Judge: Michael Shultz, Case: 22CMCV00598, Date: 2025-03-25 Tentative Ruling
Case Number: 22CMCV00598 Hearing Date: March 25, 2025 Dept: 40
22CMCV00598
Lourdes Avalos Paz, et al. v. Kia America, Inc.
[TENTATIVE] ORDER GRANTING
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
[TENTATIVE] ORDER DENYING
DEFENDANT’S MOTION TO TAX PLAINTIFF’S COSTS
I.
BACKGROUND
This
action arises from alleged violations under the Song-Beverly Consumer Warranty
Act (“SBA”). On August 13, 2024, the court entered judgment in favor of
Plaintiff for $18,537.60, for a payoff of the prior balance owed of $6,606.00, and
a payoff of the remaining balance of the lease totaling $43,648.10.
II.
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
Plaintiffs
request a fee award of $108,957.92 increased by a multiplier of 1.5 for total
fees of $154,029.25. Plaintiffs contend they are also entitled to all costs totaling
$7,365.75.
In
opposition, Defendant asks the court to reduce fees by $31,400 for an adjusted
total of $77,557.92. A multiplier is not warranted as the case was not complex.
Even after settlement was agreed upon, Plaintiffs continued to expend time on
discovery, motions, and correspondence which was unnecessary.
In
reply, Plaintiff contends that the case settled on May 2, 2024, one day after
Defendant relayed a full, complete, and enforceable settlement offer. The case
settled less than eight weeks before trial.
A.
Legal Standards
A
prevailing buyer in an action under the SBA “shall be allowed by the court” to
recover 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).) A prevailing buyer has the burden of showing that
the fees incurred were allowable, reasonably necessary to the conduct of the
litigation, and were reasonable in amount.
(Pulliam
v. HNL Automotive Inc. (2021) 60 Cal.App.5th 396, 405.) The
reasonable hourly rate is that prevailing in the community for similar work.
(Id.)
A
reasonable fee can be measured by the marketplace by analyzing the quality and
necessity of services and then comparing that cost with what other attorneys
with similar experience and ability charge for the same services. (Shaffer
v. Superior Court (1995) 33 Cal.App.4th 993, 1002.)
In
Song-Beverly cases, the court applies the lodestar method in calculating
attorney’s fees, including the use of fee multipliers where applicable. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006)
144 Cal.App.4th 785, 818.) The court determines a lodestar
figure “based on a careful compilation of the actual time spent and reasonable
hourly compensation for each attorney.” (Robertson at 819.) The lodestar may be
augmented or diminished “by taking various relevant factors into account
including (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, based on the uncertainty of prevailing on
the merits and of establishing eligibility for the award.” (Robertson at 819.) The multiplier is a risk
enhancement based on the probability of loss. (Robertson at 821.)
The
prevailing party is entitled to “’compensation for all the hours reasonably
spent” in litigating the action to a successful conclusion. (Ibid.,
italics in original.) ‘Reasonably spent’ means that time spent ‘in the form of
inefficient or duplicative efforts is not subject to compensation. (Horsford
v. Board of Trustees of California State University
(2005) 132 Cal.App.4th 359, 394.)
The
court may rely on his or her own experience and is given broad discretion in
calculating reasonable attorney’s fees. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1132
["The experienced trial judge is the best judge of the value of
professional services rendered in his court, and while his judgment is of
course subject to review, it will not be disturbed unless the appellate court
is convinced that it is clearly wrong.”].)
B.
Discussion
The court
has reviewed the billing records and supplemental declarations and finds that several
of the itemized tasks are unreasonable, inefficient, and at times duplicative. Plaintiffs’
counsel is entitled to reasonable compensation; however, “‘padding” in the form
of inefficient or duplicative efforts is not subject to compensation." (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1132.)
The court
may make “across the board cuts and apply a negative multiplier” where it
determines that the case was not complex. (Warren
v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41. Proper
factors to consider in applying a negative reduction are the lack of
complexity, that the matter did not go to trial, that name partners were doing
work that could have been done by lower-billing attorneys, and that all the
attorneys were doing work that could have been done by paralegals. (Morris
v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.)
The
court does not find that this case, which did not concern novel issues or
protracted litigation, warrants a multiplier.
C.
Disposition
Accordingly,
the court awards total fees of $94,881.23 to Plaintiffs.
III.
DEFENDANT’S MOTION TO STRIKE OR TAX COSTS
A.
Arguments
Defendant
argues that Plaintiffs’ cost memorandum was untimely filed, costs were not reasonably
incurred, not allowed, and not reasonably necessary to the conduct of the
litigation.
In
opposition, Plaintiffs argue that the motion was untimely filed, and Defendant
did not meet and confer prior to making the motion. Plaintiffs argue that costs
incurred over 17 months are warranted. Defendant never fully complied with all
of the court’s orders. Plaintiffs were required to make a motion to enforce
settlement.
In
reply, Defendant argues that the motion was timely filed. Plaintiffs did not address
that their cost memorandum was untimely. Plaintiffs failed to dispute
Defendant’s arguments meaningfully. Plaintiffs failed to justify their costs.
B.
Legal Standards
The court may, upon motion or at any time
in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the Court. (Code Civ. Proc., § 436 subd (a)-(b).)
C.
Discussion
The
procedure for obtaining an award of costs is governed by California Rules of
Court, rule 3.1700, which requires service and filing of a cost memorandum, at
the earliest of the following events: "within 15 days after the date of
service of the notice of entry of judgment or dismissal by the clerk under Code
of Civil Procedure section 664.5 or the date of service of written notice of
entry of judgment or dismissal, or within 180 days after entry of judgment.” (CA
ST CIVIL RULES Rule 3.1700.) The 15-day time limit is mandatory. (Sanabria
v. Embrey (2001) 92 Cal.App.4th 422.)
The
court entered judgment on August 13, 2024. The clerk gave notice of entry of
judgment and dismissal on August 19, 2024. The 14th day to file a cost
memorandum expired on September 14, 2024. On August 26, 2024, Plaintiffs filed
their motion for attorney’s fees and costs. Plaintiffs argued therein that they
were entitled to attorney’s fees as a prevailing party and also sought recovery
of costs of $7,386.36 as permitted by statute. (Civ. Code, § 1794.) Plaintiffs
submitted their cost memorandum as an exhibit to the motion, although that cost
memorandum contains a different figure than the amount sought in the motion ($7,365.75).
(Bohloul Decl., Ex. B, filed August 26, 2024). The court relies on the cost
memorandum filed with the fee motion on August 26, 2024.
While
the Plaintiffs’ cost memorandum preceded entry of judgment, a premature cost
memorandum is considered a “’mere irregularity at best’ that does not
constitute reversible error absent a showing of prejudice.” (Haley
v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Defendant
does not cite any authority that including the cost memorandum as an exhibit to
Plaintiffs’ motion for fees and costs is “not the right way” and is cause to
deny Plaintiffs’ costs. (Reply 5:8-9.) Plaintiffs
gave notice of their intent to recover fees and costs as supported by the motion,
points and authorities, declarations, and exhibits including the cost
memorandum. (Mot. filed 8/26/24.)
Any
notice of motion to strike or to tax costs must be served and filed 15 days
after service of the cost memorandum extended by two court days for service by
electronic mail. That deadline fell on Friday, September 6, 2024. Defendants
untimely filed their motion to tax costs on December 30, 2024.
The
failure to timely file a motion to tax costs constitutes a waiver of the right
to object to claimed costs. (Briggs
v. Elliott (2023) 92 Cal.App.5th 683, 695; (San
Francisco Unified School District v. Board of National Missions (1954) 129
Cal.App.2d 236, 243 [“The burden of attacking it rests upon the party who
will have to pay the costs, and if he fails to move within the time allowed he
is ‘conclusively’ presumed to have waived such irregularity.”]
Based
on the foregoing, Defendants Motion to Strike and or Tax Costs is DENIED.
IV.
CONCLUSION
Plaintiffs’
Motion for attorney’s fees is GRANTED. The court awards total fees of
$94,881.23 to Plaintiffs. Defendant’s Motion to Tax Costs is DENIED. The court
awards costs of $7,365.75 as reflected in the Memorandum of Costs filed August
26, 2024. (Mot. Ex. B.) Fees and costs are payable to Plaintiffs
within forty-five [45] days.