Ofer Shoham, et al. v. Hyundai Motor America, et al.

(1) PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES

(2) DEFENDANTS’ MOTION TO STRIKE OR TAX COSTS FILED BY WIRTZ LAW

 

MOVING PARTY: (1) Plaintiffs Ofer Shoham and Maria Lucia Vazquez De Shoham; (2) Defendants Hyundai Motor America and Keyes Hyundai of Van Nuys 

RESPONDING PARTY(S): (1) Defendants Hyundai Motor America and Keyes Hyundai of Van Nuys; (2) Plaintiffs Ofer Shoham and Maria Lucia Vazquez De Shoham

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Ofer Shoham and Maria Lucia Vazquez De Shoham (“Plaintiffs”) purchased a 2020 Hyundai Kona from Defendant Keyes Hyundai of Van Nuys, manufactured by Defendant Hyundai Motor America. Plaintiffs sued Defendant manufacturer for (1) violation of Song-Beverly Act – breach of express warranty, (2) violation of Song-Beverly Act – breach of implied warranty, and (3) violation of Song-Beverly Section 1793.2.  Plaintiffs also sued the dealer for (4) negligent repair.

On October 23, 2023, the court entered judgment after Plaintiffs accepted Defendants’ statutory offer to compromise.

Plaintiff now moves to recover his attorney’s fees. Defendant opposed. Defendant concurrently moves to strike or tax Plaintiffs’ costs included in the Wirtz Law cost memorandum. Plaintiffs opposed.  [FN 1]

TENTATIVE RULING:

Plaintiffs’ Motion for Attorney’s Fees is GRANTED IN PART, in the total amount of $22,000.00.

Defendants’ Motion to Strike or Tax Item 16 for “Other” costs is GRANTED IN PART. A total of $369.89 is ordered stricken or taxed from the cost memorandum.

Defendants’ Motion to Tax is DENIED as to all other portions of Plaintiffs’ Memorandum of Costs.

Plaintiffs to give notice, unless waived.

DISCUSSION:

Motion for Attorney’s Fees

A. Evidentiary Objections

Each party has submitted objections to evidence. This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

As such, the court respectfully declines to rule on these objections.  The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.   

B. Legal Standard

Civil Code § 1794, subdivision (d) provides:

 

(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.

(Civ. Code, § 1794, subd. (d) [emphasis added].)

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.)  “The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’”  “[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….”  (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)  In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “‘fees customarily charged by that attorney and others in the community for similar work.’”  (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.)  The burden is on the party seeking attorney fees to prove reasonableness of the fees.  (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.)

 

The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94.  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.)

C. Analysis

On September 18, 2023, Plaintiffs accepted Defendant’s section 998 Offer. (Wirtz Decl. ¶ 7.) The parties do not dispute that Plaintiffs are the prevailing parties under the Song-Beverly Consumer Warranty Act.  Accordingly, Plaintiffs are entitled to an award of reasonable attorney fees as the prevailing buyer.  The only matter at issue is the reasonableness of the fees requested.

 

1. Reasonable Hourly Rate

Plaintiffs were represented by two law firms in this action: (1) Norman Taylor & Associates (“NTA”) and (2) Wirtz Law. 

NTA seeks compensation at rates of $250 per hour for work by three paralegals, and $645.00 per hour for work by attorney Norman F. Taylor. (Taylor Decl. ¶ 13, Exh. 1.)

Wirtz Law seeks compensations at rates between $250.00 per hour and $300.00 per hour for work by five paralegals, and at rates between $450.00 and $550.00 per hour for attorneys. (Wirtz Decl. ¶¶ 15-22.)  [FN 2]

Here, Plaintiffs have demonstrated these rates are consistent with the general prevailing rates in the Los Angeles area and have recently been approved by courts in similar circumstances. Thus, under the totality of the circumstances and based upon general prevailing rates in the Los Angeles area for this type of litigation, this court finds the quoted rates to be reasonable. 

Considering the large number of attorneys and paralegals all billing at varied rates, for Lodestar purposes, this court will award a blended hourly rate of $400.00 per hour. This determination considers the complexity of the case, the quality of services provided, and the attorneys’ experience.  

2. Number of Hours Reasonably Expended

In total, Plaintiffs’ counsel’s records reflect 24 hours billed by NTA, and 72.5 hours billed by Wirtz Law. (Taylor Decl., Exh. 1, p. 7; Wirtz Decl., Exh. 1, p. 12.)

"[I]t is the burden of the challenging party to point to the specific items challenged [within the moving party’s verified billing invoice], with a sufficient argument and citations to evidence.  General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”  (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)  

In opposition, Defendant argues the case was overstaffed, over-litigated, and points to numerous entries in the billing records that it contends are unreasonable or unnecessary.  (See Hassantash Decl. ¶ 7, Exhs. C1 and C2.) Defendant asserts that Plaintiffs “only opposed a motion to compel arbitration, they did not respond to any discovery, took no depositions, defended no depositions, did not inspect any vehicle, and overall, did very little substantive legal work before Plaintiffs accepted” the section 998 offer. (Id. ¶ 2.) In total, Defendant argues the court should reduce the fee award by $28,637.50. (Id. ¶ 7.) 

Based on this court’s independent review of the billing records and consideration of the case, some of Defendants’ points are well-taken. Here, beyond the motion to compel arbitration, and subsequent motion to withdraw from arbitration, there was little, if any, law and motion practice or discovery. 

As to the work that did occur in this case, the issues involved were applicable to other consumers’ vehicles, thereby triggering economies of scale in terms of Plaintiffs’ counsel’s efficiency in litigating this matter. This should not have required anything more than slight factual modification to existing boilerplate. 

Moreover, staffing 12 legal professionals (8 for Wirtz Law, 4 for NTA) on this matter was excessive under the circumstances. “It is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor Am. (2019) 41 Cal. App. 5th 24, 39; Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal. App. 5th 240, 256 [reduction in fees warranted where “billing entries demonstrate[d] a lack of efficiency in litigating the case and a lack of clarity in tasks performed.”].) The use of numerous professionals results in unnecessary time spent “getting-up-to-speed” on the case.  This causes inefficiencies and ultimately, duplicative or unnecessary time entries.

In light of these considerations, and in view of the totality of the circumstances, the Court finds that the total amount of reasonable attorney’s fees in this case, using a lodestar methodology, is $22,000. This was calculated by multiplying the hourly rate of $400 by 55 hours, which this court deems to be the total amount of reasonable attorney’s fees in this matter on behalf of Plaintiff.

The Court in its discretion declines to apply a multiplier given this was a relatively standard Song-Beverly case with no novel or complex issues of law.  

Accordingly, Plaintiffs’ Motion for Attorney’s Fees is GRANTED in part, in the total amount of $

Motion to Tax Costs

Wirtz Law APC filed a Memorandum of Costs on December 19, 2023, seeking $4,943.03 in total costs. Defendants now move to strike or tax $2,971.63 from the Cost Memorandum.

A. Court Reporter Fees

First, Defendants move to strike or tax $2,525.00 sought for court reporter fees. Defendants contend fees for the two case management conference hearings, and the upcoming fee motion hearing, were not reasonably necessary. 

When the items on the verified cost bill appear to be proper, the burden of proof is on the contesting party. (Fennessy v. Deleuw-Cather Corp., 218 Cal. App. 3d 1192, 267 Cal. Rptr. 772 (1st Dist. 1990)).  However, when items claimed as costs do not appear on their face as proper and necessary and the items are properly challenged by a motion to tax costs, the burden of establishing the necessity of the items is on the party claiming them as costs. (Whitney v. Whitney, 164 Cal. App. 2d 577, 330 P.2d 947 (1st Dist. 1958)).  

Here, considering the scope and extent of the litigation in this matter, Defendant’s costs do not appear unreasonable on their face.  Defendants have not met their burden to establish that the items on the costs bill for court reporter fees are unreasonable or unnecessary. 

B. Electronic Filing Fees

Next, Defendants move to strike or tax $291.10 in fees for electronic filings. Defendants argue the electronic filing is merely a “convenience for counsel.” 

However, Los Angeles County Mandates electronic filing for litigants represented by attorneys in the Limited and Unlimited Civil Divisions. Therefore, these fees are recoverable. (§ 1033.5(a)(1) [allowing recovery of “filing, motion, and jury fees”].)

C. Other

Finally, Defendants move to strike or tax $155.53 in costs for legal research, copying/printing, and postage.

“Postage, telephone, and photocopying charges, except for exhibits,” are expressly not allowable as costs. (CCP § 1033.5(b)(2). Therefore, costs for courtesy copies ($260.00), printer charges ($4.00), and postage ($105.89) are ordered stricken. (See Cost Memorandum, Attach. 16(a).) Fees for legal research are not expressly excluded, and the court finds the costs sought are reasonably necessary and reasonable in amount. 

Therefore, a total of $369.89 is ordered stricken or taxed from the cost memorandum.

Accordingly, Defendants’ Motion to Strike or Tax Item 16 for “Other” costs is GRANTED in PART. A total of $369.89 is ordered stricken or taxed from the cost memorandum.

Defendants’ Motion to Tax is DENIED as to all other portions of Plaintiffs’ Memorandum of Costs.

Plaintiffs to give notice, unless waived.

IT IS SO ORDERED.

Dated:   February 15, 2024 ___________________________________