Judge: Elaine Lu, Case: 20STCV26898, Date: 2024-01-03 Tentative Ruling

Case Number: 20STCV26898    Hearing Date: February 22, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On July 16, 2020, Plaintiff Raul Gutierrez (“Plaintiff”) filed the instant action against defendant Kia Motors America, Inc. (“Defendant”) arising out of the lease of a 2018 KIA Optima. 

On February 3, 2021, Plaintiff filed the operative First Amended Complaint against Defendant asserting six causes of action for (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2(b); (3) Violation of Song-Beverly Act Section 1793.2(a)(3); (4) Breach of Express Written Warranty – Civil Code §§ 1791.2(a), 1794; (5) Breach of the Implied Warranty of Merchantability; and (6) Fraud by Omission.  On August 26, 2021, the Court sustained Defendant’s demurrer to the third cause of action and struck the references to “class vehicles” and “class vehicle drivers” without leave to amend.  (Order 8/26/21.)  On April 27, 2023, Plaintiff dismissed the sixth cause of action. 

After a jury trial, on June 1, 2023, a verdict was entered in favor of Plaintiff.  On September 12, 2023, Judgment was entered pursuant to the jury verdict in favor of Plaintiff.

On September 15, 2023, Plaintiff filed the instant motion for attorneys’ fees.  On February 7, 2024, Defendant filed an opposition.  On February 14, 2024, Plaintiff filed a reply.

Evidentiary Objections

            Defendant and Plaintiff have submitted various evidentiary objections to the declarations in support of and in opposition to the instant motion.  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.)  Moreover, there is no statutory basis for evidentiary objections in connection with the instant motion.

Request for Judicial Notice

            In conjunction with the moving papers, Plaintiff requests that the court take judicial notice of:

1.     An Order on attorney’s fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW (United States District Court for the Central District of California Case No. 2:17-cv03875-DMG-GJS)

2.     An Order on attorney’s fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA (United States District Court for the Central District of California Case No. 2:17-cv08273-SVW-SK)

3.     An Order on attorney’s fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los Angeles Superior Court Case No. BC622506)

4.     Order on attorney’s fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United States District Court for the Central District of California Case No. 2:17-cv5061-DMG(PLAx))

5.     Order on attorney’s fees and prejudgment interest in the lemon law matter of Zargarian v. BMW (United States District Court for the Central District of California Case No. 2:18-cv-04857-RSWLPLA)

6.     April 29, 2021 Minute Order granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No. 19STCV02985)

7.     May 10, 2021 Tentative Ruling granting plaintiff’s Motion for Attorney’s Fees, Costs & Expenses in the lemon law matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351)

8.     March 14, 2022 Order on attorneys’ fees in Oscar Millan vs. Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No. BC710535)

9.     March 14, 2022 order granting Plaintiff’s’ Motion for Attorney’s Fees, Costs, and Expenses in the Song Beverly matter of Jason J. Arnold, et al.. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case No. 19STCV26274)

10.  March 29, 2022 Order on Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the matter of Mo Rahman v. FCA US, LLC et al., (United States District Court for the Central District of California Case No. 2:21-cv-02584)

11.  June 13, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888)

12.  October 3, 2022 Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Galvan v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC715568)

13.  January 24, 2023, Minute Order granting Plaintiff’s Motion for Attorneys’ Fees, Costs, and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United States District Court for the Central District of California Case No.: 5:21-cv01346-SPG-SHK)

14.  April 24, 2023 Minute Order in Sergio Proa v. Kia Motors America Inc. (Los Angeles Co. Super. Ct. Civil Case No. BC716646)

15.  July 6, 2023 Minute Order in Francsico Rodriguez and Norma Rodriquez v. Hyundai Motors America. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655)

16.  Order on attorneys’ fees in Holcomb v. BMW of N. Am., LLC, Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020)

            As the Court may take judicial notice of court records, (See Evid. Code, § 452(d)), Plaintiff’s unopposed request for judicial notice is granted.  However, the Court does not take judicial notice of the truth of assertions within those court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees are allowable as costs when authorized by contract or statute 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, Plaintiff prevailed on his remaining claims under the Song-Beverly Consumer Warranty Act.  (Minute Order 6/1/23; Judgment 9/12/23.)  As the prevailing party, pursuant to Civil Code section 1794, Plaintiff is plainly entitled to reasonable attorneys’ fees and costs.

Reasonableness of Attorneys’ Fees

Plaintiff seeks attorney fees and costs totaling $373,558.04, consisting of $232,715.00 in attorneys’ fees, a 1.35 lodestar multiplier (i.e., $81,450.25), $53,892.79 in costs and expenses, and an anticipated $5,500.00 in attorneys’ fees in reviewing the opposition, drafting a reply, attending the hearing on this motion, and opposing Defendant’s pending motion to tax 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 determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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….”  (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.) 

The party seeking fees bears the burden of proof as to “reasonableness” of any fee claim. (CCP § 1033.5(c)(5).) In addition, 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.)

The court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)  The court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Attorney Payam Shahim – Counsel of record for Plaintiff and Managing Partner for Strategic Legal Practices, APC – graduated from University of California, Hastings School of Law in 2003, from 2004-2007 worked at Bowman & Brooke LLP representing Ford Motor Company in consumer warranty cases, and founded Strategic Legal Practices, APC (“SLP”) in 2010.  (Shahian Decl. ¶¶ 1, 3.)  Shahim has extensive experience litigating major consumer actions and in negotiating major consumer settlements.  (Shahim Decl. ¶¶ 5-6.)  Shahim’s firm’s hourly rates have been confirmed numerous times.  (Shahim Decl. ¶¶ 7-41, Exhs. 1-15.)  While Shahim did not work on the instant action, Shahim oversaw the attorneys that did.  (Shahim Decl. ¶ 42.)

Attorney Tionna Dolin has been an attorney since 2014 and has extensive litigation experience – including extensive lemon law experience – and is the first named partner at SLP.  (Shahim Decl. ¶ 51.)  Dolin billed at an hourly rate of $550 an hour in 2022 which has been previously approved in other actions and spent 2.9 hours on the instant action.  (Shahim Decl. ¶ 52, Exh. 17.)

Attorney Mani Arabi has been an attorney since 2012 in California with experience in  electrical, mechanical, and computer engineering and a registered patent attorney with the USPTO since 2017.  (Shahim Decl. ¶ 43.)  Arabi billed at an hourly rate of $450 an hour in 2022 and $495 in 2023 and spent a total of 20.4 hours on the instant action.  (Shahim Decl. ¶ 44, Exh. 17.) 

Attorney Kareem Aref is a former attorney with SLP and has been an attorney since 2017 and previously worked at Cole Huber LLP and as a Deputy District Attorney in San Bernardino County.  (Shahim Decl. ¶ 45.)  Aref billed at an hourly rate of $410 an hour in 2022 and spent 1.9 hours on the instant action.  (Shahim Decl. ¶ 46, Exh. 17.) 

Attorney Sean Crandall is a former attorney of SLP and has been an attorney in California since 2015 focusing on lemon law litigation.  (Shahim Decl. ¶ 49.)  Crandall billed at an hourly rate of $425 in 2021 and spent 4.5 hours on the instant action.  (Shahim Decl. ¶ 50, Exh. 17.)

Attorney Mark Gibson has been an attorney in California since 2008 with extensive civil law litigation experience and focuses on lemon law litigation at SLP.  (Shahim Decl. ¶ 53.)  Gibson billed at an hourly rate of $450 in 2020 and an hourly rate of $475 in 2021 that have been approved in other actions and spent 3.6 hours on the instant action.  (Shahim Decl. ¶ 54, Exh. 17.)

Attorney Christine Haw is a former attorney at SLP, who has been an attorney in California since 2013, and has extensive civil litigation experience including representing warranty cases through trial.  (Shahim Decl. ¶ 55.)  Haw billed at an hourly rate of $500 an hour in 2023 and spent 105.7 hours on the instant action.  (Shahim Decl. ¶ 56, Exh. 17.)

Attorney Breita Linnell has been an attorney since 2011 with the Minnesota State Bar and was admitted to the California State Bar in 2020.  (Shahim Decl. ¶ 57.)  Linnell has extensive experience on patent law and products liability law and now focuses on lemon law litigation.  (Shahim Decl. ¶ 57.)  Linnell bills at an hourly rate rate of $525 in 2023 which has been approved in other actions and spent a total of 16 hours on the instant action.  (Shahim Decl. ¶ 58, Exh. 17.)

Attorney David Lunn is a trial attorney at SLP and has been an attorney in California since 1998.  (Shahim Decl. ¶ 59.)  Lunn has extensive trial experience and appellate experience in lemon law litigation and consumer rights litigation.  (Shahim Decl. ¶ 59.)  Lunn bills at an hourly rate rate of $620 per hour in 2023 and spent 143 hours on the instant action.  (Shahim Decl. ¶ 60, Exh. 17.)

Attorney Ian McCallister is an attorney at SLP and has been an attorney in California since 1998.  (Shahim Decl. ¶ 61.)  McCallister bills at an hourly rate rate of $595 in 2023 that has been approved in other actions and spent a total of 16.3 hours on the instant action.  (Shahim Decl. ¶ 62, Exh. 17.)

Attorney Ian Osborn is a contract attorney at SLP and has been an attorney in California since 1999.  (Shahim Decl. ¶ 63.)  Osborn bills at an hourly rate rate of $495 in 2022 and spent a total of 15.5 hours on the instant action.  (Shahim Decl. ¶ 64, Exh. 17.)

Attorney Matthew Pardo has been an attorney in California since 2017.  (Shahim Decl. ¶ 65.)  Pardo billed at an hourly rate of $360 and hour in 2020, $390 an hour in 2021, $410 an hour in 2022, and $435 in 2023 and spent a total of 73.2 hours on the instant action.  (Shahim Decl. ¶ 66, Exh. 17.)

Attorney Marcy Sanchez is a former attorney at SLP and has been an attorney in California since 2006.  (Shahim Decl. ¶ 69.)  Sanchez billed at an hourly rate of $485 an hour in 2020 and spent a total of 4.7 hours on the instant action.  (Shahim Decl. ¶ 70, Exh. 17.) 

Attorney Greogry Sogoyan is a former attorney at SLP and has been an attorney in California since 2017.  (Shahim Decl. ¶ 71.)  Sogoyan billed at an hourly rate of $395 an hour in 2021 and spent a total of 9.6 hours on the instant action.  (Shahim Decl. ¶ 72, Exh. 17.) 

Attorney Oliver Tomas is a former attorney at SLP and has been an attorney in California since 2004.  (Shahim Decl. ¶ 73.)  Tomas billed at an hourly rate of $595 an hour in 2021 and an hourly rate of $610 an hour in 2022 spent a total of 10.1 hours on the instant action.  (Shahim Decl. ¶ 74, Exh. 17.) 

Eve Canton is a law clerk for SLP and is currently a third-year law student.  (Shahim Decl. ¶ 47.)  Canton bills at an hourly rate rate of $295 an hour and spent 22.3 hours on the instant action.  (Shahim Decl. ¶ 48, Exh. 17.)

Steve Rangel is a law clerk for SLP.  (Shahim Decl. ¶ 67.) Rangel billed at an hourly rate of $285 per hour in 2022 and spent a total of 1.9 hours on the instant action.  (Shahim Decl. ¶ 68, Exh. 17.)

            Based on the stated experience of each respective attorney, prevailing rates of similar experienced attorneys, and the Court’s own experience, the Court finds the hourly rates are reasonable.  However, the number of attorneys working on the instant action – fourteen attorneys and two law clerks – is clearly excessive. “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.

            Moreover, as noted by Defendant in opposition, Plaintiff’s Counsel engaged in block billing.  “Block billing occurs when ‘a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.’ [Citation.]”  (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279.)  The instant billing record is ripe with block billing.  Nearly every entry includes multiple tasks claimed.  (See e.g., Shahim Decl., Exh. 17, [“Phone call with OPC re Ex Parte hearing; phone call with client re ----; prepare for and attend continued Ex Parte hearing; wait 08:30AM until 11:30AM - Court told us to return at 1:30PM; wait 1:30PM until 2:40PM for case to be called; draft hearing outcome memo”].)  When block billing occurs, the “[t]rial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.”  (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.)  Accordingly, the fact that block billing occurred is itself not enough to warrant a reduction.  However, as noted above, the instant action was slightly overstaffed with many hours claimed on interoffice communications that would have been unnecessary had only a few attorneys been working on the action.  Further, there are many administrative tasks that are included in the block billing, such as sending notes to the client file.  Thus, some reduction in time is warranted due to the block billing as the block billing prevents the time from being properly divided from unnecessary and unreasonable time spent in interoffice communications due to overstaffing and reasonable time spent working on the instant action.

Further, 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 is a routine matter that should have required only a fraction of the hours that Plaintiff’s Counsel billed and should not have required numerous hours by partners and senior attorneys at the highest hourly rate to complete.  (See Shahian Decl., Exh. 17.)  For example, Plaintiff’s counsel claims 15.5 hours merely reviewing NHTSA documents that are applicable to the same make and model as Plaintiff’s vehicles and -- in light of Plaintiff’s Counsel claimed experience -- would be well known to Plaintiff’s Counsel.  (See Shahian Decl., Exh. 17.)  Moreover, an experienced attorney billed this time at a high hourly rate of $495 per hour. 

Finally, the claimed time on the instant motion is excessive.  Plaintiff’s Counsel claims to have spent 16 hours drafting the instant motion at $525 per hour and claims an additional $5,500.00 in drafting a reply, appearing at the hearing, and opposing the motion to tax.  (Motion at p.15:24-26.)  This is clearly unreasonable.  The instant motion is a template of near identical motions brought by this counsel before this department.  The motion attaches dozens of extraneous exhibits of questionable relevance which likely required some time to gather.  Further, given the expertise of Plaintiff’s Counsel, such a number of hours devoted to a simple and straightforward motion is excessive.  However, the instant action involved years of litigation, multiple demurrers, a summary adjudication motion, and a seven-day trial.  Considering all of 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 $214,032.00.

Lodestar Enhancement

Plaintiff requests a lodestar enhancement multiplier of 1.35 in light of the contingent risk, the substantial delay in payment, preclusion of other work, the skill displayed in presenting the issues, and the outcome achieved. 

On the issue of 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 these factors Plaintiff raises 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 to costs, Plaintiff filed a memorandum of costs which Defendant has challenged in part through a motion to tax.  Accordingly, as there is a pending motion to tax costs, the Court declines to address the claimed cost in the instant motion.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Raul Gutierrez’s motion for attorneys’ fees is GRANTED in the total amount of $214,032.00.

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

DATED: February ___, 2024                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court