating this case through this motion, including an anticipated 7.5 hours reviewing Defendant’s opposition, drafting a reply brief, and preparing for and attending the hearing on the instant motion. (Motion Memo, Exh. A at pg. 20.) The fees incurred are reasonable, as captured in the billing records submitted to this Court. (Decl. of Kirnos ¶2, Exh. A.) Plaintiffs’ counsel’s billing records reflect the actual time and clear descriptions of services performed in connection with litigating this case, which has been carefully removed or reduced any time that appeared excessive, duplicative, or otherwise unreasonable. (Decl. of Kirnos ¶53.) Although the submission of such detailed time records is not necessary under California law, if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

Defendant argues Plaintiffs’ counsel’s billed hours were not reasonably incurred and therefore should be cut, and attempts to circumvent this Court’s page limit by including their objections to specific billed hours by referring to a spreadsheet in Defendant’s counsel’s declaration. (Opposition, pg. 10, Exh. B.)[1] The Court does not consider such oppositions incorporated by reference in an exhibit to a declaration and not specifically argued with substance in Defendant’s opposition.

Accordingly, Plaintiffs’ billed hours were reasonably necessary to the conduct of the litigation and were reasonable in amount.

Civil Code §1794(d) provides, as follows: “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 . . . incurred by the buyer in connection with the commencement and prosecution of such action.”

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Defendants do not object to Plaintiffs’ memorandum of costs in the body of their opposition.

Accordingly, Plaintiffs’ request for costs is granted in the amount of $22,446.70.

The Court denies Plaintiffs’ request for a 0.5 lodestar multiplier. Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Defendant’s opposition mistakenly refers to the attorney’s fees chart as Exhibit A to the Declaration of Dorenkamp—the document is labeled as Exhibit B.