Judge Holly J. Fujie, Case Number: 19STCV14194, Date: 2024-05-16 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.

This is a lemon law case. On April 23, 2019, Plaintiffs Diana Herrera and Felix Herrera (“Plaintiffs”) filed a complaint against Defendant Kia Motors America, Inc. (“Defendant”) alleging causes of action for: (1) Violation of Subdivision (d) of Civil Code Section 1793.2; (2) Violation of Subdivision (b) of Civil Code Section 1793.2; (3) Violation of Subdivision (a)(3) of Civil Code Section 1793.2; (4) Breach of Express Warranty; and (5) Breach of Implied Warranty of Merchantability.

Defendant’s Evidentiary Objections to the Declaration of Payam Shahian are OVERRULED.

Defendant’s Evidentiary Objections to the Declaration of Breita Linnel are OVERRULED.

Plaintiffs request judicial notice of 16 orders approving awards of attorneys’ fees in other, unrelated lemon law cases in both California and federal court. These orders are not relevant to the question of whether the award of fees and costs sought in this case is proper. Accordingly, plaintiffs’ requests for judicial notice are DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [[J]udicial notice … is always confined to those matters which are relevant to the issue at hand.”].)

Attorneys’ fees are allowed as costs when authorized by contract, statute or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

In a lemon law action, costs and expenses, including attorneys’ fees, may be recovered by a prevailing buyer under the Song-Beverly Act. Civ. Code, § 1794 provides:

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.

The attorney claiming fees bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) 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.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Id.)

In determining a reasonable attorneys’ fee, the trial court begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 36.) The lodestar may then be adjusted based on factors specific to the case in order to fix the fee at the fair market value of the legal services provided. (Ibid.) These facts 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, (4) the contingent nature of the fee award. (Ibid.)

Here, Plaintiffs move for an award of attorneys’ fees in the amount of $185,990.67, consisting of (1) $123,048 in attorneys’ fees for Strategic Legal Practices, APC (“SLP”), (2) a 1.35 multiplier enhancement on the attorneys’ fees ($43,066.80), (3) $16,375.87 in costs and expenses for SLP; and (4) an additional $3,500 in fees for reviewing the opposition, drafting a reply, and attending the hearing on this motion.

Plaintiffs contend that they are the prevailing party in this action because of a signed 998 offer in which Defendant ultimately agreed to settle this case. The Court agrees and Defendant does not dispute this. Plaintiffs are the prevailing party in this action entitled to a reasonable amount of attorneys’ fees.

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [“The experienced trial judge is the best judge of the value of professional services rendered in [her] court.”].)

Plaintiffs seeks to recover attorneys’ fees for 15 different attorneys who worked on the case. Their hourly rates are as follows:

(1) Neal Butala: 2021 rate of $460/hr; (2) Sean Crandall: 2020 rate of $410/hr; (3) Kris Coombs: 2021 rate of $325/hr; (4) James Doddy: 2021 rate of $595/hr; (5) Tionna Dolin: 2021 rate of $450/hr and 2023 partner rate of $570/hr; (6) Evan Greene: 2019 rate of $395/hr; (7) Christine Haw: 2021 rate of $465/hr, 2022 rate of $490/hr, and 2023 rate of $500/hr; (8) Breita Linnell: 2023 rate of $525/hr; (9) Matthew Pardo: 2019 rate of $335/hr, 2021 rate of $390/hr, 2022 rate of $410/hr, and 2023 rate of $435/hr; (10) Debora Rabieian: 2021 rate of $395/hr; (11) Gregory Sogoyan: 2021 rate of $395/hr; (12) Rabiya Tirmizi: 2023 rate of $375/hr; (13) Oliver Tomas: 2021 rate of $595/hr; (14) Kyle Tracy: 2019 rate of $445/hr and 2020 rate of $450/hr; and (15) Greg Yu: 2023 rate of $625/hr.

For each of the attorneys, attorney Payam Shahian attests to their legal experience and the reasonableness of their rates. (Shahian Decl. ¶ ¶ 41-72.)

The Court finds, based on the submitted evidence of the declaration of Shahian and the Court’s own experience, that Plaintiffs’ attorneys’ requested hourly rates are reasonable for attorneys with their experience and in this area of the law. The range of rates charged in this matter by SLP is reasonable for attorneys of similar experience, in the same area, dealing with the same subject matter. (See Goglin v BMW of North America (2016) LLC 4 Cal.App.5th 462, 473-74 [approving $575 per hour fee on lemon law action for attorneys in Los Angeles].)

Defendant also contends that Plaintiffs over-litigated the case by staffing 14 attorneys for a matter that presented typical lemon law issues and did not go to trial. This Court agrees from its own experience in practice that 14 attorneys working on a case will necessarily result in unnecessary duplication in work, and that even the six attorneys and one law clerk which Plaintiffs state accounted for a vast majority of the work appears to this Court to be excessive for this type of case. The Court has discretion to reduce fees 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.) The Court will consider this issue in determining whether the total number of hours was reasonable.

“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 Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “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.)

Plaintiffs’ fee recovery is based on 268.20 hours spent by their attorneys at SLP litigating this case through this motion for which Plaintiffs have submitted billing records. (Shahian Decl., ¶ 74; Ex. 17.) At the rates identified above, Plaintiffs represent that they are seeking a lodestar of $123,048.

First, the Court addresses the issue of block billing. Defendant contends that there are numerous time entries that are block billed. The use of block billing is not per se objectionable. Block billing is only problematic “when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pac. Fin. LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) Because of block billing, however, the Court finds it difficult to assess the reasonableness of the time spent on individual tasks, such that the Court must make a determination without the information that would result from non-block billed entries.

Although Defendant does not identify any specific tasks that were the result of overstaffing or request a specific reduction of in fees relating to time spent for claimed overstaffing, except for one specific task, the Court will exercise its discretion based upon its own experience to determine the reasonableness of the claimed lodestar.

Defendant objects to an attorney working on the opposition to the MSJ as duplicative because this was not the attorney who signed the opposition. The Court notes that one attorney drafted the opposition, while the other revised and finalized it, and another prepared for the hearing. The Court agrees with Defendant that there appear to be some duplicative and excessive hours spent on this motion. As a result, the Court reduces 3 hours of attorney time spent on the motion, for a reduction of $1,500.

Next, Defendant objects to tasks that Defendant argues are billed at excessive amounts of time. Defendant provides the following examples:

· 16.7 hours ($7,322.50) for drafting and revising responses to Defendant’s first set of written discovery.

· 2.9 hours ($942.50) to summarize Carmen Herrera’s deposition transcript. The deposition was 24 minutes. (Tsai Decl., ¶ 23.)

The Court agrees in part. The Court agrees that the standard-format, 8 page complaint in this matter should not have taken 5.8 hours to draft, and at most should reasonably have taken 3 hours. Thus, the Court reduces the fee by $1,106.

Next, the Court does not find that the reasonable amount of hours necessary to draft the discovery responses was 16.7 hours. Rather, it appears Plaintiffs spent around 10 hours to draft both Plaintiffs’ responses to Form Interrogatories, 34 Special Interrogatories, 15 Requests for Admission and 37 Requests for Production of Documents, which appear reasonable. The remainder of the time spent was for amended responses, which should not have been necessary. The Court therefore reduces this item by 6.7 hours or $2,981.50.

Next, the Court agrees that it should not have taken 12.7 hours to draft this fee motion as this appears to be substantially a template motion regularly used by plaintiffs. While the billing and supporting evidence may have taken some time to gather, the Court finds that the reasonable amount of time would be five hours for a reduction of $4,042.50.

Moreover, the Court finds that $3,500 in anticipated fees for reviewing the reply should be reduced, as this amount appears excessive to the Court. Instead, the Court awards two hours of time at $525, so the amount claimed for this item is reduced by $2,450.

Further, the Court agrees that it should not have taken 2.9 hours to summarize a deposition that was only 24 minutes long. The Court finds that the reasonable amount of time for this work is a maximum of .5 hours, for reduction of $455.

The Court finds other entries that it does not find to be reasonable based upon its knowledge and experience:

The .7 hours billed for “Draft and finalize P’s CMC” and “notice of CMC” is excessive for a very simple form. The maximum amount which the Court will allow for this task is the initial .3 hours billed, thus reducing this item by $178.

The 2.2 hours billed to “Draft and finalize P’s IDC statement” is excessive. A reasonable amount of time for this task would be .5 hours; therefore, the Court will reduce this item by $697.

The time to “Prepare for and attend Status Conference; draft hearing outcome memo” is excessive at 2.0 hours; the Court finds that 1 hour to prepare for and attend this Status Conference and to prepare a memo on it is reasonable. The Court therefore reduces this item by $595.

The Court finds that the time relating to the preparation for and oppositions to the Motions in Limine to be excessive – the motions filed by both sides could have been avoided by the parties stipulating to these very standard motions. Because both sides are likely responsible for the filing of and opposition to these unnecessary motions, however, the Court will not reduce fees incurred, but reminds counsel of this Court’s departmental rules which require the parties to meet and confer and to agree to motions in limine that are clearly likely to be granted.

The Court does not find that the other tasks completed in connection with this case to be excessive or otherwise unreasonable.

Having analyzed the motions and pleadings filed, and having reviewed the billing statements provided, the Court determines that a reasonable lodestar in this case, to limit any duplicative and excessive fees, is $109,043.

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, 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; (3) the contingent nature of the fee award” and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

Nonetheless, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included with the lodestar. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) “[A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable.” (Id. at 1139.)

Plaintiff requests a lodestar multiplier enhancement of 1.35 in the additional amount of $43,066.80 on the ground that the settlement results were excellent, and because SLP undertook representation of Plaintiff on a contingency basis—if the action failed and Plaintiff did not recover, neither would her counsel. (Shahian Decl. ¶ 73.) SLP faced a genuine risk of not being paid for its services for years (if at all) while advancing thousands in costs and expenses to prosecute Plaintiff’s claims against HMA, a large corporate defendant with the proven track record to engage in prolonged litigation (while its attorneys get paid regardless of outcome). Lastly, Defendant argues there was also a delay in payment.

The Court finds that under the circumstances of this case, a lodestar multiplier is not appropriate. This is a straightforward lemon law case. Nothing before the Court indicates that the case presented novel issues or that the quality of representation far exceeded the quality of representation that would have been provided by attorneys of comparable skill and experience billing at the same rates. While Plaintiff argues that counsel accepted the case only on a contingency basis and there was a delay in payment the Court finds that such consideration and risk is already included within the lodestar amount. That is because the substantial hourly rates allowed for by the court are hourly rates for lemon law cases done on a contingency basis.

Allowable costs “shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).) Any items not specifically mentioned by statute “may be allowed or denied in the court's discretion.” (Id., subd. (c)(4).)

Song-Beverly allows a successful plaintiff to recover both “costs” and “expenses.” (See Civ. Code, § 1794, subd. (d).) Courts have held that “it is clear the Legislature intended the word ‘expenses' to cover items not included in the detailed statutory definition of ‘costs.”’ (Jensen v. BMW of North America, Inc. (“Jensen”) (1995) 35 Cal.App.4th 112, 137.) The court in Jensen held that “[t]he legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act … ,” noting that the legislature included “expenses” in the lemon law act because '“[t]he 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.’ [Citation.]”

Plaintiffs request a total of $16,375.87 in costs and expenses. Defendant contends that Plaintiffs’ costs should be taxed.

First, Defendant argues that Plaintiffs seek recovery of $3,466.00 for “expenses paid to Olson-EcoLogic for Emission Testing and Transport” on June 29, 2021. There is no description for this item, much less an invoice or other evidence to support this amount. These costs are uncertain and likely excessive. Further, Plaintiffs’ expert Darrell Blasjo testified there was no emission concerns reported during the emission warranty of the vehicle, no failed smog check was ever produced, and that he was not offering any opinions regarding emission concerns. (Tsai Decl., Ex. I [Blasjo Trans. 15:8-17, 23:11] and Ex. J.)

Plaintiff responds that Plaintiff’s expert testified in deposition that he was not offering any opinions regarding emission concerns on July 2, 2021, three days after the emission testing took place. (Shahian Decl., Exh. 17, pg. 3.) As such, this item does not appears to be reasonably necessary.

Next, Defendant contends that Plaintiff purportedly paid $520.00 on November 29, 2021 for “Cancellation of Reporting Services – Vincent Petrangelo.” Defendant argues its expert was deposed on July 2, 2021 and the court reporter fees for the deposition and transcript were billed on the same day ($1,890.00). Defendant argues that Plaintiff appears to be seeking duplicate costs and/or costs prohibited under California law.

Plaintiff respond that she served a notice of deposition on November 7, 2021 to which Kia failed to timely object. Hence, the cancellation fee. Plaintiff has not, however, responded to Defendant’s contention that Petrangelo was already deposed in July of 2021. Thus, the Court taxes $520.

Lastly, Defendant argues that Plaintiff also seek recovery of $3,637.90 “for Deposition and Transcript Services –Gavin LaBeet” on June 29, 2021. Without any evidence to support this amount, this expense is uncertain and possibly excessive.

Plaintiffs respond that the deposition commenced at 11:09 a.m. and concluded at 5:25 p.m. and amounted to 254 pages, with 34 Exhibits. (Baker Decl., ¶ 5.) By comparison, the deposition of Plaintiff’s witness, Darrell W. Blasjo commenced at 11:00 a.m. concluded at 1:42 p.m., amounted to 102 pages with 11 Exhibits. (Baker Decl. ¶ 6.) The Court can see the July 2, 2021 charge for that deposition was $1,890.00, significantly less for a shorter deposition with few Exhibits. The Court will not tax this amount.

Based on the foregoing, Plaintiff’s motion for attorney fees is GRANTED in part. The Court awards $109,043 in attorney fees and $15,855.87 in costs to SLP.

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.

Hon. Holly J. Fujie

Judge of the Superior Court