Judge: Elaine Lu, Case: 19STCV46085, Date: 2023-01-26 Tentative Ruling

Case Number: 19STCV46085    Hearing Date: January 26, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On December 23, 2019, Plaintiffs Maria Del Carmen Valdovinos Rosales and Christina P. Alquisiras Valdovinos (jointly “Plaintiffs”) filed the instant action arising out of their lease of a 2018 Kia Optima (“the Subject Vehicle”).  On July 10, 2020, Plaintiffs filed the operative first amended complaint (“FAC”) against Kia Motors America, Inc. (“Defendant”) asserting causes of action for (1) violation of the Song-Beverly Act –  breach of express warranty; (2) violation of the Song-Beverly Act –  breach of implied warranty; (3) violation of the Song-Beverly Act section 1793.2; (4) fraudulent inducement –  concealment; and (5) fraudulent inducement – intentional misrepresentation. 

            On December 29, 2022, Plaintiffs filed the instant motion for attorneys’ fees.  On January 12, 2023, Defendant filed an opposition.  On January 10, 2023, Plaintiffs filed a reply.

Evidentiary Objections

            In opposition, Defendant has submitted evidentiary objections to portions of the declarations of Roger Kirnos.  However, 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.)

Legal Standard

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.)

Discussion

Right to Recover

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 $77,500.00.  (Kirnos Decl. ¶¶ 17-18, Exh. D.)  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).

Reasonableness of Attorneys’ Fees

Plaintiffs seeks attorneys’ fees and costs totaling $242,550.78 consisting of $140,866.50 in attorneys’ fees, $70,433.25 in a “modest” 1.50 fee multiplier, and $31,251.03 in costs.

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.)

Here, Attorney Roger Kirnos, the managing partner at Knight Law Group LLP – Plaintiff’s Counsel, has been an attorney since 2012 with extensive experience with the Song-Beverly Act and other consumer statutes and has been personally involved in at least 20 appeals.  (Kirnos Decl. ¶¶ 19-22.)  Kirnos bills at a rate of $500 and claims to have spent 3.1 hours on the instant action.  (Kirnos Decl. ¶ 22, Exh. A.) 

Attorney Amy Morse, a partner at the firm with nine years of experience at the firm, claims an hourly rate of $350 per hour from 2018-2020 which increased to $400 per hour in 2021 and increased again to $425 in 2022.  Morse claims 4.6 hours of work on the instant action.  (Kirnos Decl. ¶ 23, Exh. A.) 

Attorney Andrew Jang, an associate at the firm since 2020, worked on this case for 0.9 hours at $200 per hour and 1.3 hours at $250 per hour after an increase in 2021.  (Kirnos Decl. ¶ 24, Ex. A.) 

Attorney Caitlin Rice, an associate of the firm who has been an attorney since 2020, worked on the instant case for 93 hours at $295 per hour.  (Kirnos Decl. ¶ 26, Exh. A.) 

Attorney Deepak Devabose, an associate at the firm, who has been working there for six years, worked on this case for 60.8 hours at $275 per hour.  (Kirnos Decl. ¶ 27, Exh. A.)  

Attorney Erick Victor Muñoz, a Senior Attorney at the firm who has been an attorney for 16 years, worked on this case for 17 hours at $400 per hour.  (Kirnos Decl. ¶ 29, Exh. A.) 

Attorney Gregory Lehrman, an associate at the firm, who has been working at Plaintiffs’ counsel for three years, worked on this case for 17.8 hours at $200 per hour which was increased in 2021 to $250 per hour.  (Kirnos Decl. ¶ 30, Exh. A.) 

Attorney Heidi Alexander is an associate at Plaintiff’s Counsel who has been an attorney for 12 years and claims to have spent 8.6 hours on the instant action at a billing rate of $325 per hour which increased to $350 for 2022.  (Kirnos Decl. ¶ 31, Exh. A.) 

Attorney Jeffery Mukai, a senior attorney at the firm and an attorney with over ten years of experience in consumer finance litigation, worked on this case for 2.2 hours at $400 per hour which increased to $450 an hour in 2022.  (Kirnos Decl. ¶ 32, Exh. A.) 

Attorney Kamau Edwards, a senior attorney at the firm and an attorney with over seventeen years’ experience, worked on this case for 7.8 hours at $450 per hour.  (Kirnos Decl. ¶ 33, Exh. A.) 

Attorney Katti Trinh is an associate at Plaintiff’s Counsel who has been an attorney for eight years and claims to have spent 5 hours on the instant action at a billing rate of $300 per hour.  (Kirnos Decl. ¶ 34, Exh. A.) 

Attorney Maite Colón is an associate at Plaintiff’s Counsel who has been an attorney for four years in California and claims to have spent 3.4 hours on the instant action at a billing rate of $300 which was increased to $345 in 2021 and again to $395 in 2022.  (Kirnos Decl. ¶ 35, Exh. A.)

Attorney Maxwell Kreymer is an associate at Plaintiff’s Counsel who has been an attorney for two years in California and claims to have spent 13 hours on the instant action at a billing rate of $200 which was increased to $250 in 2021 and again to $295 in 2022.  (Kirnos Decl. ¶ 36, Exh. A.)

Attorney Marisa Melero, an associate at the firm, who has been working there for four years, worked on this case for 10 hours at $225 per hour which was increased to $295 per hour in 2021 and again to $345 in 2022.  (Kirnos Decl. ¶ 37, Exh. A.) 

Attorney Sundeep Samra, an associate at the firm and who has been an attorney since 2018, claimed an hourly rate of $225 per hour which increased to $270 per hour in 2021 and increased to $325 per hour in 2022 worked on this case for 3.8 hours.  (Kirnos Decl. ¶ 38, Exh. A.) 

Attorney Scot Wilson, a partner at the firm since 2020 with significant plaintiff’s litigation experience, worked on this case for 42.9 hours at $595 per hour.  (Kirnos Decl. ¶ 39, Exh. A.) 

Attorney Thomas Dreblow, an associate at the firm and who has been an attorney since 2015, claimed an hourly rate of $250 per hour which increased to $295 per hour in 2021 and increased to $350 per hour in 2022 worked on this case for 14.4 hours.  (Kirnos Decl. ¶ 40, Exh. A.) 

Attorney Theodore Swanson Ramirez, a senior attorney at the firm with significant litigation experience as a prosecutor, worked on this case for 9.8 hours at $500 per hour.  (Kirnos Decl. ¶ 41, Exh. A.) 

Attorney Thach Tran is an associate at Plaintiff’s Counsel who has been an attorney for six years and claims to have spent 15.5 hours on the instant action at a billing rate of $350 per hour.  (Kirnos Decl. ¶ 42, Exh. A.)

Attorney Woody Jones, an associate at the firm and who has been an attorney since 2019, claimed an hourly rate of $225 per hour which increased to $250 per hour in 2021 worked on this case for 12 hours.  (Kirnos Decl. ¶ 43, Exh. A.) 

Attorney Zachary Davina is an associate at Plaintiff’s Counsel who has been an attorney for four years and claims to have spent 9.9 hours on the instant action at a billing rate of $325 per hour.  (Kirnos Decl. ¶ 44, Exh. A.) 

Attorney Zachary Powell is an associate at Plaintiff’s Counsel who has been an attorney for nine years and claimed an hourly rate of $250 per hour which increased to $325 per hour in 2021 and increased to $375 per hour in 2022 worked on this case for 10.3 hours.  (Kirnos Decl. ¶ 45, Exh. A.) 

Law clerk Angelica Zamudio a law clerk has six years of experience in Lemon Law litigation and spent 5.2 hours at $175 per hour.  (Kirnos Decl. ¶ 25, Exh. A.) 

Dina Folia a paralegal for Plaintiffs’ Counsel with eleven years’ experience spent 32.8 hours on the instant action at $250 an hour.  (Kirnos Decl. ¶ 28, Exh. A.)

In sum, twenty-two attorneys, a paralegal, and a law clerk claim a total of 405.1 hours of work on the instant action. 

Based on the stated experience of each respective attorney and prevailing rates of similar, the Court finds the hourly rates are reasonable.  However, the number of attorney’s working on the instant action was not reasonable, resulting in 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, twenty-two separate attorneys worked on the instant action.  Given the routine and straightforward nature of the instant action, the assignment of ten different attorneys reflects vast and unacceptable inefficiencies.  Thus, a significant reduction is warranted.

Finally, given 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 to be 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, litigating motions to compel further, and litigating motions in limine are routine matters that should have required only a fraction of the hours that Plaintiff’s Counsel billed.  For example, the hours claimed on Plaintiffs’ ten motions in limine were excessive in light of the fact that all of the motions in limine were routine and boilerplate.  Moreover, the declaration of Scot D. Wilson in support of each of Plaintiffs’ ten motions in limine is completely vague about his meet and confer efforts prior to filing the ten motions in limine: “I met and conferred with counsel for Defendant before filing this motion.”  Wilson fails to provide any particulars as to how, when, how many times, and for how long he met and conferred with Defendant regarding each of Plaintiffs’ ten motions in limine.  The Court draws the inference from this record that most if not all of Plaintiffs’ ten motions in limine could have been avoided by a sincere meet and confer effort.

Accordingly, given these factors a significant reduction 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 $79,880.00.

Lodestar Enhancement

Plaintiffs request a lodestar enhancement multiplier of 1.5 given the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. 

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.

(Ketchum, supra, 24 Cal.4th at pp.1138–1139.)

Here, many of the factors 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.

Costs

            As Plaintiffs have filed a memorandum of costs that Defendant has moved to tax, the Court declines to address costs in the instant motion.

CONCLUSIONS AND ORDER

            Based on the forgoing, Plaintiffs Maria Del Carmen Valdovinos Rosales and Christina P. Alquisiras Valdovinos motion for attorneys’ fees is granted in the total amount of $79,880.00.

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

DATED: January 26, 2023                                                     ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court