Judge: Upinder S. Kalra, Case: 19STCV04364, Date: 2022-08-04 Tentative Ruling

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Case Number: 19STCV04364    Hearing Date: August 4, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 4, 2022                                               

CASE NAME:            Julio Cruz Topete, et al. v. Central Ford Automotive, et al.

CASE NO.:                19STCV04364

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

MOVING PARTY: Plaintiffs Julio Cruz Topete, et al.

RESPONDING PARTY(S): Defendants Ford Motor Company

REQUESTED RELIEF:

1.      An order awarding Plaintiffs attorneys’ fees, costs and expenses. 

TENTATIVE RULING:

Motion for Attorneys’ Fees is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Julio Cruz Topete aka Julio Topete and Carlos Manuel Topete (“Plaintiffs”) filed a complaint against Defendant Ford Motor Company, Central Ford Automotive, and Does 1 through 10 (“Defendants”) on February 8, 2019. The complaint alleged three violations of the Song-Beverly Act, breach of an express and an implied warranty, and a violation of Section 1793.2, as well as negligent repair. Plaintiffs allege that they entered into a warranty contact with Defendant for the Subject Vehicle. During that warranty period, the Subject Vehicle presented nonconformities and defects, which substantially impaired the use of the Vehicle.

Defendants Ford Motor Company and Central Ford Automotive filed an Answer on March 18, 2019.

On February 14, 2022, Plaintiffs filed a Notice of Settlement.

This current motion for Attorneys’ Fees was filed on June 17, 2022, which included a Memorandum of Costs. The Defendants’ opposition was filed on July 22, 2022. Plaintiff’s reply was filed on July 28, 2022.

LEGAL STANDARD

A prevailing party is entitled to recover costs, including attorneys’ fees, as a matter of right, except as otherwise expressly provided by statute. (See Code Civ. Proc., §§ 1032(a)(4), 1032(b), 1033.5.) A prevailing party is “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Id., § 1032(a)(4).)

However, “[w]here an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of [Civil Code section 1717].” (Civ. Code, § 1717(b)(2); see Shapira v. Lifetech Resources, LLC (2018) 22 Cal.App.5th 429, 441 (“A trial court lacks discretion to award fees under section 1717(b)(2) where a case has been voluntarily dismissed.”); see also Santisas v. Goodin (1998) 17 Cal.4th 599, 615.) 

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 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. 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. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) 

Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at 48, n.23.) After the trial court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.) 

The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.) 

Under CCP § 425.16(c), a prevailing defendant shall recover attorneys’ fees. However, if a court finds the defendant’s motion frivolous, the plaintiff is entitled to fees, pursuant to 128.5. (CCP § 426.15(c)(1).

Plaintiff’s Evidentiary Objections: Declaration of Hannah L. Miller

The following paragraphs in the Declaration refer to Plaintiff’s counsel filing similar motions for attorneys’ fees and attaching the Court’s Order. Plaintiffs object on the grounds that these are argumentative, speculative, irrelevant, and misstates facts.

1.       Paragraph 6: OVERRULED

2.       Paragraph 7: OVERRULED

3.       Paragraph 8: OVERRULED

4.       Paragraph 9: OVERRULED

5.       Paragraph 10: OVERRULED

6.       Paragraph 11:  OVERRULED

7.       Paragraph 12: OVERRULED

8.       Paragraph 13: OVERRULED

Service:

Plaintiffs’ proof of service indicates that the motion was served via email to Defendants. The Defendants’ proof of service also indicates that Plaintiffs were serve via email.

ANALYSIS:

Plaintiffs move for a total of $71,083.14, which is based on $36,939.50 for the work prosecuting the matter, a .5 multiplier totaling $18,469.75 based on the contingent nature of the matter, and another $15,673.89 in costs and expenses.

Reasonableness of Hours Billed

Plaintiffs contend that the fees requested are reasonable. To determine if the requested amount is reasonable, California courts utilize the lodestar method. The two-step process begins with the lodestar method, which is the time spent on the matter multiple by the hourly rate. After the lodestar method, the second step is determining whether a multiplier should be applied. The factors that Courts look at to determine if a multiplier is reasonable are: 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.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132).

Plaintiffs have provided the billing invoices, attached to the Declaration of Roger Kirnos as Exhibit A. A verified fee bill is “prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682).

Defendants contend that the hours billed are excessive and unreasonable. One, the hours related to this current motion total 13, 12% of the total hours, include 7 hours of anticipatory hours. (Dec. Kirnos Ex. A). Two, the Plaintiffs request billings that are both duplicative and relative to internal tasks. Of the hours billed by Plaintiffs, Defendant argues that 13.40 of those hours are internal tasks and duplicative, such as preparing hearing summary, review results, review notes as well as duplicative tasks where Fisher billed .2 hours to review Case Management statement and Kreymer billed 1.8 hours for review form ROGS, which were the same as the 4.6 hours billed by Lopez. (Ex. A, pp. 1, 3-4). Three, Defendants contend that 1.0 hour is undated as it is unsubstantiated and are insufficient to establish that the tie expended on the matter. (Cal. Civil Code § 1794(d)). Four, clerical tasks should be reduced; 3.20 hours were billed for clerical tasks but were billed at senior level hours. For example, the partner rate for Mikhov was used to draft the demand for jury trial on 3/15/19, Morse billed the partner rate to draft multiple notices of deposition. (Dec. Kirnos, Ex. A on 6/23/2020, 11/30/2020, 12/11/2020, 12/28/2020,1/5/2021, 1/6/2021, 1/7/2021, 1/13/2021). Lastly, Defendants contend that Plaintiffs block billed and those entries should be reduced or excluded. Of the total hours, Defendants argue that 6.60 hours were block-billed and included internal tasks, like reviewing documents and drafting hearing summary.

The billings provided by Plaintiff while generally reasonable also evidence some duplicative and unreasonable expenses. Just as an example, the Court agrees that having a partner draft a jury demand and deposition notices, which are clearly clerical, is unreasonable. In fact, this court has reviewed bills in other fee  motions filed by this very firm where paralegals routinely draft deposition notices. The court also finds the amount of time to file a routine fee motion (as evidence by the numerous attachments to the declarations) is excessive as well. Accordingly, the court finds that an adjustment is warranted. 

Reasonableness of Hourly Rates

            Plaintiffs contend that the rates requested for this matter are reasonable. Specifically, Plaintiffs argue that the hourly rates are based on community standard. “In determining hourly rates, the court must look to the “prevailing market rates in the relevant community.” (Bell v. Clackamas County (9th Cir.2003) 341 F.3d 858, 868.) The rates of comparable attorneys in the forum district are usually used. (See Gates v. Deukmejian (9th Cir.1992) 987 F.2d 1392, 1405.) In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009).

            Plaintiffs argue that the rates are appropriate based on the nature and complexity of the litigation. The hourly rates range from $200 to $550. The type of knowledge required for Plaintiffs include consumer protection laws, intricacies of automobiles, and manufacturers’ policies and protocols. Further, it was Defendants who continued the litigation, incurring further fees. Additionally, the firm’s skill justifies the amount; there was initially no settlement offer at the beginning of the case, but Plaintiffs received a $62,500 settlement offer. Plaintiffs spend a nominal time on this matter since they specialize in these kinds of matters, whereas Ford is represented by large national firms and has resource to “overwhelm a consumer or an inexperienced attorney.”

            Defendants argue that the requested rates are not within the community standard, and the hourly rates should be between $254 to $350 for partners and $205 to $265 for associates.

Defendants cite to Arias v. Ford Motor Company, No. EDCV181928PSGSPX, 2020 WL 1940843, at *8, for the contention that the Plaintiffs’ requested rates are unreasonably high. Moreover, Plaintiffs did not provide justification as to why there were 14 different attorneys who worked on this matter.

However, the Court finds the rates provided by Plaintiffs are reasonable and the use of fourteen timekeepers does not make the request necessarily unreasonable. As Plaintiffs argue, utilizing multiple attorneys’ is efficient. Additionally, the Declaration of Roger Kirnos provided evidence that these hourly rates were approved by previous courts as well as provides the United States Consumer Law Attorney Fee Survey Report, which provides the average hourly rates of lawyers in California. (Dec. Kirnos, ¶ 50-109, Ex. LLL). The hourly rates are reasonable.

Lodestar Multiplier

Plaintiffs argue that a multiplier of .5 is appropriate. When determining if a lodestar adjustment is applicable, courts look at various factors. These factors include “(1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee awarded, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.” (Doppes v. Bentley Motors, Inc., (2009) 174. Cal.App.4th 967, 998).

Here, Plaintiffs argue that a multiplier is appropriate because of the risk of a contingency matter. Additionally, Plaintiffs attorneys are not paid until the outcome, and will not be paid if they lose. Because of this delay and the risk associated, a multiplier is appropriate. Defendants contend that this is not a novel or complex nor did it result in an extraordinary award. Moreover, Defends use templates demonstrating “little discovery was required.”

A multiplier is not appropriate. Plaintiffs specialize in Lemon Law matters, even arguing in their motion that they do not spend an inordinate time researching and preparing pleadings because of this specialization. While there is a risk with contingency cases, these Lemon Law cases are the types of cases the Knight Law Group argues regularly. As such, the risk is not as high; coupled with the fact that Plaintiffs also utilized templates indicate this was not a novel or complex matter. As such, a multiplier is no appropriate.

Costs

Plaintiffs request $15,673.89 in costs and expenses. Along with the Motion for Attorneys’ Fees, the Plaintiffs filed the Memorandum of Costs on June 17, 2022. “Items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred, and when they are properly challenged the burden of proof shifts to the party claiming them as costs.” (Hadley, supra, 167 Cal.App.3d at 682). Under CCP § 1794(d) “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.” Defendants contend that these costs are unreasonable and unsubstantiated. However, according to Rule of Court, Rule 3.1700(b), a party may contest the costs submitted via a noticed motion to strike or tasks costs, which must be filed 15 days after the cost memorandum is filed. If Defendants wanted to contest the requested costs, they should have filed a Motion to Tax Costs. As such, because there is no noticed motion and the evidence provided by Plaintiff is prima facie evidence that the costs were incurred, the request is reasonable. The requested costs are reasonable.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Attorneys’ Fees is GRANTED, with no multiplier. Using a lodestar method, under the totality of circumstances and guided by this court’s experience, the Court finds that the reasonable amount of attorney fees is $31, 939,50.

Plaintiff’s request for costs and expenses for $15,673.89 is granted in full.

The Total amount is $46,613.39.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 4, 2022                        _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court