Judge: Monica Bachner, Case: 21STCV02898, Date: 2023-01-19 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: 21STCV02898    Hearing Date: January 19, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Caridad Casillas’s motion for attorney fees and costs is granted in the reduced amount of $50,625.04.

          Plaintiff Caridad Casillas (“Casillas”) (“Plaintiff”) moves for an order awarding attorney fees and costs pursuant to Civil Code §1794(d) and pursuant to Plaintiff’s settlement agreement with Defendant Jaguar Land Rover North America, LLC (“JLRNA”) (“Defendant”).  (Notice of Motion, pg. 1; Civ. Code §1794(d); Decl. of Wirtz, Exh. AA.)  Specifically, Plaintiff seeks attorneys’ fees in the amount of $44,447.00 with a lodestar enhancement multiplier of 1.5, equaling $22,223.50, for a total of $66,670.50 in attorneys’ fees as well as costs and expenses in the amount of $6,178.04 for a total amount requested by this motion of $72,848.54.  (Notice of Motion, pg. 1.)

Evidentiary Objections

Plaintiff’s 1/12/23 evidentiary objections to the Declaration of Matthew C. Wolf (“Wolf”) are overruled as to Nos. 1, 11, 12, 13, 14, 15, 16 and 17 and sustained as to Nos. 2 (except overruled as to the first sentence), 3 (except overruled as to the first sentence0, 4 (except overruled as to the first sentence), 5 (except overruled as to the first sentence), 6 (except overruled as to the first sentence), 7 (except overruled as to the first sentence), 8, 9 (except overruled as to the first sentence), 10 (except overruled as to the first two sentences, however sustained as to “astonishing”).

          Background

          On January 25, 2021, Plaintiff filed this instant action for violations of the Song-Beverly Act in connection with his purchase of a 2018 Land Rover Discovery Sport, which is manufactured by Defendant JLRNA. On February 3, 2022, the Plaintiff and Defendant JLRNA and Defendant Land Rover Pasadena (“LR Pasadena”) (collectively, “Defendants”) entered into a 998 Offer (“Settlement Agreement”) wherein Defendants agreed to pay Plaintiff $65,500.00, plus Plaintiff’s costs, expenses, and attorneys’ fees.

          Plaintiff filed the instant motion on December 21, 2022.  Defendants filed their opposition on January 5, 2023.  Plaintiff filed his reply on January 12, 2023.

Attorneys’ Fees

Civil Code § 1794(d) provides, as follows: “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 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.”

The calculation of attorneys’ fees under the Song-Beverly Act is based on the lodestar method, which multiplies the number of hours reasonably expended by a reasonable hourly rate.  (Graciano v. Robinson Ford Sales (2006) 144 Cal.App.4th 140, 154; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-819.)  “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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, (4) the contingent nature of the fee award.”  (Graciano, 144 Cal.App.4th at pg. 154.)

“The purpose of such adjustment is to fix a fee at the fair market value for the particular action.”  (Id.) “In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.”  (Id.)  An attorney’s time spent and hourly rate are presumed to be reasonable.  (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761.)  ¿Reasonable hourly compensation does not include inefficient or duplicative efforts, aka “padding.” ¿(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 579-580) ¿ 

Further, prevailing parties are compensated for hours reasonably spent on fee-related issues. ¿(Serrano v. Unruh (1982) 32 Cal.3d 621, 635). ¿A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ¿(Id.) ¿The Supreme Court stated:  

A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.  ‘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 ….’ [Citation.]

(Id.) ¿ 

          Reasonableness of Hourly Rate

Here, Plaintiff has retained two separate law firms: Norman Taylor & Associates (“NT&A”) and Wirtz Law APC (“Wirtz Law”). This action was initially handled by NT&A before Wirtz Law filed its Notice of Association on September 10, 2021, and continued to work on NT&A’s discovery requests.  (Decl. of Taylor ¶¶30-35, Wirtz Decl. ¶37.)  Plaintiff asserts that the reason NT&A decided to associate with Wirtz Law is because of NT&A’s case load, the quickly approaching trial date in this case, and no offers of settlement from Defendants.  (Motion at pg. 5; Decl. of Taylor ¶35.)  It is noted that Defendant does not take issue of this decision. Under these circumstances, the Court finds that the retention of NT&A and Wirtz Law was reasonable.

In terms of the hourly rates of the firms’ respectively counsel, the Court finds them reasonable.  With regard to NT&A, it appears one attorney and two paralegals were assigned to this matter: (1) Counsel Norman Taylor (“Taylor”) with an hourly rate of $595.00; (2) Paralegal “LM” with an hourly rate of $175; and (3) Paralegal “NMC” with an hourly rate of $175.  (See Decl. of Taylor, Exh. 1.)  Counsel Taylor does not declare his hourly rate, nor the names or hourly rates of his paralegals.  (See Decl. of Taylor.)  As for Wirtz Law, five attorneys and five paralegals were assigned to this matter to varying degrees: (1) Counsel Richard Wirtz with an hourly rate of $695; (2) Counsel Amy R. Rotman with an hourly rate of $500; (3) Counsel Erin Barns with an hourly rate of $500; (4) Counsel Jessica R. Underwood with an hourly rate of $500; (5) Counsel Ommar Chavez with an hourly rate of $400; (6) Paralegal Rebecca Evans with an hourly rate of $250; (7) Paralegal Danielle Viviani with an hourly rate of $250; (8) Paralegal Andrea Beatty with an hourly rate of $250; (9) Paralegal Florence Goldson with an hourly rate of $200; (10) Paralegal Andrea Lizarraga with an hourly rate of $150; and (11) Paralegal Donna Bollenbacher with an hourly rate of $200.  (Decl. of Wirtz ¶¶13-24; Exh. A.)  While separate attorneys and paralegals were assigned to this matter, a majority of the hours were performed by Counsel Rotman, Counsel Barns, Counsel Underwood, Paralegal Bollenbacher, Paralegal Evans, Paralegal Viviani, and Paralegal Goldson.  (See Decl. of Wirtz, Exh. A.)  Defendants contest the above stated hourly rates and argue base rates of $500.00 to $595.00 per hour are not reasonable for a “simple, uneventful Lemon Law action.”  (Opposition, pgs. 4-5.)  Based on the Court’s experience, Plaintiff’s rates are reasonable.

Reasonableness of Hours for Actual Work Performed

Although detailed time records are not required, California Courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney’s testimony must be based on the attorney’s personal knowledge of the time spent and fees incurred. (Evid. Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.”  (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.)

Here, Plaintiff submitted documentation supporting the work performed by NT&A, however, Counsel Taylor does not declare the total number of hours performed by NT&A.  (See Decl. of Taylor.)   However, the Court calculates NT&A to have performed 36.7 hours on behalf of Plaintiff.  (See Decl. of Taylor, Exh. 1.)  Plaintiff submitted documentation supporting 84.7 hours performed by Wirtz Law.  (See Decl. of Wirtz, Exh. A.)

In opposition, Defendants argue the hours and fees billed are excessive for an action with no contested discovery disputes, no novel issues of law or questions of first impression, no law and motion, no expert depositions, no trial preparation, and no FSC. (Opposition at pg. 5.)  Plaintiff’s counsel’s billing entries appear reasonable, and Defendants have not met their burden to explain why such entries are unreasonable.  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)           Accordingly, Plaintiff’s billed hours are reasonable and supported.

Multiplier

The Court denies Plaintiff’s request for a 1.5 lodestar multiplier.  Plaintiff asserts that a 1.5 lodestar multiplier is warranted based on the contingency risk and public interest. (Motion at pp. 13-15.)  In opposition, Defendants argue that Plaintiff is not entitled to a lodestar fee enhancement because the case did not present novel issues, there is no proof that Plaintiff’s counsel was precluded from taking on other matters, the firms’ contingency risk is overstated, Plaintiff’s counsel’s rate is more than adequate at the outset, and the instant case was not brought for charitable or taxpayer purposes. (Opposition, pgs. 7-10.)

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. There is no shortage of experienced counsel litigating in this area of the law at these hourly rates. 

Accordingly, a 1.5 multiplier is not warranted.

          Costs

          Plaintiff argues pursuant to Civil Code §1794(d), he is entitled to costs and expenses necessarily incurred and included in the submitted Memorandum of Costs.  (Motion, pg. 15.) In opposition, Defendants argue Plaintiff’s costs should be reduced to exclude the $675.00 court reporter fee for the Order to Show Cause Re: Dismissal held on August 15, 2022, which was continued and later dismissed, as an unnecessary and unreasonable cost.  (Opposition, pgs. 10-11; C.C.P. §664.6.)  In reply, Plaintiff argues any motion to strike or tax costs must have been served and filed fifteen days after Plaintiff’s Memorandum of Costs was served on December 21, 2022.  (Reply, pg. 10.)  Because Defendant failed to timely file a motion to strike or tax costs on or by January 9, 2023, Plaintiff is entitled to all reasonable costs and expenses incurred.  (Civ. Code §1794(d).)

          Final Lodestar Determination

Based on the foregoing, Plaintiff’s motion for attorney fees is granted in part as to the request for attorney fees in the reduced amount of $50,625.04.

Dated:  January _______, 2023

Hon. Monica Bachner

Judge of the Superior Court