Judge Michelle Williams Court, Case 19STCV24451 2022-10-31 Tentative Ruling

Judge: Michelle Williams Court, Case: 19STCV24451, Date: 2022-10-31 Tentative Ruling

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Case Number: 19STCV24451 Hearing Date: October 31, 2022 Dept: 74

19STCV24451 LINDSEY M. GUTIERREZ vs KIA MOTORS AMERICA, INC.

Plaintiff’s Motion for Attorneys’ Fees, Costs and Expenses; OSC re Dismissal following Settlement

TENTATIVE RULING: Plaintiff’s Motion for Attorneys’ Fees, Costs and Expenses is GRANTED in part. The Court awards Plaintiff attorneys’ fees in the amount of $70,260.00 and costs in the amount of $4,712.98 pursuant to Civil Code section 1794(d) and Code of Civil Procedure section 1032. The case is dismissed.

Background

On July 12, 2019, plaintiff Lindsey Gutierrez filed this action against Defendant Kia Motors America, Inc.

The First Amended Complaint asserted causes of action for: (1) violation of subdivision (d) of Civil Code section 1793.2; (2) violation of subdivision (b) of Civil Code section 1793.2; (3) violation of subdivision (a)(3) of Civil Code section 1793.2; (4) breach of express written warranty; (5) fraud by omission. The FAC alleges Plaintiff purchased a certified pre-owned 2012 Kia Optima on May 10, 2015 that suffered from defects “including, without limitation, malfunctions and/or failures requiring repairs pursuant to Safety Recall SC147; malfunctions and/or failures of the fuel pump and/or related parts requiring repairs pursuant to Safety Recall SC172; a clicking noise from the steering wheel when turning; premature wear and malfunction and/or failure of the steering’s flex coupling; premature wear of connecting rod bearings requiring repairs pursuant to Recall PI1803; malfunctions and/or failures requiring updating and/or reprogramming of the Engine Control Unit (“ECU”); malfunctions and/or failures of the Airbag Control Unit (“ACU”), requiring repairs pursuant to Safety Recall SC165; malfunctions and/or failures requiring replacement of the starter; a knocking type noise from the engine; and malfunctions and/or failures requiring replacement of the engine.” (FAC ¶ 13.)

On January 10, 2020, the Court issued an order sustaining Defendant’s demurrer to the fifth cause of action for fraud by omission and struck Plaintiff’s punitive damages claim without leave to amend.

On December 14, 2021, the Court denied Defendant’s motion for summary adjudication.

On February 28, 2022, Plaintiff filed a Notice of Settlement of Entire Case.

Motion

On July 20, 2022, Plaintiff filed the instant motion for attorneys’ fees, costs, and expenses seeking lodestar attorneys’ fees of $71,372.50, a 1.35 multiplier of $24,980.38, $4,712.98 in costs and expenses, and an additional $3,500.00 for the reply and hearing on the instant motion.

Opposition

In opposition, Defendant Kia Motors America, Inc. argues Plaintiff should be awarded no more than $37,380 in fees and $4,712.98 in costs because counsel’s hourly rates are unreasonable, the hours claimed are excessive, and Plaintiffs’ counsel are not entitled to a lodestar multiplier.

Reply

In reply, Plaintiff contend their hourly rates and claimed hours are reasonable, Defendant failed to justify its objections to the fees claimed, and a lodestar multiplier is appropriate. Plaintiff also voluntarily reduced the fees sought for work performed up to the filing of the motion by 5 hours to $68,897.50.

Judicial Notice

Plaintiff requests the Court take judicial notice of 29 federal and state court orders involving Plaintiff’s counsel, attached as Exhibits 1-29 to the declaration of Payam Shahian. The Court finds only the orders on contested fee issues within Los Angeles County that contain details of counsel’s hourly rates are relevant. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 (“any matter to be judicially noticed must be relevant to a material issue.”); Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 (“[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”); PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (“The reasonable hourly rate is that prevailing in the community for similar work.”).)

Accordingly, the request is GRANTED as to Exhibits 1, 3-4, 6, 9, 11-13, 20, 21, and 28 only. The request is otherwise DENIED.

Defendants’ Evidentiary Objections in Opposition

Objections Nos. 3, 4, 7, 10, 12, 13, 15, 19-24, 27-32 are SUSTAINED based on relevance.

Objections Nos. 1, 2, 5, 6, 8-9, 11, 14, 16-18, 25, 26, and 33 are OVERRULED.

Plaintiff’s Evidentiary Objections in Reply

Plaintiffs’ Objection Nos. 1-2, and 6 are SUSTAINED. The statements and spreadsheet constitute improper argument and, if properly placed within the memorandum, would result in an oversized opposition. (Cal. R. Ct., rule 3.1113(d); In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30 n.3 (“The proper place for argument is in points and authorities, not declarations.”).) For the same reason, the Court does not consider Exhibit 1 to the declaration of Breita Linnell submitted in reply.

Objection Nos. 3-5 are OVERRULED.

Discussion

Standard

Pursuant to Civil Code section 1794(d), “[i]f 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 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.” As stated by the court in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462:

The statute requires the trial court to make an initial determination of the actual time expended; and then to 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. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.”

(Goglin, supra at 470 quoting Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.) However, “[t]he lodestar method is applicable to calculating attorney fees under section 1794, subdivision (d).” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.) The Court cannot tie the attorney fee award to the amount of plaintiff’s recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37 (“it 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.”).)

“The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)

“The law is clear . . . that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “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.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

Reasonable Hourly Rates

As agreed by the parties in the accepted Section 988 offer, Plaintiff filed the instant motion for reasonable fees and costs. (Linnell Decl. ¶ 63, Ex. 6.) Plaintiff is the prevailing party in this action pursuant to Civil Code section 1794(d).

Plaintiff provides declarations from counsel, as well as their billing records to support the fees claimed. (Shahian Decl. ¶¶ 3-67, Ex. 30; Linnell Decl. ¶¶ 3-64.) Plaintiff seeks recovery for work performed by thirteen different attorneys in handling this action:

(1) Anna Galaviz admitted in 2013 with an hourly rate of $420.00;

(2) Breita Linnell admitted in Minnesota in 2011 and California in 2020 with an hourly rate of $495.00;

(3) Esther Kim admitted in 2017 with an hourly rate of $350.00;

(4) Eve Canton, law clerk with hourly rates of $285.00 and $295.00;

(5) Gregory Sogoyan admitted in 2017 with an hourly rate of $395.00;

(6) Guy Bercegeay admitted in Louisiana in 2017 and California in 2021 with an hourly rate of $375.00;

(7) James Doddy admitted in 2004 with an hourly rate of $595.00;

(8) Johnathan Poe admitted in 2002 with an hourly rate of $595.00;

(9) Karen Wallace admitted in 2010 with hourly rates of $425.00 and $450.00;

(10) Matthew Pardo admitted in 2017 with hourly rates of $335.00, $365.00, and $410.00

(11) Nadine Aslaadi admitted in 2021 with an hourly rate of $350.00;

(12) Sean Crandall admitted in 2015 with hourly rates of $385.00 and $410.00; and

(13) Tionna Dolin admitted in 2014 with hourly rates of $395.00 and $550.00

(Ibid.)

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Ibid.) Plaintiff provides evidence that their rates have been previously approved in other cases in the Los Angeles Superior Court and in the federal district court for the Central District of California. (Shahian Decl. ¶¶ 36-62, Ex. 1, 3-6, 9, 11-13, 20, 21, 26, and 28.) “[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

In opposition, Defendant argues Plaintiff’s counsel’s rates are excessive. (Opp. at 5:9-7:13.) Defendant cites Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24 in which the Court of Appeal upheld a trial court’s reduction of the hourly rates of different attorneys for work performed in 2017, finding “even if Morris established that her attorneys’ rates were generally commensurate with other consumer law attorneys with the same level of experience and skill, Morris ignores that there are a number of factors that the trial court may have taken into consideration in determining that reductions in the attorneys’ hourly rates were warranted. The court reasonably could have reduced the rates based on its finding that the matter was not complex; that it did not go to trial; that the 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.” (Id. at 41.) The Court does not find Morris requires a reduction of the fees claimed here, as its discussion related to whether the trial court abused its discretion in the case before it. Moreover, “[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier, supra, 163 Cal.App.4th at 564.)

Defendant also cites Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, which involved Plaintiff’s counsel’s work performed in between 2016 and 2018 in a case that culminated in a jury verdict in the plaintiff’s favor. In Mikhaeilpoor, the Court of Appeal upheld a trial court’s determination that $350.00 was a reasonable hourly rate for the services performed in that case. While the Court of Appeal dedicated a significant portion of its discussion to addressing evidence regarding the number of hours claimed, its discussion of the hourly rate was limited to the following: “plaintiff's lead counsel, Christine Haw, had experience with Song-Beverly Act claims. Plaintiff sought hourly rates of $365 and $375 for Haw, but acknowledged that similar or more experienced attorneys had previously been awarded hourly billable rates of $345 and $350. As such, the trial court's award of a $350 hourly billable rate is supported by substantial evidence.” (Id. at 256.) The Court does not find Mikhaeilpoor requires or weighs in favor of a reduction in the claimed hourly rates here.

Plaintiff has demonstrated the reasonableness of the hourly rates claimed with substantial evidence. The Court finds the hourly rates reasonable and denies Defendant’s request the reduce the hourly rates claimed.

Reasonable Hours Expended

The Court has reviewed the billing entries provided by Plaintiff. Plaintiff’s evidence indicates its counsel recorded a total of 172.20 hours of attorney time in this action up to the filing of the instant motion. (Shahian Decl. Ex. 30.) Plaintiff seeks an additional $3,500.00 for anticipated services for the reply and hearing. (Shahian Decl. ¶ 65.) The billing entries list the total compensable hours for each timekeeper as follows:

- 3.50 hours by Anna Galaviz;

- 19.60 hours by Breita Linnell;

- 3.90 hours by Esther Kim;

- 7.50 hours by Eve Canton at the $285.00 hourly rate and 14.90 hours at the $295.00 hourly rate;

- 8.50 hours by Gregory Sogoyan;

- 9.00 hours by Guy Bercegeay;

- 8.20 hours by James Doddy;

- 11.00 hours by Johnathan Poe;

- 23.20 hours by Karen Wallace at the $425.00 hourly rate and 6.60 hours at the $450.00 hourly rate;

- 8.70 hours by Matthew Pardo at the $335.00 hourly rate, 27.20 hours at the $365.00 hourly rate, and 12.40 hours at the $410.00 hourly rate

- 2.00 hours by Nadine Aslaadi;

- 0.60 hours by Sean Crandall at the $385.00 hourly rate and 3.10 hours at the $410.00 hourly rate; and

- 0.50 hours by Tionna Dolin at the $395.00 hourly rate and 1.80 hours at the $550.00 hourly rate.

(Shahian Decl. Ex. 30.) In reply, Plaintiff’s counsel indicates it spent over 10 hours on the reply, but retains the request for only $3,500.00. (Linnell Reply Decl. ¶ 5.) Plaintiff also “has removed 5.0 hours from the amount of time billed for the fee motion,” (Reply at 10 n.19), and therefore only seeks $68,897.50 for the initial motion and $3,500.00 for the reply, for a total lodestar fee of $72,397.50.

Defendant contends Plaintiff’s counsel used boilerplate templates for Plaintiff’s written discovery in this case. (Opp. at 7:18-22; Jackson Decl. ¶¶ 12-13, Ex. B-D.) However, Plaintiff’s counsel only billed a total of 1.8 hours for the extensive written discovery at issue, (Shahian Decl. Ex. 30 at 1), which is indicative of the reasonable efficiency created by using prior discovery materials as references. The Court does not find Defendant’s argument persuasive and shall not reduce the time claimed for Plaintiff’s written discovery.

Defendant also contends Plaintiff’s fees should be reduced due to block-billing. (Opp. at 7:23-8:24.) “[B]lock billing is not objectionable per se, though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation under section 1021.5 from work that does not.” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830.) “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) The issues raised by block billing have little application in this matter because all fees are compensable under the relevant statute. Defendant does not argue any of Plaintiff’s fees were solely incurred on non-compensable claims. (See Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) Defendant’s argument regarding block-billing is unpersuasive.

Defendant relies upon a spreadsheet attached as Exhibit A to the Jackson declaration to contend “Plaintiff’s counsel’s billing entries are replete with block-billed, excessive, and administrative tasks.” (Opp. at 8:14-16. See also Opp. at 4:12-14 (“As noted in the spreadsheet attached as Exhibit ‘A’ to the Declaration of Mikaela M. Jackson, KA objects to many of Plaintiff’s attorneys’ time entries.”).) The Court has sustained Plaintiffs’ objection to this spreadsheet, which constitutes improper argument and, if properly placed within the memorandum, would result in an oversized opposition. (Cal. R. Ct., rule 3.1113(d); In re Marriage of Heggie, supra, 99 Cal.App.4th at 30 n.3 (“The proper place for argument is in points and authorities, not declarations.”).) Moreover, merely labeling entries “excessive” or “administrative” is insufficient. (Premier, supra, 163 Cal.App.4th at 564.) While there were numerous attorneys involved throughout the course of the instant litigation, the Court does not find the case was impermissibly overstaffed based upon the division of work evidenced in the billing entries. (Shahian Decl. Ex. 30.)

However, Plaintiff included duplicative entries for drafting a summary of Plaintiff’s deposition: a 0.90 hour entry on April 6, 2021 by attorney Guy Bercegeay and a 7.50 hour entry on October 28, 2021 by law clerk Eve Canton. (Decl. Ex. 30 at 5.) There is no indication in the billing entries that the second entry was a continuation of the prior work performed and is therefore duplicative on its face. The Court shall reduce the fees claimed by removing the second in time billing entry associated with this task, resulting in a reduction of $2,137.50.

With the above reductions, the Court finds the reasonable lodestar attorney fee to be $70,260.00.

A Lodestar Multiplier is Not Warranted

Plaintiff also seeks a multiplier of 1.35 for the attorneys’ work on the instant matter. (Mot. at 12:3-13:13.)

The lodestar amount “may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1399.) The purpose of any lodestar and adjustment thereto “is intended to approximate market-level compensation for such services” and is entirely discretionary. (Ibid.) “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)

The Court finds the instant litigation to be a typical Lemon Law case, with questions that are neither novel nor particularly difficult. Moreover, Plaintiff’s counsel appears to have demonstrated skill commensurate with their experience and specialty. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 (“a trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.”).) While “[t]he ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit,” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582), the litigation in this case does not satisfy this high bar. The lodestar is sufficient to compensate counsel for the contingent nature of their representation. The request for a lodestar multiplier is DENIED.

Accordingly, the Court awards Plaintiff attorneys’ fees in the amount of $70,260.00.

Costs and Expenses are Properly Awarded

The parties agreed by the language of the 998 offer that Plaintiff would seek costs by noticed motion. (Linnell Decl. Ex. 6.) Plaintiff’s request for costs and expenses is supported by counsel’s declaration. (Shahian Decl. Ex. 30 at 7-10.) Recoverable costs and expenses pursuant to Civil Code section 1794(d) extend beyond the costs available under Code of Civil Procedure section 1033.5. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138.) Defendant does not challenge the costs and expenses claimed. Accordingly, the Court awards Plaintiff costs in the amount of $4,712.98.