Judge Elaine Lu, Case 18STCV03039 2022-12-08 Tentative Ruling

On October 29, 2018, plaintiff Luis H. Rodriguez (“Plaintiff”) filed the instant action against Kia Motors America, Inc. (“Defendant” or “KMA”) alleging causes of action for (1) Breach of Express Warranty pursuant to the Song-Beverly Act, (2) Breach of Implied Warranty pursuant to the Song-Beverly Act, (3) Violation of the Song-Beverly Act Section 1793.2(b).

The complaint alleged the following: Plaintiff bought a 2016 Kia Optima (“subject vehicle”) on November 2, 2016. (Complaint ¶ 5.) The subject vehicle had a defective transmission and defective steering wheel. (Id. ¶ 10.) Defendant failed to repair the vehicle and willfully violated its obligations under the Song-Beverly Act. (Id. ¶¶ 22, 24.)

On November 11, 2021, Plaintiff filed a notice of settlement of the entire case. On March 10, 2022, the Parties filed a stipulation – which the Court granted – dismissing the instant action pursuant to a settlement and for the Court to retain jurisdiction to enforce the settlement agreement, including attorney fees.

On May 19, 2022, Plaintiff filed the instant motion for attorneys’ fees. On November 16, 2022, Defendant filed an opposition. On November 21, 2022, Plaintiff filed a reply. On November 28, 2022, the Court continued the instant motion for attorneys’ fees from December 1, 2022 to December 8, 2022.

In reply, Plaintiff has submitted evidentiary objections to portions of the declarations of Jacqueline B. Chinery. These objections are unnecessary because the Court, when reviewing the evidence is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible. (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1526.) Courts are presumed to know and apply the correct statutory and case law and to be able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision-making process. (People v. Coddington (2000) 23 Cal.4th 529, 644.)

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees when authorized by contract or statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

A prevailing buyer in an action under the Song-Beverly Act “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).) “[W]hen ‘prevailing party’ is undefined by the statute, ‘a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement or otherwise. [Citations.] In assessing litigation success, Hsu v. Abbara (1995) 9 Cal.4th 863, 877, ... instructs: ‘[C]ourts should respect substance rather than form, and to this extent should be guided by “equitable considerations.”’” (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048.)

On approximately November 11, 2021, the parties settled the instant action for $15,000.00. (Fennell Decl. ¶ 146, Exh. 3.) As Plaintiff recovered a settlement, and Defendant does not dispute that Plaintiff is the prevailing party, the Court concludes that Plaintiff is the prevailing party and is entitled to attorneys’ fees pursuant to Civil Code section 1794(d).

Plaintiff seeks attorney fees and costs totaling $199,215.00 consisting of $77,686.00 in attorneys’ fees, $116,529.00 in a 1.50 fee multiplier, and $5,000.00 anticipated fees for reviewing Defendant’s Opposition, drafting a reply brief and preparing for and attending the hearing for the instant motion.

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

Attorney Benjeman Beck, a partner and trial counsel for Plaintiff’s Counsel, Consumer Law Experts, P.C. since July 2018 has been an attorney since January 2010 with significant litigation experience with automotive defect cases. (Beck Decl. ¶¶ 3-4, 6.) Beck is also a current member of the American Board of Trial Advocates and member of the National Association of Consumer Advocates. (Beck Decl. ¶ 5.) Beck claims an hourly rate of $490 per hour, and pursuant to the billing records, he spent 10.6 hours on the instant action. (Beck Decl. ¶ 7; Fennell Decl. Exh. 15.) Other courts have approved similar hourly rates for Beck in the past. (Beck Decl. ¶¶ 8-18; Fennell Decl., Exhs. 4-14.)

Attorney Joshua Fennell is an associate at Consumer Law Experts, P.C. and has been an attorney since January 2018 and has litigated numerous Song-Beverly Consumer Warranty Actions. (Fennell Decl. ¶ 149.) Fennell claims an hourly rate of $370 in 2021 and an hourly rate of $385 in 2022. Fennell does not provide any sum of hours but has approximately 162-time entries.[1] (Fennell Decl. ¶ 149, Exh. 15.)

Attorney Matt Xie is an associate of Consumer Law Experts, P.C. Xie claims an hourly rate of $350 in 2019 and an hourly rate of $370. Though Xie does not provide any sum of hours, Xie has approximately 62-time entries in the provided time sheet. (Fennell Decl. ¶ 150, Exh. 15.)

Attorney Long Cao is an associate at Consumer Law Experts who has been an attorney in California since 2018 and claims an hourly of $325 per hour. Cao claims to have spent 10.1 hours on the instant action. (Fennell Decl. ¶ 151, Exh. 15.)

In addition, two paralegals worked on the instant action, Elaine Astorga and Daisey Hernandez. Astorga has seven years of experience in the legal field and has approximately 81-time entries in the provided billing time sheet. (Fennell Decl. ¶ 174, Exh. 15.) Daisey has twenty-one years of experience in the legal field as a paralegal and spent approximately 5 hours on the instant action. (Fennell Decl. ¶ 175, Exh. 15.) Both paralegals have an hourly rate of $175.

In sum, four attorneys and two paralegals spent a total of 220.40 hours on the instant action. As to the fees by paralegals, the Court notes that case law has indicated what has been considered a reasonable hourly rate for paralegals in the greater Los Angeles area. For example, in Cruz ex rel. Cruz v. Alhambra School Dist. (C.D. Cal. 2009) 601 F.Supp.2d 1183, the Central District Court concluded over 13 years ago that $125 per hour was in line with prevailing market rates for law clerks and paralegals. (Id. at p.1195.) The Court finds that rates of $175 thirteen years later for paralegals appear to be reasonable for the greater Los Angeles Area.

Based on the stated experience of each respective attorney and prevailing rates of similar attorneys, the Court finds the claimed hourly rates are reasonable. However, the number of attorney’s working on the instant action is slightly unreasonable in light of the simplicity of the instant action, resulting in some clear inefficiencies. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) Here, the instant action did not involve any complicated issues. Rather, the instant action was simple and routine. Yet, four separate attorneys and two paralegals worked on the instant action. In light of the routine and straightforward nature of the instant action, the staffing of Plaintiffs’ Counsel likely resulted in inefficiencies. Further, in light of Plaintiff’s Counsel’s firm’s expertise in lemon law actions, as reflected in Counsel’s hourly rates, the Court finds the hours billed on pursuing discovery was excessive. In light of Plaintiff’s Counsel’s firm’s expertise in lemon law matters and in light of the availability of templates from other lemon law actions that Plaintiff’s Counsel’s firm has handled in the past, propounding discovery and litigating motions to compel further are routine matters that should have required only a fraction of the hours that Plaintiff’s Counsel billed. Accordingly, the Court finds that specific reductions in time spent are warranted.

As to propounding discovery requests, Attorney Xie claims to have spent 4.4 hours drafting initial discovery requests. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 6.) This is excessive in light of Plaintiff’s Counsel’s claimed expertise and near boilerplate discovery requests. Accordingly, a reduction of 2.4 hours is warranted.

As to responding to discovery requests, Plaintiff’s Counsel claims to have spent 10.5 hours reviewing and responding to Defendant’s standard discovery requests. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 7.) While Plaintiff’s Counsel undoubtedly expended time to respond to discovery requests, the time spent doing so was excessive in light of Plaintiff’s Counsel’s claimed experience. Accordingly, a reduction of 4 hours is warranted.

The records indicate that Plaintiff’s Counsel spent 6.4 hours reviewing deposition notices, vehicle inspections demands, offer to compromise, and preparing objections to such. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 8.) These hours are excessive because these demands are nearly identical in most Song-Beverly Actions. In light of Plaintiff’s Counsel experience and skill, these tasks should have been quick and easy to accomplish. Thus, a slight reduction of 2.4 hours is warranted.

Plaintiff Counsel claims to have spent 13.8 hours on a withdrawn motion to compel compliance. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 9.) This is excessive. The simplicity of such a motion merely required Plaintiff to note that Defendant had not produced documents as Defendant stated it would in its response. Thus, spending over ten hours on such a motion – especially with significant litigation experience – is clearly unreasonable. Accordingly, a significant reduction of 11.8 hours is warranted.

As to motions in limine, Plaintiff’s counsel claims to have spent 4.9 hours meeting and conferring and drafting the motions in limine and 5.5 hours opposing Defendant’s motions in limine. (Fennell Decl., Exh. 15; Chinery Decl. ¶¶ 10-11.) Though the parties filed quite a few motions in limine in the instant action, the motions themselves were generally standard. in light of Plaintiff’s Counsel’s experience, preparing and opposing motions in limine should not have required a significant amount of time. Accordingly, a slight reduction of 1.5 hours is warranted.

Defendant contends that the 2.5 hours in travel time should be deducted because the time was spent on ex parte applications and a discovery motion and there is no indication that the hearings could not be conducted remotely. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 12.) The Court disagrees. As noted in the billing records, these hearings took place in January 28, 2020 and February 27, 2020 -- before remote hearings became more routine with the onset of the COVID-19 pandemic. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 12.) Accordingly, no reduction in time is warranted for travel.

Defendant contends that 1.6 hours spent on clerical tasks should be removed. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 13.) However, the time challenged does not appear unreasonable, excessive, or unwarranted in this instant long litigated action. Accordingly, no reduction of the clerical task is warranted.

Plaintiff Counsel’s billing records indicate that Plaintiff’s Counsel spent 5.3 hours revising the settlement agreement and release. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 14.) In light of Plaintiff’s Counsel’s experience this is somewhat excessive. There is no indication that there were any significant issues requiring revisions to the settlement agreement. Further, Plaintiff’s Counsel billed most of the time claimed after Plaintiff had already filed a notice of settlement, indicating that there should not have been any significant issues remaining with the terms of the settlement which would have required significant review or editing. In addition, Plaintiff fails to present any evidence indicating that the settlement required such extensive review and editing. Accordingly, a slight reduction of 3 hours is warranted.

As to the instant motion for attorney fees, Plaintiff’s Counsel claims to have spent 10 hours on the instant motion and requests an additional $5,000 to prepare the reply and appear at the hearing based on a claimed 10 hours at $500 per hour. (Fennell Decl., Exh. 15; Chinery Decl. ¶ 15.) The time claimed spent on the instant motion is excessive. The instant motion is relatively straightforward and only required Plaintiffs to provide the basis for the attorney’s fees requested, i.e., the settlement in Plaintiff’s favor and a billing record of the time spent by Plaintiff’s Counsel. Thus, a slight reduction of 4 hours is warranted. As to the time proposed to be spent on the reply, Plaintiff has not presented any basis for a proposed $500 hourly rate for any attorney in the instant action. Plaintiff has failed to present any reason that another 10 hours was necessary to prepare the reply and appear at the hearing. Accordingly, a reduction of 5 hours and a reduction to an hourly rate of $385 for the proposed time spent on the reply is warranted.

Finally, Defendant contends that all of the time spent on the motion to quash in the instant action should be eliminated – i.e., 17.7 hours. The Court disagrees. Just because a motion was unsuccessful does not mean that the time spent on it is completely non-recoverable. (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133 [“Compensation is ordinarily warranted even for those unsuccessful attacks, to the extent that those attacks led to a successful claim.”].) However, the 17.7 hours is slightly excessive. Thus, a reduction of 4 hours is warranted.

Accordingly, in light of these factors, a slight reduction of attorney’s fees is warranted. Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees incurred is $65,442.00.

Plaintiff requests a lodestar enhancement multiplier of 1.5. Plaintiff contends that an enhancement is proper based on the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. Defendants oppose stating that the enhancement is not warranted because the instant action was not particularly complex.

In whether to apply a multiplier the California Supreme Court has given clear guidance for the trial courts to follow.

Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof. In each case, the trial court should consider whether, and to what extent, the attorney and client have been able to mitigate the risk of nonpayment, e.g., because the client has agreed to pay some portion of the lodestar amount regardless of outcome. It should also consider the degree to which the relevant market compensates for contingency risk, extraordinary skill, or other factors under Serrano III. We emphasize that when determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar. The factor of extraordinary skill, in particular, appears susceptible to improper double counting; for the most part, the difficulty of a legal question and the quality of representation are already encompassed in the lodestar. A more difficult legal question typically requires more attorney hours, and a more skillful and experienced attorney will command a higher hourly rate.

Here, many of the factors that Plaintiff has raised have already been addressed in the calculations of the hours worked and hourly rate above. Therefore, the court finds that an enhancement multiplier is not appropriate for this case.

Based on the foregoing, Plaintiff Luis H. Rodriguez’s motion for attorneys’ fees is GRANTED in the total amount of $65,442.00.

Moving Party is ordered to provide notice of this order and file proof of service of such.

[1] Plaintiff merely provides an excessive 60-page timesheet without any sums by this attorney and 136 paragraphs of vague references to the various tasks without any reference to the time spent on each task. (Fennell Decl. ¶¶ 10-145, Exh. 15.)

Superior Court of California

County of Los Angeles

Department 26