Judge Ralph C. Hofer, Case Number: 22GDCV01056, Date: 2025-02-28 Tentative Ruling

Plaintiff Xcaret Estrada alleges that in March of 2022 plaintiff entered into a warranty contract with Kia America, Inc. regarding a 2018 Kia Nero. Plaintiff alleges that under the Song-Beverly Act, defendant had an affirmative duty to promptly offer to repurchase or replace the vehicle at the time defendant failed to conform the vehicle to the terms of the express warranty after a reasonable number of attempts.

Plaintiff alleges that defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including transmission and engine issues, which substantially impair the use, value, and/or safety of the vehicle. Plaintiff delivered the vehicle to the manufacturer’s authorized repair facility for repair of the nonconformities, and defendant has been unable to conform plaintiff’s vehicle to the applicable express warranties after a reasonable number of repair attempts. The complaint alleges that notwithstanding plaintiff’s entitlement, defendant has failed to either promptly replace the vehicle or to promptly make restitution in accordance with the Song-Beverly Act.

Under CCP §1032 (b), “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” CCP § 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law. CCP § 1033.5 (a)(10).

“(d) 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.”

“3. KA will pay Plaintiff’s costs, expenses and attorney fees, in accordance with Civil Code section 1794, subdivision (d), as determined by agreement of the parties or by noticed Motion. For the limited purposes of such Motion, KA acknowledges and stipulates to the fact that Plaintiff is the “prevailing party.”

This posture leaves the issue of the reasonableness of the attorney’s fees sought by plaintiff. Plaintiff seeks an award of attorney’s fees in the lodestar amount of $22,797.50, including the time drafting the motion for fees and time anticipated to prepare a reply and attend the hearing, plus a lodestar multiplier/enhancement of 0.5, in the sum of $11,398.75, for a fee award of $34,196.25, plus costs and expenses of $5,294.83, for a total in fees costs and expenses of $39,491.08. The motion seeks a total of 52.9 hours at billing rates ranging from $295 per hour to $550 per hour, spread over nine different billing attorneys.

“[T]he fee setting inquiry in California ordinarily begins with the "lodestar," i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award." Margolin v. Regional Planning Com. (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49 .) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. ( Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." ( Melnyk v.Robledo (1976) 64 Cal. App. 3d 618, 623 624 [134 Cal. Rptr. 602].)

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

“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.” ’ ”

An award of attorney fees under the Song-Beverly Act is reviewed for abuse of discretion, and the determination of the value of professional services rendered in the trial court “will not be disturbed unless the appellate court is convinced that it is clearly wrong.” Goglin, at 470-471, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.

The opposition argues that the billing rates charged are unreasonable in light of the non-complex nature of the case, in reliance on past case law where hourly rates were reduced to $350 per hour and fees awards were reduced due to overstaffing. The opposition proposes that all rates for attorneys above $350 per hour be reduced to $350 per hour, without providing evidence concerning the current prevailing rates in this community and the prevailing market rate.

The moving papers submit evidence justifying the billing rates claimed, describing the experience and expertise of each attorney billing in this matter. [Kirnos Decl., paras. 20-31]. The showing also includes reference to numerous previous cases in Los Angeles County in which rates in and above the current range were approved in Song-Beverly matters involving these attorneys. [Kirnos Decl., paras. 34-49, 51-55, Exs. E-S, V-Z]. The court has also taken into account the testimony concerning the specialty of the attorneys in Song-Beverly cases, and the efficiencies created by that specialized knowledge. [Kirnos Decl., paras. 10, 21-23, 32]. Under the circumstances the court finds the billing rates reasonable and will not reduce the rates charged.

Defendant indicates that there was excessive time discussing the case among the various attorneys and staff, but, as pointed out in the reply, it does not appear that more than one attorney was billing for those discussions. The court notes that the time was quite modest, and there is no circumstance such as a new law firm being briefed to come up to speed on work that had already been performed.

Defendant also argues there was excessive time meeting and conferring and opposing defendant’s motion to compel plaintiff’s deposition and vehicle inspection. The court agrees that while plaintiff is claiming that plaintiff was always amenable to a deposition and vehicle inspection, plaintiff’s delay in providing dates and cooperating necessitated a motion to compel, which should not have been necessary given the entitlement to such discovery in a case such as this one, and the orders in place in this Department concerning the entitlement to plaintiff’s deposition and a vehicle inspection under specified conditions, to which plaintiff agreed. The court finds that plaintiff under the circumstances should have reasonably spent only 1 hour at a junior attorney billing rate of $295 per hour to indicate in writing and at the hearing plaintiff’s non-opposition to the granting of the motion and indicate plaintiff’s willingness to appear for deposition and produce the vehicle on dates certain, to be entered as the order of the court. The opposition filed with the court was only slightly more than two pages long, and did not explain the failure of plaintiff to appear at deposition at which a notice of non-appearance had to be taken. The billings show that a total of $1,573.50 was billed in connection with opposing the subject motion. That sum will be reduced to $295, for a reduction of $1,278.50. .

Defendant also argues that there was excessive time spent on a discovery dispute issues in connection with document demands, and a motion to compel further responses to requests for production of documents. It appears overall that the filing of a motion was necessary to obtain documents to which plaintiff was entitled. While the court remains concerned that the motion was pursued when the court has in place orders to streamline such discovery, and that plaintiff did not in that motion refer to those orders, the court cannot on the record before it determine that the motion was not in fact reasonably necessary to motivate defendant to produce documents in this matter which were necessary for plaintiff to pursue plaintiff’s claims. The court also notes that defendant in the opposition appears to urge the court to disallow those fees in their entirety, which is not an appropriate outcome when plaintiff was pursuing appropriate document production, and defendant evidently conceded that it had been withholding discoverable documentation when defendant supplemented its responses to render the motion moot.

While there is some argument that other fees were not proper, such as for drafting standard discovery responses and filing what defendant characterizes as an unnecessary motion to enforce settlement, the court does not find these fees to be overstated or not reasonably necessary to the prosecution of plaintiff’s action, and to obtain the agreed upon vehicle surrender. The court has reviewed the balance of the billings and finds that the only remaining concern is the time sought to pursue the motion for fees.

Defendant argues that the court should not award the entire 12.8 hours sought to pursue the motion for attorney’s fees. However, this time appears to have been necessary. The court has reviewed plaintiff’s papers and recognizes that the reply required some attention given the detail of the opposition. The reply has also submitted a declaration of the attorney who prepared the reply, an experienced lemon law attorney, who indicates in a reasonable breakdown that the reply actually took 7 hours at $550 per hour to prepare (1.5 hours reviewing opposition, 4 hours drafting reply, objections and declaration, 1.5 hours attending hearing.). [Cutler Decl., para. 5-9]. This amount is within the ballpark of what had been anticipated, hours totaling 7.5 hours at $550 per hour. The court reduces the fees anticipated to reflect the actual charges, reducing the fees by .5 hours at $550 per hour for a further reduction of $275.00.

Plaintiff argues that a lodestar enhancement is appropriate here to adjust the to increase the fee award to reflect the risk and delay in payment associated with taking a contingent case, as well as the result achieved. Plaintiff argues that throughout the litigation there always existed the possibility that plaintiff would not prevail, which risk was compounded by plaintiff’s attorney’s advancing all costs and expenses without reimbursement. Plaintiff also argues that defendant dragged this case out for a year and six months before finally resolving it, and so there was a substantial delay in payment.

The opposition argues that no multiplier is warranted in this case, as the case is a routine lemon law case, and did not present novel issues, and that the court should not improperly double count by using counsel’s qualifications to justify both the hourly rate and the multiplier. Defendant argues that Song Beverly cases are simple affairs, and no lodestar multiplier should be awarded here.

It has been held that despite the specific language of Civil Code § 1794(d) that fees must be “based on actual time expended, determined by the Court to have been reasonably incurred by the buyer,” the lodestar adjustment method, including use of a lodestar fee multiplier, is applicable to an award of attorney’s fees under the Song-Beverly Act. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 821.

The court of appeal in Robertson, although concluding that the use of a multiplier is authorized in such cases, remanded that case to the trial court to recalculate the award, on the ground the trial court had considered some of the same factors in reaching the lodestar amount as it did in applying a multiplier. Robertson, at 821.

“[T]he 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. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. 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.

In any case, the court notes that in connection with this motion, the court has accepted the various billing rates claimed in their entirety, over the protest of defendant, based on successful arguments by plaintiff and the submission of evidence establishing that the attorneys are experienced specialists in this area of law.

This matter was not a complicated case and did not involve any novel or difficult issues, beyond those which ordinarily arise in a Song-Beverly action. Also, there is no prejudice from passing on other cases established by the declaration by plaintiff’s counsel. It would appear that the billing rates take into account the level of recovery expected, and the nature of the representation. As discussed above, the court has declined to reduce any of the billing rates, based in part on representations concerning the experience and expertise of the billing attorneys. Under the circumstances, the contingent nature of the representation, by itself, does not justify the application of a multiplier. The court finds that no multiplier in favor of plaintiff is warranted here. The lodestar is not further adjusted.

With respect to the costs claimed by plaintiff, as noted above, the parties agreed in their settlement agreement that plaintiff was to be awarded costs, attorney’s fees and expenses pursuant to the Song-Beverly Act, which provides, at Civil Code § 1794 (d), with respect to consumer warranty protection:

Case law has interpreted this section to permit a prevailing buyer to recover both costs and “expenses” to cover costs which may not be included in the statutory definition of costs under CCP §1033.5. In Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, the court of appeal found the trial court had erred in denying plaintiff expert witness fees claimed in her cost bill, reasoning:

Section 1794, subdivision (d), permits the prevailing buyer to recover both “costs” and “expenses.” Examining the language of the statute (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1238), it is clear the Legislature intended the word “expenses” to cover items not included in the detailed statutory definition of “costs.” However, because the scope of the term “expenses” is uncertain, we turn to legislative history for clues about the Legislature's intent. (Ibid.)

The Legislature added the “costs and expenses” language to section 1794 in 1978. (Stats. 1978, ch. 991, § 10, p. 3065.) An analysis by the Assembly Committee on Labor, Employment, and Consumer Affairs states: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of 'costs and expenses' by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) p. 2.)

In Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616 [28 Cal.Rptr.2d 878], we stated that the “Legislature has reserved to itself the power to determine selectively the types of actions and circumstances in which expert witness fees should be recoverable as costs and such fees may not otherwise be recovered in a cost award.” (Id. at p. 1625.) In this case, the Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act and within the meaning of Ripley.

The trial court denied Jensen's request for expert witness fees based on the legal determination those fees were barred by Code of Civil Procedure section 1033.5. For this reason, we remand the case to permit the court to determine whether the amount of fees sought by Jensen were “reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action.” (§ 1794, subd. (d).)

The costs and expenses sought here are set forth in a Memorandum of Costs, filed on January 6, 2025, and also submitted with the moving papers. [Kirnos Decl., Ex. B]. The Memorandum is accompanied by a Worksheet itemizing the claimed costs. Costs and expenses are sought in the total sum of $5,294.83.

The question for the court in this matter is whether the costs and expenses are proper on their face insofar as they either fall within the categories of CCP section 1033.5 and/or were incurred in the “commencement and prosecution” of this case. Civil Code section 1794 (d); Jensen, at 138.

In general, where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to challenge the costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761.

Defendant in opposition here does not challenge any of the specific items of costs. Defendant acknowledges the sum sought in the Memorandum of Costs, and states, in a footnote, that “KA reserves the right to oppose these costs in a separate Motion to Tax or Strike Costs, as permitted by Code.” [Opposition, p. 2, n. 1]. As noted above, the parties agreed in their Settlement Agreement that

The costs and expenses are appropriately sought here pursuant to noticed motion and are awarded on this motion. Moreover, as pointed out in the opposition, defendant has in any case failed to timely file a motion to tax or strike costs under the “Code,” which motion “must be served and filed 15 days after service of the cost memorandum.” CRC Rule. 3.1700 (b)(1). The Rule provides that if the cost memorandum was served electronically, the period is extended under CCP section 1010.6, so for two court days. CRC Rule 3.170 (b)(1); CCP section 1010.6 (a)(3)(B). Here the Memorandum was filed and served by electronic service on January 6, 2025. Fifteen days from this date, permitting an extension of two court days for service electronically, was January 23, 2025, which, as argued in the reply, was several weeks ago.

There are two items of costs sought in the “Other” Item which the court finds do not appear proper on their face. First, the Memorandum claims a cost for “Appearance Attorneys” claimed at $130.00. This sum appears to constitute a component of attorney’s fees, but was not included in the motion pertaining to fees. There is also a charge for “Travel,” in the sum of $51.36, which the court finds appears irregular on its face. Plaintiff has not in the motion or reply sufficiently explained these costs. The burden has not shifted to defendant on these costs. The court accordingly reduces them from the total costs claimed.

The Court finds that the parties agree that plaintiff Xcaret Estrada was a prevailing party in the action, and so is under Civil Code § 1794 (d) allowed by the court to recover as part of the judgment a sum to cover attorney's fees based on actual time expended, and determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

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