Judge: Gregory Keosian, Case: 18STCV07335, Date: 2022-08-31 Tentative Ruling
Case Number: 18STCV07335 Hearing Date: August 31, 2022 Dept: 61
Plaintiff
Laurie McRae’s Motion for Attorney Fees, Costs, and Expenses is GRANTED in
part. Plaintiff is awarded attorney fees for Strategic Legal Practices’
services in the amount of $50,425.00, and for California Consumer Attorneys’
services in the amount of $5,065.00. Plaintiff is awarded $6,058.75 in costs
and expenses.
Plaintiff to provide notice.
I.
OBJECTIONS
Plaintiff objects to various
portions of the declaration of Patrick J. Raue, wherein Raue identifies
particular charges claimed by Plaintiff’s counsel and argues that they are
excessive. These objections are OVERRULED.
II.
MOTION FOR ATTORNEY FEES
Parties to litigation must generally bear their own attorney’s fees,
unless they otherwise agree. (Code Civ. Proc. § 1021.) However, the
Song-Beverly Act provides for the award of attorneys’ fees to prevailing plaintiffs
as follows:
If the buyer prevails in an action under
this section, the buyer 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, subd. (d).)
“It is well established that the determination of what constitutes
reasonable attorney fees is committed to the discretion of the trial court,
whose decision cannot be reversed in the absence of an abuse of
discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court
should consider a number of factors, including the nature of the litigation,
its difficulty, the amount involved, the skill required in handling the matter,
the attention given, the success or failure, and the resulting judgment. (See id.)
In determining the proper amount of fees to award, courts use the
lodestar method. The lodestar figure is
calculated by multiplying the total number of reasonable hours expended by the
reasonable hourly rate. “Fundamental to
its determination . . . [is] a careful compilation of the time spent and
reasonable hourly compensation of each attorney . . . in the presentation of
the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable
hourly rate must reflect the skill and experience of the attorney. (Id.
at p. 49.) “Prevailing parties are compensated for hours reasonably spent on
fee-related issues. A fee request that
appears unreasonably inflated is a special circumstance permitting the trial
court to reduce the award or deny one altogether.” (Serrano
v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano
IV).) The Court in Serrano IV also stated that fees
associated with preparing the motion to recover attorneys’ fees are
recoverable. (See id. at p. 624.)
Plaintiff here seeks a total award of fees and expenses
amounting to $98,842.14. Of this amount, $53,353.50 is the attorney fee
lodestar for work performed by Plaintiff’s firm, Strategic Legal Practices, APC
(SLP); $10,820.00 is for services performed by another firm, California
Consumer Attorneys (CCA); $22,460.73 comes from a 1.35 multiplier enhancement;
$8,707.91 is for costs and expenses; and $3,500.00 is for reply to Defendant’s
anticipated opposition to this motion. (Motion at p. i.) SLP seeks fees for
127.20 hours worked, while CCA seeks fees for 20.4 hours of attorney work; both
firms present records of hours worked and the charges made therefore.
(Rosenstein Decl. Exh. A; Shahian Decl. Exh. 31.) This matter settled on March
8, 2021, when Plaintiff executed Defendant’s section 998 offer for $55,000.00.
Defendant in opposition argues that Plaintiff’s attorneys
overcharged for fees in various ways, first of all by excessive hourly rates,
which range from $350 to $595 per hour for SLP attorneys and $450 to $650 for
CCA. (Opposition at p. 6.) Defendant points to the number of attorneys employed
on this matter — nine from SLP and two from CCA — who it claims performed
duplicative and redundant work. (Opposition at pp. 8–9.) Defendant argues that
items billed reflect an abstract “time value,” rather than the actual amount of
time spent on the tasks presented, given Plaintiff’s use for templates and
forms from prior cases. (Motion at pp. 9–10.) And because Plaintiff’s
complaints included both compensable Song-Beverly claims and non-compensable
fraud claims, for which no fees may be awarded, Defendant argues that the fees
sought in relation to fraud matters should be deducted from any award. (Motion
at pp. 10–11.)
There is no cause to reduce the hourly fees sought in this
case. The range of rates charged in this matter by both SLP and CCA is
reasonable for attorneys of similar experience, in the same area, dealing with
the same subject matter. (See Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473–74
[approving $625 per hour fee on lemon law action].) This conclusion is further
corroborated by Plaintiff’s evidence of multiple other cases in which similar
fee awards have been approved. (Shahian Decl. ¶ 7.) Thus Plaintiff has provided
support for the hourly rates charged here.
Defendant is correct that unreasonable multiplicity of attorneys
performing duplicative work may furnish a basis to substantially reduce a cost
award. In Morris v. Hyundai Motors America (2019) 41 Cal.App.5th
24, the trial court substantially reduced a requested attorney fees award
involving 11 attorneys and two firms in a lemon law action. (Id. at p.
32.) “Out of a total of 283.3 hours of billed work, the court did not award any
fees for 83.5 hours of work billed by six associates.” (Ibid.) The
appellate court affirmed: “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.” (Id. at p. 39.) The appellate court determined
that the trial court’s remedy of cutting out several attorneys’ billings was
permissible because it “was designed to yield a revised lodestar figure that
reflected a total amount of fees that were reasonably incurred.” (Id. at
p. 40.) A similar result was reached in the case Mikhaeilpoor v. BMW of
North America, LLC (2020) 48 Cal.App.5th 240, 253, which cited Morris
with approval to reduce an award involving 595 claimed hours of work and a
total request of $344,639.00 in fees following trial.
But the reasoning of those cases does not necessarily apply here. A
large number of attorneys is not on its own reason to reduce a fee award, and
both cases cited above upheld lodestar reductions based on the “duplicative”
and “inefficient” billings that resulted from the number of attorneys employed.
(Mikhaeilpoor, supra, 48 Cal.App.5th at p. 255; Morris,
supra, 41 Cal.App.5th at p. 40.) Here the number of attorneys
employed does not indicate a systemic inefficiency of litigation in this
matter; it rather appears from the billing records produced that different
attorneys were employed to address different aspects of the cases. (Shahian
Decl. Exh. 31.)
The primary respect in which the association of multiple attorneys
appears to have resulted in duplicative billings is with respect to the
association of CCA, whose billing records contain numerous entries for strategy
meetings and updates on the status of the case, including after execution of
the settlement agreement, that would not otherwise have been necessary had another
firm not been retained. (Rosenstein Decl. Exh. A.) Of the $10,820.00 in fees
sought by CCA, $2,505.00 falls into this bucket of redundant updating,
consulting, and strategizing, and is therefore appropriately deducted from the
lodestar. (Ibid.)
Certain other billing items claimed in Plaintiffs’ invoices are
excessive. 4.7 hours are claimed by SLP to draft a first amended complaint, and
then 2.3 hours to draft a second amended complaint. (Shahian Decl. Exh. 31
(2/5/2019; 5/29/2019).) The combined $2,695.00 in fees charged for this
activity is properly reduced by $1,347.50, given the templates and forms
at Plaintiff’s disposal in cases of this type. The nine hours and $3,240.00
incurred opposing Defendant’s demurrer is also appropriately reduced by $1,620.00,
for the same reasons. (Shahian Decl. Exh. 31 (4/3/2019; 4/29/2019).)
The charges must be further reduced for litigation of claims that are
not subject to statutory fee compensation. “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. (Santana v. FCA US, LLC (2020) 56
Cal.App.5th 334, 349.) At the same time, “fees need not be apportioned when incurred for representation on an
issue common to both a cause of action in which fees are proper and one in
which they are not allowed.” (Reynolds Metals Co. v. Alperson (1979) 25
Cal.3d 124, 129–30.) Here, the fees incurred opposing Defendant’s motion to
quash service of summons were incurred purely to prosecute Plaintiff’s fraud
claims, as the defendants who sought to quash service were only named in the
fraud cause of action. This yields a reduction of $3,250.00 from the CCA
fees, and a reduction of $3,461.00 from the SLP fees.
However, charges
sought in relation to the opposition to Defendant’s demurrer and in relation to
NHTSA document discovery are not purely related to fraud. Defendant’s demurrer
targeted not only Plaintiff’s fraud claim, but also the claims brought under
the Song-Beverly Act. And Plaintiff’s NHTSA discovery is relevant to a finding
of potential “willfulness” under the Song Beverly Act, which could allow for
civil penalties if found. (See Civ. Code § 1794, subd. (c).)
No lodestar
multiplier, upward or downward, is appropriate in this matter. “Once the court
has fixed the lodestar, it may increase or decrease that amount by applying a
positive or negative ‘multiplier’ to take into account a variety of other
factors, including the quality of the representation, the novelty and
complexity of the issues, the results obtained, and the contingent risk
presented.” (Thayer v. Wells Fargo Bank.,
N.A. (2001) 92 Cal.App.4th 819, 833.) Although Plaintiffs’ attorneys have
obtained favorable results for their client on an expectation only of contingency,
the subject matter of this case was not so complex as to warrant recovery of
fees beyond the reasonable hourly rates charged.
Defendant finally
objects to various costs, either as unnecessarily incurred or as unrecoverable
under Code of Civil Procedure § 1033.5. (Opposition at pp. 13–14.) The
costs not covered under section 1033.5 are not necessarily improper, as the
scope of recoverable “expenses” under the Song-Beverly Act is broader than
costs ordinarily recoverable in civil litigation. (See Jensen v. BMW
of North America, Inc. (1995) 35 Cal.App.4th 112, 138 [holding that
allowable “expenses” under Song Beverly Act include expert witness fees].)
However, some costs are properly deducted. Process service fees to defendants
who were ultimately dismissed for lack of jurisdiction, amounting to $475.60,
are properly reduced. Additional costs for reporter transcripts and hearing
attendance on the motion to quash, amounting to $1,486.24, shall also be
deducted, as shall $687.32 in costs associated with Plaintiff’s efforts
to tax costs associated with those same defendants.
Accordingly, Plaintiff’s motion for attorney fees, costs,
and expenses is GRANTED in part. Plaintiff is awarded attorney fees for SLP’s
services in the amount of $50,425.00, and for CCA’s services in the amount of $5,065.00.
Plaintiff is awarded $6,058.75 in costs.