Judge: Michael P. Linfield, Case: 22STCV08681, Date: 2023-09-07 Tentative Ruling

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Case Number: 22STCV08681    Hearing Date: September 7, 2023    Dept: 34

:                     Motion for Attorneys’ Fees

Moving Party: Plaintiffs Jolie Busch and Paul Schifino

Resp. Party:    Defendant Jaguar Land Rover North America, LLC

Plaintiffs’ Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $30,733.17, which consists of $25,721.25 in fees and $5,011.92 in costs and expenses.

BACKGROUND:

On March 10, 2022, Plaintiffs Jolie Busch and Paul Schifino filed their Complaint against Defendant Jaguar Land Rover North America, LLC on causes of action regarding alleged violations of the Song-Beverly Consumer Warranty Act.

On April 13, 2022, Defendant filed its Answer to the Complaint.

On May 10, 2023, Plaintiffs filed their Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On August 4, 2023, Plaintiffs filed their Motion for Attorneys’ Fees. In support of their Motion, Plaintiffs concurrently filed: (1) Judicial Council Form MC-010, Memorandum of Costs; and (2) Proposed Order.

On August 15, 2023, Defendant filed its Opposition to the Motion. On August 18, 2023, Defendant re-filed its Opposition.

On August 21, 2023, Plaintiffs filed their Reply regarding the Motion.

ANALYSIS:

I.          Legal Standard

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Code Civ. Proc., § 1794, subd. (a).)

“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 in 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.” (Code Civ. Proc., § 1794, subd. (d).)

II.       Discussion

A.          The Parties’ Arguments

Plaintiffs move the Court to award $56,454.42 in favor of Plaintiffs and against Defendant, which would comprise of: (1) $51,442.50 in attorneys’ fees; and (2) $5,011.93 in costs. (Motion, p. 12:12–14.) Plaintiffs did not request a multiplier.

Plaintiffs argue: (1) that Plaintiffs are the prevailing party; (2) that Defendant agreed to pay attorneys’ fees and costs in the Parties’ settlement agreement; (3) that Plaintiffs attempted to resolve this issue informally prior to the filing of the Motion; (4) that the time and costs Plaintiffs’ Counsel expended were reasonable and compensable; (5) Defendant cannot carry its burden of showing duplicative work and rates must be based on the staffing patterns used; and (6) Plaintiffs are entitled to recover all costs and expenses reasonably incurred in connection with this action. (Motion, pp. 3:22–23, 4:6–7, 4:11–12, 6:3–4, 7:1–2, 8:11–12, 9:1–2, 10:5–6, 11:10–11.)

Defendant opposes the Motion, arguing: (1) that the Song-Beverly Warranty Act does not entitle Plaintiffs to a replacement once Defendant offered to repurchase the vehicle; (2) that Plaintiffs’ Counsel breached their duty to conduct a good faith independent factual and legal investigation; (3) that Plaintiffs are not entitled to attorneys’ fees as a prevailing party; and (4) that Plaintiffs’ Counsels’ hours and base fees are excessive and should be reduced by the Court. (Opposition, pp. 5:9–10, 7:10–11, 8:12, 9:2–3.) Notably, Defendant concedes that if the Court does allow attorney’s fees, then the fees and costs should be no more than $20,000.00, with no fee multiplier. (Id. at p. 12:1, 12:5–8.)

In their Reply, Plaintiffs argue: (1) that case law prohibits Defendant’s attempt to re-litigate the merits of the underlying case; (2) that Plaintiffs’ pre-litigation offer contained unconscionable terms and thus Plaintiffs were within their rights to reject; (3) that Defendant’s Opposition is limited to its specific objections; (4) that Defendant fails to meet its burden challenging the hours expended; (5) that the declarations and other evidence Plaintiffs’ Counsel submitted are admissible for purposes of determining market rate; and (6) that Plaintiffs are entitled to recover all costs and expenses reasonable incurred in connection with the action. (Reply, pp. 2:13–14, 3:1–3, 3:19, 5:3–5, 5:15–18, 6:16–18.)

B.      The Prevailing Party

1.     Legal Standard

“The [Song-Beverly Consumer Warranty Act] does not define ‘prevail.’ . . . [Code of Civil Procedure]¿section 1032¿is the general costs statute.¿A prevailing party under¿section 1032¿is not necessarily a prevailing party under a separate attorney fee¿statute. . . . Where (as here) a fee-shifting statute is concerned, a number of Courts of Appeal have taken the approach that attorney fees recovery is governed by the fee-shifting statute itself, rather than a rigid adherence to¿Code of Civil Procedure section 1032.¿Under this analysis, if the particular fee-shifting statute does not define prevailing party, then the trial court should simply take a pragmatic approach to determine which party has prevailed.¿That is, the trial court would determine which party succeeded on a practical level, by considering the extent to which each party realized its litigation objectives.¿Section 1794(d)¿is likewise a remedial fee-shifting statute, and thus the same practical approach to the¿issue of prevailing party is applicable to¿section 1794(d).” (MacQuiddy, supra, 233 Cal.App.4th at p. 1047 [cleaned up], quoting Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1264.)

2.     Discussion

The Court agrees with Plaintiffs: the multiple arguments made by Defendant are attempts to relitigate the case. But the time for litigation is past. The Parties have settled the case, and, pursuant to the Song-Beverly Consumer Warranty Act, Plaintiffs are the prevailing party. Thus, Plaintiffs are entitled to their attorney’s fees, costs, and expenses.

C.      The Method for Calculating Recovery

The Parties do not dispute that the appropriate approach for calculating recovery of attorneys’ fees is the lodestar adjustment method, which involves multiplying the number of hours reasonably expended by the reasonably hourly rate. (Warren v. Kia Motors Am. (2018) 30 Cal.App.5th 24, 36; accord Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 509–12.)

The Court uses the lodestar adjustment method here.¿¿¿ 

D.      Reasonableness of the Fees, Costs, and Expenses

1.     Reasonableness of the Attorneys’ Fees

a.     Legal Standard

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances¿of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to¿the conduct of the litigation, and were reasonable in amount. It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)¿ 

b.     The Hourly Rates

According to the Motion: (1) Counsel David N. Barry charged $600.00 per hour from January 2022 to April 2023 and charges $625.00 per hour from April 2023 to present; (2) Counsel Otis R. Hayes, III charged $400.00 per hour from January 2022 to April 2023 and charges $450.00 per hour from April 2023 to present; (3) Counsel Sarah Jane Norris charges $425.00 per hour; and (4) Counsel Brian J. Kim charged $250.00 per hour prior to April 2023 and now charges $300.00 per hour. (Motion, p. 12:4–14.)

Based upon the information submitted in the Declaration of David N. Barry and the Court’s assessment of the prevailing rate for attorneys of comparable skill and experience in the relevant community, the Court finds that the hourly rates requested are reasonable.

c.       The Number of Hours

Plaintiffs’ Counsel declare that they actually engaged in 87.5 hours of work on this matter, including the work incurred for the Reply and attending the hearing on the Motion. (Motion, p. 12:4–11 and Exh. 9, pp. 41–42.)

Defendant argues that this number of hours is excessive.

The Court finds that the time expended by Plaintiff’s counsel was not reasonable. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) Among other reasons:

(1) this case was filed 19 months ago, and it was settled after 14 months;

(2) no motions were litigated in this matter;

(3) this case did not go to trial;

(4) this case did not involve any unusually difficult or complex issues; and

(5) over 15 hours of work were apparently incurred after the notice of settlement had already been filed in this matter.

“If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [cleaned up].)¿¿ 

“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano, supra, 32 Cal.3d at p. 635.)

However, the Court chooses not to deny the fee application outright. ¿ 

“When a ‘voluminous fee application’ is made, the court may, as it did here, ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’ These percentage cuts to large fee requests are, however, ‘subject to heightened scrutiny and the use of percentages, in any case, neither discharges the district court from its responsibility to set forth a ‘concise but clear’ explanation of its reasons for choosing a given percentage reduction nor from its duty to independently review the applicant's fee request.’” (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102, quoting Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1399.)¿ 

        The Court adopts that approach here and applies a 50% across-the-board percentage cut to the number of hours claimed.

The Court finds that the majority of hours spent, both before and after settlement, was excessive. In reaching this conclusion, the Court considers, inter alia, that no motions were filed in this matter, this case settled after 14 months, this case did not involve any particularly complex issues, the actual work done must have been minimal considering nearly nothing was filed in this case, and the vast majority of hours spent after the settlement were excessive considering that the only item still in contention was a routine motion for attorney’s fees.

Plaintiff has not asked for a multiplier to the lodestar in either her motion or reply; the Court therefore does not award a multiplier.

2.      Reasonableness of the Costs and Expenses

Plaintiffs’ Counsel declares that Plaintiffs incurred $5,011.92 in costs and expenses during this litigation, including:

(1)   $495.00 in filling fees;

(2)   $150.00 in jury fees;

(3)   $1,920.60 in deposition costs;

(4)   $40.00 in service fees;

(5)   $550.00 in court reporter fees;

(6)   $94.72 in e-filing fees; and

(7)   $1,761.60 in other fees.

(MC-010.)

Defendant does not argue that any of the costs are unreasonable.

The Court awards all of the costs requested.

III.     Conclusion

Plaintiffs’ Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $30,733.17, which consists of $25,721.25 in fees and $5,011.92 in costs and expenses as indicated in the spreadsheet below: