Judge: Yolanda Orozco, Case: 19STCV21757, Date: 2022-07-27 Tentative Ruling
Case Number: 19STCV21757 Hearing Date: July 27, 2022 Dept: 31
MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES IS GRANTED, IN PART
Background
On June 20, 2019, Salvador Murillo (“Plaintiff”) initiated this action by filing a Complaint against Kia Motors America, Inc. (“Defendant”) and Does 1 through 10. Plaintiff’s Complaint arises from Plaintiff’s purchase of 2017 Kia Niro (“Subject Vehicle”) from Defendant and Plaintiff’s allegation that the Subject Vehicle contained serious defects and nonconformities. Plaintiff’s Complaint alleges the following causes of action against Defendant: (1) Violation of Song-Beverly Act—Breach of Express Warranty; (2) Violation of Song-Beverly Act—Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act Section 1793.2.
On April 19, 2022, Plaintiff filed a Notice of Settlement of Entire Case.
On June 17, 2022, Plaintiff filed a Motion for Attorneys’ Fees, Costs and Expenses. Plaintiff’s Motion for Attorneys’ Fees, Costs and Expenses is now before the Court.
Legal Standard
“[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.)
In a lemon law action, costs and expenses, including attorney fees, may be recovered by a prevailing buyer under the Song-Beverly Consumer Warranty Act. (See Civ. Code, § 1794, subd. (d).) Civil Code section 1794 provides:
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.
(Civ. Code, § 1794 [emphasis added].)
Thus, the statute includes a “reasonable attorney’s fees” standard.
The attorney bears the burden of proof as to the “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5(c)(5).) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Ibid.)
A plaintiff’s verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “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. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488 (Lunada).)
In determining whether the requested attorney’s fees are “reasonable,” the Court’s
first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided.
(Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].)
In determining whether to adjust the lodestar figure, the Court may consider 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 (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
“ ‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’ ”
(Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)
Evidentiary Objections
In conjunction with Plaintiff’s Reply brief, Plaintiff submits approximately eight (8) evidentiary objections to the Declaration of Jacqueline Bruce Chinery, which was filed in support of Defendant’s Opposition to Plaintiff’s Motion for Attorneys’ Fees, Costs and Expenses. Following review, Plaintiff’s eight (8) evidentiary objections are OVERRULED.
Discussion
Plaintiff moves for an Order awarding attorneys’ fees and costs equal to approximately $145,505.61. The Court will address Plaintiff’s request for attorneys’ fees and costs, in turn, respectively.
A. Plaintiff’s Request for an Award of Attorneys’ Fees
Plaintiff requests an Order awarding Plaintiff’s counsel of record attorneys’ fees equal to approximately $123,727.50, representing a lodestar of approximately $82,485.00, and a lodestar multiplier of 0.5, in the amount of $41,242.50.
(a) Prevailing Party
The parties do not dispute that Plaintiff is the prevailing party as defined by Civil Code section 1794, subdivision (d). (Civ. Code, § 1794, subd. (d) [“If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover . . . attorney’s fees”].)
On April 17, 2022, Defendant served upon Plaintiff Defendant’s Code of Civil Procedure Section 998 Offer to Compromise (“998 Offer to Compromise”), offering Plaintiff approximately $85,000.00 in an effort to settle the present action prior to the impending trial date. (Kirnos Decl., ¶ 24.) Subsequently, Plaintiff accepted Defendant’s 998 Offer to Compromise. (Ibid.) Accordingly, as Plaintiff obtained a net monetary recovery pursuant to acceptance of Defendant’s 998 Offer to Compromises, Plaintiff is deemed the prevailing party as defined by Civil Code section 1794, subdivision (d). (Reveles v. Toyota by the Bay (1997) 57 Cal. App. 4th 1139, 1149-1151, disapproved on other grounds by Gavaldon v. DaimlerChrystler Corp. (2004) 32 Cal.4th 1246, 1254-1256 [holding that any plaintiff who achieves a net monetary recovery under the Song-Beverly Consumer Warranty Act is a prevailing party entitled to attorney’s fees under the Act, even if the net monetary recovery was achieved pursuant to a pretrial settlement].)
(b) Reasonable Hourly Rate
Plaintiff moves to recover attorneys’ fees with respect to the following attorneys, and the following corresponding hourly rates:
· Amy Morse, Partner—$350.00 (2019-2020), $400.00 (2021)
· Caitlin Rice, Associate—$295.00 (2022)
· Diana Folia, Senior Trial Paralegal—$250 (2022)
· Gregory Lehrmann, Associate—$200.00 (2019-2020), $250.00 (2021)
· Greg Mohrman, Senior Trial Attorney—$425.00 (2021)
· Heidi Alexander, Associate—$325.00 (2020-2021)
· Jeffrey Mukai, Senior Attorney—$450.00 (2022)
· Jacob Cutler, Senior Attorney—$425.00 (2020-2021), $450.00 (2022)
· Kamau Edwards, Senior Trial Attorney—$450.00 (2022)
· Maite Colon, Associate—$345.00 (2021), $395.00 (2022)
· Marisa Melero, Associate—$225.00 (2019-2020), $295.00 (2021), $345.00 (2022)
· Natalee Fisher, Associate—$250.00 (2020)
· Russell Higgins, Partner—$450.00 (2020)
· Roger Kirnos, Managing Partner—$450.00 (2021), $500.00 (2022)
· Steve Mikhov, Former Managing Partner—$550.00 (2019)
· Sundeep Samra, Associate—$325.00 (2022)
· Scot Wilson, Partner—$595.00 (2020-2022)
· Thomas Van, Associate—$450.00 (2022)
· Zachary Powell, Associate—$375.00 (2022)
“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.) “ ‘In making its calculation [of a reasonable hourly rate], the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.’ ” (Id. at p. 41, citing 569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)
Defendant contends this Court should collectively reduce any and all hourly rates requested over $350.00 per hour to approximately $350.00 per hour pursuant to Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240—this would include reducing the hourly rates of Greg Mohrman (Senior Trial Attorney), Jeffrey Mukai (Senior Attorney), Jacob Cutler (Senior Attorney), Kamau Edwards (Senior Trial Attorney), Russell Higgins (Partner), Roger Kirnos (Managing Partner), Steve Mikhov (Former Managing Partner), Scot Wilson (Partner), and Thomas Van (Associate). Further, Defendant argues Plaintiff does not provide adequate support with respect to the hourly rate of Paralegal, Diana Folia, for which $250.00 is requested.
Following review of the parties’ arguments and submitted evidentiary declarations, the Court finds as follows. Initially, pursuant to the arguments advanced by Defendant, it is clear Defendant does not dispute the rates for those attorneys who bill below $350.00. Defendant appears to concede the hourly rate for those attorneys are “reasonable” and may be properly awarded. On the other hand, as explained above, Defendant disputes the hourly rates of those attorneys which exceed $350.00. Ultimately, despite Defendant’s arguments, the Court refuses to collectively reduce the rates of the Senior Trial Attorneys and Partners identified in the preceding paragraph to $350.00 per hour. Plaintiff has submitted sufficient evidence, outlining each Senior Trial Attorney’s and Partner’s relevant education, experience, and expertise in the field of consumer law, in order to justify the hourly rates requested by Plaintiff. (Kirnos Decl., ¶¶ 26-29, 30-31, 34, 38, 40, 41, 44, 46, 47.) Additionally, Plaintiff has submitted additional evidence demonstrating that the hourly rates requested by each Senior Trial Attorney and Partner are comparable to the reasonable hourly rates previously awarded by a Court of law. (Id. ¶¶ 53, 55, 57, Exs. G, I, K; see Goglin v. BMW of North America (2016) 4 Cal.App.5thh 462, 473 [holding the reasonableness of hourly rates may be established by declarations from counsel, including a showing of what other courts have awarded for similar work].)
However, conversely, the Court is persuaded by Defendant’s contention that Plaintiff has failed to submit sufficient evidence for the purposes of supporting the hourly rate requested with respect to Senior Trial Paralegal, Diana Folia (“Ms. Folia”). Plaintiff’s evidentiary declaration provides Ms. Folia “has over eleven years of experience working in civil litigation” and “graduated from California State University, Fullerton.” (Kirnos Decl., ¶ 36.) However, despite Ms. Folia’s lengthy experience, the Court finds Ms. Folia’s hourly rate to be unreasonable. While Defendant would have this Court reduce Ms. Folia’s hourly rate to the “average billable paralegal rate”, as articulated within “United States Consumer Law Survey Report 2017-2018” (Kirnos Decl., Ex. LLL), the Court refuses to do so. Instead, the Court draws an appropriate line in the middle, based upon this Court’s knowledge and experience concerning the hourly rates of paralegals. The Court reduces Ms. Folia’s hourly rate to approximately $200.00.
Based on the foregoing, the Court finds the hourly rates requested generally to be reasonable, except for those instances noted. The reduction of Ms. Folia’s hourly rate will be reflected within the lodestar.
(c) Reasonable Number of Hours
Plaintiff moves for the recovery of attorneys’ fees for approximately 195.1 hours worked by Plaintiff’s counsel. (Kirnos Decl., Ex. A.)
“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.) “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. 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.)
Preliminarily, the Court recognizes that Plaintiff has submitted a verified billing invoice, sufficiently affirming that Plaintiff’s counsel has expended approximately 195.1 hours litigating the present action on Plaintiff’s behalf. (Kirnos Decl., Ex. A.) Accordingly, the Court finds Plaintiff has made a prima facie showing that the services listed upon the verified billing invoice were necessarily incurred within the present litigation. (See Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682 [holding “a verified cost bill is prima facie evidence that the costs, expenses and services listed were necessarily incurred”].) The burden now shifts to Defendant to identify “specific items” included within Plaintiff’s verified billing invoice, for the purposes of demonstrating that a reduction in hours is warranted. (Lunada, supra, 230 Cal.App.4th at 488 [“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. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”].)
a. Excessive Billing for “Boilerplate” Documents
First, Defendant argues the loadstar figure should be reduced by a total of 16.5 hours because Plaintiff has billed excessively for the drafting of documents (e.g., written discovery, discovery responses, oppositions to motions in limine, and trial documents) which are based upon common, boilerplate templates. Defendant argues, while Plaintiff’s counsel has billed approximately 2.1 hours for drafting standard written discovery, a reduction of 1 hour is warranted because the written discovery is “boilerplate” and similar to discovery served by Plaintiff’s counsel in other cases. (Chinery Decl., ¶ 8, Ex. D.) Defendant argues, while Plaintiff’s counsel has billed a total of 4.9 hours for the preparation of responses to Defendant’s Requests for Admission and Requests for Production of Documents, a reduction of 3.9 hours is warranted because the responses served are identical to those served four months earlier in a separate litigation. (Id. ¶¶ 10-13, Ex. E, F, G, H.) Defendant argues, while Plaintiff’s counsel has billed approximately 9.2 hours for drafting oppositions to Defendant’s Motions in Limine Nos. 1 through 10, these hours (i.e., the entire 9.2 hours billed) should be deducted from the lodestar because Plaintiff’s counsel’s prepared oppositions to Defendant’s Motions in Limine Nos. 1 through 7 are identical to those filed in a separate case two months earlier, and Plaintiff did not oppose Defendant’s Motion in Limine No. 8. (Id. ¶¶ 16-17, Exs. J, K.) Lastly, Defendant argues, while Plaintiff’s counsel has billed a total of 2.4 hours for the preparation of various trial documents, these hours (i.e., the entire 2.4 hours) should be deduction as these documents are identical to those filed in a prior litigation one month earlier.
Preliminarily, the Court notes Defendant’s argument concerning Plaintiff’s propounded written discovery is not wholly persuasive. While Defendant argues Plaintiff’s written discovery constitute boilerplate discovery, the Court is unpersuaded such a fact would warrant a reduction of the 2.1 hours expended to draft such written discovery. Notably, other than mere argument, Defendant does not produce any concrete evidence to persuade this Court that Plaintiff’s counsel unreasonably expended 2.1 hours to prepare four sets of written discovery—specifically, Plaintiff’s Form Interrogatories, Special Interrogatories, Request for Admissions, and Request for Production of Documents. Accordingly, despite Defendant’s contentions, the Court finds that the 2.1 hours expended by Plaintiff’s counsel for the purposes of preparing the four sets of written discovery identified above are reasonable.
The Court is largely persuaded by Defendant’s remaining arguments and finds that Defendant has sufficiently produced evidence to support the contentions advanced above. First, the Court finds the hours expended by Plaintiff’s counsel to prepare Plaintiff’s responses to Defendant’s Request for Admissions and Request for Production of Documents (a total of 4.9 hours) are “excessive” and therefore unreasonable. Upon review of the evidence submitted by Defendant, the Court finds Plaintiff’s discovery responses are identical word-for-word to discovery responses prepared and served by Plaintiff’s counsel in a separate litigation (Robert Whitten v. Kia Motors America, Inc., San Bernardino Superior Court, Case No. CIVDS1925118). (Chinery Decl., Exs. E, F, G, H.) Plaintiff’s discovery responses did not contain case-specific information or facts, which would have necessitated substantially altering the previously propounded discovery responses in Whitten. The Court finds Plaintiff’s counsel’s preparation of discovery responses in the present action largely consisted of recirculating the responses previously served in the Whitten litigation, and therefore, Plaintiff’s counsel’s billing of 4.9 hours to complete such a task is excessive. Accordingly, the Court adjusts the lodestar and awards 2 hours for the preparation of Plaintiff’s discovery responses (i.e., the Court imposes a reduction of 2.9 hours).
Second, the Court finds the hours expended by Plaintiff’s counsel in drafting oppositions to Defendant’s Motions in Limine Nos. 1 through 10 (a total of 9.4 hours) are excessive. Following a review of the evidence submitted by Defendant, the Court notes the opposing papers filed by Plaintiff with respect to Defendant’s Motions in Limine Nos. 1 through 6, and 10 are nearly identical word-for-word to previous opposition briefs prepared by Plaintiff’s counsel in different litigations (Victor Lozano v. Kia Motors America, Inc., LASC No. 19STCV43316; Peralta v. Kia Motors America, Inc., LASC No. 19STCV46216). (Chinery Decl., Exs. I, J, K.) The prepared oppositions differ only with respect to the designated Plaintiff’s name. (Ibid.) The Court finds Plaintiff’s counsel’s preparation of the aforementioned opposing papers largely consisted of copy-and-pasting the text from the opposing papers filed previously in Lozano and Peralta. (Ibid.) Accordingly, the Court finds the 9.4 hours billed with respect to the preparation of such opposition papers to be excessive. The Court adjusts the lodestar and awards 4.6 hours for the prepared opposition briefs (i.e., the Court imposes a reduction of 4.6 hours).
Lastly, the Court finds the hours expended by Plaintiff’s counsel for the preparation of various trial documents (a total of 2.4 hours) are excessive. Following review of Defendant’s submitted evidence, the Court finds the trial documents prepared by Plaintiff’s counsel are identical word-for-word to trial documents prepared by Plaintiff’s counsel in a separate litigation (Nunez v. Kia Motors America, Inc., LASC Case No. 20STCV22699). (Chinery Decl., Exs. L, M.) The Court finds no substantive difference between the two sets of trial documents prepared by Plaintiff’s counsel. (Ibid.) Accordingly, the Court finds the 2.4 hours expended in preparing the aforementioned trial documents are excessive. The Court adjusts the lodestar and awards 1.2 hours for the preparation of such trial documents (i.e., the Court imposes a reduction of 1.2 hours).
b. Additional Excessive Billing
Second, Defendant argues Plaintiff has billed excessively for the drafting of other documents, and the lodestar should be reduced accordingly. Defendant’s specific argument are as follows. Defendant argues, while Plaintiff’s counsel has billed approximately 1.2 hours for the preparation of a 998 Offer to Compromise between February 1st through February 2nd, 2022, such hours are excessive as Plaintiff’s counsel previously prepared an identical 998 Offer to Compromise in this litigation in October of 2020. (Chinery Decl., Exs. N, O, P, Q.) Defendant argues, while Plaintiff’s counsel has billed a total of 1.3 hours for drafting a meet and confer letter concerning a stipulated protective order, such hours are excessive as the letter only consisted of three pages. (Chinery Decl., Ex. R.) Defendant argues, while Plaintiff’s counsel billed approximately .5 hours for reviewing and signing a stipulated protective order, such hours are excessive. Lastly, Defendant argues, while Plaintiff’s counsel billed approximately 12.8 hours for drafting the present Motion for Attorneys’ Fees, Costs, and Expenses, such hours are excessive as Plaintiff’s counsel’s Motion and accompanying Declarations are largely recycled from Motions filed in previous litigations.
The Court now assesses Defendant’s arguments.
The Court is only partly persuaded by Defendant’s arguments. First, the Court is not persuaded a reduction in hours is warranted with respect to Plaintiff’s counsel’s preparation of the aforementioned meet and confer letter, or Plaintiff’s counsel’s review and signature of a stipulated protective order. Defendant offers only argument to support the proposed reduction in hours, and fails to proffer any concrete, persuasive evidence in support of the same. The Court refrains from reducing the hours expended by Plaintiff’s counsel with respect to the referenced meet and confer letter, and review and signature of a stipulated protective order as these hours appear reasonable.
Second, the Court is persuaded that the hours expended by Plaintiff’s counsel in drafting the present Motion for Attorneys’ Fees, Costs and Expenses (5.8 hours), and drafting the Reply (4 hours) are excessive. Accordingly, the Court reduces the hours expended by Plaintiff’s counsel in drafting the present Motion to approximately 3.5 hours, and additionally, reduces the hours expended by Plaintiff’s counsel in drafting the Reply to approximately 2.5 hours. The aforementioned reduction in hours is included within the Court’s lodestar calculation below.
Third, the Court is persuaded a reduction in hours is warranted with respect to Plaintiff’s counsel’s preparing of Plaintiff’s 998 Offer to Compromise. The Court notes, Plaintiff’s counsel’s verified billing invoice provides approximately 1.2 hours were expended between February 1st and February 2nd, 2022 for the purposes of reviewing settlement history and preparing a 998 Offer to Compromise. (Chinery Decl., ¶ 25.) However, upon review of the evidence submitted by Defendant, the Court finds the 998 Offer to Compromise served by Plaintiff in February of 2022 is identical to the 998 Offer to Compromise served by Plaintiff in October of 2020, January of 2021, and April of 2021. (Id. ¶¶ 21-26, Exs. N, O, P, Q.) Accordingly, the Court finds Plaintiff’s counsel’s billing of approximately 1.2 hours for the preparation of a document previously prepared is excessive. The Court adjusts the lodestar and awards approximately .2 hours for the preparation of the February 2022 998 Offer to Compromise (i.e., a reduction of 1 hour).
c. Unreasonable Billing
Third, Defendant argues Plaintiff’s counsel’s billing with respect to an un-filed discovery motion and certain travel expenses constitute “unreasonable” billing which should appropriately be excluded from the lodestar figure. Initially, Defendant argues, while Plaintiff’s counsel presumably expended approximately 3.5 hours with respect to the preparation of a motion to compel further responses to request for production of documents, such hours should be excluded from the lodestar figure as this motion was not filed by Plaintiff. (Chinery Decl., ¶¶ 30-31, Ex. S.) Additionally, Defendant argues, while Plaintiff’s counsel expended approximately 2.6 hours travelling to and from hearings in this litigation, such hours should be excluded from the lodestar figure because such hours are unreasonable.
The Court is persuaded by Defendant’s initial argument, only. The Court finds the hours expended by Plaintiff’s counsel with respect to preparation of a motion to compel further responses, which was never filed or argued, cannot be said to constitute hours reasonably expended “in connection with the . . . prosecution of [this] action.” (Civ. Code, § 1794 [emphasis added].) Accordingly, the Court appropriately reduces approximately 3.5 hours from the lodestar figure.
However, the Court remains unpersuaded with respect to Defendant’s secondary argument. Defendant fails to cite to any binding case law or statute which provides Plaintiff may not recover travel expenses. Indeed, as stated within Civil Code section 1794, a prevailing party under the Song-Beverly Consumer Warranty Act is entitled to recover the attorneys’ fees and costs expended in commencement and prosecution of the action. (Civ. Code, § 1794.) The Act does not carve-out an exception for travel expenses. Accordingly, the Court finds Defendants’ argument unpersuasive and refrains from reducing the lodestar as requested.
d. Duplicative Billing
Fourth, Defendant argues, as a result of approximately seventeen (17) attorneys staffing Plaintiff’s action, Plaintiff’s verified billing invoice includes multiple instances of duplicative billing for identical tasks. Defendant argues such “duplicative billing” is unreasonable, and should be excluded from the lodestar figure accordingly. Defendant advances the following, specific arguments concerning “duplicative billing”.
Initially, Defendant argues Plaintiff’s counsel’s verified billing invoice bills approximately 1.2 hours for Plaintiff’s counsel’s review of “CMC results”, “memo re deposition of Defendant’s PMK”, “results re FSC”, and “MIL and Trial hearing results”. (Chinery Decl., ¶ 32.) Defendant argues such hours expended by Plaintiff’s counsel should be reduced from the lodestar figure. However, the Court is not persuaded. The Court recognizes the importance and, indeed, necessity of reviewing the results following hearings before the Court as well as pertinent litigation exercises, such as depositions. Defendant has failed to demonstrate to this Court how such review does not constitute “prosecution” of this action under the Song-Beverly Consumer Warranty Act. Accordingly, despite Defendant’s contentions, the Court refuses to reduce the lodestar figure with respect to Plaintiff’s counsel’s “review” entries.
Further, Defendant argues this Court should reduce the lodestar by approximately 2 hours, which reflect the hours which Kamau Edwards (Senior Trial Attorney) expended in reviewing Defendant’s Motions in Limine Nos. 1, 2, 4, and 9, on approximately March 14, 2022, in preparation of the upcoming trial date of April 4, 2022. (Chinery Decl., ¶ 33.) Defendant argues such a reduction is necessary as other attorneys, specifically Zachary Powell (Associate, who reviewed Defendant’s MILs and drafted Plaintiff’s opposing papers to the same), had already reviewed Defendant’s Motions in Limine Nos. 1, 2, 4, and 9. Based upon such prior review, Defendant argues Mr. Edwards’ 2 hours constitutes “duplicative billing” which should be excluded from the lodestar figure. However, the Court is not persuaded. As argued in Plaintiff’s Reply brief, Mr. Edwards’ review of Defendant’s Motions in Limine Nos. 1, 2, 4, and 9 was reasonable as Mr. Edwards is a Senior Trial Attorney, tasked with litigating this matter before the Court. While Mr. Powell, an Associate, was responsible for reviewing and drafting oppositions on Plaintiff’s behalf with respect to Defendant’s Motions in Limine Nos 1, 2, 4 and 9, Mr. Edwards’ review and preparation remained reasonable and necessary. The Court finds merit to this argument. Accordingly, the Court does not find Mr. Edwards’ hours constitute “duplicative billing”, and as a result, refrains from reducing the lodestar, despite Defendant’s contentions.
Additionally, Defendant argues this Court should reduce the lodestar figure by approximately 6.5 hours, accounting for duplicative preparation of various trial documents—including Plaintiff’s Cross-Examination of Defendant’s PMK, Plaintiff’s Direct Examination, and Plaintiff’s Opening Statement. Defendant argues Plaintiff’s verified billing invoice reflects that Thomas Van (Associate) drafted the aforementioned trial documents, and, thereafter, Scot Wilson (Partner) expended hours analyzing, editing, and reviewing the same. (Chinery Decl., ¶¶ 34-36.) Defendant argues such billing practices constitute “duplicative billing” for identical work and, therefore, the lodestar figure should be reduced accordingly. The Court is persuaded by Defendant’s arguments, and finds such billing practices “duplicative”. Upon review of Plaintiff’s verified billing invoice, the Court observes Thomas Van (Associate) and Scot Wilson have expended hours performing duplicative work. Accordingly, the Court adjusts the lodestar by excluding a portion of the duplicative hours expended by Scot Wilson in reviewing and/or re-drafting Thomas Van’s previously prepared trial documents (i.e., a reduction of approximately 6.5 hours).
e. Improper Block Billing
Lastly, Defendant argues that the number of hours allegedly expended by Plaintiff’s counsel must be reduced by approximately ten percent (10%) because the verified billing invoice includes “block billing entries”. However, block billing is not per se objectionable. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 830 [“block billing is not objectionable ‘per se’”].) Rather, “block billing is particularly problematic in cases where there is a need to separate out work that qualifies for compensation”. (Ibid.) In the present case, all hours expended and tasks performed by Plaintiff’s counsel in litigating the present action pursuant to the Song-Beverly Consumer Warranty Act would be recoverable under Civil Code § 1794, subdivision (d). Accordingly, the dangers associated with block billing are not present in the current case. Thus, the Court is unpersuaded by Defendant’s argument, and will not impose a ten percent (10%) reduction in the lodestar figure, as requested by Defendant.
f. Final Lodestar Figure
Following the Court’s analysis, and considering the reductions contemplated in the preceding Sections of this Court’s Order, the lodestar is equivalent to approximately $72,422.50, reflecting a total of 171.6 hours expended by Plaintiff’s counsel in litigating the instant action.
(d) Request for Lodestar Multiplier
Plaintiff requests a lodestar multiplier of 0.5, equivalent to approximately $41,242.50, on the ground Plaintiff’s counsel agreed to represent Plaintiff on a contingency fee basis, the delay in payment since filing the Complaint, and the excellent result achieved by Plaintiff’s counsel in this action.
A trial court may adjust the lodestar upward or downward using a multiplier. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Courts look to the following factors, among others, in determining whether a multiplier is appropriate: “(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; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award; (4) the fact that an award against the state would ultimately fall upon the taxpayers; (5) the fact that the attorneys in question received public and charitable funding for the purpose of bringing law suits of the character here involved; (6) the fact that the monies awarded would inure not to the individual benefit of the attorneys involved but the organizations by which they are employed….” (See Serrano v. Priest (1977) 20 Cal.3d 25, 48.)
Following a review of the parties’ arguments, the Court finds that the circumstances do not warrant an award of a lodestar multiplier. While the Court is aware Plaintiff’s counsel agreed to represent Plaintiff on a contingency fee basis, the Court does not find the other factors awarding a lodestar multiplier present to warrant an award of the same. Ultimately, the Court is unpersuaded that a multiplier is warranted.
B. Plaintiff’s Request for an Award of Costs
Plaintiff requests an award of costs and expenses in the sum of approximately $21,778.11. The Court recognizes Defendant has filed a Motion to Tax Costs, which is presently set for hearing on approximately September 1, 2022. The Court defers ruling upon Plaintiff’s request for costs until September 1, 2022, during the time in which the Court considers Defendant’s Motion to Tax Costs.
Conclusion
Plaintiff’s Motion for Attorneys Fees, Costs and Expenses is GRANTED. Plaintiff is awarded attorneys’ fees in an amount of approximately $72,422.50, reflecting a total of 171.60 hours expended by Plaintiff’s counsel in litigating the instant action.
The Court defers ruling upon Plaintiff’s request for costs until September 1, 2022, at which time the Court will consider Defendant’s Motion to Tax Costs.
Plaintiff to give notice.
The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.