Judge: Theresa M. Traber, Case: 21STCV24406, Date: 2023-12-18 Tentative Ruling

Case Number: 21STCV24406    Hearing Date: December 18, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 18, 2023                TRIAL DATE: VACATED

CASE:                         Oscar Garcia Lopez v. FCA US, LLC

CASE NO.:                 21STCV24406

MOTION FOR ATTORNEY’S FEES AND COSTS

MOVING PARTY:               Plaintiff Oscar Garcia Lopez

RESPONDING PARTY(S): Defendant FCA US, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on July 1, 2021. Plaintiff leased a 2018 Jeep Grand Cherokee on which subsequently exhibited brake, engine, and electrical defects.

Plaintiff moves for an award of attorney’s fees and costs pursuant to a settlement agreement.

TENTATIVE RULING:

Plaintiff’s Motion for Attorney’s Fees and costs is GRANTED in the amount of $114,405 in attorney’s fees plus $17,381.01 in costs.

DISCUSSION:

            Plaintiff moves for an award of attorneys’ fees and costs in the amount of $155,816.76 as the prevailing party on a settlement.

Evidentiary Objections to Declaration of Stephen Grimsrud

            Plaintiff objects to the Declaration of Stephen T. Grimsrud in support of the opposition. The Court rules on these objections as follows:

Objection No. 1: SUSTAINED as irrelevant. Defendant’s offer to compromise has no bearing on this motion.

Objections Nos. 2-3: OVERRULED. These objections go to weight, not admissibility.

Entitlement to Fees

            Plaintiff seeks an award of attorney’s fees, costs, and expenses pursuant to a settlement agreement reached by the parties. Plaintiff brought claims for violation of the Song-Beverly Consumer Warranty Act (Civ. Code § 1790 et seq.) and for fraudulent omission.

Civil Code section 1794(d) 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.

            On June 21, 2023, the parties signed an offer to compromise under Code of Civil Procedure section 998 to repurchase Plaintiff’s vehicle for $116,000. (Declaration of Roger Kirnos ISO Mot. ¶  26 Exh. D.) The offer provided for an award of reasonable attorney’s fees to Plaintiff by noticed motion pursuant to Civil Code section 1794(d). (Id.) The parties agree that Plaintiff is the prevailing party. (Id.)

Reasonableness of Fees

            Plaintiff requests a total fee award of $138,435.75, based on a total of $88,578 in fees accrued by Plaintiff’s counsel up to the filing of the motion, (Kirnos Decl. Exh. A.), plus $2,970 in fees incurred reviewing the opposition and preparing the reply (Declaration of Jacob Cutler ISO Reply ¶¶ 6-7), plus $742.50 in anticipated fees to attend the hearing, (Kirnos Decl. Exh. A), plus an additional $ 46,145.25 resulting from a 1.5 multiplier.

            Reasonable attorney’s fees are allowable costs when authorized by contract, statute, or law. (Code Civ. Proc § 1033.5(a)(10), (c)(5)(B).)  Here, the basis for the fees sought is Civil Code § 1794(d). 

Reasonable attorney’s fees shall be fixed by the Court and shall be an element of the costs of suit. (Code Civ. Proc. § 1033.5(c)(5)(B).) Reasonable attorney’s fees are ordinarily determined by the Court pursuant to the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004 [“California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.”].) “[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….”  (Ibid.) In setting the hourly rate for a fee award, courts are entitled to consider the “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Info. Sys., Inc. (1993) 13 Cal.App.4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 664.)  The burden is on the party seeking attorney’s fees to prove the reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.) 

The Court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.)  The Court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

1.      Base Fee Requests

Plaintiff has provided an itemized list of the attorney and law clerk time billed in connection with this case by Plaintiff’s counsel. (Kirnos Decl. Exh. A.) Plaintiff’s counsel billed a total of 242.1 hours in connection with this case at hourly rates ranging from $175 to $645 per hour. (Id.) As the managing partner, Attorney Kirnos attests to the skills, training, and experience of Knight Law Group’s attorneys, and to the veracity of KLG’s time entries. (Kirnos Decl. ¶¶ 28-50, 52.) The Court also observes that, notwithstanding the length of time spent on this case, Plaintiff’s counsel has exercised billing judgment, assigning research and drafting tasks to associates and junior partners, and reserving more strategic and editing pursuits to senior partners charging higher rates. (See generally Exh. A.)

Defendant objects to specific time entries as improper or unreasonable. First, Defendant challenges billing entries on behalf of Samantha Doody, a law clerk at KLG, to review discovery responses and prepare a meet and confer letter as unreasonably duplicative. (Kirnos Decl. Exh. A. p.5 4/6/2022 – 4/8/2022.) According to Defendant, because Attorney Sundeep Samra billed additional time a week later to review the same discovery and prepare a meet and confer letter, the work performed by Ms. Doody was duplicative. (Id. 4/15/2022.) Defendant also offers the unsupported accusation that the time billed by Ms. Doody was “practicing law without a license.” That claim is entirely inappropriate. As Defendant should be well aware, non-lawyers employed in a law firm may assist in the provision of professional services so long as the non-lawyer is subject to attorney supervision. (Cal. Rules of Professional Conduct Rule 5.3.) As to Defendant’s argument that the fees are duplicative, Plaintiff states in reply that Ms. Doody’s work began the process of reviewing the discovery and drafting a meet and confer letter for Attorney Samra to subsequently revise and edit, thereby reducing the time incurred by an attorney with a higher hourly rate. The Court is satisfied based on this explanation that Ms. Doody’s fees are reasonable.

Defendant next argues that the fees sought by Attorney Timothy Lupinek to prepare for personnel depositions, accounting for some 13.5 hours at $375 per hour, are excessive. (See Kirnos Exh. A. p.6 4/25/2022 – 4/26/2022.) Defendant offers no basis for the claim that these fees are excessive beyond an unsupported assertion. That is not sufficient to demonstrate that Attorney Lupinek’s fees are unreasonable.

Third, Defendant contends that Attorney Armando Lopez’s billing entries involving a Motion to Compel dealer depositions are all unreasonable and should be denied. Attorney Lopez billed 4.2 hours to prepare the moving and reply papers for that motion (Kirnos Decl. Exh. A. p.8 7/21/2022, 9/28/2022, 10/3/2022), plus 3.9 hours to review the Court’s tentative ruling and prepare for the hearing (Id. 10/7/2022, 10/10/2022). The Court denied the motion on procedural grounds as being improperly served and brought under an incorrect statute. (See October 10, 2022 Minute Order.) Plaintiff’s billing records show that Attorney Lopez then billed another 0.9 hours on October 26, 2022 to revise the motion. (Kirnos Decl. Exh. A. p. 8 10/26/2022.) As Plaintiff states in reply, a ruling that a motion is not viable under the noticed statute does not mean that a motion is not viable under any statute whatsoever. Thus, it is not per se unreasonable for an attorney to attempt to revise a motion to set forth an alternative authority for the relief sought. Moreover, the fact that a motion is unsuccessful because of procedural errors—such as a defect in service or failure to identify the correct statute under which the motion must be brought—does not mean that those fees were not reasonably incurred.

Defendant also argues that portions of Plaintiff’s fee requests are improper because Plaintiff is not entitled to an award of fees on his fraud claim and has not separated the fees and costs incurred with respect to that cause of action from his Song-Beverly claims. The Court of Appeal has expressly rejected this argument in the context of fraud claims in a lemon law action. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) The fraud and Song-Beverly claims in this action arose from a common factual nucleus and need not be separated out in Plaintiff’s fee request.

Next, Defendant argues that Attorney Scot Wilson improperly billed 16.5 hours to prepare for a deposition of Defendant’s person most knowledgeable. (See Kirnos Decl. Exh. A. p.9 12/22, 12/23, 12/28, and 12/29/2022.) Defendant contends that these fees are unreasonable because, when that deposition went forward, it was Attorney Lopez, not Wilson, who took that deposition, and Attorney Lopez only incurred 0.8 hours to prepare for the deposition and 2.3 hours to take it. (Id. p. 11 2/22/2023.) The billing records show that Attorney Wilson incurred those hours to review exhibits and prepare an outline for the deposition. (Id. p. 9 12/22, 12/23, 12/28, and 12/29/2022.) Attorney Lopez’s billing entries make no mention of preparation of any such materials, and, moreover, the Court is not persuaded by Defendant’s unsupported assertion that 48 minutes is adequate time to prepare for a deposition of a key witness. The logical deduction from these records is that Attorney Wilson, as someone with extensive experience in Song-Beverly matters, leveraged his experience to review the relevant materials and prepare notes and deposition questions, which streamlined Attorney Lopez’s preparation when the deposition finally went forward.

Defendant also argues that Plaintiff’s fee request should be reduced because the case was overstaffed, as it involved 17 different lawyers and two law clerks over the course of this litigation. The Court has discretion to reduce a fee award if the Court finds that the case was so overstaffed that significant inefficiencies and inflated fees resulted. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 35.) However, Defendant provides no justification for the assertion that the number of attorneys working on the case led to inefficiencies and inflated fees. Defendant has therefore failed to demonstrate that the fee award should be reduced on this basis.

Finally, Defendant argues that the hourly rates sought by Plaintiff’s counsel are excessive. Defendant claims that $350 per hour is a reasonable rate, citing Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240. Defendant’s authority does not stand for the position advanced in the papers. In Mikhaeilpoor, the Court of Appeal held that the trial court did not abuse its discretion in a 2018 ruling adjusting a fee award to reflect an hourly rate of $350 per hour. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 256.) That opinion did not state that fees in excess of $350 per hour are per se unreasonable, only that the Court’s reasoning in imposing that limitation was supported by substantial evidence in that case. The Court is thus not persuaded that Plaintiff’s fee request should be limited on this basis.

2.      Fee Multiplier

Plaintiff requests that the lodestar be enhanced by a multiplier of 1.5, which would result in an additional award of $46,145.25.  Plaintiff contends that this multiplier is reasonable considering the contingent nature of this action, Plaintiff’s counsel’s experience and knowledge, the difficulty of this litigation, and the favorable result achieved for Plaintiff. Multipliers for successful representation on a contingency basis have frequently been awarded. (See, e.g., Santana v. FCA US LLC (2020) 56 Cal.App.5th 334, 352.)

            Defendant argues that the Court should not only decline to award a positive multiplier but should impose a negative multiplier because this case was “a basic Song-Beverly case with a fraud claim common to a significant percentage of the cases that Knight Law Group files” involving “a standard complaint and standard discovery” and trial documents that “were essentially identical to many others used by this firm in other cases.”  (Declaration of Stephen T. Grimsrud ISO Opp. ¶ 6.) Defendant’s contention is partially belied by the record in this case which reflects two years of litigation, removal to federal court, discovery motion practice, and a motion for summary judgment involving substantial evidentiary production. In the Court’s view, prosecuting such a case through motions practice and pursuing the case to a favorable settlement shows legal representation that embraces risk despite the contingent character of receiving fees, such that a multiplier on the fee award is proper. That said, the Court is persuaded that a 1.5 fee multiplier is somewhat inflated relative to the procedural history of this litigation, especially as the experience of Plaintiff’s counsel and the difficulty of the case are already reflected in the lodestar computation. Because the lodestar does not recognize the risk taken in pursuing this matter or the excellent result achieved, the Court will therefore award a reduced 1.25 multiplier to enhance the fees expended through the settlement, or $22,144.50, added onto the fees actually incurred.

            The Court therefore concludes that an award of $114,405 is proper in this case.

Costs

            Plaintiff also seeks an award of costs in the amount of $17,381.01.

            A prevailing party on a Song-Beverly claim may also seek to recover costs reasonably incurred, as well as attorney’s fees. (Civ. Code § 1794(d).) Once a request for costs is properly challenged, the burden shifts to the propounding party to demonstrate why such costs are recoverable and proper. (Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1113.) Costs are normally sought by way of a memorandum of costs pursuant to California Rule of Court 3.1700(a).

Here, Plaintiff served and filed a memorandum of costs on November 17, 2023. No motion to tax costs has been filed, and Defendant does not challenge any of the claimed costs in the memorandum. Plaintiff’s request for costs is therefore granted.

CONCLUSION:

            Accordingly, Plaintiff’s Motion for Attorney’s Fees and costs is GRANTED in the amount of $114,405 in attorney’s fees plus $17,381.01 in costs.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  December 18, 2023                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.