Judge: Elaine Lu, Case: 20STCV18553, Date: 2022-10-20 Tentative Ruling

Case Number: 20STCV18553    Hearing Date: October 20, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On May 15, 2020, Plaintiff Valentin Jimenez filed the instant action against defendants West Covina Car Stop LLC (“WC”) and Ford Motor Company (“Ford”) (jointly “Defendants”) arising out of Plaintiff’s purchase of a Ford vehicle.  On April 6, 2021, the Court sustained Defendants’ demurrer to the complaint with leave to amend.  On April 26, 2021, Plaintiff filed a First Amended Complaint against Defendants. 

            On May 25, 2021, the parties stipulated to leave for Plaintiff to file a Second Amended Complaint.  On June 7, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”).  The SAC asserts six causes of action for (1) Breach of Express Warranty –  Violation of Song-Beverly Act, (2) Breach of Implied Warranty – Violation of Song-Beverly Act, (3) Violation of Song-Beverly Act § 1793.2, (4) Fraudulent Inducement – Concealment, (5) Fraudulent Inducement – Intentional Misrepresentation, and (6) Fraudulent Inducement – Negligent Misrepresentation.  On December 2, 2021, Plaintiff filed a notice of settlement of the entire case. 

On March 8, 2022, Plaintiff filed the instant motion for attorneys’ fees and costs.  On October 5, 2022, Defendants filed an opposition.  On October 13, 2022, Plaintiff filed a reply.

Evidentiary Objections

            In reply, Plaintiff has submitted evidentiary objections to portions of the declarations of Hannah Miller.  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.)

            Here, on December 1, 2021, Defendants accepted Plaintiff’s Code of Civil Procedure section 998 offer and settled the instant action.  (Kirnos Decl. ¶ 18, Exh. D.)   Pursuant to the settlement agreement, Plaintiff is the prevailing party and is entitled to attorneys’ fees pursuant to Civil Code section 1794(d).  (Kirnos Decl. ¶ 18, Exh. D.)  

Reasonableness of Attorney’s Fees

Plaintiff seeks attorney fees and costs totaling $31,407.18 consisting of $19,371.00 in attorneys’ fees, a multiplier of 1.5, and $2,350.68 in costs.  (Kirnos Decl. ¶ 2, Exh A.) 

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 of 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. ¶¶ 20-23.)  Kirnos bills at a rate of $500 and claims to have spent 0.4 hours on the instant action.  (Kirnos Decl. ¶ 23, Exh. A.)  Attorney Steve Mikhov, the former managing partner of the firm who has extensive experience in consumer protection matters, claims to have worked on this case for 2.1 hours and bills at $550 per hour.  (Kirnos Decl. ¶¶ 24, Exh. A.)  Attorney Amy Morse, a partner at the firm with nine years of experience at the firm, worked on this case for 2 hours and billed at $350 per hour from 2018-2020 and worked on this case 6.8 hours and billed at $400 per hour after an increase in 2021.  (Kirnos Decl. ¶ 25, Exh. A.)  Attorney Jacob Cutler, a senior at the firm and who has been an attorney for 13 years, claims to have worked on this case for 9.5 hours and bills at $450 per hour.  (Kirnos Decl. ¶ 26, Exh. A.)  Attorney Armando Lopez is an associate at Plaintiff’s Counsel who has been an attorney for four years and claims to have spent 2.7 hours on the instant action at a billing rate of $200 per hour and worked on this case 22.5 hours at a billing rate of $275 after an increase in 2021.  (Kirnos Decl. ¶ 27, Exh. A.)  Attorney Daniel Kalinowski is an associate at Plaintiff’s Counsel who has been an attorney for seven years and claims to have spent 4.6 hours on the instant action at a billing rate of $295 per hour and 0.3 hours at a billing rate of $350 after an increase in 2022.  (Kirnos Decl. ¶ 28, 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 4.2 hours on the instant action at a billing rate of $325 per hour.  (Kirnos Decl. ¶ 29, 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 0.4 hours on the instant action at a billing rate of $345.  (Kirnos Decl. ¶ 30, Exh. A.)  Attorney Sundeep Samra, an associate at the firm and who has been an attorney since 2018, worked on this case for 0.8 hours at a claimed billing rate of $270 per hour.  (Kirnos Decl. ¶ 31, Exh. A.)  Attorney Zachary Powell is an associate at Plaintiff’s Counsel who has been an attorney for nine years and claims to have spent 1.1 hours on the instant action at a billing rate of $375.  (Kirnos Decl. ¶ 32, Exh. A.) 

In sum, ten attorneys spent a total of 57.4 hours on the instant action.  Their claimed hourly rates are consistent with the standard hourly rates for the stated experience in the United States Consumer Law Attorney Fee Survey Report published in 2019.  (Kirnos Decl. ¶ 93, Exh. KKK.)  Moreover, the above stated hourly rates are consistent with previously granted attorney’s fee motions.  (Kirnos Decl. ¶¶ 35-92, Exhs. E-JJJ.)  Thus, 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 some 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, ten separate attorneys worked on the instant action.  Given the routine and straightforward nature of the instant action, assigning ten different attorneys reflects some inefficiencies in the time spent by Plaintiffs’ Counsel.

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 and litigating motions to compel further are routine matters that should have required only a fraction of the hours that Plaintiff’s Counsel billed.  Moreover, the time spent on the reply and reviewing the opposition are excessive given the simplicity of the motion.

Accordingly, given these factors a slight 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 $18,900.00.

Lodestar Enhancement

Plaintiff requests 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.  Defendants oppose stating that the enhancement is not warranted because the appeal 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.

(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

            “Section 1794, subdivision (d), permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’”  (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.)  Moreover, 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. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.)  Here, the costs on their face appear reasonable and recoverable on their face.  Accordingly, Plaintiff’s requested costs of $2,350.68 is granted.

CONCLUSION AND ORDER

            Based on the foregoing, Plaintiff Valentin Jimenez motion for attorneys’ fees and costs is GRANTED in the total amount of $21,250.68 consisting of $18,900.00 in attorneys’ fees and $2,350.68 in costs.

            Moving Party is to give notice and file proof of service of such.

DATED:  October 20, 2022                                                   _____________________________

                                                                       Elaine Lu

                                                                        Judge of the Superior Court