Judge: Stephen P. Pfahler, Case: 22STCV34683, Date: 2024-12-17 Tentative Ruling

Case Number: 22STCV34683    Hearing Date: December 17, 2024    Dept: 68

Dept. 68

Date: 12-17-24 c/f 9-10-24

Case: 22STCV34683

Trial Date: N/A

ATTORNEY FEES

MOVING PARTY: Plaintiff, Kye Lee

RESPONDING PARTY: Defendant, Hyundai Motors America, Inc.

RELIEF REQUESTED

Motion for Attorney Fees

SUMMARY OF ACTION

On April 16, 2024, Plaintiff filed a notice of settlement of the entire case, with the determination of attorney fees reserved for a hearing.

RULING: Granted.

Plaintiff Kye Lee moves for $41,242.97 in attorney fees and costs, listed as: $29,650 in fees, $1,180.47 in costs a 1.25 multiplier, and $3,000 for the instant motion. Defendant Hyundai Motors America, Inc. (Hyundai) in opposition challenges the motion on grounds of excessive attorney fees and lack of any justification for a multiplier. Plaintiffs in reply acknowledges the lack of any opposition to the entitlement of fees, and reiterates the reasonableness of all entries as well as entitlement to a multiplier enhancement.

The accepted 998 offer and settlement agreement specifically delegated determination of statutorily recoverable fees and costs to the court, thereby entitling Plaintiffs to bring the subject motion. [Declaration of Alex Cha, Ex. D.] (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168–169.) Plaintiffs are also presumed prevailing parties for purposes of statutory recovery. (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10)(B); Civ. Code, § 1794, subd. (d).)

As a prevailing party, Plaintiffs are entitled to recover post-offer costs as well. The court finds the provisions of Code of Civil Procedure section 998 not applicable, as the action settled rather than going to trial and leading to judgment. (Code Civ. Proc., § 998, subd. (e).) Nothing in the opposition to the motion otherwise establishes any right to a fee cut-off subsequent to the time of the offer, due to Defendant obtaining a better result via judgment. (Scott Co. of California v. Blount, Inc. (1999) 20 Cal.4th 1103, 1114; Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 726; see Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 60; Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 248.)

Plaintiff has “the burden of showing that the fees incurred [are] “’allowable,’ [are] ‘reasonably necessary to the conduct of the litigation,’ and [are] ‘reasonable in amount.’” (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34.) The statute “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.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) The lodestar method for determination of fees applies. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 819.)

“‘[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. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

The reasonableness of attorney fees lies within the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) The court makes it determination based on the consideration of a number of factors, including, “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” (Ibid.) The court should apply an objective standard of reasonableness. (Id. at p. 1098.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) The court adheres to the “market rate” approach for contingency cases, and finds the “Laffey” charts general and only suggestive. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057; Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619-620.)

Counsel lists billable rates of $350/hour for attorney Sena Hori and $550/hour for Alex Cha. Counsel identifies a total of 69 hours—Hori for 41.5 hours billed; Cha for 27.5 hours. The $3,000 request for the subject motion is listed in the declaration as an entry by Cha for four hours. The remaining amount to bring the total to $3,000 falls under the costs for the reply and appearance. Plaintiff seeks a 1.25 times multiplier applied to the $29,650 base for an additional $7,412.50, as well as $1,180.47 in identified costs.

Hyundai in opposition, while not disputing the right to recovery, offers no suggested reasonable counter amount, and instead challenges the reasonableness of specific entries, and denial of any multiplier enhancement, given the “simple” and “routine” nature of the action and experience of counsel. Hyundai also challenges the range of hourly rates, and asserts that associate Hori in fact works for Wood Smith Henning & Berman, LLP, a firm not identifying lemon law as a specialty practice of the firm, thereby diminishing the recoverable rate. Hyundai also takes issue with Cha only listing lemon law practice for two years, thereby also lowering any reasonable rate to “no more than $300 per hour” for such work. The suggested rate is commensurate with contract defense work billing at $200-$250/hour.

The subject action was presumably taken on a contingency basis, with statutory recovery an assumed condition for recovery of any fee. Song-Beverly litigation constitutes a specialty, due to the extensive statutory guidelines and technical requirements in analyzing a vehicle. The court declines to consider any purported relationship between Hori and Wood Smith Henning & Berman, LLP. A failure to either update notice of employment or otherwise somehow jointly work with a law firm in no way even ostensibly associated with the subject action will not undermine the determination of the reasonableness of the hourly rate or total recovery. Given the nature of contingency work relative to defense billing, the court also declines to compare reasonableness of rates on this basis. The court also finds that while Cha may have only identified lemon law as a specialty more recently, Cha still presents as an experienced lawyer well within the rate for a consumer advocate litigator in Los Angeles County. the court finds the billing rates represent a reasonable range for the market and practice area. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247, 256; Center for Biological Diversity v. County of San Bernardino, supra, 188 Cal.App.4th at pp. 619-620; see Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973) 487 F.2d 161, 167.)

The court next considers the listed entries. “In referring to ‘reasonable’ compensation, we indicated that trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Levy v. Toyota Motor Sales, U.S.A., Inc., supra, 4 Cal.App.4th at p. 817.) The court considers the individual contributions of each attorney rather engage in a categorical determination of entitlement. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 40; Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 280-281; Christian Research Institute v. Alnor, (2008) 165 Cal.App.4th 1315, 1329.)

The court finds no documented examples of unrelated work leading to the settlement, but certain items appear as redundant billing items. (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271.) Hyundai addresses a number of entries as to the necessity and efficiency, while Plaintiff in reply emphasizes the reasonableness of its billing, including block billing. Overall, the court finds certain entries excessive, particularly in the complaint and discovery related work.

The tersely worded complaint reflects a consistent pro forma style for Song-Beverly Act litigation. While counsel perhaps spent time researching the vehicle, nothing in the subject complaint reflects four hours of work. The court deducts three (3) of the four (4) hours from the October 31, 2022, entry thereby leaving one hour at the $350/hour rate.

On the discovery motions, the six hours spent drafting discovery requests on November 22, 2022, one and one half hours reviewing responses on December 7 and February 24, 2023 (total of three hours), additional review on February 27, 2023 and April 4, 2023, review of verifications and research on motions on April 10, 2023, six hours drafting four motions to compel initial responses on April 12, 2023, review of the motions and drafting of replies on June 12 and 16, 2023, and attend the hearing on June 26, 2023 (whereby the court awarded $1,000 in sanctions), are excessive, and seek to recover an improper windfall. The court determined compensation for the exact same items in the form of sanctions at the time of the hearing. The court strikes these entries in their entirety given both the excessive amount of hours listed, and the prior award reflecting compensation for the items. Any award for recovery of additional fees on the subject discovery items constitutes an improper double recovery.

On the July 11, 2023, the court finds the reviews of document production by both attorneys for a total 4.5 hours improperly redundant. Nothing in the declaration establishes completely separate and discrete items, or the necessity of two attorneys to review presumably at least some of the same items. The court reduces the entry by two and one half hours for a total recovery of two hours on this date. The court awards one hour each at the $350 and $550 hourly rates.

The two and one half hours for the PMK deposition motion on January 8, 2024, when read in context with the entries regarding the PMK deposition beginning on September 27, 2023, is excessive and unnecessary. The court docket shows no filed motion. Furthermore, the court stayed the case on March 28, 2024, and the case settled before any motion was considered. [Declaration of Donna Hopper.] The court strikes all entries, with the exception of the 12-7-24 entry for settlement discussion with client by Cha.

Finally, the five and one half hours spent reviewing the arbitration motion by both attorneys on March 27 and 28, 2024, is redundant and therefore excessive. The court reduces the total to two and one half hours with an even split at the respective rates.

On the discovery motions, the court therefore deducts 23.4 hours for Hori ($8,190), and 9.5 hours for Cha ($5,225). The reduced and adjusted costs on the complaint, document review, and arbitration/stay motion amount to $2,375. The deducted amounts render a remainder of the fee for $13,297.50 ($4,497.50 Hori  + $8,800 Cha), plus $3,000 for the instant motion for a total of $16,297.50.

The court declines to award a multiplier on the subject action. “The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in “ ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts” that the lodestar amount is unreasonably low or unreasonably high.” (Van Gerwen v. Guarantee Mut. Life Co. (9th Cir. 2000) 214 F.3d 1041, 1045.) The court finds the lodestar determination sufficiently addresses the fee. Nothing in the litigation over the subject vehicle which led to a pre-trial settlement demonstrates a rare or exceptional case showing a significant benefit beyond reimbursement for the vehicle and lost time, as well as a fee reflecting the assumed contingency nature of the representation. (Blum v. Stenson (1984) 465 U.S. 886, 901; Hensley v. Eckerhart (1983) 461 U.S. 424, 434; see Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 844.)

On costs, the court appreciates the argument from Hyundai regarding the lack of a memorandum of costs, but the declaration clearly articulates each and every item. The court finds no improperly listed items. The items appear reasonable, especially given the fixed fees for court costs, without or without documentation. The service of process fees in no way appears excessive. The court awards all costs.

The court therefore awards $16,297.50 in attorney fees plus $11,180.47 in costs for a total recovery of $17,477.97.

Because the amount of fees exceeds $5,000, the order is immediately appealable. (Code Civ. Proc., 904.1, subd. (a)(12); Doe v. Luster (2006) 145 Cal.App.4th 139, 146.)

Plaintiff to give notice.