Judge: Gary I. Micon, Case: 23CHCV00517, Date: 2025-03-25 Tentative Ruling

Case Number: 23CHCV00517    Hearing Date: March 25, 2025    Dept: F43

Dept. F43

Date: 03-25-25

Case # 23CHCV00517, Johnson, et al. v. FCA US, LLC, et al.

Trial Date: None.

MOTION FOR ATTORNEY FEES

MOVING PARTIES: Plaintiffs Terry Johnson and Kimberly M. Johnson

RESPONDING PARTY: Defendant FCA US, LLC

RELIEF REQUESTED

Order granting Plaintiffs $46,986.75 in attorney fees and $2,436.88 in costs from Defendant.

RULING: Motion is granted in the reduced amount of $29,075.38 ($26,638.50 in attorney fees and $2,436.88 in costs).

SUMMARY OF ACTION

Plaintiffs Terry Johnson and Kimberly M. Johnson (Plaintiffs) sued defendant FCA US, LLC (Defendant) for violations of the Song-Beverly Act and sued defendant Rydell Chrysler Dodge Jeep Ram for negligent repair.  On June 20, 2024, the Defendant and Plaintiffs settled the case.  Defendant Rydell was not a party to the settlement.  Plaintiffs filed this motion on the basis that they are entitled to attorney fees as the prevailing parties in a Song-Beverly action.

Plaintiffs are requesting $46,986.75 in attorney fees from Defendant, plus $2,436.88 in costs.  Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable.  To support their request, Plaintiffs present declarations of attorneys Richard M. Wirtz and Norman F. Taylor, and billing statements that show each task that several attorneys and paralegals worked on, what the task was, how much time was spent on each task, the hourly rate, and the amount of money for the task.  (Declaration of Richard M. Wirtz, Exhs. 1, 9-22; Declaration of Norman F. Taylor, Exh. 1.)

Plaintiffs state that the attorney hourly rates range from $450.00 to $645.00, and the paralegal rates range from $250.00 to $300.00 for a total lodestar of $46,986.75.  The total lodestar was calculated by multiplying the attorneys’ hourly rates by their hours worked ($31,324.50) and a lodestar multiplier of 1.5x ($15,662.25).

Plaintiffs have requested costs in the amount of $2,436.88 based on two memorandums of costs Plaintiffs filed on October 7, 2024 (one for $930.11 and one for $1,506.77).  Plaintiffs note that Defendant does not challenge these memorandums.

EVIDENTIARY OBJECTIONS

Defendant’s objections to the Declaration of Richard M. Wirtz and Exhibits:

            Sustained: 1, 2, 3, 4, 5

            Overruled: None.

Defendant’s objections to the Declaration of Norman Taylor and Exhibits:

            Sustained: 1, 2, 3, 4

            Overruled: None.

Plaintiff’s objections to Declaration of Alexandra Stark and Exhibits:

Sustained: 4, 7, 8, 9, 10, 11, 12, 13, 14; Exhibits P, Q, R, S, T, U, V, W

            Overruled: 1, 2, 3, 5, 6

ANALYSIS

A prevailing party is entitled to recover its attorneys’ fees when authorized by contract, statute, or law.  (See Code Civ. Proc., § 1033.5, subd. (a)(10); Cal. Civ. Code § 1717(a).)  “A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”  (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178.)  If a buyer prevails in a Song-Beverly action, then the buyer is allowed to recover attorney fees.  (Civ. Code, § 1794, subd. (d).)  Plaintiffs are authorized by statute to recover attorney fees.

Plaintiffs are the “prevailing party” because the parties settled in Plaintiffs’ favor.  Plaintiffs have requested a total of $49,423.63 in attorney fees, costs, and expenses.

Defendant opposes Plaintiffs’ motion asserting that Plaintiffs cannot recover attorney fees and costs based on its negligence claim against defendant Rydell Chrysler.  Plaintiffs fail to distinguish between fees incurred litigating against defendant Rydell Chrysler and fees incurred against Defendant.  Defendant also argues that Plaintiffs’ attorneys’ hourly rates are unreasonable and that the court should reduce Plaintiffs’ requests.  Defendant points out that several Superior Courts have reduced hourly rates for Wirtz Law APC (Richard M. Wirtz’s law firm).  Next, Defendant argues that the court should impose a negative lodestar multiplier to discourage Plaintiffs’ request.  Finally, Defendant also argues that Plaintiffs should not be awarded for reviewing Defendant’s opposition and preparing a reply.

In response, Plaintiffs argue that the court cannot reduce attorney rates if the attorney’s declarations are unrebutted.  Plaintiffs present full invoices.  Defendant does not present opposing evidence.  The court cannot deny a multiplier solely because of the lack of novelty or complexity of issues, and Plaintiffs do not contend this is a complex case.  Defendant did not provide a reason for not paying costs.

Hourly Rate

Defendant argues in its opposition that Plaintiffs’ attorneys’ hourly rates of $645, $550, and $450 are unreasonably high.  Defendant cites Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 255-56, a case where a trial court found attorneys’ hourly rates of $365 and $375 to be unreasonably high.  Defendant also cites Morris v. Hyundai (2019) 41 Cal.App.5th 24, a case where the court reduced attorney hourly rates of $500 and $600 to $500 and $300 because it was unreasonable for six attorneys from two different law firms to staff a non-complex case.  (Id. at pp. 10, 28.)

Plaintiff argues in reply that his attorney’s hourly rates are reasonable based on the prevailing fees in the community and based on the attorneys’ experience.  (Wirtz Dec., ¶¶ 16-20; Taylor Dec., ¶¶ 6, 12-13.)  Plaintiffs also argue that their attorneys’ experience justify the hourly rates. 

A verified fee bill is prima facie evidence that the services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)  If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 564.)

Attorney Taylor declares: (1) that he charges $645.00 per hour; and (2) that his three paralegals (Nick McNaughton, Lusine Musat, and Lori Richardson) each charge $250.00 per hour.  (Taylor Dec., ¶¶ 12-13.)  Attorney Taylor’s law firm represented Plaintiffs from May 2022 until the end of January 2024.

Attorney Wirtz declares: (1) that Attorney Amy R. Rotman charges $550.00 per hour; (2) that Attorney Jessica Underwood charges $550.00 per hour; (3) that Attorney Laura Schwartz charged $450.00 per hour before leaving Wirtz’s firm; (4) that Paralegal Rebecca Evans charges $300.00 per hour; and (5) that Paralegal Dalia Zaki charges $250.00 per hour.  (Wirtz Dec., ¶¶ 16-20.)  Attorney Wirtz’s law firm began representing Plaintiffs at the end of January 2024.

Based on the Wirtz and Taylor declarations and the court’s assessment of the prevailing rate for attorneys of comparable skill and experience in the relevant community, the court finds that the hourly rates requested are reasonable for counsel.

However, the hourly rates requested for paralegals Rebecca Evans and Dalia Zaki are unreasonable considering their experience compared to the experience Attorney Taylor’s paralegals.  (Taylor Dec., ¶ 13 - paralegals have 15-30 years of experience; Wirtz Dec., ¶¶ 18-19 - Evans has 10 years of experience and Zaki has 1.5 years of experience.)  Based on the experience of other paralegals with comparable skill and experience in the community, the court reduces Ms. Evans’ hourly rate to $250.00 and Ms. Zaki’s hourly rate to $150.00.

            Billing Entries

The Song-Beverly Consumer Act only entitles Plaintiffs to attorney fees for “actual time expended.”  (Civ. Code, § 1794, subd. (d).)  This means that analysis as to whether the fees and costs sought are reasonable under the circumstances is required.  (Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.)  Once objection to the fees has been raised, then Plaintiff’s counsel bears the burden of showing that the fees were reasonably necessary, and the court has the discretion to reduce fees awarded.  (En Palm, LLC v Teitler Family Trust (2008) 162 Cal.App.4th 770, 775.)

In determining the reasonableness of fees, courts look to the factors from Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, disapproved on other grounds by Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68 fn.5.  The factors from Wollersheim are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsel’s education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation.  (Id.)

Defendant argues that Plaintiffs’ attorneys’ billing entries are excessive, especially block billing for preparing form discovery requests and that Plaintiffs’ attempt to bill Defendant for hours spent working on the negligence repair cause of action.  Plaintiffs reply arguing that Defendant does not oppose Plaintiffs’ billing entries with admissible evidence.

Attorney Taylor declares: (1) that he spent 21.10 hours providing legal services; and (2) that his two of his paralegals (Nick McNaughton and Lusine Musat) provided 10.40 hours of administrative legal services. (Taylor Dec., Exh. 1.)

Attorney Wirtz filed an updated declaration and billing statement which reflects the time spent reviewing the opposition and preparing a reply.  (Reply Declaration of Richard M. Wirtz, ¶ 5, Exh. 24.)  This billing statement replaces Exhibit 1.  Attorney Wirtz declares: (1) that Attorney Amy R. Rotman worked 12.9 hours; (2) that Attorney Jessica Underwood worked 6.3 hours; (3) that Attorney Laura Schwartz worked 7.2 hours; (4) that Paralegal Rebecca Evans worked 4.5 hours; and (5) that Paralegal Dalia Zaki worked 1.2 hours. (Wirtz Reply Dec., Exh. 24, p. 9.)

The court finds the number of hours billed reasonable except for the hours attributed to defendant Rydell and the number of hours Attorney Taylor spent preparing discovery requests.

Negligence cause of action against Rydell

Plaintiffs’ complaint alleged a negligent repair cause of action against defendant Rydel Chrysler Dodge Jeep Ram.  (Compl., ¶¶ 51-60.)  Plaintiffs include billing entries for attorneys’ legal services on the negligent repair cause of action.

In deciding the lodestar amount, the court must determine whether it can segregate the work counsel performed on causes of action for which the moving party is entitled to fees from those the moving party is not.  (See Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 157 [citing Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133].)

“When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action.  However, the joinder of causes of action should not dilute the right to attorney fees.  Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not.  All expenses incurred on the common issues qualify for an award.”  (Akins, supra, 79 Cal.App.4th at p. 1133 [citing Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-30].) 

Plaintiffs and Defendant settled this case, not defendant Rydell.  (See Wirtz Dec., Exh. 7.)  Thus, Plaintiffs are the prevailing party on the three Song-Beverly causes of action against Defendant.  Defendant agreed to pay reasonable attorney fees, costs, and expenses pursuant to Civil Code section 1794, subdivision (d).  Plaintiffs are not the prevailing party on the fourth cause of action and may not seek attorney fees and costs related to this cause of action. 

Because attorney fees are not recoverable costs for negligence causes of action (Oakes v. Progressive Transportation Servs., Inc. (2021) 71 Cal.App.5th 486, 506.), Plaintiffs cannot recover for hours spent working on the negligence claim.

Attorney Taylor’s billing statement explicitly states hours relating to Rydell: filing proof of service (3/24/2023 - 0.30 hours by paralegal Lusine Musat $250.00); reviewing Rydell and Defendant’s answer (4/7/2023 - 0.10 hours by Attorney Taylor $645.00); drafting Rydell discovery requests (10/26/23 - 2.70 hours by Attorney Taylor $645.00).  Attorney Wirtz’s billing statement specifies the hours related to Defendant’s causes of action but does not attribute any hours to defendant Rydell.  Although the billing statements include several entries for both defendants without segregating hours, Defendant does present evidence to show that the other matters billed were directly related to defendant Rydell.

Therefore, the court does not award attorney fees for the entries identified as relating to defendant Rydell: (3/24/2023 - 0.30 hours); reviewing Rydell and Defendant’s answer (4/7/2023 - 0.10 hours); drafting Rydell discovery requests (10/26/23 - 2.70 hours).

                        Excessive discovery

Regarding Attorney Taylor’s discovery hours, when a “voluminous fee application” is made, the court may reduce the number of hours claimed or make a percentage cut to the final lodestar figure.  (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41.)  This is a basic Song-Beverly case involving a single issue: Defendant’s alleged failure to repair various defects and to replace Plaintiffs’ vehicle.  This case did not involve extensive discovery when Attorney Taylor represented Plaintiffs with the parties conduct one round of routine initial discovery.  (Declaration of Alexandra Stark, Esq, Exhs. C-D.)  The court also notes that Plaintiffs’ discovery requests were nearly identical to discovery propounded in other lemon law cases.  (Stark Dec., ¶ 6, Exhs. E-F.)  Therefore, the court reduces the 5.10 hours Attorney Taylor spent drafting the discovery requests to Defendant to 3.5 hours.

Total approved fees: $26,638.50

Multiplier

Once the court has determined an appropriate lodestar figure, the court can determine whether that figure should be adjusted with a positive or negative multiplier.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.)  Whether a multiplier or demultiplier [sic] is appropriate is based on several factors, including (1) the risks presented by the litigation; (2) the novelty and difficulty of the legal and factual issues involved; (3) the results obtained on behalf of the plaintiff; and (4) the skill exhibited by counsel.  (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.)  “The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where [1] an exceptional effort produced [2] an exceptional benefit.”  (Graham v. DaimlerChrysler Corp. (2005) 34 Cal.4th 553, 582.)

Plaintiffs ask the court to apply a 1.5x lodestar multiplier ($15,662.25) for risk and delay.  With the reduced hours, the new multiplier amount is $13,319.25.  Plaintiffs assert that counsel took this case on a contingency fee basis, and counsel would recover nothing if Plaintiffs lost this case.  The public interest (convincing manufacturers that it is less expensive to comply with statutory duties rather than litigate) justifies applying this multiplier.

Defendant argues the court to apply a negative multiplier because Plaintiffs inflated hourly rates, engaged in block billing, and claimed unwarranted and inappropriate fees.  Plaintiffs’ argument that a multiplier is appropriate due to the risks associated with nonpayment on a contingency basis, lacks merit.  This case is straightforward, and Plaintiffs do not plead facts showing exceptional skill that far exceeds the quality of representation. 

The court has already considered the hourly rate and time issues by reducing the number of hours or the hourly rate.  Therefore, the court declines to impose a negative multiplier because doing so would constitute “double-counting.”  (See Garciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 156.)  However, Plaintiffs’ attorneys do not satisfy their burden of establishing that a positive multiplier is appropriate in this case.

Accordingly, the court does not apply a 1.5x multiplier or a negative multiplier.

Costs and Expenses

“A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk[.]  The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”  (Cal. Rules of Court, rule 3.1700(a)(1).)  Under the law, the court presumes a verified memorandum of costs is correct.  However, a party may contest the costs that a prevailing party seeks.  (Code Civ. Proc., § 1034 subd. (a).)  The challenging party has the burden of demonstrating that those costs are unreasonable or unnecessary.  (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.)

Plaintiffs seek a total of $2,436.88 in costs: (1) $435.00 in filing and motion fees, $150.00 in jury fees, and $152.50 in e-filing and service fees for Attorney Taylor’s firm; and (2) $60.00 in filing and motion fees, $625.00 in court reporter fees, $172.35 in e-filing and service fees, and $649.42 in copy, printer, mediation, and minute order charges for Attorney Wirtz’s firm.  (Taylor Memorandum of Costs - 10/7/24; Wirtz Memorandum of Costs - 10/7/24.)  Defendant does not oppose.

Accordingly, the court grants Plaintiffs’ request for $2,436.88 in costs.

CONCLUSION

Plaintiffs’ motion for attorney fees and costs is granted in the reduced amount of $29,075.38 ($26,638.50 in attorney fees and $2,436.88 in costs).

Plaintiffs to give notice.