Judge: Shirley K. Watkins, Case: 20VECV00369, Date: 2023-04-07 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20VECV00369    Hearing Date: April 7, 2023    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Richard Walker’s Motion for Attorneys’ Fees is GRANTED in Part.  Plaintiff Richard Walker’s attorneys’ fees is reduced to $49,543.50. 

Plaintiff Richard Walker’s Request for Judicial Notice is GRANTED only as to the existence of the orders and not as to the facts in dispute.

Introduction

            Plaintiff Richard Walker (Plaintiff) moved for $71,683.50 in attorneys’ fees against Defendant Hyundai Motor America (Defendant.)   

            Procedure

            Plaintiff requested judicial notice of other Court orders related to attorney fees in other lemon law actions.  However, the Court’s rulings as to what was deemed to be a reasonable rate for attorneys’ fees in those cases are presented to support a disputed fact in the instant action.  The parties disagreed as to the issue of the reasonable rate for the instant action.  Because there is a dispute on the reasonable rate applicable in the instant action, the Court does not take judicial notice of the Court’s findings in the other lemon law cases.  The Court only takes judicial notice as to the existence of those orders and notes the hourly rates which were approved.  Plaintiff’s request for judicial notice is GRANTED as to the existence of the orders but not as to any hearsay or facts in dispute.  The court cannot say on what those courts based their determinations of reasonable hourly rates although the Court can see the range of hourly rates.  Even without those figures, this Court has substantial experience in reviewing motions for attorney fees and can use that experience to calculate reasonable rates.

            Plaintiff and Defendant’s evidentiary objections are ruled upon separately.

            Discussion 

            Plaintiff asserted entitlement to attorneys’ fees as the prevailing party per Civil Code section 1794(d).  There is no dispute that Plaintiff is the prevailing party.  Defendant argued that all fees incurred after Plaintiff’s rejection of Defendant’s August 23, 2021’s 998 offer should be stricken.  Defendant asserted that the settlement amount was not more favorable than Defendant’s 998 offers.  Under Reck v FCA US LLC (2021) 64 Cal.App.5th 682, the Court has authority to compare a 998 Offer with a subsequent settlement to determine whether a plaintiff obtained a more favorable judgment.  In the instant action, Defendant served upon Plaintiff two separate 998 Offers.  The first was dated October 5, 2020 (2020 Offer) and the second was dated August 23, 2021 (2021 Offer.)  (Bassi Decl., Exhs. B & C.)  Both offers contained several options.  In relevant part, Defendant 2020 Offer included an offer to outright repurchase the vehicle for $45,100.00.  Defendant’s 2021 Offer included an increased offer to outright repurchase the vehicle for $65,000.00.  Other terms were included but are inconsequential to the instant analysis.  The ultimate settlement between the parties required Defendant to repurchase the vehicle for $75,000.00.  (Bassi Decl., Exh. D at par. 2(a).)  Because Defendant is paying more on the settlement than either of their 998 offers (and more specifically the 2021 Offer,) Plaintiff obtained a more favorable judgment.  In an action grounded on the Song-Beverly Consumer Warranty Act (Act,) the trial court may not reduce or deny an attorney fee award on the basis of plaintiff's failure to accept a section 998 offer when the ultimate recovery exceeds the rejected offer.  (Reck v FCA US LLC, supra, 64 Cal.App.5th at pp. 697-698.)  Because Plaintiff obtained a more favorable judgment, the 998 penalties are inapplicable.  Defendant’s arguments as to Code of Civil Procedure section 998 are not persuasive to reduce Plaintiff’s fees.

Defendant argued that it was Plaintiff’s unreasonable prosecution of the case beyond the 2021 Offer that caused an increase in fees.  However, Plaintiff’s denial of the 2021 Offer is not seen as being unreasonable, even if the Court can take unreasonableness of a 998 offer into consideration. Plaintiff ultimately obtained a more favorable result.  Because Plaintiff obtained a more favorable result, the rejection of the 2021 Offer is not viewed as unreasonable.

Defendant argued that the requested fees are unreasonable. The Court agrees that some of the fees were unreasonable.

Civil Code section 1794(d) states that a prevailing buyer shall recover, “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.” (Emphasis added.) The Act “‘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.’ ” [Citations omitted.]”  (Morris v. Hyundai Motor America (2019) 41 Cal.App.5^th 24, 34.)  Plaintiff submitted that a total of 146.4 hours (including the time to review the instant opposition and draft the reply) was expended in the prosecution of the action based upon Plaintiff’s invoice.  (Cohen Decl., par. 18, Exh. J; Cohen Supp. Decl. par. 4, Exh. A.)  Defendant argued that the fees charged by Ms. Anvar are not recoverable because they were pre-litigation fees.  However, the statute expressly stated that fees for “commencement” of the action is recoverable.  Commencement would necessarily include work performed prior to the filing of the Complaint, inclusive of pre-litigation investigation, demands, legal research and/or drafting of the Complaint.  Defendant’s argument requesting to strike Ms. Anvar’s fees is unpersuasive. 

Each entry in Plaintiff’s invoice expressly stated, “unbilled.”  Based upon this notation, there is an internal dispute between Mr. Cohen’s declaration and Exhibit J on whether Plaintiff “incurred” the charges.  The Court noted that Plaintiff did not submit the retainer agreement which would have indisputably shown whether Plaintiff was liable for the attorneys’ fees.  Because there is question as to whether Plaintiff incurred the fees, a question exists as to whether the alleged time expended was reasonably incurred. 

The court's objective is to award a fee at the fair market value for the particular action. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The analysis generally begins with the lodestar figure-i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id. at pp. 1131-1132.) The lodestar is the basic fee for comparable legal services in the community. (Id. at p. 1132.)

For purposes of section 1794(d), a prevailing buyer represented by counsel is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorney.. A 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. The lodestar method for calculating attorneys’ fees applies to any statutory attorneys’ fees award, unless the statute authorizing the award provides for another method of calculation. The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.

Assuming that Plaintiff’s Counsels expended 146.4 hours, the Court must 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.  The Court finds that the instant action was not complex but a straightforward lemon law case.  Mr. Cohen attested to his 10+ years of litigation experience, which included litigating “dozens of lemon law cases” from 2014 through 2018; joining the current firm as a first associate, helping establish the firm’s litigation practice, and being first chair in the firm’s first jury trial where he obtained an award against Mercedes-Benz USA, LLC.  With Mr. Cohen’s experience, the instant action cannot be seen as a difficult matter for him.  The discovery proceedings in the instant action were minimal, with only one discovery hearing being fully heard.  The discovery issue was Plaintiff’s motion for further responses to document demands.  Other matters were taken off-calendar before the respective hearings, like Defendant’s motion to compel Plaintiff’s deposition and a hearing on Defendant’s motion for summary adjudication (MSA.)  It is noted that no briefing was ever filed on the MSA.  Law and motion proceedings in this action were minimal.  Further, this action was settled on or about October 24, 2022, which was approximately two and a half years after filing of the complaint.  It is undisputable that some of the delay in prosecuting this action can be attributed to the COVID-19 pandemic and the Court’s closures.  Even though the matter took time to get to settlement, the amount of time in prosecuting this action did not have much bearing on the complexity of the case.  The lack of complexity in this case also provides grounds for the reduction in the hours expended by Plaintiff’s counsels. 

Mr. Cohen attested to the hourly rates charged by the attorneys and paralegals:  (1) Jessica Anvar ($525/hour); (2) Jordan G. Cohen ($510/hour); (3) Rodney Gi ($475/hour) (Cohen Decl., pars. 13-15,) and paralegal rate of $175/hour (Cohen Decl., par. 16.)  Because Plaintiff failed to submit admissible declarations from Ms. Anvar, Mr. Gi (albeit because Mr. Gi is no longer working at the firm,) and the paralegals regarding the reasonableness of their rates, a dispute arises as to whether their rates are reasonable.  Mr. Cohen’s declaration is hearsay and inadmissible to support the hourly rates of Ms. Anvar, Mr. Gi, and the paralegals.  On this evidentiary defect, there is grounds to find that the hourly rates of Ms. Anvar, Mr. Gi, and the paralegals are unreasonable.  The type of work that was done and the extent of training and experience needed to do the work of Ms. Anvar and Mr. Gi the court finds to be, based upon similar work by similar attorneys in similar cases in Los Angeles County, to be $425 per hour for Ms. Anvar and $400 an hour for Mr. Gi.

Additionally, the Court notes that there were billings concerning the motion to compel the deposition of the plaintiff.  That motion had been fully worked up and had posted the tentative ruling which states as follows:

Moving party gives a detailed explanation of the steps it took to obtain the deposition of the plaintiff.

Plaintiff’s counsel does not oppose the motion on the law but only by declaration.  There is no explanation for 2 year delay in providing plaintiff for deposition.

Plaintiff’s counsel is the firm and it was the firm’s responsibility to promptly assign new counsel, not a “handling attorney.”  In fact there is confusion because the declaration states that Mr. Gi, prior “handling attorney” left the firm August 5^th and that Mr. Cohen was hired on 8/17/2022.  This means there was a 2 week period of time that no one was reviewing and supervising this case.

If counsel knew about the deposition notice once he was hired, then he should have known about the agreement by his office to provide plaintiff for deposition.  Sending an objection is not a good faith meet and confer nor a reasonable attempt to resolve the matter.

No substantial justification for failure to meet and confer once it was known the deposition was scheduled per agreement.

No substantial justification and no evidence of the cause of the delay since the original notice for plaintiff’s deposition was served.

A reasonable inference is that absent the motion, no affirmative action would have been taken by plaintiff’s counsel to reschedule the deposition.

No alternative dates were provided (as far as known to the court) in the objection.

Monetary sanctions would have been assessed against counsel Consumer Law Experts, PC for discovery abuse in failing to produce the plaintiff for deposition despite prior agreements to do so without substantial justification.  However, neither the caption of the notice of motion nor the notice of motion give notice of the request for sanctions, which are therefore denied.

Deposition ordered to take place on 9/7/2022 at time and location to be determined by defense counsel.

            Therefore, the Court does not approve of any fees in opposing this motion because had sanctions been requested by defendant, plaintiff and his counsel would have been sanctioned for discovery abuse.  This removes $______ from the billing.

            There are a number of billing which relate to a paralegal's clerical work.  This work is the cost of running an office and there can be no recovery for that type of billing.  This removes $_______ from the billing.

            The vast majority of time spent in this case is filing the motion for attorney fees and the reply which totals $______ of the total billing.  The court finds that the time billed is inflated and unreasonable.  Similarly, the time for ____ is also inflated and unreasonable.  The court finds that the billing was approximately double of what a reasonably trained attorney in similar circumstances in this County would bill.

            The court notes that fully 23% of the fees (or about $17,000) sought are solely due to the motion for fees.  A review of that billing seems inflated and the motion overworked.  The court deducted time from that billing and another $5,000 upon further review. The court closely reviewed each line of the billings and has calculated a reduced amount of $49,543.50 as a reasonable fee.  Essentially this case was a few Case Management Conferences, a motion to compel, and an MSC.  Nothing else of significance was done.  The case was not yet worked up for trial.  No summary judgment motion was opposed.  Multiple depositions did not take place.  A 5.3 hour deposition of the plaintiff was taken. The court's calculations showing reductions cannot be uploaded to the tentative ruling site but will be available for inspection at the time of the hearing.

The motion for attorneys’ fees is GRANTED in Part.  Plaintiff is awarded the reduced amount of $49,543.60.