Judge Keri G. Katz, Case 37-2019-00021167-CU-BC-CTL 2023-11-09 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2019-00021167-CU-BC-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2019-00021167-CU-BC-CTL ARMAS VS FORD MOTOR COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' motion for attorney's fees, costs and expenses is GRANTED IN PART. CC § 1794(d).

The evidence before the court is that the parties settled this matter for payment from Defendants Ford Motor Company and Perry Ford of National City to Plaintiffs in the amount of $64,205.00 with the amount of attorney's fees and costs to be decided by the court. Based on this evidence, the court finds Plaintiffs establish that Plaintiffs are a prevailing buyer for purposes of the award of CC § 1794(d) attorney's fees and costs.

Defendants raise several arguments as to the amount of fees.

PLCM Group v. Drexler (2000) 22 Cal.4th 1084 sets forth the applicable analysis.

[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 'California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.' (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005 [185 Cal.Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. (Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 1002 [39 Cal.Rptr.2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.

(Serrano v. Priest, supra, 20 Cal.3d at p. 49.) PLCM Group, 22 Cal.4th at 1095. These factors include ' ' the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.' ' PLCM Group, 22 Cal.4th at 1096 citing Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623-624. See also, Robertson v. Fleetwood Travel Trailers of California, Inc.

(2006) 144 Cal.App.4th 785 at 818-819. ['Since our Supreme Court has held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to be applied in the absence of clear legislative intent to the contrary (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135–1136, 104 Cal.Rptr.2d 377, 17 P.3d 735), we conclude it is applicable to attorney fee awards under section 1794, subdivision (d).'] The court finds the hourly rates charged by Plaintiffs' counsel Knight Law Group, LLP reasonable. The court is not persuaded by any of Defendants' arguments to the contrary. Based on the evidence and authorities Plaintiffs submit, and based on the court's own experience, the court finds the rates charged Calendar No.: Event ID: TENTATIVE RULINGS

2979182 4 CASE NUMBER: CASE TITLE: ARMAS VS FORD MOTOR COMPANY [IMAGED] 37-2019-00021167-CU-BC-CTL are commensurate with counsel's skill and experience and within the range of market rates charged by attorneys of equivalent experience, skill and expertise in San Diego. PLCM Group, 22 Cal.4th at 1095 ['[t]he reasonable hourly rate is that prevailing in the community for similar work']. As to the rates charged by Boucher LLP, the court finds Plaintiffs fail to adequately support the rate charged by attorney Neal S. Butala. The court reduces attorney Butala's rate to $275.00 and reduces the fees sought by $2,345.00.

Based on the court's own experience, the court's familiarity with this case, and with the exceptions set forth below, the court finds the hours spent reasonable. The court is not persuaded by any of Defendants' general arguments for reductions to the hours spent. The court finds Plaintiffs' counsel's hours reflect the efficiency of the use of form documents and attorneys who specialize in particular areas. The court considers that Plaintiffs' counsel's timesheets show that the majority of the work was performed by only a handful of attorneys. The court also considers the amount of time this matter has been pending. Also, the court's own experience and the authorities Plaintiffs rely on show that a large number of attorneys is not uncommon in 'Lemon Law' cases. None of the other arguments Defendants raise warrant an across-the-board reduction.

As to Defendants' arguments addressing specific billing entries, the court reduces the time spent on travel to and from San Diego. As this matter is venued in San Diego, the court does not allow for the award of travel time to and from San Diego. The court reduces the travel time spent on 2/18/2020, 3/12/2020 and 10/14/2020 to 1 hour per appearance, 3 hours total. The court reduces the fees sought by $5,165.00 ($6,040.00 - $875.00). The court allows the time spent by both attorneys Daniel Kalinowski and Jacob Cutler preparing Plaintiffs for deposition. That Plaintiffs deposition did not go forward as originally noticed is not dispositive. The court allows the time spent by attorney Cutler preparing the special verdict form and time spent by Boucher, LLP in preparing motions in limine. The fact that these documents were never filed is not dispositive. The court reduces the time spent on 12/4/2019 by .1 hour ($70.00); 1/23/2020 by .1 hour ($70.00); 2/5/2020 by .1 hour ($70.00); 2/18/2020 ($240.00); 2/19/2020 by .1 hour ($70.00); 3/3/2020 by .1 hour ($70.00); 3/3/2020 by .1 hour ($70.00); 3/6/2020 by .1 hour ($70.00); 9/3/2020 by .1 hour ($70.00); 2/19/2021 by .1 hour ($80.00); 2/23/2021 by .1 hour ($80.00); 5/12/2021 by .1 hour ($80.00), total: $1,040.00 as excessive and unreasonable. As to the remaining fees of Boucher, LLP, the court reduces the time spent on 3/26/2020 by .6 hour ($150.00); 4/10/2020 by 1.2 hours ($330.00); 5/26/2020 by 1.0 hour ($250.00); 9/3/2020 by .2 hour ($50.00), total: $780.00 as excessive and unreasonable. The court finds the time spent on this motion reasonable.

Attorney Marisa Melero's reply declaration confirms the amount of time spent preparing the reply and a reasonable 1.0 hours for attending the hearing on this motion. The court is not persuaded by any of the other arguments Defendants raise. The court finds Defendants fail to offer sufficient basis for any further reduction in the time spent.

Plaintiffs also seek a multiplier of .5. The court finds Plaintiffs fail to establish grounds for application of a .5 multiplier to the Lodestar in this case.

Under Serrano III, the lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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.

(Serrano III, supra, 20 Cal.3d at p. 49.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The ' 'experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.' ' (Ibid.) Ketchum, 24 Cal.4th at 1132.

Addressing the factors set forth above, the court considers that, while Plaintiffs' counsel displayed skill in Calendar No.: Event ID: TENTATIVE RULINGS

2979182 4 CASE NUMBER: CASE TITLE: ARMAS VS FORD MOTOR COMPANY [IMAGED] 37-2019-00021167-CU-BC-CTL presentation of the issues, this was not a case that required exceptional skill. The court considers the amount of Plaintiffs' recovery, but also considers that the issues in this matter were not particularly novel nor particularly difficult – especially considering Plaintiffs' counsel's experience in this area of the law.

The court considers evidence that Plaintiffs' counsel took this matter on a contingency fee basis, and the delay in obtaining a recovery from Defendants, but also considers the fee-shifting provision of the Song-Beverly Consumer Warranty Act. The court considers both CCP § 998 offers. The court considers that Plaintiffs' counsel's rates are toward the high range for attorneys of similar experience and that the hours billed by plaintiffs' attorneys working under a contingency fee agreement are not subject to the same scrutiny as those of hourly attorneys billing at similar rates. The court finds these high rates – which the court finds typical of 'Lemon Law' cases – sufficiently account for the contingent-nature of counsel's representation of Plaintiffs in this case. Based on all of these factors, the court exercises its discretion against application of the .5 multiplier Plaintiffs seek.

Based on the foregoing the court finds attorney's fees of $58,446.00 reasonable ($67,776.00 - $9,330.00). The court exercises its discretion in favor of the award of attorney's fees of $58,446.00 in favor of Plaintiffs Armando R. Armas and Adelaida Armas and against Defendants Ford Motor Company and Perry Ford of National City.

Defendants also challenge Plaintiffs' claimed costs. Preliminarily, as neither judgment nor dismissal have been entered, Plaintiffs fail to establish that the motion to tax timing requirements apply. See, Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 528. Defendants' argument that Plaintiffs have not presented evidence to support their claimed costs is at odds with the authorities Plaintiffs rely on. '[T]he items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs. Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682. The court addresses Plaintiffs' claimed costs challenged by Defendants.

5. Service of process. The court finds Plaintiffs establish these fees as 'reasonably necessary to the conduct of the litigation.' CCP § 1033.5(c)(2). The only evidence Defendants cite to in support of their arguments is Defendants' answer [ROA 11]. Defendants fail to establish how their answer dispenses with any potential subpoena requirement for the witnesses subpoenaed by Plaintiffs.

8. Witness fees. These fees are specifically allowable under of the analysis of allowable 'costs' and 'expenses' under CCP § 1033.5 and CC § 1794(d) in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. The court finds Plaintiffs sufficiently establish these costs as 'reasonably incurred' [CC § 1794(d)] and 'reasonably necessary to the conduct of the litigation' [CCP § 1033.5(c)(2)].

13. Other. The court strikes 'Travel' costs of $164.88. The court finds travel costs for travel to and from San Diego are unreasonable as this matter is venued in San Diego. The court finds the remaining costs are allowable under CCP § 1033.5 and/or CC § 1794(d).

The court awards costs of $18,350.83 ($18,515.71 - $164.88) in favor of Plaintiffs Armando R. Armas and Adelaida Armas and against Defendants Ford Motor Company and Perry Ford of National City.

The court orders Plaintiff to submit a judgment, reflecting these awards, within 10 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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