Judge: Malcolm Mackey, Case: 19STCV43316, Date: 2023-01-19 Tentative Ruling
Case Number: 19STCV43316 Hearing Date: January 19, 2023 Dept: 55
VICTOR
D. LOZANO vs KIA MOTORS AMERICA, INC. 19STCV43316
Hearing Date: 1/19/23,
Dept. 55
#12: MOTION FOR ATTORNEYS’ FEES, COSTS AND
EXPENSES.
Notice: Okay
Opposition
MP:
Plaintiff
RP:
Defendant
Summary
On 12/2/19, Plaintiff filed a Lemon Law Complaint alleging
that Defendant manufactured Plaintiff’s purchased 2016 Kia Sedona having defects
remaining unrepaired.
MP
Positions
Moving party requests an order awarding attorneys’
fees and costs, on bases including the following:
·
Plaintiff moves for an order awarding
attorneys’ fees under the “lodestar” method, in the amount of $54,338.00.
·
Plaintiffs also request a modest
“lodestar” enhancement of 0.5, in the amount of $27,169.00, for a total of
$81,507.00 as the attorneys’ fees actually and reasonably incurred.
·
Plaintiff also moves for reimbursement of
verifiable costs and expenses in the amount of $18,228.23.
·
The total amount requested by this motion
is $99,735.231.
·
Plaintiff prevailed by recovering
$45,000.00 in settlement.
·
KMA refused to repurchase the subject
vehicle, denied liability in their Answer, engaged in extensive discovery,
stone-walled Plaintiff’s discovery efforts causing them to file multiple
motions to compel and drove expensive litigation for two years and two months,
causing Plaintiff to thoroughly prepare for trial and take or defend six
depositions. See Peak-Las Positas Partners v. Bollag, 172 Cal. App. 4th 101,
114 (2009) (“A defendant cannot litigate tenaciously and then be heard to
complain about the time necessarily spent by the Plaintiffs in response.”).
·
In opposition, Defendant only challenged
with specificity a few billing entries and provided almost no evidence of the
prevailing billing rates in Los Angeles.
·
Defendant failed to specify how much time
Plaintiff should have spent and declined to provide its own counsel’s time
records. See Etcheson v. FCA, 30 Cal. App. 5th at 838 (defendant must
“establish with legal authority or otherwise what hours and rates would be
considered reasonable ….”)
·
“[I]t is an error of law for the trial
court to 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 64 Cal.App.5th 682, 685 (2021).
·
Defendant objects to the number of
attorneys involved in this case, but fails to identify any particular charges
it considers objectionable as a consequence, which means that it has not
carried its burden. While fifteen
attorneys appeared in this case, only five attorneys accounted for about 98 of
the 160.6 hours expended The other billers performed discrete and non-duplicative
tasks. Furthermore, the associate turnover is commonplace.
·
A multiplier is justified. A contingent fee contract, since it involves
a gamble on the result, may properly provide for a larger compensation than
would otherwise be reasonable. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.).
·
The costs/expenses are recoverable under
Civil Code 1794(d) which provides a much broader recoverably of expenses than
Civil Code Section 1033.5. See Jensen v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112, 137-138. Defendant
agreed in writing not to object to consolidating costs and expenses with the
attorneys’ fee motion.
RP Positions
Opposing party advocates granting in a reduced some of
$31,071.50 in attorneys’ fees, for reasons including the following:
·
Plaintiff's attorneys have not presented
any evidence that would support a conclusion that it was reasonable to spend
160.6 hours and bill $54,338.00 before serving a statutory offer to compromise for
$45,000.00.
·
Counsel are the only ones who stand to
benefit from unnecessary, prolonged litigation. The case would have settled
much sooner than it did if Plaintiff's attorneys had served an Offer to
Compromise for $45,000.00 at the outset, or in response to KA's Offer to
Compromise.
·
Plaintiff's attorneys seek to be paid for
filing two unsuccessful discovery Motions.
·
Various work unreasonably was passed
around the law office to several attorneys.
·
Plaintiff's attorneys are not entitled to
any fee enhancement. There is no
evidence that the market value of attorney services increased since this
lawsuit was filed. There is no evidence of an exceptional effort or an
exceptional benefit. There was also no "exceptional result
According to Plaintiff's Motion, the total sales price of Plaintiff's vehicle,
including financing, was $47,902.32. Plaintiff alleged in his Complaint that,
in addition to reimbursement of this amount, he was entitled to recover a civil
penalty of twice this amount, for a total recovery of $143,706.96. Plaintiff
ended up settling before trial for $45,000.00.
There is no evidence of a significant delay in the payment of fees.
·
Costs are handled by a memorandum of costs
and motion to tax.
·
Proposed reductions are calculated as follows:
Tentative
Ruling
The motion is granted, except as to a multiplier and
costs, and not as prayed.
The Court awards to Plaintiff attorneys' fees in the
sum of $54,338.00 against Defendant.
The Court will not address costs at this hearing, as
there is a pending motion to tax costs filed on 1/9/23.
Burdens
of Proof
The Court finds that the opposing declaration (opp.,
Benson Y. Douglas decl.), is very cursory and offers insufficient detail to
support a ruling disallowing any fees sums, including opposing party’s frequent
assertions of unreasonable sums for given tasks. Actually, moving party’s billing statement
reveals mostly short periods of time for each separate task.
Further, there is no indication of an unusually
elongated litigation in this case.
Instead, it progressed normally.
The Complaint was filed 12/2/19.
Discovery matters were filed between February and November of 2021. Extensive trial documents were filed in
January and February of 2022. A notice
of settlement was filed 3/28/22.
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.”).
Rates
The Court finds that the billing rates, from about
$200 to about $500, are standard in the local profession, and reasonable. 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.
Attorney
Staffing
Although many attorneys worked on Plaintiff’s case,
the billing statement shows no duplication of efforts or unnecessary padding. Distinguishably, a court “ ‘indicated a fee
reduction was warranted because it was unreasonable to have so many lawyers
staffing a [Song-Beverly Act] 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.
Settlement
Timing
The Court finds that it was reasonable to wait settle
for more than Defendant’s Section 998 offer.
Although opposing counsel’s declaration asserts that Plaintiff could
have offered to settle earlier, that declaration lacks an affirmative statement
to the effect that Defendant would have promptly accepted such offer, and so
any time-saving effect is speculative. 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. However, in 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.
Multiplier
The Court finds that a multiplier is not justified,
including because the Complaint involved very typical allegations of vehicle
defects unrepaired after a reasonable number of repair attempts, and a
manufacturer’s failure to provide a replacement vehicle or restitution—issues
that moving counsel has specialized in and is expert in. Further, any risk of loss of expenditures
appears relatively small, because Plaintiff’s documents describe a compelling
Lemon Law case, not one involving debatable defenses that might have prevailed. “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.
Unsuccessful
Motions
The Court finds that it was reasonable for Plaintiff
to pursue discovery as part of customary trial or settlement preparation, even
though there is generally a risk of not prevailing on motions. Attorneys’ fees need not be reduced for work
on unsuccessful matters. Mann v.
Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th 328, 342. Proof that parties were unsuccessful on
particular motions is not tantamount to a demonstration that such costs were
unreasonably incurred. Michell v. Olick (1996) 49 Cal.App.4th 1194,
1200.
Governing
Law
The referenced 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.
Objections
Finally, the Court has considered the evidentiary
objections, in making its ruling. The
failure to expressly rule on evidentiary objections, regarding a hearing on a
motion for attorney fees, is not prejudicial or reversible. Gorman v. Tassajara Development Corp.
(2009) 178 Cal.App.4th 44, 68
(analogizing to superseded case law re summary judgment motions as to
which rulings on objections are no longer required under CCP § 437c(Q)).