Judge Thomas D. Long, Case 21STCV30007 2022-09-29 Tentative Ruling

On June 14, 2022, Plaintiff Joshua Jasso-Ortega filed a notice of settlement with Defendants FCA US, LLC and B&W Automotive, Inc. (collectively, “Defendants”) in this Song-Beverly case. Under the settlement, Defendants agreed to pay Plaintiffs’ reasonable attorney fees and costs. (Wirtz Decl., Ex. Y, ¶ 3.) On September 6, 2022, Plaintiff filed a memorandum of costs and a motion for attorney fees, costs, and expenses.

Defendants’ Objection Nos. 1-2 are overruled. Plaintiff’s counsel declared that he used these documents to consider the appropriate rates that he charged. (Wirtz Decl. ¶¶ 25-26.) An appropriate foundation has been set for that purpose.

Plaintiff’s Objection Nos. 1-19 are overruled. Defendants’ counsel has personal knowledge of and has set a proper foundation for events occurring in this action. Additionally, Exhibit C (Objection No. 17) is relevant to Defendants’ arguments about duplicated work and is not hearsay when used for this purpose.

Plaintiff’s Objection Nos. 20-27 are sustained, as these orders in other cases are not relevant here.

As the prevailing party, Plaintiff is entitled to an award of reasonable attorney fees. (Civ. 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.) 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.)

Plaintiff seeks $39,915.00 in attorney fees (see Wirtz Decl., Ex. A [“Invoice”]), $19,957.50 as a lodestar enhancement, and $3,490.27 in costs and expenses, totaling $63,362.77.

Plaintiff’s counsel charge various hourly rates: $695 for attorney Richard M. Wirtz; $500 for attorney Erin K. Barns; $500 for attorney Amy R. Rotman; $500 for attorney Jessica R. Underwood; $400 for attorney Kelsey Henry; $250 for paralegal Rebecca Evans; $250 for paralegal Danielle Viviani; $250 for paralegal Andrea Beatty; $200 for paralegal Florence Goldson; $200 for paralegal Donna Bollenbacher; and $150 for legal assistant Andrea Lizarraga. (Wirtz Decl. ¶¶ 13, 15-24.)

Defendants argue that these rates are unreasonable, and it suggests a rate of $300 for all attorneys and $100 for all paralegals. (Opposition at pp. 7-8.) Plaintiff’s attorneys with higher rates are experienced, but also, the more senior attorneys with higher rates performed most of the attorney work. Based on the Court’s review of counsel’s experience and the rates for attorneys in Los Angeles specializing in these types of cases, which are not complex matters, the Court finds that reasonable hourly rates are $400 for attorney Erin K. Barns, $400 for attorney Amy R. Rotman, $400 for attorney Jessica R. Underwood, and $300 for attorney Kelsey Henry. Although attorney Richard M. Wirtz declares that he bills at a rate of $695, he performed no billable work on this case. (Invoice at p. 24.) The Court also finds that reasonable hourly rates are $200 for paralegal Rebecca Evans, $200 for paralegal Danielle Viviani, $200 for paralegal Andrea Beatty, $200 for paralegal Florence Goldson, $200 for paralegal Donna Bollenbacher, $125 for legal assistant Andrea Lizarraga, and $125 for file clerk Amanda Vitanatchi (who appears on the invoice but not within counsel’s declaration).

Applying these modified billing rates to the 125.1 hours, the Court recalculates the amount billed: $5,880.00 for Erin K. Barns (14.7 hours at $400); $7,640.00 for Kelsey Henry (19.1 hours at $400); $6,160.00 for Amy R. Rotman (15.4 hours at $400); $4,200.00 Jessica R. Underwood (10.5 hours at $400); $40.00 for Andrea Beatty (0.2 hours at $200); $700.00 for Donna Bollenbacher (3.5 hours at $200); $4,660.00 for Rebecca Evans (23.3 hours at $200); $2,100.00 for Florence Goldson (10.5 hours at $200); $912.50 for Andrea Lizarraga (7.3 hours at $125); $1,740.00 Danielle Viviani (8.7 hours at $200); and $25.00 for Amanda Vitanatchi (0.2 hours at $125).

Further deductions will be made from the new total of $34,057.50 using the reduced hourly rates.

Plaintiff’s billing records reflect 125.1 hours billed. This includes 6 hours anticipatorily billed for reviewing the opposition and drafting a reply, and 2 hours for attending the hearing on this motion. (Invoice at p. 24.)

Defendants argue that 5.8 hours billed for preparing template discovery demands is unreasonable. (Opposition at pp. 5-6.) This time was divided between four different types of discovery requests for each of the two defendants. (Invoice at pp. 2-3.) This time, including the attorney review of the paralegal work, is reasonable.

Defendants argue that three employees billing 9.5 hours for reviewing discovery responses and drafting pro forma meet-and-confer letters is unreasonable. (Opposition at pp. 5-6.) These hours were also divided between multiple forms of discovery and for each of the two defendants. This time is reasonable.

Defendants argue that time spent preparing an unfiled motion to compel discovery is unreasonable. (Opposition at p. 6.) At the December 17, 2021 Case Management Conference, the Court explained that parties must participate in the informal discovery conference process by first meeting and conferring on the phone regarding discovery disputes and then participating in an IDC. An IDC was scheduled for April 7, 2022, although the Court took it off calendar. Counsel should not have begun drafting and revising motions to compel on February 2 and 3, 2022, before Plaintiff complied with the Case Management Conference Order and first participated in an IDC. Therefore, the time incurred drafting the motions to compel was not reasonable, and the Court deducts $2,940.00 (9.8 hours at $300). (Invoice at pp. 10-11.)

Defendants argue that 15.6 hours of block billing for “client communications” is excessive. (Opposition at p. 6.) This time is reasonable for communicating with clients, and as Plaintiff notes (Reply at p. 5), counsel cannot disclose the details of these communications.

Finally, Defendants argue that the time billed for drafting the fee motion is excessive because it is nearly identical to prior fee motions prepared by the same counsel. (Opposition at pp. 6-7.) Indeed, this motion is nearly substantively identical (with respect to arguments and authorities) to a motion filed in another case, with the vast majority of differences being merely different parties and facts substituted in. (See Skanes Decl., Ex. C.) Accordingly, the Court deducts $662.50 (0.5 hours for AGL at $125; 2.0 hours for DDV at $200; and 0.5 hours for EKB at $400). (See Invoice at pp. 23-24.)

The Court declines to award the full anticipated fees for 6 hours reviewing the opposition and drafting a reply, and 2 hours for appearing at the hearing. (Invoice at p. 24.) The time spent reviewing the opposition and drafting a reply is excessive, and the Court strongly encourages remote appearances for the hearing, which will not take 2 hours. The Court reduces the amount by $1,600.00 (4 hours at $400).

Plaintiffs request a lodestar multiplier of 1.5 ($19,957.50). (Motion at pp. 11-13.) This matter did not involve complex or novel legal issues warranting a multiplier. Plaintiff’s counsel has extensive experience litigating similar matters. (See, e.g., Wirtz Decl. ¶¶ 7-12, 16-17.) Although Plaintiff ultimately was successful, there are no indications Plaintiff’s counsel engaged in any actions different from their usual strategy to achieve this result.

In sum, Plaintiff is entitled to $28,855.00 in attorney fees ($34,057.50 reduced-rate total minus $5,202.50).

Defendants did not challenge Plaintiff’s request for $3,490.27 in costs and expenses.

The motion for attorney fees, costs, and expenses is GRANTED IN PART. The Court awards Plaintiff $28,8550 in attorney fees and $3,490.27 in costs and expenses.

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