Judge: Gail Killefer, Case: 19STCV21730, Date: 2023-01-18 Tentative Ruling

Case Number: 19STCV21730    Hearing Date: January 18, 2023    Dept: 37

HEARING DATE:                 January 18, 2023

CASE NUMBER:                  19STCV21730

CASE NAME:                        Jorge Figueroa Vazquez, et al. v. Kia Motors America

MOVING PARTIES:             Plaintiffs, Jorge Figueroa Vazquez aka Jorge Figueroa and Miguel Angel Figueroa

OPPOSING PARTY:             Defendant, Kia Motors America  

TRIAL DATE:                        None – Notice of Settlement August 16, 2022

PROOF OF SERVICE:          OK

MOTION:                               Plaintiffs’ Motion for Attorney’s Fees  

OPPOSITION:                       January 4, 2023

REPLY:                                  January 10, 2023

TENTATIVE:                         Plaintiffs’ motion is granted in part. Plaintiffs are awarded $33,150.15 in total attorney’s fees. Plaintiffs are to give notice.

Background

This is a lemon law action arising out of a lease by Jorge Figueroa Vazquez aka Jorge Figueroa and Miguel Angel Figueroa (“Plaintiffs”)’ of a new 2017 Kia Optima Hybrid (the “Vehicle”) manufactured by Defendant Kia Motors America. (“KMA”) Plaintiff alleges that the Vehicle was delivered with defects and nonconformities to warranty, including engine and electrical defects. Further, KMA allegedly failed to repair the Vehicle despite Plaintiffs allegedly presenting the Vehicle to KMA and its authorized representatives for repairs on several occasions.

Plaintiffs’ Complaint alleges the following causes of action: (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 § 1793.2.

On August 16, 2022, Plaintiffs filed a Notice of Conditional Settlement indicating that a request for dismissal would be filed by September 27, 2022. On October 3, 2022, the court set an Order to Show Cause regarding Dismissal after Settlement. The Order to Show cause hearing was continued several times, with the latest continuance setting this hearing for January 25, 2023.

Plaintiffs now move for an award of attorney’s fees and costs. KMA opposes the motion. Because Defendants have also filed a motion to tax Plaintiffs’ memorandum of costs, the court will address Plaintiffs’ request for costs at the time of the hearing on that motion. 

Evidentiary Objections

Plaintiffs’ Objections to Declaration of Brian Takahashi

Objection 1-4: sustained. Speculative, conclusory, and inadmissible opinion.

Discussion

Plaintiffs request an award of attorney’s fees in the total amount of $108,131.32, broken down as follows: (1) $60,273.00 lodestar amount; (2) $30,136.50 lodestar enhancement (0.5); and (3) $17,721.82 costs and expenses.

I.                   Plaintiffs’ Entitlement to Attorney’s Fees

Plaintiffs request attorney’s fees as the prevailing party under the Song-Beverly Act, which allows a prevailing buyer to recover “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).) 

As a preliminary note, KMA argues the circumstances of this matter made “this case a clear settlement candidate,” as evidenced by the fact that “shortly after [the last repair visit,] on February 18, 2020, [KMA] made its first of three CCP 998 buyback Offers to settle the case.” (Opp., 2.)

The court will proceed to analyze the merits of the parties’ remaining arguments.

II.                Reasonable Amount of Attorney’s Fees Award

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.”  (Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1321 (Christian).)  The Court “need not simply award the sum requested.  To the contrary, ascertaining the fee amount is left to the trial court’s sound discretion.”  (Ibid.) 

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.  The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”  (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)  “The basis for the trial court’s calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.”  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395 (Horsford).)  “The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records.  (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)   

1)      Billing Rates Requested

Plaintiffs submit the declaration of Roger Kirnos (“Kirnos”) in support of the rates requested by their attorneys. Kirnos attests that he has been admitted to practice since 2012 and that he is a managing partner of Knight Law Group, Plaintiffs’ counsel of record. (Kirnos Decl. ¶¶ 31, 32.) Kirnos further speaks to his experience as trial counsel on several litigations, as well as his experience litigating before federal courts as lead attorney for Knight Law Group. (Kirnos Decl. ¶32.) Kirnos attests that his billing rate is $500 per hour for this matter. (Kirnos Decl. ¶ 34.)

Kirnos further attests that the following attorneys from his office billed on this matter: Amy Morse (“Morse”), Chris Swanson (“Swanson”), Kristina Stephenson-Cheang (“Stephenson-Cheang”), Andrew Jang (“Jang”), Armando Lopez (“Lopez”), Caitlin Rice (“Rice”), Deepak Devabose (“Devabose”), Diana Folia (“Folia”), Gregory Lehrmann (“Lehrmann”), Greg Mohrman (“Mohrman”), Heidi Alexander (“Alexander”), Jeffery Mukai (“Mukai”), Jacob Cutler (“Cutler”), Kamau Edwards (“Edwards”), Katherine Smith (“Smith”), Katti Trinh (“Trinh”), Maite Colon (“Colon”), Maxwell Kreymer (“Kreymer”), Sundeep Samra (“Samra”), Thomas Dreblow (“Dreblow”), Marisa Melero (“Melero”), and Woody Jones (“Jones”). (Kirnos Decl. ¶¶ 35-56.) Kirnos attests to each of their billing rates as follows:

1.      Morse (partner): $350-425/hour, admitted to practice since 2013.

2.      Swanson (partner): $425-450/hour, admitted to practice since 2011.

3.      Stephenson-Cheang: $375/hour, admitted to practice since 2008.

4.      Jang: $250/hour, admitted to practice since 2020.

5.      Lopez: $275/hour, admitted to practice since 2021.

6.      Rice: $295/hours, admitted to practice since 2020.

7.      Devabose: $325/hour, admitted to practice since 2014.

8.      Folia: $250/hour (paralegal).

9.      Lehrmann: $200-250/hour, admitted to practice since 2019.

10.  Mohrman: $425/hour, admitted to practice since 2009.

11.  Alexander: $350/hour, admitted to practice since 2017.

12.  Mukai: $400-450/hour, admitted to practice since 2010.

13.  Cutler: $425-450/hour, admitted to practice since 2009.

14.  Edwards: $450/hour, admitted to practice since 2004.

15.  Smith: $175-295/hour, admitted to practice since 2021.

16.  Trinh: $300/hour, admitted to practice since 2014.

17.  Colon: $345-395/hour, admitted to practice since 2018.

18.  Kreymer: $200-295/hour, admitted to practice since 2020.

19.  Melero: $225-345/hour, admitted to practice since 2015.

20.  Samra: $270/hour, admitted to practice since 2018.

21.  Dreblow: $295-350/hour, admitted to practice since 2017.

22.  Jones: $225-250/hour, admitted to practice since 2019.

(Kirnos Decl. ¶¶ 35-56.)

In opposition, KMA contends the requested rates should be reduced on three different grounds. (Opposition, 7-8.) First, KMA correctly points out:

“there were 21 different lawyers and one paralegal who billed on this case. Too many lawyers naturally leads to overlap and inefficiency.

...

... this Court can cut the fees sought by some of the lawyers because their involvement was transient, and, their stepping where others previously traveled, only meant that more hours were inefficiently spent.” (Opp., 7-8; citing Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.)

Second, KMA contends the rates sought are “excessive given the simplicity of the work and the experience level of the lawyers involved,” correctly pointing out some associates had their rates increased over 50% over the course of two years. (Opp., 8.)

Lastly, KMA also contends “plaintiffs engaged in unnecessary work, which should not be allowed. ... KLG should not be awarded fees for their failure to make their expert witness available, their failure to timely notice Jameson Phillips deposition, and their unsuccessful three ex parte applications and one 473(b) motion. That totals approximately 39 hours as discussed above.” (Opp., 9.)

A trial court has broad discretion to award or reduce the requested rates and amounts in any motion for attorney’s fees. Here, the court notes the sheer number of attorneys and associates assigned to this matter, which ultimately settled before trial. Plaintiffs, in their moving papers and declarations, fail to provide a reasonable explanation as to why 21 different attorneys worked on this matter, when no dispositive motions were heard by this court and only limited motions regarding discovery.

This court is persuaded by Defendant’s contention that the mere number of assigned counsel speaks to an inefficiency of time spent, among other factors this court is empowered to consider. (Morris, supra, 41 Cal.App.5th at 41.) Thus, the court exercises its discretion; finds that the rates Kirnos attests to for himself and other attorneys in his office are unreasonable given a lack of showing that the matters considered were complex, that the number of assigned attorneys and paralegals were justified, and that time was not inefficiently billed; and applies a 45% reduction to the requested lodestar amount in total.

2)      Hours Requested

Plaintiffs request attorney’s fees in connection with a total of 177.2 hours of attorney and paralegal time. (Kirnos Decl., Exhibit A.) Plaintiffs contend that this amount is warranted because this action involved “a range of specialized knowledge” on consumer protection laws and also involved responding to KMA’s litigation tactics of maintaining that it had no liability. (Motion, 9-10.) 

In opposition, Defendant contends that the amount requested is unreasonable because utilizing too many attorneys was inefficient, and provide “commentary” on the requested hours provided by Plaintiffs. (Opp., 4-6.) As discussed above, Defendants request a total reduction of 39 hours, contending Plaintiffs overzealously billed their time for services provided and re-billed for certain services before the multiple Final Status Conferences heard before this court. (Opp., 8-9.)

In reply, Plaintiffs seek to distinguish from Donahue v. Donahue (2010) 182 Cal.App.4th 259 by contending the use of several attorneys at trial was the foremost concern for the Donahue court. (Reply, 4-5.) Plaintiffs contend, unlike Donahue, Plaintiffs “won this case” and discussions of overstaffing concerns are “attempts to minimalize Plaintiffs’ counsel’s efforts,” arguing Plaintiffs’ counsel operate a much smaller firm than Defendant’s counsel. (Id.) Plaintiffs attempts to distinguish from Donahue are unpersuasive.

In Donahue, the Court of Appeal found that Plaintiff retaining two major law firms to represent him and then seeking attorney’s fees for both was unreasonable. (Donahue, supra, 272-274.) However, the Court of Appeal specifically found the trial court order awarding both firms fees insufficient because it did not analyze whether such an award was reasonable in light of Plaintiff’s role as trustee, and whether such fees were reasonable and prudent for the interests of the trust. (Id. at 274.) Thus, Donahue is not applicable to the instant action.  

Further, Plaintiffs contend:

“Defendant argues that because 21 attorneys and 1 paralegal worked on the matter, there was necessarily overstaffing. This is simply not true. Obviously the billings encompass over three (3) years of work and, as the declarations in support of Plaintiffs’ instant motion attest, some accompanying employee turnover. In fact, seven (7) of the attorneys in the billing left the firm during the course of litigating this case.” (Reply, 5.)

As previously discussed, this court has reviewed Plaintiff’s counsel’s billing records, attached as Exhibit A to the Kirnos Declaration.

Here, the court finds a 45% reduction to be reasonable given the billing records fail to explain why so many attorneys, even 14 without the associates who left, were involved in this litigation, why their rates, on average, were increased such drastically over the course of three years, and why they should be awarded for unsuccessful motions. Based on the complexity of issues presented in the instant motion, the court finds that the requested hours for several tasks are excessive and unnecessary. Further, the reduction also encompasses a decrease in time awarded for the moving and reply papers for this motion, as the reply was short and a good portion of it was simply a repeat of the motion briefing.

For these reasons, the court applies a 45% reduction to the requested lodestar amount of $60,273.00, and awards attorney fees of $33,150.15.

3)      Multiplier

The court’s objective is to award a fee at the fair market value for the particular action.  (Ketchum, supra, 24 Cal.4th at p. 1132.)  The analysis generally begins with the lodestar figure—i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.  (Id. at pp. 1131-1132.)  The lodestar is the basic fee for comparable legal services in the community.  (Id. at p. 1132.)  The court may then adjust the lodestar to arrive at the fair market value of the legal services provided.  In adjusting the lodestar, the court considers factors including: (1) the contingent nature of the fee award, (2) the novelty and difficulty of the questions involved, (3) the skill displayed in presenting them, and (4) the extent to which the nature of the litigation precluded other employment by the attorneys.  (Ibid.) 

Plaintiffs request a multiplier of 0.5. (Motion, 10-13.) Specifically, Plaintiff contends that 0.2 of the multiplier is warranted because Plaintiff and his counsel bore substantial risk of not prevailing and suffering a substantial loss of uncompensated fees, and that 0.3 is warranted due to KMA’s “substantial delay in payment.” (Id.)

In opposition, KMA contends that no multiplier is warranted because Plaintiff has failed to demonstrate that the difficulty or complexity of this action warrants a multiplier. (Opposition, 9.)

While the court recognizes that Plaintiffs’ counsel was retained under a contingency agreement, the court does not find that Plaintiff has satisfied the second, third, or fourth Ketchum factors. Accordingly, the court denies Plaintiff’s request for a fee enhancement.

Conclusion

Plaintiffs’ motion is granted in part. Plaintiffs are awarded $33,150.15 in total attorney’s fees. Plaintiffs are to give notice.