Judge: Elaine Lu, Case: 20STCV27859, Date: 2023-02-22 Tentative Ruling

Case Number: 20STCV27859    Hearing Date: February 22, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On July 23, 2020, Plaintiffs Ana G. Aguilar (“Aguilar”) and Jose Uicab (“Uicab”) (jointly “Plaintiffs”) filed the instant breach of warranty/negligent repair action against Defendants Ford Motor Company (“Ford”) and Bob Wondries Motors dba Bob Wondries Ford (“Bob Wondries”) (jointly “Defendants”).  The Complaint asserts four 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; and (4) Negligent Repair.  The first three causes of action are against Defendant Ford.  The fourth cause of action is only against Defendant Bob Wondries.

            On June 9, 2022 and June 13, 2022, Plaintiffs filed notices of settlement of the entire action.

            On October 25, 2022, Plaintiffs filed the instant motion for attorneys’ fees and a memorandum of cost.  On February 7, 2023, Defendants filed an opposition.  On February 14, 2023, Plaintiffs filed a reply.

Evidentiary Objections

            In reply, Plaintiffs have 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, the parties settled the instant action on approximately June 8, 2022.  (Kirnos Decl. ¶¶ 27-28, Exh. D.)  As part of the agreed settlement, Plaintiff is deemed, the prevailing party and entitled to attorneys’ fees and costs.  (Kirnos Decl. ¶ 27, Exh. D.)  As Plaintiffs recovered a settlement that explicitly provides that Plaintiffs are the prevailing party, and Defendants do not dispute that Plaintiffs are the prevailing party, the Court concludes that Plaintiffs are the prevailing party and are entitled to attorneys’ fees pursuant to Civil Code section 1794(d).

Reasonableness of Attorneys’ Fees

Plaintiffs seeks attorneys’ fees and costs totaling $130,333.89 consisting of $78,261.50 in attorneys’ fees, $39,130.75 in a 1.50 fee multiplier, and $12,941.64 in costs and expenses.

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. ¶¶ 30-33.)  Kirnos bills at a rate of $425 in 2020 and claims to have spent 0.2 hours on the instant action.  (Kirnos Decl. ¶ 33, Exh. A.) 

Attorney Jacob Cutler, a senior at the firm and who has been an attorney for more than 13 years, claims to have worked on this case for 17.7 hours and bills at $450 per hour.  (Kirnos Decl. ¶ 34, Exh. A.)  Attorney Armando Lopez is an associate at Plaintiff’s Counsel who has been an attorney for more than four years and claims to have spent 10 hours on the instant action at a billing rate of $275 per hour and 39 hours at a billing rate of $325 after an increase in 2022.  (Kirnos Decl. ¶ 35, Exh. A.)  Attorney Caitlin Rice, an associate of the firm who has been an attorney since 2020, worked on the instant case for 38.7 hours at $295 per hour.  (Kirnos Decl. ¶ 37, Exh. A.)  Attorney Daniel Kalinowski is an associate at Plaintiff’s Counsel who has been an attorney for more than seven years and claims to have spent 14.4 hours on the instant action at a billing rate of $350.  (Kirnos Decl. ¶ 39, Exh. A.)  Attorney Greg Mohrman was a Senior Trial attorney for the firm and worked on this case for 13.6 hours at $425 per hour and is an associate and has significant litigation experience as a Deputy District attorney for 10 years.  (Kirnos Decl. ¶ 40, Exh. A.)  Attorney Heidi Alexander is an associate at Plaintiff’s Counsel who has been an attorney for more than 12 years and claims to have spent 4.3 hours on the instant action at a billing rate of $325 per hour and 6.1 hours at a billing rate of $350 after an increase in 2022.  (Kirnos Decl. ¶ 41, Exh. A.)  Attorney Maite Colón is an associate at Plaintiffs’ Counsel who has been an attorney for four years in California and claims to have spent 2 hours on the instant action at a billing rate of $300, 1.4 hours at a billing rate of $345 after an increase in 2021, and 3.8 hours at a billing rate of $395 after an increase in 2022.  (Kirnos Decl. ¶ 42, Exh. A.)  Attorney Marisa Melero, an associate at the firm, who has been working there for more than five  years, claims to have spent 0.4 hours on the instant action at a billing rate of $225, 0.4 hours at a billing rate of $295 after an increase in 2021, and 5.6 hours at a billing rate of $345 after an increase in 2022.  (Kirnos Decl. ¶ 43, Exh. A.)  Attorney Sundeep Samra, an associate at the firm and who has been an attorney since 2018, claimed to have spent 0.4 hours at an hourly rate of $225 and 0.6 hours at $325 per hour after an increase in his hourly rate in 2022.  (Kirnos Decl. ¶ 44, Exh. A.)  Attorney Scot Wilson, a partner at the firm since 2020 with significant plaintiff’s litigation experience, worked on this case for 27.8 hours at $595 per hour.  (Kirnos Decl. ¶ 45, Exh. A.)  Attorney Thomas Dreblow, an associate at the firm and who has been an attorney since 2015, claimed to have spent 5 hours on the instant action at an hourly rate of $350 per hour.  (Kirnos Decl. ¶ 46, Exh. A.) 

Law clerk Courtney Ryan claims to have spent 6.3 hours at $175 per hour.  (Kirnos Decl. ¶ 36, Exh. A.)  Dina Folia a paralegal for Plaintiffs’ Counsel with eleven years’ experience spent 18.8 hours on the instant action at $250 an hour.  (Kirnos Decl. ¶ 38, Exh. A.)

In sum, twelve attorneys, a paralegal, and a law clerk claim to have spent a total of 216.4 hours 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 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, twelve separate attorneys worked on the instant action.  Given the routine and straightforward nature of the instant action, assigning ten different attorneys reflects massive and unacceptable inefficiencies in the time spent by Plaintiffs’ Counsel.  Thus, a significant reduction is warranted.

Finally, given Plaintiffs’ 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 Plaintiffs’ Counsel’s firm’s expertise in lemon law matters and in light of the availability of templates from other lemon law actions that Plaintiffs’ 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 Plaintiffs’ Counsel billed.  For example, the hours claimed on the motions in limine were extremely excessive as all of the motions in limine were routine and boilerplate.  Similarly, the discovery motions were boilerplate and near identical to numerous other motions filed by this firm. 

In light of 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 $66,250.50.

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

In opposition, Defendants contend that some of the costs are unreasonable and should be denied,

Expert Witness Fees

            Defendants contend that the expert witness fees of $1,111.00 are not permitted by statute.  The Court disagrees.

Expert witness fees are generally not permitted unless ordered by the court under Code of Civil section 1033.5(a)(8) or “except when expressly authorized by law.”  (CCP § 1038(b).)  Here, Plaintiffs are prevailing buyers under the Song-Beverly Act.  “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.) 

The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, § 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

(Id. at p.138.)

“[T]he Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act[.]”  (Ibid.)  “[T]he Legislature intended the phrase ‘costs and expenses’ to cover items not included in ‘the detailed statutory definition of “costs” ’ set forth in Code of Civil Procedure section 1033.5.”  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42.)  Therefore, a prevailing buyer is entitled to “costs and expenses” that have been “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).)

Expert fees clearly fall within the intended expenses and legislative history of Civil Code section 1794.  (Jensen, supra, 35 Cal.App.4th at p.138.)  Moreover, expert witness fees are expenses that are clearly reasonably incurred by the buyer with the commencement and prosecution of such action.  Here, the $3,437.94 in expenses for a vehicle inspection and a deposition are not clearly unreasonable. 

Other Costs

            Defendants contend that the $915.62 in attorney services and messengers for Court Filings and Services is unsupported.  The Court disagrees. 

            “If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [Citation.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.”  (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693.)

            Plaintiff’s Counsel has verified the costs in a memorandum of costs.  (Kirnos Decl. ¶ 2, Exh. B.)  Messenger and Attorney Services for Court filings does appear to be necessarily and properly incurred on their face.  The instant action involved a decent amount of motion practice and took over two years.  Defendants have failed to demonstrate how the costs are excessive.

CONCLUSIONS AND ORDER

            Based on the forgoing, Plaintiffs Ana G. Aguilar and Jose Uicab’s motion for attorneys’ fees and costs is granted in the total amount of $79,192.14 consisting of $66,250.50 in Attorneys’ Fees and $12,941.64 in Costs.

            Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: February 22, 2023                                                   ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court