Judge: Yolanda Orozco, Case: 19STCV13227, Date: 2022-10-04 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19STCV13227    Hearing Date: October 4, 2022    Dept: 31

MOTION FOR ATTORNEY FEES IS GRANTED, IN PART 

Background 

On April 16, 2019, Plaintiff Yvonne M. Garcia filed the instant action against Defendant Kia Motors America, Inc. (“Defendant”). The Complaint asserts causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly Act Section 1793.2; (4) Fraudulent Inducement – Concealment; and (5) Fraudulent Inducement – Intentional Misrepresentation.

On April 15, 2021, the Court granted Defendant’s motion for summary adjudication as to the second, fourth, and fifth causes of action and the claim for punitive damages, leaving the first

On May 23, 2022, Plaintiff accepted Defendant’s section 998 Offer.

On May 26, 2022, Plaintiff filed a Notice of Settlement.

On August 17, 2022, Plaintiff filed a Memorandum of Costs and a Motion for Attorney’s Fees, Costs, and Expenses.

On September 06, 2022, Defendant filed opposition papers.

On September 27, 2022, Plaintiff filed a reply. 

Legal Standard 

Under the Civil Code section 1794, subdivision (d) the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred:¿ “If the buyer prevails 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.” (Civ. Code, § 1794(d).)¿¿ 

The lodestar method is the primary method for determining a reasonable attorney fee award under section 1794, subdivision (d).¿ (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818-19.)¿ “A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations omitted].)¿ “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.¿ [citation] The court may also consider whether the amount requested is based upon unnecessary or duplicative work.”¿ (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)¿ “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.”¿ (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.)¿ “The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.”¿(Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)¿¿ 

In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of “fees customarily charged by that attorney and others in the community for similar work.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.”].)¿¿¿¿¿  

Evidentiary Objections

Defendant Kia filed evidentiary objections to the Declaration of Roger Kirnos

Objection Nos. 1 to 3 are OVERRULED.

Plaintiff filed Evidentiary Objections to the Declaration of Siyun Yoa.

Objection Nos. 1 to 6 are OVERRULED 

Discussion 

Reasonable Hourly Rates

“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.”  (Lunada¿Biomedical v. Nunez (2014) 240 Cal.App.4th 459, 488.)

KLG’s attorney rates are as follows:

Defendant asserts that Plaintiff has failed to provide a copy of a retention agreement showing what rates were actually charged or agreed to be paid by Plaintiff.

Defendant asserts that in Samantha Rusk v. Ford Motor Company, et al., San Francisco County Superior Court case no. CGC-17-559594, KLG provided a copy of their retention agreement, entered on June 23, 3017, showing that Plaintiff agreed to be charged $500.00 per hour for trial counsel, $450.00 for partners, and $200.00 for associates. (Yoa Decl. Ex. E.)

Attorney’s fees under the Song-Beverly Act are based on the lodestar method, the “actual time expended, determined by the court to have been reasonably incurred” and although the attorney’s fee agreement is relevant and may be considered, “it does not compel any particular award[.] (See Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 510-511.) Therefore, if the Court were to require Plaintiff to provide a copy of the fee agreement for a contingency case, the Court would still be required to apply the lodestar method and award Plaintiff attorneys’ fees based on the Court’s assessment of the time reasonably spent litigating the case. Furthermore, Defendant fails to cite a case requiring Plaintiff to provide a copy of the fee retainer agreement for contingency cases to assess attorney’s fees when fees are statutorily awarded. Therefore, the Court will not request that Plaintiff provide a copy of the fee retainer agreement.

Defendant also asserts that fees should be reduced due to overstaffing. “[J]ust as here can be too many cooks in the kitchen, there can be too many lawyers on a case.’” (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272 [finding that “simultaneous representation by multiple law firms posed substantial risks of task padding, over-conferencing, attorney stacking (multiple attendance by attorneys at the same court functions), and excessive research”].) Despite the assertion that Plaintiff’s counsel overstaffed the case, Defendant bears the burden of pointing out with particularity which time entries are duplicative or that the time billed was not reasonably expended. (See Ketchum, supra, 24 Cal.4th at 1132.)

In Morris v. Hyundai Motor America (2019), the Appellate Court affirmed that “it

 it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (41 Cal.App.5th 24, 39.) Morris involved the same firm, KLG, as this instant action. In finding that the trial court did not abuse its discretion in not awarding any fees for 83.5 hours of work billed by six associates of KLG because the plaintiff “had not provided a satisfactory explanation as to why 11 attorneys were needed to prosecute the case,” the trial court was not convinced by plaintiff’s counsel’s argument that “they carefully avoided duplication between the 3 firms” such that the reduction was appropriate due to the trial court’s “concerns about inefficiencies and duplication, even when Hyundai did not object to these attorneys’ time and billing entries in some instances.” (Morris, supra, 41 Cal.App.5th at 33, 38-39.)

Even though 19 attorneys and one law clerk worked on the case, Plaintiff’s counsel asserts that the case was not overstaffed. In support of her position, Plaintiff first that because the litigation in Morris, lasted one year and involved three (3) firms, while here, the case was litigated for 3 years. Although KLG’s partner submitted a declaration, the declaration fails to explain why so many attorneys were needed to work on this case and why the hours or rates by each attorney who worked on the case were reasonable or necessarily incurred. (See, generally, Kirnos Decl.) For this reason, the Court is not convinced that this case was not overstaffed since Plaintiff’s counsel failed to provide a satisfactory explanation as to why 19 attorneys were needed in this straight-forward lemon law case containing no complex or novel issues.   

Nevertheless, the Court declines to adopt the Morris calculation or cut 33% of fees pursuant to Warren v. Kia Motors America, Inc. given that the Court grant’s the majority of Defendant’s objections to Plaintiff’s motion for attorney’s fees. Having reviewed the various billing rates, this Court finds the hourly rates of KLG’s attorneys to be reasonable. 

Motion to Compel Defendant’s PMK

Defendant opposes the $6,893.00 charged in connection with Plaintiff’s Motion to Compel Kia PMK because the Case Management Conference Order limited the PMK deposition to five categories, but Plaintiff’s deposition notice was for 42 categories and 25 requests for production of documents. (Yoa Decl. Ex. B.) Defendant asserts that Plaintiff refused to narrow any categories and at the hearing, this Court granted Plaintiff’s motion in part but limited the deposition to the five categories. (Yoa Decl. ¶ 8.) 

On April 7, 2021, Nathan Goncalves at an hourly rate is $250.00, spent 5.0 hours drafting the motion to compel Kia’s PMK (totaling $1,250.00). On April 15, 19, and 20 both Andrew Jang and Woody Jones, whose respective hourly rate is $250.00, billed 3.8 hours to draft and prepare for an ex parte to compel Kia’s PMK, which this Court ultimately denied (totaling $950.00). On March 22, 2021, Partner Amy Morse, whose hourly rate at the time was $400.00, spent 0.2 hours meeting with other attorneys to select the categories for PMK after the Court imposed the limitation (totaling $350.00). Defendant also asserts that on June 1, 2021, Woody Jones, at a rate of $250.00 per hour, billed 0.8 hours to draft a non-opposition to the Motion, despite the opposition not yet being due (totaling $200.00). Jacob Cutler, at a rate of $425.00 per hour, billed 0.5 hour to review Kia’s opposition, 1.5 hours to prepare and attend the hearing, and 0.1 hours to review this Court’s tentative ruling on the PMK (totaling $892.50.) In total, Plaintiff would be entitled to a total of $3,642.50 in attorneys’ fees for noticing and compelling Kia’s PMK for deposition.  

Plaintiff does not respond to the above allegations in her moving papers. Accordingly, the Court agrees that the time spent drafting the categories for PMK was excessive when the Court had previously limited the categories to 5. Moreover, the fact that multiple attorneys with differing hourly rates worked on the same issue regarding Kia’s PMK, is clear evidence of inefficiency. 

Therefore, the Court finds that Plaintiff failed to show that the amount billed for work related to deposing Kia’s PMK was reasonably necessary for the conduct of the litigation and only awards 2.0 hours of work billed at a rate of $350.00 per hour, totaling $700.00. 

Plaintiff’s counsel asserts they did try to meet and confer with Kia regarding the deposition of 13 nonparty witnesses despite Defendant’s assertion that they did not. Defendant asserts and Plaintiff does not deny that no nonparty depositions occurred because the case was settled. Plaintiff does not address this in their moving papers. Nevertheless, Plaintiff’s counsel billed 0.6 hours at a rate of $250.00 on June 16, 2021, for a deposition that never occurred. A $200.00 deduction will be made. 

Work on the Motion for Summary Adjudication 

Defendant objects to 3.8 hours (totaling 950.00) spent by Gregory A. Lehrman on March 12, 2021, reviewing Defendant’s motion for summary adjudication. Mr. Lehrman then spent 7.1 hours (totaling $1,775) preparing an opposition. Two weeks later Woody Jones also started drafting the opposition to Defendant’s motion for summary adjudication and billed 25.9 hours for drafting the opposition (totaling $6, 475.00). Defendants assert that it should not have taken Plaintiff’s 33 hours of work on the MSA because Plaintiff’s counsel made the same arguments in another opposition to Kia’s motion for summary adjudication for Salvador Anaya v. Kia Motors (LASC No. 19STCV13337), heard by this Court two months prior. 

Plaintiff asserts that Jones’ billing hours were necessary because Mr. Lehrman had left the firm and Jones was tasked with gathering and organizing sufficient evidence to oppose the motion for summary adjudication. Ultimately, this Court granted and denied in part Kia’s motion for summary adjudication. (Min. Or. 04/15/21. 

The Court is not persuaded that the total hours spent opposing Defendant’s motion for summary adjudication was reasonable and necessary to the conduct of the litigation when the case did not involve novel or complex issues of law. The Court awards 5.0 hours of work billed at a rate of $250.00 per hour for Lehrman’s and Jones’ work on opposing the motion for summary adjudication, totaling $1,250.00. Accordingly, $7,950.00 will be deducted from the lodestar. 

Fee for Fee Motion 

In connection with drafting this fee motion, and in anticipation of reviewing opposing papers, drafting a response, and appearing at the hearing, Deepak Devabose, whose billing rate is $325.00 per hour, seeks to recoup $3,412.00 in attorney’s fees for 10.50 hours of work. Defendant asserts the amount is excessive and similar to other fee motions previously filed by KLG such that it is a recycled motion. (Yao Decl. Ex. F, G.) Plaintiff asserts that although some work is saved using previous motions, the facts in this case of different and the work reflects the time actually spent drafting the fee motion. 

The Court agrees that the amount billed is excessive, and awards 1.5 hours of work billed at a rate of $325.00 per hour, totaling $487.50. Accordingly, $2,924.50 will be deducted from the lodestar. 

Value Billing 

Defendant asserts that Plaintiff’s counsels billed for what they believed was the “value” of their work, rather than the actual time spent on a task. (See Cal. Rules of Conduct, rule 4-200.) According to Defendant, this practice is evidenced by KLG’s use of previous forms and templates that only require the changing of the year, model, and VIN of the subject vehicle. Defendant attaches a spreadsheet of Plaintiff’s billing with Defendant’s suggested breakdown of what KLG’s proper billing amount should be. (Yao Decl. Ex. D.) 

The fact that Defendant feels that certain services should be “valued” less, is not by itself sufficient to show that the costs Plaintiff incurred were not reasonable or necessary to the litigation. For this reason, the Court declines to accept Defendant’s calculations to specific billing entries without a more thorough explanation of why the amount sought is excessive or unreasonable. 

Ex-Parte Applications 

After reviewing Plaintiff’s billing statement, the Court elects to deduct time spend filing ex-parte applications regarding discovery given the fact that they were not granted or were withdrawn, evidencing that they were not necessary or reasonable to the conduct of the litigation. 

·       01/04/22- Katrine Smith billed at a rate of $295.00 per hour for 3.0 hours of work to draft ex parte application or specifically set PMQ-Memo and notice. Totaling $885.00

·       01/04/22 – Thomas Drewblow billed at a rate of $350.00 per hour for 0.8 hours to review and revise ex parte application and draft opposition. Totaling $280.00

·       01/06/22- Heidi Alexander billed at a rate of $350 per hour for 0.7 hours to attend the remote hearing on the ex parte application. Totaling $245.00. 

Accordingly, $1,410.00 will be deducted from the lodestar. 

Multiplier 

The lodestar amount “may be adjusted by the court based on factors including (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.”¿(Bernardiv. County of Monterey (2008) 167 Cal.App.4th 1379, 1399 [citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)¿ The purpose of any lodestar and the increase “is intended to approximate market-level compensation for such services” and is entirely discretionary.¿ (Id.)¿ “The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.”¿ (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.) 

KLG requested s 0.5 multiplier due to the contingency nature of the case, the advanced litigation costs, and the results achieved. KLG also cites other cases where their request for a multiplier has been granted. (Kirnos Decl. Dec. ¶¶ 48, 53, 59, 70, 83, 97, 99, 100, 101; Exs. J, O, U, FF, SS, GGG, III, JJJ, KKK.) 

Defendant asserts that a multiplier is not warranted because this case did not present complex or novel issues and was “cookie-cutter” lemon law case involving the same legal principles and arguments as numerous previous cases litigated by KLG. KLG fails to show how this particular case was different or presented new or complex issues that made this case particularly hard to litigate. 

Accordingly, no multiplier will be awarded. 

Adjusted Lodestar 

The unadjusted lodestar seeks $44,492.50 in fees. The stated deductions are:  

• $1,410.00  (ex parte motions) 


• $2,924.50 (fee motion deductions) 


• $7,950.00 (duplicative billing on MSA) 


• $200.00 (appearance for deposition
  not held) 


• $1,892.50 (work on Depo. for PMK) 

The adjusted lodestar is $30,115.50 

Conclusion 

Plaintiff’s Motion for Attorneys’ Fees is GRANTED, IN PART. The Court awards the sum of $30,115.50 in attorneys’ fees and DENIES Plaintiff’s request for a multiplier. 

Moving party to give notice.