Judge: Yolanda Orozco, Case: 19STC15631, Date: 2022-07-28 Tentative Ruling
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Case Number: 19STC15631 Hearing Date: July 28, 2022 Dept: 31
MOTION FOR ATTORNEYS’ FEES IS GRANTED, IN PART
Background
On May 6, 2019, Plaintiffs Mary Ann Serna and Robert M. Serna (“Plaintiffs”) filed the instant action against Defendant Kia Motors America, Inc. (“Defendant”). On October 23, 2019, Plaintiffs filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:
On March 15, 2022 Plaintiffs filed a Notice of Settlement.
Plaintiffs now move the Court for attorneys’ fees.
Legal Standard
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,¿subd. (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.)¿¿
¿¿
“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.)¿
In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.¿ (Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿ General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.¿ (Ibid.)¿
Request for Judicial Notice
Plaintiffs’ Request for Judicial Notice Nos. 1-29 is GRANTED. In light of these rulings, Defendant’s objections to the same are MOOT.
Evidentiary Objections
Defendant’s Objections Nos. 1-68 are OVERRULED.
Defendant’s Objections to the Declaration of Zavig Mkrdech are OVERRULED.
Plaintiffs’ Objections Nos. 1-5 are OVERRULED.
Discussion
The Parties do not dispute that Plaintiffs are entitled to attorneys’ fees pursuant to the Song Beverly Act (“SBA”).¿ As the prevailing party, Plaintiffs are entitled to reasonable fees.¿ Plaintiff requests a total fee award of $119,905.38, accounting for $78,921.50 actually incurred, a multiplier of 1.35 amounting to $27,622.53, costs in the amount of $9,861.35, and an additional $3,500 to review Defendant’s opposition and draft a reply.¿ Defendant provides specific objections to certain items of billing, counsel’s rates, and other specific objections.¿¿¿
Defendant’s General Request for a Fee
Reduction
As a preliminary matter, Defendant
generally seeks a fee reduction; however, as set forth above, Defendant’s
general request for a fee reduction is insufficient to meet its burden. If Defendant is challenging the fees sought it
must point the Court to the specific items that are being challenged. Defendants general arguments that the fees
should be reduced because this case was not complex, staffed with thirteen attorneys,
and Plaintiffs engaged in discovery disputes are insufficient. Defendants do not argue that the time spent by
those attorneys on tasks was excessive, duplicative, or unrelated. Defendant also fails to point the Court to
any instances of tasks that were performed by Plaintiffs’ attorneys that was
unnecessary. While several attorneys may
have worked on different tasks, Defendants have failed to show that the work
was duplicative, excessive, unrelated, or unnecessary.
Thus, Defendant’s general request for
a reduction of attorneys’ fees is denied.
Plaintiffs’ Fraud Claim
Defendant contends that Plaintiffs should not be able to recover for fees incurred for their fraud cause of action because they can be appropriately apportioned, as Plaintiffs’ motion for leave to amend the Complaint, opposition to Defendant’s demurrer/motion to strike, responses to Defendant’s second set of discovery, and at least 50% of the motion for summary judgment/adjudication (“MSJ/MSA”) related only the fraud cause of action.
“When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.)
However, “fees need not be apportioned when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not. . . . [a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.”¿ (Santana, supra, 56 Cal.App.5th at 347 [quoting Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.)¿ As to this issue, the Court of Appeal has stated that “[i]n the case of fraud, [] harm stems from a deception.¿ And in the case of the Song-Beverly Act, it stems from the failure to honor the warranty.¿ Same essential facts.¿ Different conduct gives rise to the harm.”¿ (Santana, supra, 56 Cal.App.5th at 348.)¿
Here a review of some of Plaintiffs’ billing entries reveal that they are solely related to Plaintiff’s cause of action for fraud and can be appropriately apportioned. Based on Exhibit A of Eric Tsai’s Declaration, the Court finds that the $5,829, which was billed for Plaintiff’s motion for leave to amend and the oppositions to Defendant’s demurrer and motion to strike, may be appropriately apportioned as those billing entries are solely related to Plaintiffs’ fraud cause of action.
The Court also finds that Defendant has failed to establish that the billing entries related to its second sets of discovery and the MSJ/MSA solely related to Plaintiffs’ fraud cause of action. In addition, Defendant failed to present the Court with a method on how to practically apportion those fees. The Court finds that the fees incurred for the second set of discovery and MSJ/MSA are for the SBA claims and the fraud claims, which arose from the same issues, i.e., the existence of a known defect in Plaintiff’s Vehicle.¿ (See FAC generally.)¿ Otherwise stated, the fees are for the fraud and SBA claims and are inextricably intertwined, and the work performed by Plaintiffs in their filings related to their fraud cause of action was inextricably intertwined with the SBA claims and apportionment is not required.¿ (See Santana, supra, 56 Cal.App.5th at 347.).
For the reasons stated, the Court finds that Plaintiffs attorneys’ fees will be reduced by $5,829.
Specific Objections as to Billing Entries
Defendant objects to fifty-eight of Plaintiffs’ entries because they were excessive, duplicative, block-billed, vague, unjustified, and clerical billing.
The Court finds that Defendant’s objections to the following specific items are well-taken:
· The 8 hours spent on drafting the
deposition summary Plaintiffs is excessive.
The Court will reduce it to 2 hours at a rate of $150/hour for a total
of $300.
·
The
9.8 hours spent to draft a motion to compel further responses to request for
production of documents is excessive, considering the motion involved only 10
requests and was not complex. The Court
will reduce these billing entries by 4.8 hours.
This bring the total fees for these task to $1,825 (representing 5 hours
at a rate of $365/hour)
·
The
7.4 hours to meet and confer and draft opposition to a motion to deem requests
for admissions admitted is excessive.
The Court will reduce this billing entry by 4.4 hours. This brings the total fees for these tasks to
$1,170 (representing 3 hours at a rate of $390/hour).
· The 1.4 hours to prepare depositions exhibits and review document production regarding Defendant’s PMK is duplicative of the work done to prepare and take the deposition of the same. Accordingly, the Court will reduce that entire amount ($644).
The Court finds that Defendant’s other specific objections to the time entries are without merit, and that they were reasonably incurred in connection with the commencement and prosecution of this case. While Defendant contends that Plaintiffs’ counsel spent an excessive amount of time on several tasks, Defendant fails to offer any evidence on how much time Plaintiffs’ counsel should have spent, or how much time Defendant spent on similar tasks.
The Court notes that Defendant disputes the billing entries for Plaintiffs’ depositions because while Plaintiff’s bill reflects that 4.4 hours were spent taking those depositions, the depositions only lasted 2.5 hours. However, a review of the billing entry reveals that the billing was not just for the depositions (as represented by Defendant), but also included preparation for taking them. (Shahian Decl. Exh. 30 p. 8.) The Court also finds that Defendant’s objections to the billing entries related to the deposition of Defendant’s PMK are unfounded for the reasons previously stated. Accordingly, the Court find that the billing entries related to the depositions of Plaintiffs and Defendant’s PMK as appropriate.
For the reasons stated, the Court will
reduce Plaintiffs’ attorneys’ fees by $6,092.
Reasonableness of Rates
Defendant contends that the hourly rates for attorneys’ fees ranging from $285 to $595 per hour are unreasonable and should be reduced to $350 per hour for attorneys.¿ ¿
The Court’s review of the Shahian Declaration (in support of the Motion for Attorneys’ Fees), its description of each attorneys’ years of experience, the accompanying exhibits, leads the Court to conclude that Plaintiffs’ attorneys’ hourly rates are reasonable. While this Court is not tied to the determinations of other judicial bodies on the reasonableness in fees and costs, the Court finds that the Shahian Declaration, its description of the reasonableness in fees, and the accompanying exhibits substantially support the fees requested.¿ By contrast, Defendant does not explain how the fees that are unreasonable beyond arguing that this case was not complex and that it did not go to trial. Defendant does not explain how the evidence presented by Plaintiffs or Defendant supports a conclusion that $350.00 per hour is the proper blended rate for all the attorneys who worked on this action on behalf of the Plaintiffs.¿ ¿
For the reasons, stated the Court denies Defendant’s request to reduce Plaintiffs’ attorneys’ hourly rate.¿
Multiplier
Defendant contends that the 1.35 multiplier sought by Plaintiffs is not warranted.¿ ¿
The Court agrees.¿ The Court’s review of this action leads it to conclude that this case involved a straightforward SBA case, involving issues that were not complex issues of fact or law.¿ The Court did not find there was novelty and difficulty in the questions involved.¿ While the Court recognizes that Plaintiffs were the prevailing party and that Plaintiffs’ attorneys’ recovery in this action was of a contingent nature, given the straightforward nature of the case, the Court finds this factor alone is insufficient to support the multiplier requested by Plaintiffs.¿¿¿
The Court denies Plaintiff’s Request for a multiplier.
Costs
Defendant contends that Plaintiffs should not be allowed to recover the following costs, as they were not reasonably incurred: (1) cancellation costs paid to Veritext, (2) expenses paid for transcript costs on April 7, 2021, (3) transcript costs for paid to Veritext on April 28, 2021, (4) expenses paid to Defendant on May 24, 2021, and (5) expenses paid to Darrell Blasjo.
As to the first item, the Court finds that Plaintiffs should not recover for that costs because Defendant contends it was not reasonably incurred, and Plaintiffs have failed to offer any evidence that this costs was actually incurred (or address this costs in their Reply).
As to the second item, the Court agrees with Defendant that item should not be allowed as Defendant represents that no court reporter was present at that hearing, and Plaintiffs fail to provide evidence that a court reporter was present and that a transcript was prepared.
As to the third item, Defendant failed to show that Plaintiffs did not reasonably incur the costs, as they do not dispute the costs, but instead contend the motion was only necessary because Plaintiffs failed to comply with their discovery obligation.
As to the fourth item, the Court finds that item should not be allowed because it was not reasonably incurred by Plaintiffs, as these were costs paid to reimburse Defendant for Plaintiffs failure to appear at deposition.
As to them fifth item, Plaintiff provides evidence that Mr. Blasjo issued an invoice for the costs sought.
The Court will reduce Plaintiffs’ costs by $1,369 , representing $395 (for item 1), $454 (for item 2) and $520 (for item 4).
Conclusion
Based on the rulings above, Plaintiff’s Motion for Attorneys’ Fees is GRANTED in part and DENIED in part.¿ The Court finds that Plaintiffs shall recover a total of $78,992.85 consisting of $67,000.50 for fees, costs in the amount of $8,492.35, and $3,500 for the reply.¿¿¿
Plaintiff to give notice.¿¿¿
The parties are strongly encouraged to attend all
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