Judge: Upinder S. Kalra, Case: 19STCV36072, Date: 2022-09-20 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing.  Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING.  The Court will not read or respond to emails sent to this address for any other purpose.

Case Number: 19STCV36072    Hearing Date: September 20, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:    September 20, 2022                                       

CASE NAME:           Eduardo Lopez v. Kia Motors America Inc.

CASE NO.:                19STCV36072

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

DEFENDANT’S MOTION TO TAX COSTS

MOVING PARTY: Plaintiff Eduardo Lopez

RESPONDING PARTY(S): Defendant Kia Motors America, Inc.

REQUESTED RELIEF:

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

2.     An order Taxing costs.

TENTATIVE RULING:

Motion for Attorneys’ Fees is GRANTED, with no multiplier and a reduction as discussed below. Motion to Tax Costs is Granted in Part.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On October 9, 2019, Plaintiff Eduardo Lopez (“Plaintiff”) filed a complaint against Defendant Kia Motors America, Inc. (“Defendants”.) The complaint alleged violations of the Song-Beverly Act as well as fraudulence inducement. The complaint alleges that Plaintiff purchased the Subject Vehicle, which contained warranties. During that warranty period, the Subject Vehicle presented nonconformities and defects, which substantially impaired the use of the Vehicle. Additionally, Plaintiff alleges that Defendant knew of these defects, specifically with the engine, but failed to disclose these defects to Plaintiff when purchasing the Subject Vehicle.

On August 3, 2021, Defendant filed a Motion for Summary Judgment.

On March 25, 2022, Plaintiff filed a Notice of Settlement.

The current Motion for Attorneys’ Fees was filed on August 3, 2022. Defendant’s Opposition was filed on August 12, 2022. Plaintiff’s reply was filed on August 18, 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).

Evidentiary Objections:

Defendant’s Objections: Declaration of Roger Kirnos

1.     Paragraph 1: OVERRULED

2.     Paragraph 2 and Exhibits A & B: OVERRULED

3.     Paragraphs 3-6: OVERRULED

4.     Paragraphs 7-8: SUSTAINED

5.     Paragraph 9: SUSTAINED

6.     Paragraph 10: OVERRULED

7.     Paragraphs 11-29: OVERRULED

8.     Paragraph 30: SUSTAINED

9.     Paragraph 31: OVERRULED

10.  Paragraph 57-58: OVERRULED

11.  Paragraphs 59-117: OVERRULED

12.  Paragraphs 118 and Exhibit LLL: OVERRULED

13.  Paragraph 119: OVERRULED

14.  Paragraphs 120-122: OVERRULED

ANALYSIS:

Plaintiffs move for a total of $142,485.10, which is based on $84,485.50 for work prosecuting the matter, a .5 multiplier totaling $42,242.75, and $12,256.85[1] 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, and the court should reduce the unwarranted hours. First, Defendant argues that Plaintiff engaged in unnecessary litigation and requests fees that total similar cases that went to trial, unlike the current matter that settled prior to trial.

Second, the fees requested should be reduced as many of them are excessive. One, Defendant argues that the hours related to any fraud claims should be reduced as they are fundamentally distinct. The settlement offer is related to Song-Beverly violations, not the causes of action based on fraud. Two, Plaintiffs billed excessively for the following: generating objections to notices of depositions and notices of vehicle inspection; receiving documents; generating standard motions in limine; opposing motions in limine; drafting case management statement; opposing ex parte application; opposing summary judgment; inspecting the vehicle; attending deposition; preparing and prosecuting unopposed motion for leave to amend; generating, responding, and reviewing standard discovery; traveling; reviewing the file. Additionally, Plaintiffs’ attorney billed 3.4 hours for Motions to be Relieved as Counsel, which were not for the benefit of Plaintiff, but solely for Plaintiff’s attorney. Lastly, Plaintiff requests $5,760 for the current fee motion.

Third, Defendant argues that Plaintiff’s attorneys did not abide their client’s decision, in violation of rule 1.2(a) of Rules of Professional Conduct, which provides that a lawyer shall abide by a client’s decision to settle. Specifically, Plaintiff’s attorneys filed motions to be relieved as counsel on February 2, 2022. On February 7, 2022, Plaintiff accepted Defendant’s offer. On February 8, 2022, the motions to be relieved as counsel were taken off calendar.

Verified cost bills are “prima facie evidence the costs, expenses and services listed were necessarily incurred…” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) Still, the Court is the ultimate arbiter in deciding whether expenses are reasonable. The court agrees with Defendant that certain fees are unreasonable.  For example:

On 10/4/20 and 10/5/20, Plaintiffs' attorneys billed 5.8 hours, for a total of $2,030.00, to generate the written discovery. The Court has reviewed the filings. There is nothing novel or special about these filings. On the contrary, they are standard templates that are regularly sent out in Song-Beverly filings. As such, the Court reduces this claim by $1,330.

On 4/7/21, 4/30/21, 7/29/21 and 7/30/21 billed 6.3 hours, for a total of $1,734.00, to prepare and prosecute a Motion For Leave To Amend The Complaint to add Maria Del Rosario Pacheco as a Plaintiff. This motion was unopposed. No reason is given why a simple stipulation was not presented to Defendants. In the absence of such reasons, the Court finds this amount unreasonable and reduces this amount by $1,459.

On 7/19/21 and 7/20/21 Plaintiffs' attorneys billed 7.8 hours, for a total of $3,120.00, to attend the defense inspection of Plaintiffs' vehicle. The Court cannot understand why an attorney who bills at $400 is required to attend an inspection. Why cannot a paralegal or assistant attend? No justification was offered either. Moreover, 2.9 hours at $400 for travel to and from vehicle inspection was added. While fees are sought under a Civil Code § 1790, et seq., the analogous rules of recoverable costs under CCP § 1032 are instructive.  In particular, CCP § 1032 (a)(3)(C) only authorizes travel costs to attend depositions. This appears to be a sensible and reasonable limitation.  Accordingly, the Court reduces this amount by $2,720.

Between 9/13/21 and 9/16/21, Plaintiffs' attorneys billed 6.5 hours, for a total of $3,024.50, to generate Motions in Limine. The Court agrees that these are boilerplate, template motions that are routinely filed in virtually every Song-Beverly case. The Court reduces this amount by $2,000.

On 9/24/21, 10/2/21, 10/6/21, 10/7/21, 10/8/21/ 10/21/21, 10/22/21 and 10/26/21, Plaintiffs' attorneys billed 40.1 hours, for a total of $10,309.50, to oppose KA's Motion For Summary Judgment Or Summary Adjudication. The Court reviewed the moving papers and Plaintiff’s opposition. The Motion raised issues that are regularly litigated in Song-Beverly actions. Other than adding the specific facts of this case, the opposition’s legal argument remains the same from case to case. The Court agrees that a template opposition here did not reasonably require so many hours particularly for a law firm that boasts that they specialize in this type of litigation.  Accordingly, the Court reduces this amount by $3,093.20.

Between 1/4/22 and 1/6/22, Plaintiffs' attorneys billed an additional 14.4 hours, or $6,396.00, to oppose standard Motions in Limine. This too is excessive. The Court has reviewed the oppositions. These too appeared to be templates. The Court reduces this amount by $5,063.50.

In addition, Defendant’s argument concerning the motions to be relieved as counsel is also compelling. These motions were for counsel’s benefit, not Plaintiffs. As such, Court disallows the $1,230 for this motions.

Apportionment of Fees for Fraud Claim

            The Song-Beverly Act claim comes with a fee-shifting statute under which the present motion has been brought, (CCP § 1794(b),) but common-law fraud claims have no such allowance, (See Aozora Bank, Ltd. v. 1333 North California Boulevard (2004) 119 Cal.App.4th 1291, 1294, citing Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 506.)

Generally fees may only be recovered for causes of action that specifically allow for such, and for ones that don’t. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.) However, fees do not need to be apportioned when from the same operative facts and are too intertwined to have apportionment be practical. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 347.) The inquiry in Santana is instructive on when to apportion fees and when not to, and also considers this very issue in regarding a Song-Beverly Act claim and a fraud claim, Santana will thus be applied here.

            Santana inquires into (1) if the two cases really stem from the same operative facts and (2) if so, if there is a practical way to apportion the fees between the causes of action. (Id. at 347-349.) Here, Defendants claim that the claim does not stem from the same facts as the fraud claim arises from the behavior and knowledge of the seller prior to the sale, whereas the Song Beverly Act was not violated until sometime after the sale of the vehicle.

The Court finds that the fraud claim and the Song-Beverly Act claim do arise from the same operative facts. As Plaintiffs point out, the evidence for the Song-Beverly Act claim and the fraud claim are the same repair history, defects and vehicle as the other. Thus, unless Defendants can show a way to separate out attorney hours spent on the fraud cause of action instead of the Song-Beverly Act cause of action, the two claims will not be apportioned and recovery for attorney fees will be allowed pursuant to the Song-Beverly Act.

Defendants Opposition helpfully provides that Defendants’ First Amended Complaint that re-alleged a Fraud Claim and opposition to the Demurrer to the First Amended Complaint, and that any time Plaintiffs spent working on that motion is thus easily apportionable to the fraud claim. (Opposition p. 9-10.) The Court agrees that this motion and all work on it is apportionable solely to the fraud claim, and that the attorneys’ fees spent working on it are thus not recoverable pursuant to CCP §1794(d). The Court thus reduces Plaintiffs’ attorney fee reward by $2,900—the total amount incurred to prepare and file the First Amended Complaint and defend the subsequent demurrer to the fraud cause of action.

Additionally, the requested $5,760 for this current motion is excessive. A review of this motion indicates that it is similar to other motions for attorneys’ fees filed by Plaintiff’s counsel, except for the specifics for each case. As such, this amount is reduced by $2,000.

As such, the Court reduces the requested lodestar by $21,795.70. In all other respects, the billings are proper and reasonable. To be clear, the Court finds the reasonable amount of fees, based upon its experience and knowledge of this type of litigation, the lack of novelty and complexity of this case, and the professed specialization of Plaintiff’s counsel, is $62,689.80.  

Reasonableness of Hourly Rate

            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. A look at the billings provided in Exhibit A of the Declaration of Roger Kirnos, the hourly rates range from $200 to $595. 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 $35,000 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.”

Defendant argues that the requested rates are unreasonable considering the case was not complex. Specifically, Defendant asserts that any rate over $350 should be reduced to $350, as seen in (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240.) Additionally, Defendant contends that the matter was over-staffed; twenty one attorneys and paralegals is excessive.

However, the Court finds that Defendants’ arguments fail. The rates provided by Plaintiffs are reasonable and the use of twenty-one 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, ¶ 50-117.) 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, Plaintiff’s 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.

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 not appropriate.

Costs

Plaintiffs request $12,256.85 in costs and expenses. Along with the Motion for Attorneys’ Fees, the Plaintiffs filed the Memorandum of Costs on August 3, 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.” Defendant challenged the costs requested. The Court agrees with two points raised by the Defense. First, the filing fees for the two motions to be relieved ($61.65X2=$123.30) did not benefit Plaintiffs. Second, no explanation was given why messengers and attorney services were needed when the parties must file and serve documents electronically ($927.94) In all other respects, the costs appear reasonable. Plaintiff is also entitled to recover reasonable costs associated with filing this opposition to the Motion to Tax Costs.  The Court finds that four hours at $375/hour is reasonable for a total of $1500. After reducing for the above noted deductions and adding the attorney’s fees for this opposition results in a net of $448.76 to the requested amount of $12,256.85.  Accordingly, the Court finds the reasonable cost award to be $12,705.61.

Conclusion:

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

            Motion for Attorneys’ Fees is GRANTED, in the amount of  $62,689.80. Motion to tax costs is granted in part. Total costs awarded is $12,705.61.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 20, 2022                _______­­­­­­­­­­___________________________                                                                                                                        Upinder S. Kalra

                                                                                    Judge of the Superior Court