Judge: Michael P. Linfield, Case: 22STCV11796, Date: 2023-09-06 Tentative Ruling

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Case Number: 22STCV11796    Hearing Date: September 6, 2023    Dept: 34

Subject:          Motion for Attorney’s Fees

Moving Party: Plaintiff Steven A. Silveri

Resp. Party:    Defendant FCA US LLC

Plaintiff’s Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $35,251.94.

This consists of $9,907.24 for Counsel Taylor’s attorney’s fees and costs and $25,344.70 for Counsel Wirtz’s attorneys’ fees and costs.

BACKGROUND:

On April 7, 2022, Plaintiff Steven A. Silveri filed his Complaint against Defendants FCA US, LLC and Shaver Automotive Group on causes of action arising from the Song-Beverly Consumer Warranty Act.

On April 29, 2022, Defendant FCA US LLC filed its Answer to the Complaint.

On July 11, 2022, Defendant Shaver Automotive Group filed its Answer to the Complaint.

On June 9, 2023, Plaintiff filed his Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On August 10, 2023, Plaintiff filed his Motion for Attorney’s Fees. In support of his Motion, Plaintiff concurrently filed: (1) Declaration of Richard M. Wirtz; (2) Declaration of Norman Taylor; (3) Declaration of Amy R. Rotman; (4) Memorandum of Costs (Norman F. Taylor); (5) Memorandum of Costs (Richard M. Wirtz); and (6) Proof of Service.

On August 23, 2023, Defendant FCA US LLC (“Defendant”) filed its Opposition to the Motion. In support of its Opposition, Defendant concurrently filed: (1) Declaration of Mark W. Skanes; (2) Evidentiary Objections to Declaration of Norman Taylor; and (3) Evidentiary Objections to Declaration of Richard M. Wirtz.

On August 29, 2023, Plaintiff filed his Reply regarding the Motion. In support of his Reply, Plaintiff concurrently filed: (1) Declaration of Amy R. Rotman; (2) Evidentiary Objections to Declaration of Mark W. Skanes; (3) Response to Evidentiary Objections to Declaration of Norman F. Taylor; (4) Response to Evidentiary Objections to Declaration of Richard M. Wirtz; and (5) Proof of Service.

ANALYSIS:

I.          Evidentiary Objections

A.      Defendants’ Evidentiary Objections

Defendant filed evidentiary objections to the Declarations of Richard Wirtz and Norman Taylor. The following are the Court’s rulings on these objections:

1.      Objections to the Declaration of Richard Wirtz

2.      Objections to the Declaration of Norman Taylor

B.      Plaintiffs’ Evidentiary Objections

Plaintiff filed evidentiary objections to the Declaration of Mark Skanes. The following are the Court’s rulings on these objections.

II.       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).)

III.     Discussion

A.          The Parties’ Arguments

Plaintiff has not made it clear exactly how much he is seeking in attorney’s fees, costs, and expenses.

Plaintiff indicates in his Motion that he seeks $118,389.16, consisting of $72,789.50 in lodestar fees, $36,393.25 in enhanced fees (a multiplier of 2.0), and $9,209.41 in costs and expenses. (Motion, p. 15:19–22.)

However, Plaintiff indicates in his Reply that he seeks $73,286.67, consisting of $47,231.00 in lodestar fees, $23,615.50 in enhanced fees (a multiplier of 2.0), and $2,440.17 in costs and expenses. (Reply, p. 10:25–27.)

Plaintiff does not clearly explain this discrepancy. As best as the Court can tell from Plaintiff’s declarations, the figures listed in the Motion are based on the amount fully requested, while the figures listed in the Reply are adjusted from what is requested by the firm of Counsel Wirtz. (Decl. Wirtz, Exh. A, p. 30; Decl. Taylor, Exh. 1, p. 8.)

The Court conducts its analysis based on the total figure, as that appears to be the more accurate figure.

Plaintiff argues: (1) that Plaintiff’s Counsel are entitled to fees, costs, and expenses in this action because Plaintiff is the prevailing party; (2) that the hourly rates sought are reasonable; and (3) that a lodestar multiplier should be granted. (Motion, pp. 8:21, 10:4, 13:17.)

Defendant opposes the Motion, arguing: (1) Plaintiff should be denied attorney’s fees or have them reduced outright because Plaintiff cannot recover fees for his negligence claim and did not distinguish his fees among the claims; (2) the Court has the authority to reduce unwarranted fee requests; (3) the Court should apply a negative multiplier; (4) the Court must curtail Plaintiff’s vague and unsupported block billing and overbilling; (5) the Court should reduce Plaintiff’s Counsels’ hourly rates; (6) Plaintiff should not recover any fees for drafting the Motion to Compel Compliant with Deposition Subpoenas; and (7) excessive time spent on the fee motion should be reduced or rejected. (Opposition, pp. 3:1–4, 5:1, 7:7–8, 9:4–5, 11:20, 13:7–8, 13:23.)

In his Reply, Plaintiff argues: (1) that Defendant fails to meet its burden of proof; (2) that Defendant misrepresents the scope of the Court’s discretion; (3) that Defendant’s settlement offer regarding attorney’s fees was not fair; (4) that the number of attorneys that touch a case file is irrelevant; (5) that the time spent on the negligent repair claim was reasonable and indistinguishable; (6) that the number of hours billed in this matter was reasonable; (7) that Defendant fails to rebut the reasonableness of Plaintiff’s hourly rates; (8) that a positive lodestar multiplier is warranted; and (9) that costs must be awarded in full. (Reply, pp. 1:22, 2:14, 3:11, 3:21, 4:11, 5:26, 8:17, 9:19, 10:19.)

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 Parties settled this case, and Plaintiff obtained a net monetary recovery. Thus, Plaintiff is the prevailing party in this case.

As the prevailing party, Plaintiff is entitled to his reasonable attorneys’ fees, costs, and expenses. (Civ. Code, § 1794, subd. (d).)

Further, the Court agrees with Plaintiff that attorney’s fees are negligible for the negligence claim and indistinguishable between the negligence claim and the other claims pursuant to the Song-Beverly Consumer Warranty Act.

D.     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.¿

C.      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

It appears that Plaintiff initially hired one set of counsel (Norman Taylor & Associates) but that Plaintiff’s initial set of counsel “contacted Attorney Wirtz of Wirtz Law APC to have Wirtz Law APC associate into the case as lead trial counsel” because Defendant did not make an offer to settle this matter and Counsel Taylor had a high caseload. (Decl. Taylor, ¶ 34.)

Among other things, Counsel Taylor declares: (1) that he charges $645.00 per hour; and (2) that his three paralegals charge $250.00 per hour. (Decl. Taylor, ¶¶ 12–13.) The Court notes that the invoices from Norman Taylor & Associates have four people listed: one of whom appears to be Counsel Taylor, two of whom appear to paralegals, and one of whom is only identified as “Yeva” or “YP” and for whom no information is provided. According to the invoices, “YP” charges $350.00 per hour. Given the lack of any information at all for this person, the Court presumes they are a paralegal and that they should actually receive $250.00 per hour.

Among other things, Counsel Wirtz declares: (1) that he charges $750.00 per hour; (2) that Counsel Amy R. Rotman charges $550.00 per hour; (3) that Counsel Alana Mellgren charges $450.00 per hour; (4) that Counsel Jessica Underwood charges $550.00 per hour; (5) that Paralegal Rebecca Evans charges $300.00 per hour; (6) that Paralegal Danielle Viviani charges $300.00 per hour; (7) that Paralegal Florence Goldson charges $300.00 per hour; (8) that Paralegal Andrea Beatty charges $300.00 per hour; (9) that Paralegal Zoe Hildebrand charges $250.00 per hour; (10) that Paralegal Amanda Vitanatchi charges $250.00 per hour; and (11) that Paralegal Andrea Lizarraga charges $250.00 per hour. (Decl. Wirtz, ¶¶ 13, 24–32.)

Based upon an evaluation of the declarations submitted 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 for counsel.

Further, the hourly rates requested for Counsel Taylor’s paralegals are reasonable. These specific paralegals have at minimum 15 years of experience as paralegals, and at least one has over 30 years of experience.

However, the hourly rates requested for Counsel Wirtz’s paralegals are all unreasonable. All of these paralegals have less than 10 years of experience as a paralegal, and at least one received a paralegal certification less than one year ago. It appears that Counsel Wirtz broadly charges unreasonably high rates with little distinction among the experience levels of his firm’s paralegals. The Court limits the hourly rates for all of Counsel Wirtz’s paralegals to $125.00 per hour.

The Court also notes that all the Wirtz lawyer fees, and most of the paralegal fees, have increased at least $50.00/hour since the last time this Court ruled on one of their cases just a couple months ago.  This despite the fact that the time periods for both cases were essentially the same.  (See Najera Morales v. Ford Motor Company, 22STCV08853.)

c.       The Number of Hours

Counsel Taylor declares that his firm engaged in 44.7 billable hours of work on this matter. (Decl. Taylor, Exh. 1, p. 8.) These hours span the period of May 12, 2021 to January 20, 2023.

Counsel Wirtz declares that his firm engaged in 148.6 billable hours of work on this matter. (Decl. Wirtz, Exh. A, p. 30.) These hours span the period of January 18, 2023 to August 10, 2023.

        The Court finds that the number of hours billed is unreasonable for the following reasons, among others:

(1) this case was filed less than 18 months ago;

(2) no motions were actually litigated in this case;

(3) this case did not go to trial;

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

(5) many of Plaintiff’s filings in this matter are identical or nearly identical to other filings Plaintiff’s Counsel has made in other cases; and

(6) over 20 hours of work was incurred by Counsel Wirtz after the notice of settlement had already been filed in this matter.

While there is no set number of attorneys who are allowed to work on a case, the number of attorneys can be unreasonable. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex 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.) “[J]ust as there can be too many cooks in the kitchen, there can be too many lawyers on a case.”¿ (Id. at p. 38, quoting Donahue v. Donahue¿(2010) 182 Cal.App.4th 259, 272.)

Plaintiff claims that 15 individuals — five lawyers and ten paralegals —worked on this matter. This may be Plaintiff’s Counsel’s  modus operandi for their legal practices; to the Court, this is unacceptable padding. One partner, one associate and one paralegal should be sufficient for a run-of-the-mill lemon law case such as this one.

The Court finds that the time expended by both of Plaintiff’s firms was unreasonable. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.)

Given this

padding, the Court could deny the attorney's fees request outright. 

“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 on this ground but instead exercises its discretion to award a reasonable lodestar.

“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.

The Court applies a 60% percentage cut to the number of hours claimed by Counsel Taylor and Counsel Wirtz.

The Court finds that the vast majority of hours spent – both before and after settlement – was excessive.  The vast majority of hours spent before the settlement were excessive, considering that no motions were filed in this matter, this case settled a month before trial, this case did not involve any particularly complex issues, and the actual work done must have been minimal considering that many filings were identical or nearly identical to filings in prior cases.  Similarly, 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.

2.      Reasonableness of the Costs and Expenses

Counsel Taylor declares that his firm incurred $1,246.39 in costs, including $435.00 in filing fees, $150.00 in jury fees, $152.56 in service fees, $328.52 in witness fees, and $180.31 in e-filing fees.

Counsel Wirtz declares that his firm incurred $7,963.02 in costs, including $280.00 in filing fees, $3,466.05 in deposition costs, $1,680.00 in service fees, $1,250.00 in court reporter fees, $402.80 in e-filing fees, and $884.17 in other fees.

Defendant does not argue that the costs are reasonable.

The Court awards all of the costs requested.

3.      Multiplier to Lodestar

a.       Legal Standard

“The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased. Such an adjustment is commonly referred to as a fee enhancement or multiplier. The trial court is neither foreclosed from, nor required to, award a multiplier. The Supreme Court has set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.” (Mikhaeilpoor, supra, 48 Cal.App.5th at pp. 247–28 [cleaned up].)

b.         Discussion

This case was not particularly novel or otherwise requiring special expertise. Further, virtually all lemon law cases are ultimately settled or otherwise won by the plaintiff, meaning there is no real risk that Plaintiffs’ Counsel would not have been paid in this case. To the extent expertise in lemon law litigation was required, Plaintiffs’ Counsels’ fee rates incorporated such expertise into the standard lodestar request. Finally, Plaintiff’s law firms apparently either exclusively or mainly handle only lemon law cases. (See, e.g., https://www.wirtzlaw.com/ (California Lemon Law Lawyers”; https://normantaylor.com/?ppc=true&gad=1&gclid=CjwKCAjwzJmlBhBBEiwAEJyLuzzxf4Yz 6oyJ4IhjgPHU0JL2OlgdNQ230wuFOT166JuTNLmzK7cBrBoCt6gQAvD_BwE (“Norman Taylor and His California Lemon Law Attorneys”). Therefore, their taking of this contingency fee case did not preclude the firms from taking other work.

Nonetheless, the Court finds that Plaintiff’s Counsel are entitled to a multiplier for the delay in payment that occurred.¿¿ 

“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; accord Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217–18 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.)

In contrast to Defense Counsel, who presumably gets paid monthly, Plaintiff’s Counsel have not been paid for the 17 months that this action has been pending.

        Lemon law cases are based on statutes that are designed to protect the California consumer. If a plaintiff’s attorney is paid no more than the lodestar, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133, quotation and internal quotation marks omitted.)¿

The Court is also aware that it “should not be ‘unduly parsimonious in the calculation of such fees.’” (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 849, quoting Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 839.)

The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. Because not all of an attorney’s work occurs at the beginning of any given year, the Court assumes that the work was performed more-or-less evenly throughout the course of any given year. This means a 1.05 multiplier per year is appropriate to compensate Plaintiff’s Counsel for the time-value of the money that they would have been paid monthly had the case not been contingent.¿

        Plaintiff’s Counsel litigated this case from April 2022 to September 2023 without payment. In consideration of this delay and that the statutes under which Plaintiff sued were designed to protect the consumer, the Court awards a 1.075 multiplier to the lodestar indicated above. This multiplier compensates Plaintiff’s Counsel for the time value of the money they would have been paid monthly had the case not been contingent.

IV.      Conclusion

Plaintiff’s Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are AWARDED in favor of Plaintiffs and against Defendant in the total amount of $35,251.94.

This consists of $9,907.24 for Counsel Taylor’s attorney’s fees and costs (including a lodestar of $8,056.60, a 1.075 multiplier of $604.25, and $1,246.39 in costs) and $25,344.70 for Counsel Wirtz’s attorneys’ fees and costs (including a lodestar of $16,169.00, a 1.075 multiplier of $1,212.68, and $7,963.02 in costs).

        The spreadsheets showing the above calculations are listed below: