Judge Robert S. Draper, Case 19STCV14766 2023-04-17 Tentative Ruling

Judge: Robert S. Draper, Case: 19STCV14766, Date: 2023-04-17 Tentative Ruling

Case Number: 19STCV14766 Hearing Date: April 17, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

JUAN PEREZ, et al.,

Plaintiffs,

vs.

FORD MOTOR COMPANY, et al.,

Defendants. Case No.: 19STCV14766

Hearing Date: April 17, 2023

[TENTATIVE] RULING RE:

PLAINTIFFS JUAN PEREZ AND JUAN PABLO PEREZ’S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES.

Plaintiffs Juan Perez and Juan Pablo Perez’s Motion for Attorneys’ Fees is GRANTED in the amount of $72,643.00.

Plaintiffs Juan Perez and Juan Pablo Perez’s Request for Costs and Expenses is GRANTED in the amount of $19,549.93.

FACTUAL BACKGROUND

This is an action brought under the Song-Beverly Consumer Warranty Act (the “SBA”). The Complaint alleges as follows.

Plaintiffs Juan Perez (“Perez”) and Juan Pablo Perez (“Pablo Perez” and together with Perez, “Plaintiffs”) purchased a used 2015 Ford Mustang (“Subject Vehicle”) manufactured by Defendant Ford Motor Company (“Ford”). (Compl. ¶ 9.) The vehicle began demonstrating numerous defects covered by the vehicle’s express warranty. (Compl. ¶ 10.) Plaintiffs repeatedly brought the Subject Vehicle into an authorized Ford repair facility, but the facility was unable to remedy the defects. (Compl. ¶ 24.)

PROCEDURAL HISTORY

On April 29, 2019, Plaintiffs filed the Complaint asserting four causes of action:

1. Violation of Song-Beverly Act – Breach of Express Warranty;

2. Violation of Song-Beverly Act – Breach of Implied Warranty;

3. Violation of the Song-Beverly Act – Section 1793.2; and

4. Negligent Repair

On November 17, 2020, Ford filed a Motion for Summary Judgment.

On August 23, 2022, the Court denied Ford’s Motion for Summary Judgment.

On September 8, 2022, Plaintiffs filed a Notice of Settlement.

On December 22, 2022, Plaintiffs filed the instant Motion for Attorneys’ Fees and a Memorandum of Costs.

On January 6, 2023, Defendants filed an Opposition.

On January 12, 2023, Plaintiffs filed a Reply.

DISCUSSION

I. EVIDENTIARY OBJECTIONS

Plaintiffs’ Objections to the Declaration of Hannah Miller

Plaintiffs’ Evidentiary Objections to the Declaration of Hannah Miller are OVERRULED.

II. MOTION FOR ATTORNEYS’ FEES

Plaintiffs seek reasonable attorneys’ fees pursuant to Civil Code section 1794(d).

Section 1794(d) provides a prevailing buyer the right “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.” In enacting section 1794, “the Legislature envisioned an objective, nonarbitrary, and easy way to administer calculation of attorney fees based on the ‘lodestar’ method (reasonable hours and rates plus a multiplier) ‘in order to fix the fee at the fair market value for the legal services provided.” (Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1117.) “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.)

In awarding fees, “the court's analysis must begin with the ‘actual time expended, determined by the court to have been reasonably incurred.’” (Hanna v. Mercedez-Benz USA, LLC (2019) 36 Cal.App.5th 493, 510.) The “prevailing party has the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-18.) The trial court “must initially determine the actual time expended.” (Mikhaeilpoor v. BMW of North America (2020) 48 Cal.App.5th 240, 247.) The court must then “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” relative to the “complexity of the case and procedural demands, the attorney skill exhibited and the results achieved,” among other factors. (Id.)

After the lodestar amount is fixed, it may be adjusted. An adjustment to the lodestar “is commonly referred to as a ‘fee enhancement’ or ‘multiplier’” and the trial court “is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor, supra, at 247.) In adjusting the lodestar figure, trial courts may consider: “(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; [and] (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322 fn. 12.) “The ‘results obtained’ factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit.” (Graham v. DaimlerChrysler Corp. (2005) 34 Cal. 4th 553, 582.)

A. Initial Lodestar

Plaintiffs seek $74,143.00 in attorneys’ fees. (Kirnos Decl. ¶ 2.) This number represents 230.2 hours of attorney time, billed at a rate of between $200 and $450 an hour. (Ex. A.)

In Opposition to this initial amount, Defendants make several arguments. The Court will address those arguments in the order Defendants present them.

1. Hourly Rates

First, Defendants contend that Plaintiffs’ hourly rates are excessive and should be reduced.

Plaintiffs seek hourly rates of between $200 to $415 for associates and between $375 to $500 for partners. (Kirnos Decl. ¶¶ 32-48.) Defendants note that the Real Rates Reports indicate that Consumer Goods rates for partners was $366 and for associates was $281 in 2022. (Opposition at p. 5.) Defendants contend Plaintiffs’ rates should be capped at $350 for partners and $275 for associates. (Opposition at pp. 6-7.)

On Reply, Plaintiffs note that they have submitted around twenty Song-Beverly Act rulings in this Court approving Plaintiffs’ rates as reasonable. (Kirnos Decl. ¶¶ 51-70.)

The Court finds that Plaintiffs’ requested rates are reasonable for an attorney working Song-Beverly Act claims in Los Angeles County.

2. Inflated Hours

Next, Defendants argue that there are multiple questionable and inflated entries within Plaintiffs’ billing logs.

Defendants note that Plaintiffs seek to recover 6 hours for a Motion to Compel further responses without first seeking an Informal Discovery Conference, contrary to this Court’s rules. (Miller Decl. ¶ 3.) Defendants state that the Court took this motion off calendar due to Plaintiffs’ failure to comply with Court rules. (Ibid.)

Plaintiffs contend that Plaintiffs would not have needed to file this motion had Defendants not obfuscated during the discovery process. However, the Court finds that it is unreasonable to request attorney time for a motion filed contrary to Court rules that was not heard.

Accordingly, the Court deducts $1500.00 from the initial lodestar to account for this discrepancy.

Next, Defendants note that Plaintiffs billed over 40 hours to oppose Defendants’ Motion for Summary Judgment. Defendants move the Court to reduce this amount by at least 20%. However, absent clear indications of excessive billing, the Court will not find a billing record excessive for opposing a dispositive motion upon which Plaintiffs were entirely successful.

Next, Defendants argue that Plaintiffs improperly seek compensation for travel time to and from dealer depositions. Defendants contend that Plaintiffs should have obtained a local expert so that Plaintiffs’ Counsel did not have to compute travel time.

However, this does not account for the time it would take Plaintiffs’ Counsel to retain a local expert, nor does it account for the time Plaintiffs’ Counsel would have been required to spend familiarizing that expert with the facts of the case. Accordingly, the Court finds this argument unavailing.

Finally, Defendants contend that Armando Lopez billed .9 hours to review Ford’s Ex Parte to Specially Set the Hearing on Ford’s MSJ but did not attend the hearing, and therefore that bill should be omitted. The Court does not find this to be an indication of improper billing and will not reduce the attorneys’ fees for this discrepancy.

3. The Instant Motion

Next, Defendants note that Plaintiffs have billed 12.7 hours for the instant motion, including 7 hours for reviewing the Opposition, drafting a Reply, and appearing at the hearing.

The Court finds this time appropriate for the instant motion, and that it is commonplace and acceptable to bill for anticipated time spent on drafting a Reply and appearing at hearing.

4. Block Billing

Next, Defendants contend that Plaintiffs engaged in duplicative and redundant work that is obfuscated by Plaintiffs’ use of block billing.

“Block billing is not objectionable ‘per se,’ though it certainly does increase the risk that the trial court, in a reasonable exercise of its discretion, will discount a fee request. [Citation.] Block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation . . . from work that does not. [Citation.]” (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830.)

Upon review, the Court finds that Plaintiffs’ billing records are not so permeated with block billing problems such that the Court has difficulty discerning what was worked on and for how long. Additionally, though the Court notes the use of numerous attorneys, the hours logged do not appear to be excessively duplicative.

B. Lodestar Multiplier

Plaintiffs seek a Lodestar Multiplier of .5. This would constitute a $37,071.50 enhancement to Plaintiffs’ requested initial lodestar. Plaintiffs contend there should be a .2 enhancement based on the possibility that Plaintiffs would not prevail, and as Plaintiffs’ Counsel represented Plaintiffs on a contingent basis, and a .3 enhancement based on the delay that Plaintiffs’ Counsel incurred due to Defendants’ resistance to settlement.

In Opposition, Defendants argue that there was nothing novel or complex about the litigation to justify a lodestar enhancement, and that because there is a statutory right to attorneys’ fees in Song-Beverly claims, the risk of not recovering anything was minimized for Plaintiffs.

Defendants’ argument is availing. With its initial lodestar, Plaintiffs’ Counsel is adequately compensated for the time and effort it spent on this matter. Absent a compelling reason, the Court sees no reason to award a lodestar multiplier.

Plaintiffs’ Motion for Attorney Fees is GRANTED in the amount of $72,643.00

III. COSTS AND EXPENSES

Next, Plaintiffs seek costs and expenses in the amount of $19,549.93 pursuant to Civil Code section 1794(d).

Civil Code section 1794, subdivision (d) provides that a prevailing 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 . . . determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”

Civil Code section 1794, subdivision (d) “permits the prevailing buyer to recover both ‘costs’ and ‘expenses.’ Examining the language of the statute [citation], it is clear the Legislature intended the word ‘expenses’ to cover items not included in the detailed statutory definition of ‘costs.’” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137, as modified on denial of reh’g (June 22, 1995).) The Legislature included awards of “costs and expenses” in the statute “‘to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc.’” (Id. at 138 (quoting Assem. Com. on Labor, Employment & Consumer Affairs, Analysis of Assem. Bill No. 3374 (May 24, 1978) at 2.))

Here, Defendants contend that Plaintiffs impermissibly seek to recover expert fees, though those fees are unrecoverable under CCP section 1033.5(b). However, as noted above, Civil Code section 1794(d) covers both costs and expenses, which is intentionally broader than CCP section 1033.5, and which California Courts have interpreted as covering expert witness fees.

Additionally, the Court notes that a Motion to Tax Costs “must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700(b)(1).) And, “the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable. (Cal. Rules of Court, rule 3.1700(b)(2).)

Here, Plaintiffs have filed a complete Memorandum of Costs which “is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred.”¿(Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266.) Defendants have failed to file a code compliant motion challenging the validity of these costs.

Accordingly, Plaintiffs’ Request for Costs and Expenses in the amount of $19,549.93 is GRANTED.

DATED: April 17, 2023

______________________________

Hon. Jill T. Feeney

Judge of the Superior Court