Judge: Malcolm Mackey, Case: 19STCV28056, Date: 2023-02-23 Tentative Ruling


Case Number: 19STCV28056    Hearing Date: February 23, 2023    Dept: 55

LOPEZ v. FORD MOTOR COMPANY                                                    19STCV28056

Hearing Date:  2/23/22,  Dept. 55

#5:   MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES.

 

Notice:  Okay

Opposition

 

MP:  Plaintiffs

RP:  Defendant FORD

 

Summary

 

On 8/8/19, plaintiffs filed a Complaint alleging that, on September 2, 2018, Plaintiffs purchased a used 2016 Ford Flex, with express warranties to Plaintiffs that FORD undertook, and the vehicle has had unrepaired defects, including electrical, transmission and exterior.

The causes of action are:

1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY

2. VIOLATION OF SONG-BEVERLY ACT - BREACH OF IMPLIED WARRANTY

3. VIOLATION OF THE SONG-BEVERLY ACT SECTION 1793.2

4. NEGLIGENT REPAIR.

 

 

 

MP Positions

 

Moving parties request an order granting attorneys’ fees, on grounds including the following:

 

·         Attorneys’ fees are sought under the “lodestar” method in the amount of $66,018.00.

·         Plaintiffs also requests a modest “lodestar” enhancement of 0.5, in the amount of $33,009.00, for a total of $99,027.00.

·         The attorneys’ fees actually and reasonably expended.

·         Plaintiffs also move for reimbursement of verifiable costs and expenses in the amount of $17,783.13.

·         The total amount requested is $116,810.13.

 

 

RP Positions

 

Opposing party advocates denying, or reduction to $42,180, on bases including the following:

 

·         In this routine matter, Plaintiffs’ counsel seeks $116,810.13 in attorneys’ fees and costs, despite recycling the Complaint, using form discovery requests and discovery responses, and using canned briefs, including the instant motion, used before in countless other single-vehicle lemon law cases that the Knight Law Group litigates.

·         A multiplier is available only in limited circumstances.

·         Plaintiffs’ time records evidence overstaffing by 13 individuals, inflated time entries, and hourly rates that exceed the reasonable rates within the Los Angeles County lemon law community.

·         Plaintiffs’ request for a total of $17,783.13 in costs should be denied.  Plaintiffs failed to give any support. Plaintiffs fail to provide any evidence to support their purported costs or allow the Court to determine whether those costs were “reasonably incurred.” Cal. Civ. Proc. Code. § 1794(d). Plaintiffs attempt to recover expert fees of $4,316.06 that they cannot recover under California Code of Civil Procedure section 1033.5(b). Plaintiffs also attempt to seek $881.30 for a broad and vague “Attorney Services and Messengers for Court Filings and Service” without any documentation.

 

 

Tentative Ruling

 

The motion is granted, except as to the multiplier, not as prayed.

The Court awards to plaintiffs attorneys' fees, costs and expenses, in the total amount of $83,801.13 against Defendant FORD MOTOR COMPANY.

 

            Burdens

Moving counsel’s declaration and billing summary suffices to shift the burden.

In supporting attorneys’ fees motions, “ ‘there is no required level of detail that counsel must achieve.’ ”  Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 699.  Attorney billing records are not required, but there must be some evidence in support of fees. Weber v. Langholz (1995) 39 Cal. App. 4th 1578, 1587.   “It is not necessary to provide detailed billing timesheets to support an award of attorney fees under the lodestar method…. Declarations of counsel setting forth the reasonable hourly rate, the number of hours worked and the tasks performed are sufficient.”  Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1324. 

As to Song–Beverly warranty claims, prevailing buyers have the burden to show that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable amounts.  Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.  Under the Song-Beverly Act, the question whether attorneys’ fees were reasonably incurred may depend on circumstances including, “factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved.”  Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470.  The appellate court reviews awards of attorney fees under Civil Code section 1794, subdivision (d), for abuse of discretion.  Doppes, supra, at 998. Civil Code Section 1794(d) requires a court to base the attorneys’ fee award on actual time expended on the case, and reasonably incurred, as to time spent, and amount, under all circumstances including complexity of the case, procedural demands, skill exhibited, and results achieved.  McKenzie v. Ford Motor Co. (2015) 238 Cal. App. 4th 695, 698, 703 (reversing a judge’s denial of fees where based on instances of duplicative work).  “The ‘plain wording’ of section 1794, subdivision (d) requires the trial court to ‘base’ the prevailing buyer's attorney fee award ‘upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.’ ”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 35.  Accord  Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.  But see  Reynolds v. Ford Motor Co. (2020) 47 Cal. App. 5th 1105, 1110  (as to the Song-Beverly Act, fee awards must be based on the judge’s calculation of actual time expended determined to have been incurred reasonable, and the Act does not include a requirement that the court also determine that the amount of attorneys’ fees is reasonable).  “[I]t is inappropriate and an abuse of a trial court's discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff's damages or recovery in a Song-Beverly Act action, or pursuant to another consumer protection statute with a mandatory fee-shifting provision.”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 37.  Accord  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 35.  Under the Song-Beverly Act, awards of attorney fees are limited to actual hours expended and reasonably incurred, and not based on the amount of the prevailing plaintiff's damages or recovery, or the fact of a contingency fee agreement.  Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1112-1117.

The opposing declaration falls far short of opposing party’s burden, by addressing the settlement offers, and decision of other trial courts.  “ ‘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 do not suffice.’ ”  Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.  Accord  Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 848.  Parties opposing motions for attorneys' fees fail to show any abuse of discretion where they merely contend that amounts of attorneys' fees are excessive without providing a specific analysis or factual support.  Mallard v. Progressive Choice Ins. Co.  (2010) 188 Cal.App.4th 531, 545;  Raining Data Corp. v. Barrenechea  (2009) 175 Cal.App.4th 1363, 1376 (an “‘assertion [that] is unaccompanied by any citation to the record or any explanation of which fees were unreasonable or duplicative’ is insufficient to disturb the trial court's discretionary award of attorney fees.”);  Maughan v. Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1250;  Avikian v. Wtc Fin. Corp. (2002) 98 Cal. App. 4th 1108, 1119;  Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 560  (emphasizing that opposing parties “submitted no evidence that the hours claimed by counsel were excessive,” and declining to “declare as a matter of law that the hours were unreasonable”);  Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1204 (opposing party “offered no evidence of any kind which might have warranted a reduced fee award.”).

 

            Settlement

Plaintiffs reasonably rejected defendants’ settlement offers because there were nonfinancial conditions included, and so that is not a reason to exclude fees based on settlement offers.  Under the Song-Beverly Act, and governing California law, car buyers reasonably reject car repurchase offers containing  nonfinancial conditions that are expressly unauthorized by the act, such as a general release.  Goglin v. BMW of N. Am., LLC (2016) 4 Cal. App. 5th 462, 470-71, n. 11.  In determining a reasonable attorney's fee award, judges have discretion to disallow attorney fees incurred after a reasonable settlement offer, where the ultimate recovery was no better, even where Code of Civil Procedure Section 998 is inapplicable.  Meister v. Regents of Univ. of Cal. (1998) 67 Cal. App. 4th 437, 452.  “[I]n the context of public interest litigation with a mandatory fee shifting statute such as the Song-Beverly Act, it is an error of law for the trial court to categorically deny or reduce an attorney fee award on the basis of a plaintiff's failure to settle when the ultimate recovery exceeds the section 998 settlement offer.”  Reck v. FCA US LLC (2021) 64 Cal. App. 5th 682, 687.

 

            Billing Rates

Plaintiffs’ counsel’s declaration well evidences attorneys’ fees rates in the local area.  In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’" Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 (affirming rate of $450 per hour), overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.  Judges are not required to award the market rate of attorneys’ fees, and may have discretion to determine that the actual rate charged was reasonable.  Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702.

 

            Staffing

Regarding Defendant’s assertion of excessive staffing, the Court has reviewed the plaintiffs’ attorneys’ billing records, and found no supportive indication of unreasonable duplication of the same efforts, or inefficiency.  To the contrary, adding staff working at lower rates creates savings.  “[I]t 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.”  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 39.  A court “ ‘indicated a fee reduction was warranted because it was unreasonable to have so many lawyers staffing a … case that did not present complex or unique issues, did not involve discovery motions, and did not go to trial.’ ”  Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 253.

 

            Fees Amounts

The Court finds that the sums of attorneys’ fees are reasonable, especially since this action has been pending for litigation since back in 2019, and included extensive discovery, summary judgment and many filed trial documents.  As for the defense contention related to excessive hourly billing, the Court’s review of moving parties’ billing records are actually more detailed than usual, and show almost all short periods of time, often under an hour.  Further, billing many hours for summary judgment matters is justifiable, because that is generally the most complex type of motion in California trial courts.  Records amounting to vague block billing are not objectionable per se, but are a risky choice, because moving parties have the burden to support fees requests, and the strategy may lead to trial courts’ discretionary curtailing of the number of compensable hours.   Christian Research Inst. v. Alnor (2008) 165 Cal.App.4th 1315, 1325.  The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095;  Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134. Fees Amounts

 

            Templates

The Court finds that templates use resulted in efficiency and reduced attorneys’ fees by having only to customize them, instead of writing from scratch.  A trial court’s referencing counsel’s use of templates, as one part of reasoning that a reduced number of attorneys was needed in a case, was affirmed.  See  Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 31-33, 39  (“asserted that even though her counsel used ‘form documents’ in the case, work was necessary to conform those templates to the actual facts of this case.”).   Legal research indicates that there is no governing California authority requiring reduced fees for efficiently reusing information derived from other cases that counsel handled.  "A legal proposition asserted without apposite authority necessarily fails."  People v. Taylor (2004) 119 Cal.App.4th 628, 643.

 

            Contingency Fees

Plaintiffs need not have paid the attorneys’ fees.  A “court may award attorney fees regardless of whether an insurer, or other third party, paid the fees.”  Sonoma Land Trust v. Thompson (2021) 63 Cal.App.5th 978, 984.

 

            Multiplier

The Court finds that a multiplier is not justified, including because the case was relatively straightforward, essentially involving typical Lemon Law issues that experience specialists know well.   “The award of a multiplier is in the end a discretionary matter largely left to the trial court.”  Hogar v. Community Development Com'n of City of Escondido (2007) 157 Cal.App.4th 1358, 1371.  “[T]he trial court is not required to include a fee enhancement for exceptional skill, novelty of the questions involved, or other factors. Rather, applying a multiplier is discretionary.”   Rey v. Madera Unif. Sch. Dist. (2012) 203 Cal.App.4th 1223, 1242.

 

            Costs

Defendant failed to meet the burden to sufficiently address and to disprove costs.  If items appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety, shifting the burden of proof to the attacking party.  Adams  v. Ford Motor Co. (2011)  199 Cal.App.4th 1475, 1486-87;  Benach v. County of L. A. (2007) 149 Cal. App. 4th 836, 855;  Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557;  Nelson v. Anderson (1999) 72 Cal. App. 4th 111, 131-32 (“trial court erred in requiring additional proof from” the party claiming costs, where the party attacking costs had the burden);  Santantonio v. Westinghouse Broad. Co. (1994) 25 Cal. App. 4th 102, 116, 121 (after a prima facie showing based on verified cost memorandum, objecting party has the burden to prove costs should be disallowed);  Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 773;  Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal. App. 3d 256, 266.  Where they do not appear regular on their face, the burden is on the claiming party.  Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. If a statute expressly allows the particular item of costs and it appears proper on its face, then the burden is on the objecting party to show the costs are unreasonable or unnecessary.  Rozanova v. Uribe (2021) 68 Cal.App.5th 392, 399;  Adams  v. Ford Motor Co. (2011)  199 Cal.App.4th 1475, 1486  (“burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.”).  The Song-Beverly Act requires allowing costs “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution” of the case, which is reviewed under the abuse of discretion standard.  Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 813.  Cf.  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 43  (“it is indisputable that Warren ‘reasonably incurred’ the $5,882 cost of the trial transcripts ‘in connection with the ... prosecution of [the] action.’ ”).  See also generally  Duff v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal. App. 5th 491, 501  (summarizing Civ. C. § 1794(d)).  “[I]n enacting Civil Code section 1794, subdivision (d) the Legislature intended the phrase ‘costs and expenses’ to cover items not included in “ ‘the detailed statutory definition of ‘costs’ ” set forth in Code of Civil Procedure section 1033.5.”  Warren v. Kia Motors Am., Inc. (2018) 30 Cal. App. 5th 24, 42.  As to parties prevailing in an action on a contract with terms for recovery of attorney fees and costs, counsel's disbursement costs, such as secretarial, copying, telephone, expert fees and travel, are recoverable as a part of attorney fees, “if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel's hourly rate.”   Bussey v. Affleck (1st Dist. 1990) 225 Cal. App. 3d 1162, 1166-67.  The failure to timely file a motion to tax or strike costs constitutes a waiver of the right to object to costs, unless the Court in its discretion grants relief under Code of Civil Procedure Section 473, such as based upon a finding of excusable neglect.  Douglas v. Willis (1994) 27 Cal. App. 4th 287, 289. 

 

            Governing Law

Finally, the Court does not appreciate the parties lodging many federal and state trial court decisions, since those are not governing or relevant.  District and California trial court rulings do not govern.  Trial court rulings are not binding precedent.  E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.  Rulings in other trial court cases are irrelevant absent some additional showing like the elements of claim or issue preclusion.  Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448.  Unpublished federal rulings are not binding authority in California courts.  Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251 n.6.  Accord  Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155 n.6;  Tichinin v. City of Morgan Hill  (2009) 177 Cal.App.4th 1049, 1070 n.10.