Judge Upinder S. Kalra, Case Number: 22STCV06906, Date: 2024-01-24 Tentative Ruling

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1. An Order awarding attorneys’ fees of $42,956.25, costs and expenses in the amount of $3,427.85.

On February 24, 2022, Plaintiffs Jacqulyn Kemp and Lloyd Dodds (Plaintiffs) filed a Complaint against Defendant Volkswagen Group of America, Inc. (Defendant) with two causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty, and (2) Violation of Song-Beverly Act – Breach of Implied Warranty. The Complaint concerned a 2017 Volkwagen Jetta, VIN: 3VW2B7AJ0HM256194.

On December 28, 2023, Plaintiffs filed the instant motion. On January 11, 2024, Defendant filed an opposition. On January 18, 2024, Plaintiffs filed a reply.

A prevailing buyer in an action under Song-Beverly “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.” (Civ. Code, § 1794(d).) By permitting buyers who prevail under Song-Beverly to recover their attorneys’ fees, “our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994.)

The prevailing party has the burden of showing that the requested attorney fees are reasonable. (Robertson v. Fleetwood Travel Trailers of California Inc. (2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “is not necessarily entitled to the compensation of the value of attorney services according to [his or her] own notion or to the full extent claimed . . . .” (Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.) If the “time expended or the monetary charge being made for the time expended are not reasonable under all circumstances, then the court must take this into account and award fees in a lesser amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

A calculation of attorneys’ fees for a Song-Beverly action begins with the “lodestar” approach, under which the Court fixes the lodestar at “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004-1005.) “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.” (Ibid.)

“It is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) It is also appropriate to reduce a fee award based on “inefficient or duplicative efforts” in the billing record. (Id. at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions about the fairness of the fee award. (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102.) Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 39.)

The lodestar figure may also 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; PLCM Group, Inc. v. Drexler (2000) 22 Cal.App.4th 1084, 1095.) 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.)¿

Plaintiffs request $28,637.50 in attorneys’ fees plus a 0.5 enhancement of $14,318.75, plus $3,427.85 in costs. Plaintiffs also contend they are the prevailing party pursuant to the parties’ CCP 998 offer. Defendant argues that the fees are excessive because the issues were not complex, Plaintiffs overstaffed the case, that Plaintiffs’ post-CCP § 998 offer work is excessive, that the multiplier adjustment is unwarranted, and that Plaintiffs’ claimed costs are unreasonable. Plaintiffs reply that there was no overstaffing, that their fees are reasonable, and their billing records are clear, and that the 998 offer did not stay the case.

On July 20, 2023, Plaintiffs signed Defendant’s CCP 998 Offer to Compromise. (Kirnos Decl., Exhibit D.) The 998 Offer provides that: “Defendant will pay Plaintiffs’ costs and expenses – including Plaintiffs’ attorney’s fees – incurred in this action in the amount of $5,000.00; or, at Plaintiffs’ option, pursuant to Cal. Civil Code § 1794(d), Defendant will pay a sum equal to the aggregate amount of costs and expenses – reasonably incurred by Plaintiffs in connection with the commencement and prosecution of this action, as determined and ordered by the Court pursuant to a noticed motion filed by Plaintiffs.” (Kirnos Decl., Exhibit D, ¶ 2.)

The lodestar method looks at the time spent on a matter multiplied by the reasonable hourly rate. (Serrano, supra 20 Cal.3d at 49). 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).

“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 the hourly rates are reasonable. Here, the requested hourly rates are as follows:

· Armando Lopez, Associate - $200 (2018-2000), $275 (2021), $325 (2022), $375 (2023)

· Deepak Devabose, Senior Associate - $275 (2015-2020), $325 (2021), $375 (2022), $425 (2023)

· Maite Colon, Former Senior Associate - $300 (2017-2020), $345 (2021), $395 (2022), $425 (2023)

· Maxwell Kreymer, Former Associate - $200 (2020), $250 (2021), $295 (2022), $350 (2023)

· Marisa Melero, Senior Associate - $225 (2017-2020), $295 (2021), $345 (2022), $395 (2023)

(Kirnos Decl. ¶¶ 21-33.) The firm also bills for senior trial paralegal time.[1] (Id. at ¶ 35.)

The court finds that these hourly rates are reasonable based on the hourly rate of similarly situated attorneys in the Los Angeles area. Based on the Laffey Matrix, attorneys with similar years of experience as Plaintiffs’ counsel as identified above have comparable, if not a higher hourly rate.

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.)

Although a verified fee bill is “prima facie evidence the costs, expenses and services listed were necessarily incurred,” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682), ultimately, Plaintiff still has the burden to demonstrate the reasonableness of charges. Plaintiffs have provided a fee bill. Here, the Court has reviewed the detailed fee bill with an eye for excessive, duplicative or unreasonable charges as contended by Defendant.[2] After a careful review, the Court finds that the hours were reasonable.

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). Plaintiff contends that the lodestar fees are reasonable. Defendant contends that no multiplier should be awarded because this case did not present any novelty or difficulty.

Here, the court declines to apply the requested 0.5 lodestar enhancement. While Plaintiff’s counsel obtained excellent results, this was a relatively straightforward reasonably routine lemon law case, an area in which Plaintiffs’ counsel specializes, there were not any novel or complex issues that were presented, and counsel for Plaintiffs boast an extremely high success rate.[3] Thus, the contingent risks, skill, and difficulty Plaintiffs’ attorneys assert are absorbed by their hourly rates. (See Robertson v. Fleetwood Travel Trailers of California. Inc. (2006) 144 Cal.App.4th 785, 822.) Stated otherwise, Plaintiff has failed it in its burden to establish that the Ketchum factors warrant a positive multiplier. Accordingly, Plaintiffs’ request for a lodestar multiplier is denied.

Plaintiffs request $3,427.85 in costs and expenses. The memorandum of costs is separately filed and attached to the Motion as Exhibit B. “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 argues that the Court should reduce the requests amount by $600. This is based on the $600 request in court reporter fees for the future hearing on January 25, 2024, which Defendant argues should be reduced since costs are only allowed if they are actually incurred and the $600 is an estimated cost. Plaintiffs argue that Defendant did not timely file a motion to strike or tax costs and that the court should award this cost after the hearing.

However, Defendant did not file a motion to strike or tax costs pursuant to Rules of Court 3.1700(b)(1). Second, the $600 for a future hearing is not an “incurred cost” as it has yet to occur, and, it may not need to be incurred. Therefore, the Court will reduce the requested amount by $600.00.

Accordingly, the court GRANTS Plaintiffs’ Motion for Attorneys’ Fees, Costs and Expenses.

[1] The court does not see that Plaintiffs provided the hourly rate for the senior trial paralegals.

[2]Defendant contends the bill should be reduced 14.6 hours.

[3]Federal authority observes the absence of evidence that Plaintiff’s counsel faces any greater risk for accepting clients on a contingency fee than the risk posed by taking clients who pay costs, particularly in lemon law cases that have fee shifting available to the prevailing Plaintiff. (Holcomb v. BMW of N. Am., LLC 2020 WL 759285, at *4 (S.D. Cal. Feb. 14, 2020).)