Judge: Sandy N. Leal, Case: 2020-01162881, Date: 2023-08-31 Tentative Ruling
Motion for Attorney Fees
Plaintiffs Ronnie Adelhelm and Melba Joan Adelhelm’s motion for attorney fees, costs, and expenses is GRANTED in the reduced amount of $63,552.66.
Entitlement to Attorneys’ Fees:
Plaintiffs move for attorneys’ fees pursuant to Civil Code section 1794, subdivision (d) which states: “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.”
Plaintiffs accepted Defendant’s third Section 998 Offer to Compromise in the amount of $41,499.03 on March 28, 2023. The Section 998 Offer states:
“KA will pay Plaintiffs’ attorney's fees, expenses and costs in an amount to be determined by the Court to have been reasonably incurred pursuant to Civil Code Section 1794(d). For purposes of any such motion, KA will agree that Plaintiffs are the prevailing party.”
(Linnell Decl., ¶60, Ex. 5.) Therefore, Plaintiffs are the prevailing party entitled to attorney’s fees, expenses and costs.
Amount of Attorneys’ Fees:
“[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.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The reasonable hourly rate is that prevailing in the community for similar work. [Citation.] 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.” (Id.)
“As the plain wording of section 1794, subdivision (d) makes clear, the trial court is ‘to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged.’ [Citation.] In the case of contingency fee arrangements, ‘a prevailing buyer ... is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorneys.’ [Citation.] [¶] Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and 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.’ [Citation.] Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. [Citation.] The prevailing party and fee applicant bears ‘the burden of showing that the fees incurred were ... “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ [Citations.]” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247 (Mikhaeilpoor).)
Plaintiffs seek $85,891.50 in attorneys’ fees for 174.60 hours of work on the case by Strategic Legal Practices, APC (“SLP”).
Defendant challenges the total hours for which Plaintiffs seek fees.
First, Defendant’s challenge SLP’s billing of 6.5 hours at $325/hr. for a total of $2,112.50 to prepare a timeline of repairs which included only 8 repair order for visits at a Kia authorized repair facility. The hours billed are excessive and are reduced by 5.5 hours.
Second, Defendant’s challenge SLP’s billing of 17.4 hours to prepare Oppositions to Defendant’s Demurrer and Motion to Strike Plaintiff’s Complaint, First Amended Complaint, and Second Amended Complaint. Defendant has shown that each Demurrer and Motion to Strike related to the same causes of action and caselaw so no additional research was needed. Further, Defendant has shown that its Demurrer was ultimately sustained without leave to amend as to the third, fifth, sixth, and seventh causes of action. The hours billed by SLP are excessive and reduced by 12 hours.
Third, Defendant has shown that SLP billed 15.5 hours to review NHTSA documents that were reviewed and billed for in other matters. It should not take counsel 15.5 hours to review documents it has sought and reviewed repetitively. The hours billed are reduced by 10 hours.
Fourth, Defendant has shown that SLP billed 8.2 hours to “prepare for, attend, and defend” Plaintiff Ronnie Adelhelm’s deposition which was less than 5 hours long. Prior to the deposition, SLP also billed an additional 8 hours to prepare Plaintiff for the deposition. The amount billed to prepare Plaintiff for deposition is excessive and is reduced by 2.5 hours.
Fifth, Defendant has shown Plaintiffs billed 2.70 hours to prepare the Complaint, 2.9 hours to prepare the First Amended Complaint, and 1.8 hours to prepare the Second Amended Complaint. Defendant has shown that Plaintiffs used a form Complaint which has been used across hundreds of cases. Therefore, Defendant has shown that the amount requested is excessive and is reduced by 3 hours.
Sixth, Defendant have shown that 2.60 hours to prepare discovery requests which are form discovery used across hundreds of cases is excessive. The amount requested by Plaintiffs is reduced by 1.5 hours.
Lastly, Plaintiffs seek recovery for 11.10 hours for preparing the fee motion. The amount is excessive and is reduced by 4 hours.
Based on the foregoing the hours requested are reduced by 38.50, for a total hours of 136.10 hours awarded to Plaintiffs.
Defendants also challenge the hourly rate charged by Plaintiffs and ask that the Court reduce it to $350 per hour. Defendants cite to Mikhaeilpoor, where the Court of Appeal affirmed the trial Court’s reduction of SLP’s rate to $350 an hour. (Mikhaeilpoor, supra, 48 Cal.App.5th at 256.)
Here, Plaintiffs seek fees ranging from $325 to $595 per hour. The Court finds that $400 an hour is a reasonable hourly rate.
Based on the foregoing the Court awards $54,440 ($400/hr. x 136.10 hrs.) in attorneys’ fees.
Multiplier to the Lodestar:
“The Supreme Court has ‘set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: “(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.” ’ ” (Mikhaeilpoor, supra, 48 Cal.App.5th at 248.) “The trial court is neither foreclosed from, nor required to, award a multiplier.” (Mikhaeilpoor, at p. 247.)
Plaintiffs seek a 1.35 multiplier on the attorney fees ($30,062.03). A multiplier to the lodestar is not warranted. This is a routine lemon law case, with no unusual facts or novel legal issues requiring exceptional skill. The Motion does not address the extent to which the nature of the litigation precluded other employment by the attorneys. Further, the availability of statutory fees for Song-Beverly cases significantly reduced the risk associated with working on contingency. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1174-1175 [FEHA fees award].) Therefore, the request for a multiplier is DENIED.
Cost and Expenses:
Plaintiffs seek $8,712.66 in costs and expenses for SLP. The 998 Offer which was accepted by Plaintiffs provides that KA will pay Plaintiffs’ expenses and costs.
The opposition does not challenge the costs and expenses sought by Plaintiffs.
Accordingly, the $8,712.66 in costs and expenses is GRANTED.
Attorneys’ Fees for Reviewing Opposition/Filing Reply/Attending Hearing:
Plaintiffs seek an additional $3,500 in attorneys’ fees to review the opposition, prepare a reply and attend the hearing.
Plaintiffs did not file a reply and have not provided a breakdown of the additional fees requested. Accordingly, the court grants $400 in additional fees.
Based on the foregoing, the Court should GRANT $54,840 in attorneys’ fees and $8,712.66 in costs and expenses for a total of $63,552.66.
Plaintiffs to give notice.