Judge: Douglas W. Stern, Case: 21STCV13095, Date: 2022-09-26 Tentative Ruling

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Case Number: 21STCV13095    Hearing Date: September 26, 2022    Dept: 52

Tentative Ruling:

Plaintiff Don Hinson’s Motion for Attorney Fees, Costs, and Expenses

Plaintiff Don Hinson moves for $147,973.50 in attorney fees and $2,695.49 in costs and expenses.  Defendant Ford Motor Company did not oppose the motion as to plaintiff’s costs.

Under the Song-Beverly Act, a plaintiff may recover “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).)

Evidentiary Objections

Plaintiff makes five objections to the declaration of Matthew M. Proudfoot.  Objection No. 1 is sustained.  Objection Nos. 2 through 5 are overruled.

Lodestar

As an initial matter, the court notes that Goldsmith West, one of two firms representing plaintiff, never specifies how many hours it worked on this case.  Attorney David A. Goldsmith merely provided the raw bill, which includes a mix of entries from different billers at different rates.  Plaintiff did not summarize of how many hours Goldsmith, Kaitlyn Horesh, and Lasha Alvarez, or even the firm as a whole worked on this case. 

A party moving for attorney fees has a duty to provide a concise explanation for the lodestar rather than requiring the court to spend its time doing data entry.  The court therefore divided the total claimed by Goldsmith West, $57,911.50, by Goldsmith’s hourly rate of $515 to estimate his firm worked 112.5 hours on this case.

Hours

The court finds plaintiff reasonably incurred all hours claimed on this case.  “A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended. …   Reasonable compensation does not include compensation for padding in the form of inefficient or duplicative efforts.”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38, internal quotes omitted.)

Plaintiff billed a total of 64.3 hours worked by The Altman Law Group (Altman Decl., Ex. A) and 112.5 hours (estimated as discussed above) by Goldsmith West (Goldsmith Decl., Ex. B) for a total of 176.8 hours.  Most of plaintiff’s billing entries are under 1.5 hours.  Plaintiff billed for discrete tasks with specific descriptions.  The court finds no evidence of padding or inefficient or duplicative work.  The case was not overstaffed.  Four attorneys and two paralegals worked on it.  That is a reasonable number and, in the court’s experience, below the average staffing in similar cases.

Defendant’s argument on overstaffing includes, for example, a contention that plaintiff billed an extra $3,800 for the mediation on April 27, 2022, because he was represented by two law firms.  (Opp., p. 3.)  Bryan A. Altman billed $3,800 for 4.0 hours that day in an entry described as “Discussion with Co-Counsel and Client, attend remotely Mediation throughout day.”  (Altman Decl., Ex. A, p. 7.)  It is not unreasonably duplicative to have two attorneys attend and bill for a mediation.  As the saying goes, two heads are better than one. 

Hourly Rates

The court finds that some of plaintiff’s counsel’s hourly rates are not reasonable.  For hourly rates, “the trial court is in the best position to value the services rendered by the attorneys.”  (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436.)  Courts may rely on their “own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.” (Id. at p. 437, citations omitted.)

Attorney David A. Goldsmith billed $515 hourly.  The court finds his rate is reasonable.  Christopher Urner billed $475 hourly but was only admitted to the Bar in 2016.  (Altman Decl., ¶ 36.)  The court finds his appropriate hourly rate is $375.  Andrew Jung billed $400 hourly.  Plaintiff did not specify when Jung was admitted to the Bar but notes he was in law school as recently as 2020.  (Altman Decl., ¶ 37.)  The court finds his appropriate hourly rate is $275. 

Finally, Bryan C. Altman billed $950 hourly.  As he states in his declaration, Judge Armen Tamzarian awarded him an hourly rate of $800 in June 2021.  (Altman Decl., ¶ 40.d.)  The court finds his reasonable market rate now is $850 hourly.

After accounting for reduced hourly rates for Urner, Jung, and Altman, the court finds plaintiff reasonably incurred $91,780 in attorney fees.

Multiplier

            Plaintiff seeks a 1.5 multiplier to the lodestar.  The court finds no multiplier is appropriate.  Multipliers may be awarded based on factors including “(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.) 

This case did not involve novel or difficult questions.  Plaintiff’s counsel achieved a result that was successful but not particularly impressive.  Plaintiff’s counsel were competent and effective but did not demonstrate exceptional skill.  Counsel’s hourly rates adequately account for representation on contingency.  (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.)

Settlement Offer Under Code of Civil Procedure Section 998

            Defendant contends that plaintiff should not recover any fees incurred after defendant served a section 998 offer of $35,000 on November 24, 2021.  Ford later increased its offer to $50,000, and plaintiff accepted.  (Proudfoot Decl., ¶ 9.)  In cases under the Song-Beverly Act, “it is an error of law for the trial court to categorically deny or reduce an attorney fee award on the basis of a plaintiff’s failure to settle when the ultimate recovery exceeds the section 998 settlement offer.”  (Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 687.)  However, when considering the factor of “the ‘results achieved’ by the plaintiff, … [t]he reasonableness of the tendered section 998 offer in relation to the results obtained by the plaintiff may be a consideration in the overall recovery of a reasonable attorney fee award.”  (Id. at p. 700.)

            The settlement of $50,000 was a $15,000 increase over Ford’s prior offer of $35,000.  That is 42.9% more than Ford offered.  That result was quite successful.

            Defendant also makes a novel argument that this result was unsuccessful due to the tax liability plaintiff will face on the extra $15,000 and on this attorney fee award.  Defendant claims that plaintiff would end up with a negative recovery.  Defendant cites no authority that a plaintiff’s tax liability plays any role in determining the results achieved or the attorney fees he can recover.  Plaintiff’s taxes are beyond the scope of this motion.

Disposition   

            The motion is granted in part. 

Plaintiff Don Hinson shall recover $91,780 in attorney fees and $2,695.49 in other expenses for a total of $94,475.49 from defendant Ford Motor Company.