Judge Richard S. Whitney, Case 37-2018-00029707-CU-BC-CTL 2023-12-08 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2018-00029707-CU-BC-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2018-00029707-CU-BC-CTL YAKO VS KIA MOTORS AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, COSTS, AND EXPENSES is GRANTED, in part.

Plaintiff EDDIE YAKO ('Plaintiff') seeks a total of $148,606.76 in attorney's fees and costs composed of $61,220.00 in attorney fees for Strategic Legal Practices, APC ('SLP'), $33,985.00 in attorney fees for California Consumers, P.C. ('CCA'), a 1.35 multiplier enhancement on the attorney fees ($33,321.75), costs and expenses of $16,580.01 for SLP, and $3,500.00 to SLP for this fee motion from Defendant KIA MOTORS AMERICA, INC. ('Defendant'). Civil Code section 1794(d) provides for an award of 'costs and expenses, including attorney's fees' to the prevailing buyer. The amount of attorney's fees is '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(d).) Further, the parties settled this matter via a CCP section 998 Offer to Compromise ('998 Offer') which provides a total settlement of $47,000.00 plus attorneys' fees and costs in an amount to be determined by the Court to have been reasonably incurred pursuant to Civil Code section 1794(d).

It is undisputed Plaintiff is the prevailing party and entitled to an award of attorney's fees and costs and expenses pursuant to Civil Code section 1794(d). To calculate the appropriate lodestar in this action, one must determine the reasonable hourly rate and multiply that figure by the reasonable number of hours spent. (Graham v. DaimlerChrysler Corporation (2009) 34 Cal.4th 563, 579-580.) Plaintiff has sufficiently shown that the hourly rates are not unreasonable, and Defendant does not sufficiently dispute the reasonableness of the hourly rates.

The Court agrees overstaffing can potentially be a problem and it appears to have been a problem in this case, especially given the turnover of attorneys and number of attorneys working on the case.

In evaluating whether the attorney fee request is reasonable, the trial court should consider ' 'whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.' ' (Ibid.) 'Reasonable compensation does not include compensation for ' 'padding' in the form of inefficient or duplicative efforts....' [Citations.] 'A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.' ' (Ibid.; see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735 ['trial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation'].) Calendar No.: Event ID: TENTATIVE RULINGS

2988665 56 CASE NUMBER: CASE TITLE: YAKO VS KIA MOTORS AMERICA INC [IMAGED] 37-2018-00029707-CU-BC-CTL (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38.) 'Plainly, 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.' (Id. at 39.) In Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, the court found that the reasonable number of hours was 274 out of the 595 claimed where the case was staffed with 'an astonishing array of 10 different attorneys.' (Id. at 256.) The case in Mikhaeilpoor went to trial for 'six days.' (Id. at 244.) Here, an astounding seventeen (17) attorneys billed on this matter. The total hours billed 205.06 (140.90 from SLP and 64.16 from CCA) is not too far from the amount the court in Mikhaeilpoor found was reasonable for billing through trial. This case was settled before trial. The Court has reviewed the objections and responses to objections to time entries and the Court agrees there is some padding. For example, more than three hours for a template complaint is too much, especially given that the task of adding information concerning repair orders can be done by a paralegal. The work billed for drafting and finalizing discovery responses appears more than necessary. While Plaintiff's counsel asserts the requests hinge on the specific vehicle, Plaintiff's counsel fails to acknowledge the template nature of this case should have made it such that minor modifications to the templates could have been completed in very little time. Plaintiff duplicate billed for the review and signing of a stipulation to continue trial (Plaintiff does not dispute this). Further, the amount billed is excessive.

Plaintiff fails to properly justify each entry to which Defendant objected. While Plaintiff attempts to explain the amount of billing as being a result of attorneys being specialized in different aspects of the case, the evidence does not necessarily support that conclusion. Rather, the billings support that the case was overstaffed and resulted in needless catching up by different attorneys who worked on the matter. In fact, Plaintiff does not dispute the amount of attorney turnover on this case but acknowledges it and partly blames the length of the litigation. As Defendant points out, Plaintiff did not make a single settlement demand. Plaintiff is, at a minimum, partly responsible for the length of this litigation. While specialization can help with efficiencies, seventeen (17) is way beyond the number of attorneys that would help create efficiencies. The same analysis above applies to the drafting and finalizing of CMC statements and notices for deposition. While not heavily padded, the entries add up.

Plaintiff defends the amount of time spent by CCA to catch up on the case by citing case law that it is appropriate to have a second chair and some internal communication is necessary. However, Plaintiff does not dispute the fact that CCA did not work on the documents CCA spent time reviewing. This created a duplication of efforts. For example, if CCA had helped with defending the motion of summary judgment it would have been familiar with the case such that it would not have been necessary to review and analyze the case files for the same amount of time in preparation for trial.

Another example is the amount of time billed for reviewing NHTSA documents when Plaintiff acknowledges that the parties have a protective order in place to allow Plaintiff's counsel to use the NHTSA documents in discovery for all Theta 2 cases. Rather than address the fact seventeen (17) hours were billed for documents that were reviewed in all other Theta 2, Plaintiff merely asserts the time billing was on different dates. Plaintiff is apparently suggesting that the documents were reviewed multiple times. Plaintiff is apparently admitting inefficiencies.

The padding is at times exacerbated by block billing. The Court may adjust the lodestar downward based on the inclusion of fees for work unrelated to the merits, for vague or 'blockbilled' time entries, and for work that was 'unnecessary.' (569 East County, supra, 6 Cal.App.5th at 441.) The same applies to 'inefficient or duplicative efforts.' (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) The Court notes there is block billing as to discovery requests (including depositions), the protective order, 998 offers, vehicle inspection, and reviewing case files. The most egregious block billing comes from the numerous entries by CCA related to various tasks such as reviewing case files, coordinating with co-counsel, and strategizing.

Considering all the above, the Court finds it is appropriate to reduce the fee award to SLP by $12,370.00 Calendar No.: Event ID: TENTATIVE RULINGS

2988665 56 CASE NUMBER: CASE TITLE: YAKO VS KIA MOTORS AMERICA INC [IMAGED] 37-2018-00029707-CU-BC-CTL and to CCA by $5,630.00.

Defendant asserts the attorney's fees incurred as to the fraud claim are not technically recoverable. The Court agrees.

When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees.

Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award.

(Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.) 'When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required.' (Id.) The fraud claims were not covered by Civil Code section 1794(d) nor the offer to compromise.

Therefore, the fees are only recoverable if the Song-Beverly claims and fraud claims were 'inextricably intertwined [such] that it would be impractical or impossible to separate the attorney's time into compensable and noncompensable units.' (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 159.) Similar to the defendant in Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, Defendant fails to demonstrate how the claims do not stem from a common set of facts. (Id. at 349.) The Court cannot distinguish between the Song-Beverly claims and the fraud claims based on the billing records. Therefore, the Court cannot reduce the award by some amount attributable to Plaintiff's efforts to litigate the fraud claims.

Plaintiff requests that the Court apply a multiplier. The Court chooses not to apply a multiplier to increase the lodestar figure, inasmuch as the Court already carefully considered the difficulty of the case, the quality of representation, the contingent nature of the case, the delay in payment, and the results achieved in coming up with its lodestar figure. In Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139, the California Supreme Court observed that the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, though it retains discretion to do so in the appropriate case. However, the Court further cautioned that a trial court should not apply a fee enhancement or multiplier to the basic lodestar figure if the lodestar figure, itself, reflects consideration of the exceptional representation, lest the attorney end up getting double compensated.

(Id.) Here, this Court does not believe the quality of representation exceeded the quality of representation one would have expected from a capable, experienced $695-per-hour attorney, devoting a reasonable number of hours. This was not a terribly complicated case, i.e., it was not a CEQA case, patent law case, complex class action, etc.

Defendant challenges Plaintiff's request for costs and notes the lack of a memorandum of costs. Under California Rules of Court, Rule 3.1700, Plaintiff is required to file and serve a memorandum of costs. The Court declines to address the costs in the absence of a filed memorandum of costs. The Court will address Plaintiff's request for costs and expenses if Defendant ultimately files a motion to tax costs.

In summary, the Court awards Plaintiff with a lodestar of $77,205.00 ($48,850 to SLP and $28,355 to CCA) after being reduced by a total of $18,000.00 for the reasons discussed above. The Court also awards $3,500 to Plaintiff (SLP) for this fee motion. No multiplier is awarded. The Court awards attorney's fees in the total amount of $80,705.00 ($77,205.00 plus $3,500).

Calendar No.: Event ID: TENTATIVE RULINGS

2988665 56