Judge: Holly J. Fujie, Case: 19STCV14161, Date: 2023-02-03 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 19STCV14161    Hearing Date: February 3, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiffs

RESPONDING PARTY: Defendants Ford Motor Company (“Ford”) and Cerritos Ford, Inc. (“CFI”) (collectively, “Defendants”)

            The Court has considered the moving, opposition and reply papers.

BACKGROUND

            Plaintiffs’ operative second amended complaint (the “SAC”) alleges three causes of action arising under the Song-Beverly Act. 

On November 28, 2022, Plaintiffs filed a motion for attorney’s fees (the “Motion”) pursuant to Civil Code section 1794, subdivision (d).  Plaintiffs seek: (1) attorney’s fees in the amount of $150,524.25; and (2) costs in the amount of $6,861.35.[1]

DISCUSSION

Legal Standard

            A prevailing party in an action under the Song-Beverly Act may be entitled to attorney’s fees.  (Civ. Code § 1794, subd. (d); see also CCP § 1032, subd. (a)(4).)  Attorney’s fees ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the claims.  (Serrano v. Unruh (1982) 32 Cal.3d 621, 639.)  The party moving for attorney’s fees has the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.  (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)  Where a case is premised on a contingent fee agreement it is appropriate to award reasonable attorney’s fees for time reasonably expended by the attorney.  (Glaviano v. Sacramento City Unified School Dist. (2018) 22 Cal.App.5th 744, 755.)  If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.  (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

            As a preliminary matter, it is undisputed that Plaintiffs are the prevailing parties who are entitled to attorney’s fees as provided in the Song-Beverly Act.  Plaintiffs present evidence that that on October 27, 2022, Plaintiffs and Defendants (collectively, the “Parties”) entered into a settlement agreement (the “Settlement Agreement”).  (See Declaration of Roger Kirnos (“Kirnos Decl.”) ¶ 12, Exhibit C.)  The Settlement Agreement specifically provides for Plaintiffs’ recovery of attorney’s fees and costs pursuant to the Song-Beverly Act.  (See id. at § 3.)

Reasonableness of Counsels’ Hourly Rates

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age and his experience in the particular type of work demanded.  (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.)  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.)  The verified time statements of attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) 

             A court awards attorney’s fees based on the “lodestar” method which is “the number of hours reasonably expended multiplied by the reasonable hourly rate.”  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.)  The trial court has broad authority to determine the amount of a reasonable fee.  (Id.)  The loadstar figure may be adjusted, based on a consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.  (Id.)  Generally, the reasonable hourly rate used for the lodestar calculation is that prevailing in the community for similar work.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 616.)  Nevertheless, where an attorney has been awarded attorney’s fees for comparable work at comparable hourly rates in other actions, the hourly rate will be deemed reasonable.  (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473-74.)  Where a defendant does not produce evidence contradicting the reasonableness of plaintiff’s counsel’s hourly rates, the Court will deem an attorney’s hourly rate reasonable.  (Id. at 473.) 

            Plaintiffs retained Knight Law Group, LLP (“KLG”) before initiating this action.  (See Kirnos Decl. ¶¶ 2, 5.)  After the Court sustained Defendants’ demurrer to the SAC (the “Demurrer”) on February 18, 2021, Plaintiffs associated Rosner, Barry & Babbit, LLP (“RBB”) as appellate counsel.  (See Kirnos Decl. ¶ 11; see also Declaration of Arlyn L. Escalante (“Escalante Decl.”).)  In total, 16 attorneys billed time in this matter.  (See Kirnos Decl. ¶¶ 17-29, Exhibit A; Escalante Decl. ¶ 6, Exhibit 1.) 

            Thirteen KLG attorneys billed time in this matter.  (See Kirnos Decl. ¶¶ 17-29, Exhibit A.)  Of the 13 KLG attorneys: six are associates with rates ranging from $200 per hour and $395 per hour; two are senior associates with rates of $400 and $415 per hour; four are partners with rates ranging from $350 per hour and $595 per hour; and one is a managing partner with a rate of $500 per hour.  (See id.)[2]  Escalante, Plaintiffs’ associated appellate attorney, has an hourly rate of $450 per hour.  (Escalante Decl. ¶ 9.)  A total of 0.5 hours were billed by two additional RBB attorneys.  (See Escalante Decl., Exhibit 1.)  Plaintiffs have not provided information regarding these attorneys’ hourly rates.  

Plaintiffs have additionally provided evidence that their attorneys’ rates have been approved in other actions.  (See Kirnos Decl. ¶¶ 32-51; Escalante Decl. ¶ 11.) 

Defendants argue that these hourly rates are inflated and should be reduced and cite to cases, including matters involving KLG, where the U.S. District Court for the Central District reduced the hourly rates of attorneys representing plaintiffs in consumer goods litigation. 

The Court finds that Plaintiffs have demonstrated that their attorneys’ hourly rates are reasonable based on their qualifications, skills and experience.  (See 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-37.)  While Defendants argue that the rates are too high, they have not presented evidence that directly contradicts Plaintiffs’ evidence of the reasonableness of the quoted hourly rates.  (See Goglin v. BMW of North America, LLC, supra, 4 Cal.App.5th at 473-74.) 

Reasonableness of Requested Fees

Where a party is challenging the reasonableness of attorney’s fees as excessive that party must attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.  (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-64.)  A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.  (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)  Attorney billing records are given a presumption of credibility.  (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

Defendants argue that Plaintiffs’ requested fees are unreasonable because the amount reflects duplicative work unnecessarily performed by a large cast of attorneys as well as improperly billed clerical work.  (See Declaration of Hannah L. Miller (“Miller Decl.”) ¶ 15, Exhibit J.)  Defendants further argue that the fees for work performed in connection to Plaintiffs’ appellate brief are inflated because the brief had to be rewritten after because the initial draft briefed an incorrect issue.  (See Miller Decl.) ¶ 5, Exhibit J.) 

The Court agrees that Plaintiffs’ billing records indicate that they are seeking compensation for duplicative work and that the time billed is somewhat inflated as a result of the multitude of entries connected to time the attorneys assigned to the case spent conferring with one another.  As a result, the Court finds it appropriate to reduce Plaintiffs’ recovery of attorney’s fees to the reasonable amount of $76,469.[3]

Lodestar Multiplier

In cases involving the Song-Beverly Act, the lodestar figure may be augmented or diminished.  (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 819.)  In determining whether or not a lodestar figure will be multiplied for purposes of attorney’s fees, the court takes various relevant factors into account, including: (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.  (Id.)

Plaintiffs request a lodestar multiplier of 0.5.  The Court finds it unnecessary to add a multiplier in this case and declines Plaintiffs’ request. 

Costs

Plaintiffs filed a Memorandum of Costs (the “MOC”) detailing their incurred costs.  (See Kirnos Decl., Exhibit B.)  Defendants argue that Plaintiffs are not entitled to recover any costs because they have not demonstrated the reasonableness of their claimed costs and seek certain costs that are not recoverable.  In particular, Defendants take issue with $707.90 claimed as deposition costs for taking the non-appearance of CFI’s person most qualified and $281.92 for costs associated with attorney services and messengers for court filings and service.  Defendants have not cited authority to support their contention that these costs are disallowed. 

Defendants also misstate the legal standard for the sufficiency of the MOC and propriety of the costs stated therein.  In ruling on a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether the item appears proper on its face.  (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.)  If so, the burden is on the objecting party to show that the costs are unnecessary or unreasonable.  (Id.)  Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.  (Foothill-De Anza Community College District v. Emerich (2007) 158 Cal.App.4th 11, 29-30.)  The items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.  (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.)  There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum.  Only if the costs have been put at issue via a motion to tax costs must supporting documentation be submitted.  (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) 

Plaintiffs’ reply (the “Reply”) includes invoices for the costs represented in the MOC.  The Court finds that Defendants have not carried their burden to show that the items in the MOC are improper.  Plaintiffs are therefore entitled to $6,861.35 in costs.

            The Court therefore GRANTS the Motion in accordance with the terms set forth above.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

        Dated this 3rd day of February 2023