Judge: Monica Bachner, Case: 21STCV38785, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV38785    Hearing Date: April 21, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Rhonda Savage’s motion for attorneys’ fees is granted in part in the reduced amount of $53,959.50.  Plaintiff’s motion for costs and expenses will be decided at the hearing on Defendant’s motion to tax costs.

Plaintiff Rhonda Savage (“Savage”) (“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 Toyota Motor Sales, U.S.A., Inc. (“TMS”) (“Defendant”).  (Notice of Motion, pg. 1; Civ. Code §1794(d); Decl. of Wirtz, Exh. H.)  Specifically, Plaintiff seeks attorneys’ fees in the amount of $53,959.50 with a lodestar enhancement multiplier of 1.5, equaling $26,979.75, for a total of $80,939.25 in attorneys’ fees as well as costs and expenses in the amount of $3,779.93 for a total amount requested by this motion of $84,719.18.  (Notice of Motion, pg. 1.)

Evidentiary Objections

Plaintiff’s 4/14/23 evidentiary objections to the Declaration of Thomas M. Murphy (“Murphy”) are overruled as to Nos. 1, 2, 3, 4, and 5, and sustained as to No. 6 (and overruled as to “There were no depositions taken, no written discovery requests propounded to Plaintiff, and no legal inspection of the vehicle.”), 7, 8, and 9.

          Background

          On October 21, 2021, Plaintiff filed the instant action for violations of the Song-Beverly Act in connection with his September 6, 2019, purchase of a 2019 Toyota Camry (“Subject Vehicle”), which was manufactured by Defendant. On October 5, 2022, the Plaintiff and Defendant entered into a 998 Offer (“Settlement Agreement”) wherein Defendant agreed to pay Plaintiff $46,479.96 and reimburse Plaintiff’s 2022 DMV registration renewal ($375.00), any loan payments paid by Plaintiff after June 1, 2022, plus Plaintiff’s attorney’s costs, expenses, and attorney fees, per Civil Code section 1794(d).

          Plaintiff filed the instant motion on March 29, 2023.  Defendant filed its opposition on April 6, 2023.  Plaintiff filed her reply on April 14, 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 May 20, 2022, and continued to work on NT&A’s discovery requests.  (Decl. of Taylor ¶¶29-35, Decl. of Wirtz ¶35.)  Plaintiff asserts that the reason NT&A decided to associate with Wirtz Law is because of NT&A’s case load and stalled efforts to settled.  (Motion at pg. 5; Decl. of Taylor ¶35.)  It is noted that Defendant does not take issue with Plaintiff’s decision to retain Wirtz Law. 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.  Regarding NT&A, it appears one attorney and three paralegals were assigned to this matter: (1) Counsel Norman Taylor (“Taylor”) with an hourly rate of $645.00; (2) Paralegal Nick McNaughton with an hourly rate of $250; (3) Paralegal Lusine Musat with an hourly rate of $205; and (4) Paralegal Lori Richardson.  (Decl. of Taylor ¶¶5, 12-13, 26, Exhs. 1, 6.)  As for Wirtz Law, five attorneys and five paralegals were assigned to this matter to varying degrees: (1) Counsel Richard M. Wirtz with an hourly rate of $695; (2) Counsel Amy R. Rotman with an hourly rate of $500; (3) Counsel Jessica R. Underwood with an hourly rate of $500; (4) Counsel Erin K. Barns with an hourly rate of $500; (5) Counsel Ommar Chavez with an hourly rate of $400; (6) Kelsey Henry with an hourly rate of $400; (7) Paralegal Rebecca Evans with an hourly rate of $300; (8) Paralegal Danielle Viviani with an hourly rate of $250; (9) Paralegal Andrea Beatty with an hourly rate of $250; (10) Paralegal Florence Goldson with an hourly rate of $200; (11) Paralegal Zoe Hildebrand with an hourly rate of $200; (12) Paralegal Amanda Vitanatchi with an hourly rate of $200; and (13) Paralegal Andrea Lizarraga with an hourly rate of $200.  (Decl. of Wirtz ¶¶13, 15-26; Exh. A.)  While separate attorneys and paralegals were assigned to this matter, a majority of the hours were performed by Counselors Rotman and Underwood, and Paralegals Goldson, Viviani, and Lizarraga.  (See Decl. of Wirtz, Exh. A.)  Defendant contests the above stated hourly rates and argue base rates of $500.00 to $595.00 per hour are not reasonable for a “simple lemon law case that presented no novel issues.”  (Opposition, pg. 11.)  Based on the Court’s experience, Plaintiff’s counsel’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 Plaintiff submitted documentation supporting 32.7 hours performed by NT&A.  (See Decl. of Taylor, Exh. 1.)  Plaintiff submitted documentation supporting 136.8 hours performed by Wirtz Law.  (See Decl. of Wirtz, Exh. A.)

Defendant’s first argument that fees incurred after Defendant’s June 8, 2022, §998 offer are unreasonable and unnecessary is unavailing.  Defendant argues because Plaintiff’s continued litigation efforts proved unfruitful as the Settlement Agreement finalized in October 2022 provided Plaintiff with nearly identical terms as she could have received many months earlier in June 2022.  (Opposition, pg. 7.)  Plaintiff recovered a higher settlement than Defendant’s June 2022 §998 offer and did not fail to obtain a more favorable result at trial; therefore C.C.P. §998’s penalty provision does not apply, and Defendant’s citation to Bodell Construction Co. and Reck are inapposite, as this Court is not required to consider the overall recovery of a reasonable attorney fee award.  (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 851-852; Bodell Construction Co. v. Trustees of California State University (1998) 62 Cal.App.4th 1508, 1525; Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 700 [stating that the Court has discretion to consider the overall recovery]; see Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 164 [“While the Song-Beverly Act is not a civil rights statute, our courts have recognized that consumer protection litigation is likewise in the public interest. Because such litigation ‘involves . . . individual plaintiff[s] suing under consumer protection statutes involving mandatory fee-shifting provisions, the legislative policies are in favor of [a plaintiff’s] recovery of all attorney fees reasonably expended, without limiting the fees to a proportion of [the] actual recovery.’”].)

Defendant also argues the hours and fees billed are exaggerated, unreasonable, and duplicative for a “straightforward lemon law case that did not even get close to trial and involved minimal discovery.” (Opposition, pg. 8.)  Defendant objects to the following categories of billed hours: (1) time spent noticing the depositions of relevant personnel; (2) time spent following up to ensure Defendant completed its obligations under the Settlement; and (3) time spent on the instant motion.  (Opposition, pgs. 7-9.)  Plaintiff’s counsel’s billing entries appear reasonable and supported, and Defendant has not met its burden to explain why such entries are unreasonable.  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)  Defendant also argues the instant motion includes billing from eight attorneys, resulting in duplicative and unnecessary work. (Opposition, pg. 10; Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272 [determining multiple attorneys can be problematic if there is “over conferencing, attorney stacking (multiple attorneys at court functions), and excessive research”].)  Defendant fails to meet its burden to argue with particularity which billed hours demonstrate over conferencing, attorney stacking, and excessive research.  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, Defendant argues 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), she is entitled to costs and expenses necessarily incurred and included in the submitted Memorandum of Costs.  (Motion, pg. 15.)  Defendant does not challenge Plaintiff’s Memorandum of Costs in the instant motion and instead timely filed a motion to tax costs and expenses allegedly incurred, which is the proper mechanism to challenge Plaintiff’s request for costs.  (CRC, Rule 3.1700.)  Accordingly, the portion of Plaintiff’s motion for costs and expenses incurred will be decided at the hearing on the motion to tax costs.

          Final Lodestar Determination

Based on the foregoing, Plaintiff’s motion for attorney fees is granted in part.  The Court awards fees in the amount of $53,959.50.

Dated: April _____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court