Judge Thomas D. Long, Case 19STCV36277 2023-02-14 Tentative Ruling

On August 8, 2022, a jury returned a verdict in favor of Plaintiffs Joel P. Gonzalez and Alex M. Pineda and against Defendant Kia Motors America, Inc. The Court entered judgment on September 16, 2022. On November 15, 2022, Plaintiffs filed a motion for attorney fees.

Defendant’s Objection Nos. 1, 3, 4 are sustained. Defendant’s Objection No. 2 is overruled.

Plaintiffs’ Objection Nos. 1, 2, 10, 11 are sustained. Plaintiffs’ Objection Nos. 3-9 are overruled.

As the prevailing party, Plaintiffs are entitled to an award of reasonable attorney fees. (Civil Code § 1794, subd. (d).) California courts apply the “lodestar” approach to determine what fees are reasonable. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, 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.” (Ibid.) Relevant factors include “(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, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.)

Plaintiffs seek $212,256.50 in attorney fees plus a 0.5 multiplier ($106,128.25), for a total of $318,384.75. Plaintiffs provide a copy of invoice, detailing 529.1 hours billed. (Kirnos Decl., Ex. A.)

Plaintiffs’ counsel charges various hourly rates: $500 for Roger Kirnos; $350, $400, or $425 for Amy Morse; $200 or $275 for Armando Lopez; $295 for Caitlin Rice; $325 or $375 for Deepak Devabose; $250, $295, or $350 for Daniel Kalinowski; $200 for Gregory Lehrmann; $425 for Greg Mohrman; $325 or $350 Heidi Alexander; $400 for Jeffery Mukai; $450 for Jacob Cutler; $450 for Kamau Edwards; $345 or $395 for Maite Colón; $250 or $295 for Maxwell Kreymer; $225 or $295 for Marisa Melero; $250 for Natalee Fisher; $595 for Scot Wilson; $250, $295, or $350 for Thomas Dreblow; $500 for Theodore Swanson Ramirez; $450 for Thomas S. Van; $225 for Thomas S. Van; $325 for Zachary Powell; $175 for law clerks Charles Cauffman and Daniel Gopstein; and $250 for paralegal Diana Folia. (Kirnos Decl. ¶ 21-45.) Defendant argues that Plaintiffs’ counsel’s rates are excessive and they overstaffed this case. (Opposition at pp. 11-15.) These rates are reasonable for experienced attorneys in Los Angeles specializing in these types of cases. But because they are experienced with Song-Beverly litigation, they should be more efficient in those types of cases than less experienced attorneys. Also, most of the work was performed by attorneys with lower hourly rates. (See Kirnos Decl., Ex. A at pp. 20-21.) Most of the time billed by counsel with the highest rates involved preparation for and participation in the trial, where it is reasonable for the more experienced counsel to do more of the work. With respect to the number of attorneys, counsel explains that six of the attorneys left the firm during the course of this case. (Devabose Decl. ¶ 8.)

Defendant argues that the time billed by Deepak Devabose for attending trial was unnecessary because it was mere attendance. (Opposition at pp. 12-13.) Mr. Devabose explains that “Mr. Swanson had not tried very many lemon law cases yet and could use assistance in citing relevant statutory and case law, so [Mr. Devabose] was tasked with advising him during jury selection as well as how best to argue certain motions in limine, jury instructions, and the verdict form.” (Devabose Decl. ¶ 4.) He also “regularly assisted in the sidebar discussions and communicated notes during direct and cross-examinations of questions to ask and areas that need further presentation to the jury.” (Devabose Decl. ¶ 5.) The Court cannot conclude that this time was unreasonably billed.

Defendant argues that Plaintiffs’ counsel improperly billed for secretarial/administrative tasks and use of form pleadings. (Opposition at pp. 16-17.) Defendant also identifies some billing records for unnecessary work for motions that were withdrawn. (Opposition at pp. 17-18.) As the Court observes in the multitude of Song-Beverly cases on the docket, experienced counsel have pre-written form pleadings, discovery requests, discovery responses, and motion papers they use in these cases. Indeed, Plaintiffs’ counsel engages in this common practice. (See Takahashi Decl. ¶¶ 15, 18 & Exs. B-D.) Defendant identifies many instances of administrative tasks, block-billing, overstaffing and repeated work, and vague time entries. (See Takahashi Decl., Ex. A.) For example, on August 11, 12, 23, and 25 2022, and September 9, 18, and 20, 2022, counsel billed at attorney rates for reviewing and approving invoices and expense reimbursements. In December 2020 and October 2021, two attorneys billed excessive time to draft, review, and edit meet and confer letters. In November 2021, counsel billed over 8 hours for an unnecessary and withdrawn motion. Much time was billed for one attorney drafting documents and another attorney reviewing or finalizing the same documents.

Considering the type of case, complexity of the case, length of litigation, and the record as a whole, the Court concludes that a reasonable amount of attorney fees is $169,805.20 (deduction of $42,451.30). (See Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102 [“When a ‘voluminous fee application’ is made, the court may . . . ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’”].)

Plaintiffs request a lodestar multiplier of 0.5 due to the contingent nature of the representation and counsel’s “need to absorb significant delay in being paid if Plaintiffs do[] win.” (Motion at pp. 12-13; see Kirnos Decl. ¶ 70.) “[A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation.” (Ketchum, supra, 24 Cal.4th at p. 1139.) This matter was not noticeably different from other lemon law cases, did not involve complex or novel legal issues warranting a multiplier, and Plaintiffs’ counsel has extensive experience litigating similar matters. (See, e.g., Kirnos Decl. ¶¶ 18-19, 26.) Despite this action going all the way to trial, there are no indications that Plaintiffs’ counsel engaged in any actions different from a typical strategy to achieve this result. The Court declines to add a multiplier.

The motion for attorney fees is GRANTED IN PART. The Court awards Plaintiffs $169,805.20 in attorney fees ($212,256.50 minus $42,451.30).

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court