Judge Lynne M. Hobbs, Case Number: BC658133, Date: 2024-12-06 Tentative Ruling

Judge: Lynne M. Hobbs, Case: BC658133, Date: 2024-12-06 Tentative Ruling

Case Number: BC658133 Hearing Date: December 6, 2024 Dept: 61

JOSEFINA CARDENAS ET AL VS KIA MOTORS AMERICA INC

TENTATIVE

Plaintiffs Josefina Cardenas and Cristina Vejar’s Motion for Attorney Fees is GRANTED in the amount of $155,178.00.

Moving party to provide Notice.

DISCUSSION

I. OBJECTIONS

Defendant Kia America, Inc. objects to several portions of the declaration of Roger Kirnos, in which he testifies to the cases in which his firm has been involved and to the qualifications of the attorneys who worked on this matter. These objections are OVERRULED, as the cases are subject to judicial notice, and Kirnos establishes foundation for his knowledge of his colleague’s qualifications. Defendant’s objection to the declaration of Cynthia Tobisman are OVERRULED.

Plaintiff objects to various portions of the declaration of Joel Williams submitted by Defendant in opposition, in which Williams provides an itemized critique of the billings for which Plaintiff seeks reimbursement here, as well as other motions and papers filed by Plaintiff’s firm in other cases. Plaintiff’s objections are OVERRULED, as these materials are relevant toward the issue of the reasonableness of the fees sought.

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.)

Plaintiffs Josefina Cardenas and Cristina Vejar (Plaintiffs) seek attorney fees in the total amount of $288,196.73. (Motion at p. 2.) This represents a fee lodestar of $162,054.50, for 328.2 hours and $130,942.00 incurred through trial (with an average rate of $398.97 per hour), plus $31,112.50 for 41.3 hours incurred through the appeal (with an average rate of $753.33 per hour). (Kirnos Decl. Exh. A; Tobisman Decl. Exh. A.) Plaintiff also seeks a 50% lodestar enhancement, representing an additional $81,027.25 on top of the lodestar. (Motion at p. 2.) Plaintiff further seeks $45,114.98 in costs and expenses. (Ibid.)

The trial fees were billed by 14 different timekeepers, with rates ranging from $225 to $550 per hour, and most of the hours (237.1, or 72% of the 328.2 trial and pretrial hours) were incurred by Greg Mohrman and Jeffrey Mukai. (Kirnos Decl. Exh. A.) The appellate fees were incurred by five timekeepers, with rates ranging from $425 to $875 per hour. (Tobisman Decl. Exh. A.) Most of these fees (33.8 hours, or 82% of the 41.3 total hours) were incurred by Laura G. Lim and Joseph V. Bui. (Ibid.)

Since the motion was filed, the parties have stipulated on the amount of expenses, and they are not at issue here. (See 10/18/2024 Stipulation.) Defendant Kia America, Inc. (Defendant) objects that the hourly rates charged are unreasonably high. (Amended Opposition at pp. 2–4.) Defendant also objects that only two attorneys, Roger Kirnos and Cynthia Tobisman, testify to the accuracy of the time records submitted by Plaintiff. (Amended Opposition at pp. 4–5.) Defendant argues that this court may reduce the lodestar by a pre-set percentage based on the lack of complexity in this case, or the number of attorneys engaged in its prosecution. (Amended Opposition at pp. 5–7.) Defendant argues that Plaintiffs’ counsel has engaged in block-billing that makes determination of the reasonable amount of fees impossible. (Amended Opposition at pp. 7–8.) Defendant identifies various billing items that it claims are unreasonable. (Amended Opposition at pp. 8–11.) And Defendant argues that no fee multiplier (other than a negative one) is appropriate. (Amended Opposition at pp. 11–12.)

The rates that Plaintiff’s counsel charges are supported. Plaintiff submits the declaration of Roger Kirnos, who attests to the qualifications of the attorneys and other staff who worked on the case. (Kirnos Decl. ¶¶ 28–41.) Kirnos also identifies various cases in which like rates were awarded. (Kirnos Decl. Exhs. E–Z.)

There is also little reason to impose a broad fee reduction based on the simple subject matter of this case or the multiplicity of attorneys who worked on it. It is true that unreasonable multiplicity of attorneys performing duplicative work may furnish a basis to 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 there is no cause here to reduce fees in a similar way, because despite Defendant’s argument, the staffing of the case does not appear to have resulted in duplication of efforts or excessive billings of such substantiality that a broad reduction is appropriate. The duplicative or excessive fees that are presents are more properly addressed here by excising them when they appear. Again, contrary to Defendant’s argument, the frequent block-billing of billing entries is not so pernicious as to prevent reasonable judicial review of the fees incurred.

Defendant has identified certain fees in its opposition and itemized analysis of Plaintiffs’ charges that ought to be cut as excessive. These include:

· $275 and 1.1 hours of excessive time spent reviewing Defendant’s responses to interrogatories on August 22, 2017,

· $565 for 3.5 hours on a meet and confer correspondence from October 3 through 10, 2017;

· $90 to review a settlement offer and discuss it with co-counsel on March 5, 2018;

· $487.50 for 1.3 hours of extraneous time spent drafting duplicative discovery for both plaintiffs on April 21, and 22, 2018;

· $70 charged for a twelve-minute staff meeting on July 11, 2018;

· $900 for two hours of deposition preparation duplicative of a prior day’s entry on August 10, 2018;

· $560 charged for 1.9 hours for an attorney to review the case history on January 12, 2021;

· $340 for 0.8 hours of client communication, duplicative of another entry for client communication on the same day;

· 1.7 excessive hours spent preparing a largely template-based fees motion, representing $841.50;

· $2,747.50 charged from September 2018 through February 2019 preparing Plaintiffs’ motion for leave to amend, which this court denied.

This represents a total lodestar reduction of $6,876.50. Thus the lodestar that Plaintiffs seek is properly reduced from $162,054.50 to $155,178.00,

No multiplier on this lodestar is appropriate. “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 clients 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.

The motion is therefore GRANTED in the amount of $155,178.00 in attorney fees.