Judge: Michelle Williams Court, Case: 20STCV47331, Date: 2022-08-29 Tentative Ruling

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Case Number: 20STCV47331    Hearing Date: August 29, 2022    Dept: 74

20STCV47331           CHARLES W. BENTON vs KIA MOTORS AMERICA, INC.

Plaintiffs’ Motion for Attorneys’ Fees, Costs and Expenses

TENTATIVE RULING:  The motion is GRANTED IN PART.  The Court awards Plaintiffs attorneys’ fees in the amount of $83,668.25 and costs in the amount of $3,855.09 pursuant to Civil Code section 1794(d).

Background

On December 10, 2020, plaintiffs Charles Benton and Stacy Alvarez filed this action against Defendants Kia Motors America, Inc. and Trophy of Carson, LLC dba Kia of Carson.

The First Amended Complaint asserted causes of action for: (1) Violation of Song-Beverly Act - Breach of Express Warranty; (2) Violation of Song-Beverly Act - Breach of Implied Warranty; (3) Fraudulent Inducement – Concealment; (4) Fraudulent Inducement – Intentional Misrepresentation; (5) Fraud in Performance of Contract – Intentional Misrepresentation; and (6) Negligent Repair. The FAC alleged Plaintiffs purchased a 2012 Kia Optima that suffered from defects and nonconformities to the “engine (knocking, stalling, and eventually total failure), transmission, starter, emissions components, throttle body, anti-theft alarm system, 12-volt port and USB charging, door locks, brake lights, brake switch, and the ABS system, among others.”

On December 8, 2021, Plaintiff filed a Notice of Settlement of Entire Case. On February 1, 2022, the Court entered the parties’ stipulated Judgment on Statutory Offer to Compromise Pursuant to C.C.P. Section 998, which provided recovery to Plaintiff in the amount of $42,000.00 plus attorney fees, costs, and expenses. The judgment provided “Plaintiffs shall be deemed the prevailing party in this action under section 1794(d).”

Motion

On August 3, 2022, Plaintiffs filed the instant motion for attorneys’ fees, costs, and expenses seeking lodestar attorneys’ fees of $99,305.00, a 1.5 multiplier of $49,652.50, and $3,855.09 in costs and expenses.

Opposition

In opposition, Defendant Kia America, Inc. argues Plaintiffs’ counsel’s hourly rates are unreasonable, the hours claimed are excessive, and Plaintiffs’ counsel are not entitled to a lodestar multiplier.

Reply

In reply, Plaintiffs 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.

Plaintiffs’ Evidentiary Objections in Reply

Plaintiffs’ Objection No. 1 is SUSTAINED. The chart 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 (2002) 99 Cal.App.4th 28, 30 n.3 (“The proper place for argument is in points and authorities, not declarations.”).)

Objection Nos. 2-3 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 and stated in the judgment entered in this action, Plaintiffs are the prevailing parties under Civil Code section 1794(d). Plaintiffs obtained a judgment in their favor and Defendant’s suggestion that “this case was not a success for Plaintiffs,” (Opp. at 8:23), lacks merit.

Plaintiffs provide declarations from their counsel, as well as their billing records to support the fees claimed. (Wirtz Decl. ¶¶ 2-25, Ex. A.) Plaintiffs seek recovery for work performed by six different attorneys, five paralegals, one legal assistant, and one file clerk in handling this action:

(1) Richard Wirtz, practicing law for 33 years with an hourly rate of $695.00;

(2) Amy R. Rotman, practicing law for 10 years with an hourly rate of $500.00;

(3) Erin K. Barns, practicing law for 10 years with an hourly rate of $500.00;

(4) Jessica R. Underwood, practicing law for 7 years with an hourly rate of $500.00;

(5) Daniel Z. Inscore, practicing law for 8 years, 3 in California, with an hourly rate of $500.00;

(6) Ommar Chavez, practicing law for 2 years with an hourly rate of $400.00;

(7) Rebecca Evans (paralegal for 7 years) with an hourly rate of $250.00;

(8) Danielle Viviani (paralegal for 1 year) with an hourly rate of $250.00;

(9) Andrea Beatty or Munoz (paralegal for 4 years) with an hourly rate of $200.00;

(10) Florence Goldson (paralegal for 2 years) with an hourly rate of $200.00;

(11) Donna Bollenbacher (paralegal for 2 years) with an hourly rate of $200.00;

(12) Andrea Lizarraga (legal assistant) with an hourly rate of $150.00; and

(13) Amanda Vitanatchi (file clerk) with an hourly rate of $150.00.

(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.) Plaintiffs provide evidence that their rates have been previously approved in other cases in the Los Angeles Superior Court. (Wirtz Decl. ¶ 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 Plaintiffs’ counsel’s rates are unreasonable. (Opp. at 8:27-11:14.) Despite Plaintiffs’ evidence that their counsel has been awarded fees at the same rates sought here, (Wirtz Decl. ¶ 28), Defendant argues their “rates are made from whole cloth” and proceeds to “propose[]” reduced rates for Plaintiffs’ counsel without evidence. (Opp. at 10:24-11:3.) Defendant’s reliance upon Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, which upheld a trial court’s application of a $350.00 hourly rate to a different law firm based upon work performed in 2017 and 2018, is not persuasive.

Defendant notes attorney Ommar Chavez was admitted to the bar on June 6, 2020 and began working on this case with only four months of experience. (Opp. at 10:7-17.) The Court agrees that attorney Chavez’s experience and the prevailing market rate does not support a $400.00 hourly rate for his work in this case. Consistent with the Court’s recent ruling on another fee motion involving Plaintiffs’ counsel, the Court reduces the hourly rate of attorney Ommar Chavez to $275.00.

Defendant contends attorney Daniel Inscore had less than two years of legal experience, citing his date of admission to the California Bar, and therefore does not warrant the $500.00 hourly rate claimed. (Opp. at 10:13-16.) However, Inscore became licensed in Ohio in 2014 and therefore has meaningful legal experience. (Wirtz Decl. ¶ 18.) The Court finds his rate reasonable.

Defendant acknowledges paralegal work is compensable, but contends the hourly rates are not supported and suggests a $125.00 hourly rate for paralegals. (Opp. at 11:5-14.) The Court agrees that Plaintiffs’ counsel’s claimed paralegal rates are excessive. Consistent with the Court’s recent ruling on another fee motion involving Plaintiffs’ counsel, the Court finds the reasonable hourly rate for all paralegals in this action to be $175.00.

The Court shall not award fees associated with work performed by legal assistant Andrea Lizarraga or file clerk Amanda Vitanatchi, whose work is properly included in the firm’s overhead and accounted for in counsel’s hourly rates.

Reasonable Hours Expended

Plaintiffs’ evidence indicates its counsel recorded a total of 310.2 hours of attorney and paralegal time on this action, which is detailed in their counsel’s billing records. (Wirtz Decl. Ex. A.) This number was adjusted down by Plaintiffs’ counsel, who exercised billing discretion by marking some of these hours as non-compensable and making “voluntary discounts” to work performed by attorney Chavez. (Ibid.)

Wirtz’s billing entries list the total compensable hours for each timekeeper, excluding legal assistant Lizarraga and file clerk Vitanactchi, as follows:

-        7.4 hours by attorney Erin Barns;

-        146.4 hours by attorney Ommar Chavez (before discounts);

-        16.7 hours by attorney Daniel Inscore;

-        48.5 hours by attorney Amy Rotman;

-        15.8 hours by attorney Jessica Underwood;

-        0.2 hours by attorney Richard Wirtz;

-        2.6 hours by paralegal Andrea Beatty;

-        3.5 hours by paralegal Donna Bollenbacher;

-        32.4 hours by paralegal Rebecca Evans;

-        4.3 hours by paralegal Florence Goldson; and

-        12.2 hours by paralegal Danielle Viviani.

(Wirtz Decl. Ex. A.) Plaintiff then voluntarily discounted time claimed by Ommar Chavez by “20% of Attorney Chavez's Research Time regarding Investigation of Claims and Complaint; 50% of Attorney Chavez's Time working on Complaint; 50% of Attorney Chavez's Time working on Plaintiffs' Discovery Responses.” (Wirtz Decl. ¶¶ 38, 39, 45, Ex. A.) In accordance with these reductions, the 146.4 hours attributed to Chavez above are reduced by 43.21 hours, consisting of a 20 percent reduction to the 26.3 hours claimed for NHTSA research, (Wirtz Decl. ¶ 38), a 50 percent reduction to the 27.9 hours claimed related to the complaint, (id. ¶ 39), and a 50 percent reduction to the 48 hours claimed on discovery responses. (Id. ¶ 45.) Chavez’s initial compensable hours are therefore 103.19.

Defendant challenges six categories of billing entries in its opposing memorandum. First, Defendant contends Plaintiffs’ counsel billed 32.40 hours to prepare the complaint. (Opp. at 12:23-25.) This includes the 27.9 hours billed by attorney Chavez, 4.0 hours billed by attorney Rotman, and 0.5 hours by paralegal Evans. Defendant’s argument does not consider the 50 percent reduction to Chavez’s claimed hours voluntarily made by Plaintiffs. Additionally, while Defendant cites the claimed experience and expertise of Wirtz Law as a whole, it also acknowledged attorney Chavez’s lack of experience in arguing for a reduced rate. The Court finds no basis to further reduce the hours claimed and the hours are reasonable.

Second, Defendant contends Plaintiffs’ counsel billed 51 hours to prepare responses to Defendant’s discovery. (Opp. at 12:25-13:3.) Many of these entries were made by paralegal Evans, reducing the amount of attorney time spent. Additionally, Defendant’s argument does not consider the 50 percent reduction, voluntarily made by Plaintiffs, to Chavez’s claimed hours associated with these discovery tasks. The Court finds no basis to further reduce the hours claimed and the hours are reasonable.

Third, Defendant argues Plaintiffs’ counsel billed 21.9 hours to research vehicle information from the NHTSA website, including regarding a vehicle not part of this lawsuit. (Opp. at 13:4-6.) As argued by Plaintiffs in reply, Defendant’s argument does not account for the 20 percent reduction (5.26 hours), voluntarily made by Plaintiffs, to Chavez’s claimed hours associated with this research. Additionally, the research was not solely limited to Plaintiffs’ fraud claim contrary to Defendant’s claims. The Court finds no basis to further reduce the hours claimed and the hours are reasonable.

Fourth, Defendant argues Plaintiffs’ counsel billed 19.60 hours to prepare discovery to Defendant “much of which was form, and 11.10 hours of which were strictly on Requests for Admission . . . [that] were essentially identical and merely asked KA to admit that repair orders showed a presentation to an authorized repair facility and that work was performed under warranty.” (Opp. at 13:6-18.) Defendant failed to justify this objection or demonstrate that the claimed hours are unreasonable. (Premier Medical, supra, 163 Cal.App.4th at 564 (“General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”).) Defendant purports to provide excerpts showing only four, (Opp. at 13:10-17), of Plaintiffs’ 133 requests for admission. (Reply at 6:23-7:4; Rotman Reply Decl. Ex. A.) The Court finds no basis to reduce the hours claimed for Plaintiffs’ written discovery and the hours are reasonable.

Fifth, Defendant argues Plaintiffs’ counsel billed 26.40 hours to prepare meet and confer letters “which merely parroted the content of the request and added a few sentences about what was missing.” (Opp. at 13:18-26.) Without providing the actual letters, Defendant purports to selectively reproduce a portion of one such letter as to two requests for admission. (Ibid.) Defendant failed to justify this objection or demonstrate that the claimed hours are unreasonable. (Premier Medical, supra, 163 Cal.App.4th at 564.) Additionally, the meet and confer letters are more substantive than Defendant claims. (Chavez Reply Decl. Ex. A.) The Court finds no basis to reduce the hours claimed for Plaintiffs’ meet and confer efforts and the hours are reasonable.

Finally, Defendant contends there are “a significant number of billing entries for purely administrative or clerical tasks” and contends “calendaring, preparing proofs of service, internal filing, preparing binders for a hearing, and scanning are examples of tasks that have been found to be purely clerical and thus non-compensable,” citing Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1187 and a non-binding federal district court ruling. However, the court in Save Our Uniquely Rural Community Environment held that it was appropriate to reduce hourly rates claimed by an attorney so that partner rates were not applied to clerical tasks. (Ibid. (“The trial court could reasonably have determined that billing at partner rates for these activities was excessive.”).) As noted by Plaintiffs in reply, “all except two of those time entries were by paralegals.” (Reply at 5:9-15.) The two entries that were made by attorneys were not related to clerical work, but rather review of the Court’s tentative ruling and legal research. The Court finds no basis to further reduce the hours claimed and the hours are reasonable.

In Wirtz’s initial declaration he stated the claimed time “also includes 6.0 hours of time anticipated to prepare the reply in support of this motion (which will be done by Senior Attorney Erin Barns and Senior Paralegal Danielle Viviani) and 2 hours of time for Ms. Barns to prepare for and attend the hearing on this motion.” (Wirtz Decl. ¶ 3.) However, the billing entries did not include an estimated fee. (Id. Ex. A.) In reply, Plaintiffs provide the actual, rather than estimated, fees incurred in filing the reply. (Wirtz Rely Decl. Ex. A.) The Court shall increase the hours claimed in the initial motion by 0.60 for attorney Wirtz and 5.2 for paralegal Danielle Viviani.

Accordingly, the Court finds the appropriate lodestar attorney fee to be $83,668.25 consisting of the following:

-        Attorney Wirtz – 0.80 hours at $695.00 per hour;

-        Attorney Chavez – 103.19 hours at $275.00 per hour;

-        Attorney Rotman – 48.5 hours at $500.00 per hour;

-        Attorney Barns – 7.4 hours at $500.00 per hour;

-        Attorney Underwood – 15.8 hours at $500.00 per hour;

-        Attorney Inscore – 16.7 hours at $500.00 per hour;

-        Paralegal Beatty – 2.6 hours at $175.00 per hour;

-        Paralegal Bollenbacher – 3.5 hours at $175.00 per hour;

-        Paralegal Goldson – 4.3 hours at $175.00 per hour;

-        Paralegal Viviani – 17.4 hours at $175.00 per hour; and

-        Paralegal Evans – 32.4 hours at $175.00 per hour.

A Lodestar Multiplier is Not Warranted

Plaintiffs also seek a multiplier of 1.5 for the attorneys’ work on the instant matter. (Mot. at 12:19-14:26; Reply at 9:10-23.)

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, Plaintiffs’ 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 Plaintiffs attorneys’ fees in the amount of $83,668.25.

Costs and Expenses are Properly Awarded

Plaintiffs’ motion also sought $3,855.09 in costs and expenses, which was supported by their memorandum of costs. (Wirtz Decl. Ex. B.) 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 did not challenge this request and did not separately file a motion to tax costs. Accordingly, the Court awards Plaintiffs costs in the amount of $3,855.09.