Judge: Monica Bachner, Case: 19STCV11540, Date: 2023-02-02 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 19STCV11540    Hearing Date: February 2, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff’s motion for attorneys’ fees on behalf of Wirtz Law is granted in the reduced total amount of $1,112.00. 

Plaintiff’s motion for attorneys’ fees on behalf of Knight Law Group, LLP is granted in the reduced total amount of $21,380.00 

Plaintiff Vadim Gorobets (“Gorobets”) (“Plaintiff”) moves for an order awarding him attorneys’ fees and costs against Defendant Jaguar Land Rover North America, LLC (“JLRNA”) (“Defendant”) on behalf of Wirtz Law APC (“Wirtz”) in the total amount of $122,916.20, reflecting $81,393.00 in fees, a 1.5 lodestar enhancement in the amount of $40,696.50, and $826.70 in costs.  (Notice of Motion Wirtz, pg. 1.)

Plaintiff moves for an order awarding him attorneys’ fees and costs against Defendant JLRNA on behalf of Knight Law Group, LLP (“Knight”) in the total amount of $497,442.07, reflecting $280,882.50 in fees, a .5 lodestar enhancement in the amount of $140,441.25, and $76,118.32 in costs.  (Notice of Motion Knight, pg. 1.)

The Court addressed Plaintiff’s requested costs in its November 3, 2022 ruling on the motions to tax costs, thus costs are not addressed in this ruling.

Request for Judicial Notice

Plaintiff’s 1/26/2023 request for judicial notice is denied, as this Court does not need to take judicial notice of previous filings in the instant case.

Evidentiary Objections

Plaintiff’s 1/26/23 evidentiary objections to the Declaration of Brian Takahashi (“Takahasi”) are overruled as to Nos. 1, 2, 3, and 4.

Background

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).  Defendant served Plaintiff with two C.C.P. §998 Offers to Compromise (“998 Offer”) in this matter, one on May 31, 2019, and the other on October 15, 2020.  Plaintiff did not object or respond to the October 15, 2020 998 Offer and proceeded to trial.  (Decl. of Takahashi ¶4.)  On April 13, 2022, this Court entered judgment on a jury verdict for Plaintiff with total damages of $76,155.27.  On June 13, 2022, Plaintiff filed his motions for attorneys’ fees on behalf of Wirtz and Knight, and on May 17, 2022.  Defendant filed its opposition to Plaintiff’s motion on behalf of Knight on November 30, 2022, and Defendant its opposition to Plaintiff’s motion on behalf of Wirtz January 12, 2023.  Plaintiff filed his replies on January 26, 2023.

A.   Wirtz Attorneys’ Fees Motion

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.”  (C.C.P. §998(c)(1).)  “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.”  (C.C.P. §998(c)(2)(A).)  “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.”  (C.C.P. §998(e).)

On November 3, 2022, this Court determined Defendant’s October 2020 998 Offer was valid because it was sufficiently specific and unconditional based on Duff v. Jaguar Land Rover North America, LLC. In Duff, the plaintiff could either accept the 998 Offer for a sum certain for vehicle repurchase or allow the defendant to determine the restitution amount if plaintiff provided documentation of a greater amount than the sum certain.  (Duff v. Jaguar Land Rover North America, LLC (2022) 74 Cal.App.5th 491, 500.)  Unlike Duff, here, the 998 Offer provided Plaintiff with two options for restitution: (1) a sum certain of $85,000.00 restitution, or (2) the statutory amount allowable under Civil Code §§1793.2(d) and 1794 and waived a mileage offset, which, if Plaintiff disputed, would be determined by a trier of fact.  (Decl. of Takahashi ¶3, Exh. A ¶¶1, 2.)  At the time the offer was made, Plaintiff was provided with a sufficiently specific and unconditional offer of $85,000.00, which he chose not to accept. 

On November 3, 2022, this Court also determined Plaintiff cannot recover post 998 Offer attorneys’ fees and costs under Civil Code 1794(d).  (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 837, as modified (Jan. 11, 2022), reh’g denied (Jan. 25, 2022), review denied (Mar. 30, 2022).)  In Covert, the Court of Appeals concluded, “a valid and reasonable section 998 offer by the seller, where the buyer recovers less than the offer, precludes recovery by the buyer of post offer attorneys’ fees and costs under Civil Code section 1794, subdivision (d).” (Id.)  The Covert Court refused to find a 998 Offer while requires dismissal, rather than judgment, ineffectual. (Id. at pg. 842 n.12 [“Covert’s argument would require us to value a judgment at a significantly higher amount than a dismissal. To do so would cast doubt on all section 998 offers predicated on a dismissal without a judgment, undermining this court's longstanding decision in Goodstein [v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 905].”].)  Covert further rejected the argument that a 998 Offer that does not mention payment of interest, and Plaintiff does not seek interest in a post-trial motion, is not grounds to invalidate the offer and “borders on . . . frivolous.”  (Id. at pg. 839.) 

Attorneys’ Fees Incurred Before the First §998 Offer on October 15, 2020

Rule 1.5.1 of the California Rules of Professional Conduct states a client must consent in writing to the division of fees either at the time the lawyers enter into the agreement to divide the fee or as soon thereafter as reasonably practicable, after a full written disclosure to the client of: (i) the fact that a division of fees will be made; (ii) the identity of the lawyers or law firms that are parties to the division; and (iii) the terms of the division.  (R.P.C. Rule 1.5.1(a)(2).)

Defendant argues Plaintiff should not be granted attorneys’ fees for the 1.0 hour Richard Wirtz billed on May 7, 2020, at an hourly rate of $695 to attend a Status Conference. (Opposition Wirtz, pgs. 1, 5.)  Defendant argues this was before Wirtz associated into the case and was not formally representing plaintiff at that time.  (Id.)  Defendant argues Wirtz filed his notice of association in this case on November 16, 2020.

Civil Code §1794(d) gives Plaintiff the right to recover all fees actually and reasonably incurred.  Because Wirtz actually and reasonably incurred fees for Wirtz’s services prior to the first C.C.P. §998 Offer, he is entitled to these attorneys’ fees.

Based on the foregoing, the Court will not reduce Plaintiff’s fee request for fees incurred before October 15, 2020. 

Attorneys’ Fees Incurred Before the First §998 Offer Expired

Defendant argues Plaintiff is not entitled to 0.6 hours Richard Wirtz billed on November 16, 2020, prior to the expiration of the first §998 Offer.  Defendant argues Plaintiff’s case is overstaffed with 26 timekeepers and mandates a cut in attorneys’ fees based on the number of attorneys on the case.  (Opposition Wirtz, pg. 6.)  Defendant does not argue that Richard Wirtz’s .6 hours was unreasonable or actually incurred. 

Based on the foregoing, the Court will not reduce Plaintiff’s fee request for fees incurred before the expiration of the first §998 Offer.

Reasonable Fees

Plaintiff’s Counsel declares his hourly rate is $695 per hour.  (Decl. of Wirtz ¶13.)  Plaintiff has sufficiently demonstrated his hourly rate is reasonable in his community of practice in his specialized area of law.  (Decl. of Wirtz ¶24, Exh. D.)

Final Lodestar Determination

Based on the foregoing, the Court imposes a reduction to the number of attorney hours requested upon the expiration of the first C.C.P. §998 Offer.  The Court denies Plaintiff’s request for a 1.5 lodestar multiplier.  Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.

Accordingly, Plaintiff’s motion for attorneys’ fees is granted in the reduced total amount of $1,112.00.

B.   Knight Attorneys’ Fees Motion

As discussed above, Plaintiff is only entitled to fees on behalf of Knight that were incurred before the C.C.P. §998 Offer was rejected.

Attorneys’ Fees Incurred Before the First §998 Offer on October 15, 2020

Defendant argues Knight Law Group supposedly incurred $21,380 in fees before the C.C.P. §998 Offer.  Defendant argues this Court should only grant Plaintiff $17,625 in reasonable fees on behalf of Knight before the CCP §998 Offer based on a blended rate of no more than $350 per hour.  Defendant argues this Court should adopt the calculation for reduced of attorneys’ fees from Mikhaeilpoor v. BMW of North America, LLC, where plaintiff’s counsel brought a fee motion seeking $344,639.00 in fees and $5,000 for addressing the attorney fee resolution process.  (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 244.)  The Mikhaeilpoor Court ultimately reduced the net fees awarded to $94,864 for a total reduction of $249,775 and decreased the hourly rates across the board to $350.  (Id. at 246.)  Defendant does not challenge any specific fees or rate as unreasonable or excessive, just suggest that the Court should use a blended rate..

Civil Code §1794(d) gives Plaintiff the right to recover all fees actually and reasonably incurred.  Because Knight actually and reasonably incurred fees for Knight’s services prior to the first C.C.P. §998 Offer, it is entitled to these attorneys’ fees.

Based on the foregoing, the Court will not reduce Plaintiff’s fee request for fees incurred before the first §998 Offer.

Reasonable Fees

Plaintiff’s Counsel declares the hourly rates of its attorneys as follows: (1) Roger Kirnos at $500, (2) Steve Mikhov at $550, (3) Amy Morse at $350 for 2019-2020, (4) Constance Morrison at $375, (5) Caitlin Rice at $295, (6) Deepak Devabose at $375, (7) Diana Folia at $250, (8) Danielle Kalinowski at $250 for 2019-2020, (9) Gregory Lehrmann at $200, (10) Greg Mohrman at $425, (11) Jeffrey Mukai at $400, (12) Kamau Edwards at $450, (13) Kristina Stephenson-Cheang at $375, (14) Maite Colón at $300, (15) Russell Higgins at $450, (16) Scot Wilson at $595, and (17) Thomas S. Van at $450.  (Decl. of Kirnos ¶¶22-39.)  Plaintiff has sufficiently demonstrated Knight’s hourly rates are reasonable in its community of practice.  (Decl. of Kirnos ¶42, Exh. G.)

Final Lodestar Determination

Based on the foregoing, the Court imposes a reduction to the number of attorney hours requested upon the expiration of the first C.C.P. §998 Offer.  The Court denies Plaintiff’s request for a 0.5 lodestar multiplier.  Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.

Accordingly, Plaintiff’s motion for attorneys’ fees is granted in the reduced total amount of $21,380.00 for the period before the expiration of the first C.C.P. §998 Offer.

Dated:  February _____, 2023

Hon. Monica Bachner

Judge of the Superior Court