Judge: Kenneth J. Medel, Case: 37-2021-00027537-CU-BC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00027537-CU-BC-CTL RIVERA VS R&L AUTOS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 08/29/2023

Plaintiff's Motion for Attorney Fees and Costs is granted, in part, and denied, in part as set forth below.

This is an action based upon the Song-Beverly Act, including a fraud allegation. Plaintiffs alleged that their 2018 Dodge Durango is defective. The Case was filed in June, 2021. Plaintiff alleged pervasive defects including engine, transmission, and electrical defects, requiring multiple repair visits.

Both defendant R&L Autos, Inc., dba Rogers & Rogers Chrysler Jeep Dodge and manufacturer FCA US LLC brought motions to compel arbitration based upon an arbitration agreement in the 'Retail Installment Sales Contract – Simple Finance Charge (With Arbitration Provision)' that Plaintiffs signed when they purchased the Vehicle. The Court denied these motions in 2022.

On February 13, 2023, about one year and four months after the Complaint was filed in this action, the parties agreed to settle this case when Defendant FCA US LLC's accepted Plaintiffs, DIANA RIVERA and DANIEL RIVERA, Offer to Compromise in the amount of $130,729.94 with surrender of the subject vehicle, in exchange for dismissal of the instant action plus attorney's fees, costs and expenses by motion wherein Plaintiffs were the prevailing party for purposes of the motion. The settlement represents full reimbursement.

Plaintiffs are the prevailing party in this action and, under the Song-Beverly Act, are entitled to recoup all reasonable attorneys' fees, costs and expenses. (Code Civ. Proc. § 1032(a)(4); Civ. Code § 1794(d); Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 557; Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139.) Further, the settlement agreement in this case provided that plaintiff would be entitled to reasonable attorney fees and costs upon a motion.

Plaintiff now moves for attorney fees and costs as follows: (1) 'lodestar' - $54,999.00, (2) modifier of 0.5 under California law, in the amount of $27,499.50, and (3) actual costs and expenses incurred in the amount of $11,041.22. (Civ. Code § 1794(d).) TOTAL - $93,539.72 Lodestar Analysis Parties who qualify for a fee should recover compensation for 'all the hours reasonably spent' in successfully litigating the action and obtaining their fee. (Ketchum, supra, at 1133; Roth, supra at 290; See also Hensley v. Eckerhart (1983) 461 U.S. 424, 430 (counsel for prevailing parties should be paid for all time reasonably expended on a matter); Horsford, supra, at 394; Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 447.) The lodestar method is applicable to calculating fees under the Act. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967; Robertson v. Fleetwood Travel Trailers of California, Inc (2006) 144 Cal.App.4th 785, 821.) In reaching the lodestar, a court begins by deciding 'the reasonable hours spent' on the case and multiplying that number by 'the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.' Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133.

Hourly rates The hourly rates for attorney's fees sought by Plaintiffs' counsel, ranging from $175 to $550. The rates Calendar No.: Event ID:  TENTATIVE RULINGS

3014415  39 CASE NUMBER: CASE TITLE:  RIVERA VS R&L AUTOS INC [IMAGED]  37-2021-00027537-CU-BC-CTL are supported by the declaration of Roger Kirnos, who is the managing partner at Knight Law. Mr.

Kirnos, as managing partner, provides the foundational facts for rates charged by the attorneys who work directly for him at Knight Law, including their billing rate, qualifications and experience. Each associate also submits a summary of their education and experience to use on the firm's website and as managing partner, Mr. Kirnos is able to attest to the associates' experience.

Plaintiff also supports the rates with attached orders from fee motions in other lemon law matters.

Affidavits of the Plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the Plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.'' (United Steelworkers of Am. v. Phelps Dodge Corp.

(1990) 896 F.2d 403, 407.) Also See Margolin v. Reg. Planning Com., 134 Cal. App. 3d 999, 1005-06 (1982) '[a]ffidavits of the Plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases ... are evidence of the prevailing market rate,'. The United States Supreme Court has stated 'awards in similar cases' is one of twelve possible factors to be considered when determining an appropriate hourly rate. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429-430.) The hourly rates are sufficiently supported as within the range of prevailing rates for private attorneys in the community conducting noncontingent litigation of this type. The Court also has experience in awarding attorney fees in cases brought under the Song Beverly Act, and, based on the court's experience, the rates proposed are within the range normally awarded in cases such as this.

Reasonable Hours A Plaintiffs' verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) 'In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated to not suffice.' (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488) Plaintiffs' attorneys are also entitled to a presumption of reasonableness. Absent a contrary showing, both the number of hours that the prevailing party's attorney spent litigating the case and his or her regular hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621, 639 (counsel is entitled to all hours actually spent, absent a showing of 'special circumstances' that would render such an award unjust); Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761 (an attorney's regular hourly rate is entitled to a presumption of reasonableness); Pearl, California Attorney Fee Awards, at §§ 12.14A, 12.33 (2nd Ed. 2005.) In light of the defense burden here, the Court addresses the challenges raised by defendant.

- Fraud Claim Defendant argues that fees incurred in prosecuting the fraud claim are not recoverable under the Song-Beverly Act. Civil Code Section 1794(d) provides that Plaintiffs are entitled to expenses reasonably incurred in the pursuit of their Song- Beverly claims, making no provision for expenses incurred in pursuit of a fraud claim, and those expenses are not recoverable now. '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 (quoting Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133).) According to defendant, some billing entries on Plaintiffs' Invoice are related solely to Plaintiffs' fraud claim and are easily identifiable and separable. Defendant focuses on FCA US' Motion for Summary Adjudication. FCA US moved for summary adjudication solely as to Plaintiffs' third cause of action for Fraudulent Inducement – Concealment and related claim for punitive damages. (Declaration of Sharon L. Stewart in Support of Defendants' Opposition ('Stewart Decl.'), ¶ 4.) The MSA did not involve any of the Song-Beverly claims. The hearing was set for March 3, 2023, but vacated.

Defendant's MSA was directed only at Plaintiff's Third Cause of Action for Fraudulent Inducement – Concealment. If there was no fraud claim, there would have been no MSA.

Given that the fraud claim is not related to the Song-Beverly claim for which fees are to be awarded, the Court deducts the attorney's fees solely related to the fraud claim: the hours billed and costs incurred opposing FCA US' MSA. (See Harkiewicz v. FCA US LLC, San Diego Case No.

37-2019-00032330-CU-BC-CTL, at Ex. 1 to the Stewart Decl.) Calendar No.: Event ID:  TENTATIVE RULINGS

3014415  39 CASE NUMBER: CASE TITLE:  RIVERA VS R&L AUTOS INC [IMAGED]  37-2021-00027537-CU-BC-CTL Plaintiffs billed 9.3 hours to oppose Defendant's MSA.1 On December 20, 2022, attorney Armando Lopez, identified on Plaintiffs' billing invoice by the initials 'AL' billed 0.2 hours at $325 per hour to email with an unspecified partner regarding Plaintiffs' strategy for opposing the MSA. (Kirnos Decl., Ex. A ('Invoice'), entry dated 12/20/2022 at p. 6.) Thereafter, on February 6, 9, and 10, 2023, Mr. Lopez billed a total of 9.1 hours reviewing the MSA and drafting Plaintiffs' opposition to the motion. (Id., entries dated 2/6/2023, 2/9/2023, and 2/10/2023 at p. 9.) The Court deducts the $3,477.50 requested by Plaintiffs for this work.

- Alleged Duplicative Billing for Depositions Defendant alleges various duplicative billing related to plaintiffs' depositions and seeks to deduct $2,750.00.

According to defendant, KLG's Invoice demonstrates that two different attorneys billed time in preparation for defending Plaintiffs' depositions that were taken on February 1, 2023, although only one of those attorneys attended the depositions. On January 31, 2023, attorney Brian Plummer, identified by the initials 'BP' billed 5.0 hours at $550 per hour in preparation for Plaintiffs' depositions. (Invoice, entries dated 1/31/2023 at p. 8.) That same day, he billed an additional 1.5 hours to meet with and prepare Plaintiffs for their depositions. (Id.) Also on January 31, 2023, attorney Kamau Edwards, identified by the initials 'KE' billed 1.3 hours at $550 per hour to prepare for the same depositions. (Id., entries dated 1/31/2023 at p. 8.) The next day, on February 1, 2023, Mr. Edwards billed additional time for attendance at the depositions. (Id., entries dated 2/1/2023 at p. 8.) According to defendant, KLG is seeking to recover $2,750.00 for the time billed by Mr. Plummer to prepare for depositions he did not attend.

The Court, however, agrees with plaintiff that there is a distinction between preparation of the client for the deposition and the actual taking of the preparation. According to plaintiff, Mr. Brian Plummer's billing entries are related to the client preparation for the depositions. Mr. Edwards' billing entries reflect the time spent attending and defending the depositions of both Plaintiffs. These entries appear to be reasonable.

- Alleged unnecessary Discovery Motions According to defendant, counsel rushed to file unnecessary discovery motions seeking court intervention to resolve manufactured discovery 'disputes.' Defendant discusses several discovery motions filed by plaintiff that ultimately were taken off calendar prior to the hearing. The Court does not intend to litigate the merits of discovery motions that were never heard. However, it does appear that the Motion to compel filed on August 7, 2022 may have been unnecessary given that a Stipulation and Protective Order was submitted to the Court on July 12, 2022 and FCA US was waiting for confirmation that it had been entered before serving its protected documents. (Stewart Decl., Ex. 6.) The Court deducts $800 billed on August 7, 2022 by Associate Phil Thomas.

In addition, the disputes regarding depositions appear to the Court to be unnecessary given that the parties could, and did, resolve the issues through a meet and confer process over scheduling. The Court deducts $2000 billed by Mr. Thomas on September 7, 2022 and $660 billed on February 6, 2023.

- Alleged excessive time billed Defendant challenges time billed for discovery requests calling the requests 'boilerplate.' 'KLG serves essentially the same boilerplate discovery requests in all the cases they file against FCA US.' Defendant also challenges time to review discovery responses for the same reasons. Defendant also challenges time for review and signing of multiple deposition notices. The Court cannot determine that the amounts billed are per se unreasonable for these trivial tasks.

- Alleged unnecessary communications with plaintiffs Defendants quibble over the time to specifically communicate with each of the plaintiffs (apparently separately) regarding the settlement offers and mediation. Apparently, plaintiffs are married and defendants are concerned about separate communications. The Court cannot conclude that client communication was unnecessarily duplicative or otherwise unreasonable.

- Preparation of Fee Motion Defendant challenges the $2,172.50 in fees for 5.5 hours already billed for preparation of this fee motion. (Invoice, entry dated 8/25/2023, at p. 10.) They seek an additional $2,765.00 in anticipated fees for review of Defendants' opposition, preparation of a reply brief, and attendance at the hearing on this Calendar No.: Event ID:  TENTATIVE RULINGS

3014415  39 CASE NUMBER: CASE TITLE:  RIVERA VS R&L AUTOS INC [IMAGED]  37-2021-00027537-CU-BC-CTL motion. (Id., entries marked TBD, at p. 10.) Based on the Court's experience as well as the Court's staff's own review of these significant and detailed motions, the Court finds that the number of hours billed are reasonable.

- Alleged Overstaffing Defendant argues that Plaintiffs' use of ten different attorneys, two law clerks, and one paralegal on this case merits a further reduction in the fees awarded. For their part, as typically argued in these cases, counsel contends that the number of attorneys is a benefit and actually leads to a reduction in the fees because counsel is able to work more efficiently. This Court is not able to determine that overstaffing, per se, requires a reduction in fees. Holcomb v. BMW of North America, LLC, 2020 WL 759285 (2020) the Court agreed and stated, '[t]he court is not in a position, however, to determine the appropriate number of attorneys assigned to this particular case given that it is not privy to the inner workings of Plaintiffs' counsel's law firm. Also, for better or worse, the use of a large number of attorneys in Song-Beverly Act cases appears relatively common. See Ortega v. BMW of N. Am., LLC, No.

2:18cv6637 R (SK), 2019 WL 6792798, at *3 (C.D. Cal. Oct. 24, 2019) (noting that defendant used 15 attorneys and that is was 'not uncommon' to use a large number of attorneys in lemon law cases).

As reflected above, the Court has considered specific challenges to duplicative and excessive billing.

Defendant has done a good job in identifying portions of the billing that raise concerns. The Court has ruled on the specific billing challenges rather than calling into question the specific practices of the law firm.

Multiplier Once the Court has determined an appropriate touchstone or lodestar figure, the Court can then determine whether that figure should be adjusted and, if it should be adjusted, whether that adjustment should be up or down. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 160.) Relevant factors to the analysis regarding a multiplier are (1) the novelty and difficulty of the questions involved in the case and the skill displayed in presenting them, (2) the extent to which the litigation precluded other employment by the attorneys, and (3) the contingent nature of the fee award. (PLCM Group, 22 Cal.4th at 1096.) Those factors, when applied to the facts of this case, demonstrate that a multiplier should not be applied in this matter.

The Court finds that there no novelty to this case and the claims were not particularly difficult. The legal issues in this matter were common to Song-Beverly cases in which Plaintiffs' counsel specializes.

(Stewart Decl., ¶ 11.) Most of the litigation work arose from discovery disputes that were not novel or complicated. The motions were identical to many others used by KLG in other lemon law matters.

This litigation did not preclude other employment by the attorneys nor can the Court conclude that the contingent nature of this case requires a multiplier. There is risk and delay inherent in most contingency matters but the risk is far less in Song-Beverly cases where the fees are statutory.

The Court denies a multiplier.

The Court awards fees in the amount of $48,061.50 The Court awards costs in the amount of $11,041.22.

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