Judge: Yolanda Orozco, Case: 19STCV28125, Date: 2023-01-26 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: 19STCV28125    Hearing Date: January 26, 2023    Dept: 31

MOTION FOR ATTORNEY FEES

TENTATIVE RULING 

Plaintiff’s Motion for Attorney’s fees is GRANTED in the amount of $61,570.65. Plaintiff’s request for a multiplier IS DENIED. 

Background 

On August 8, 2019, Plaintiff Sheila Ann Seals (“Plaintiff”) filed the instant action against Defendants Jaguar Land Rover North America, LLC (“JLRNA”); Penegon West, Inc. dba Hornburg Jaguar (“Hornburg”); and Does 1 through 10. The Complaint asserts causes of action for: 

1)              Violation of the Song-Beverly Act – Breach of Express Warranty; 

2)              Violation of the Song-Beverly Act – Breach of Implied Warranty; and 

3)              Violation of the Song-Beverly Act § 1793.2  

On June 30, 2022, the Court granted Defendant’s Motion for Summary Adjudication as to the second and third causes of action. 

On October 07, 2022, Plaintiff filed a Notice of Settlement. 

On December 29, 2022, Plaintiff filed a Motion for Attorney’s Fees, Costs and Expenses. 

On January 12, 2023, Defendant filed opposing papers. 

On January 19, 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 

Plaintiff submits evidentiary objections to the Declaration of Brian Takahashi filed in Support of this Motion. 

Objections Nos. 1, 2, 3, 4, 5, 6, 13, 14, and 15 are OVERRULED. 

Objections Nos. 7, 8, 10, 11, and 12 are SUSTAINED. 

Discussion 

On October 05, 2022, Defendant Jaguar Land Rover North America, LLC (“Defendant” or “JLRNA”) accepted Plaintiff’s 998 Offer to Compromise in the amount of $98,461.82 that allowed Plaintiff to recover attorney’s fees, costs, and expenses by a separate motion. 

Plaintiff now seeks attorney’s fees under the “lodestar” method in the amount of $74,338.00 and an enhancement of 0.5 in the amount of $37,169.00, for a total amount of $111,507.00. 

Since Defendant JLRNA has filed a Motion to Tax Costs set to be heard on February 15, 2023, the Court will consider Plaintiff’s requests for cost and expenses in the amount of $22,325.38 at the hearing for the Motion to Tax Costs. 

i. 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. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) 

Knight Law Group, LLP’s (KLG) attorney rates are as follows:

In total 211.40 hours were spent on this case, including the time spent on this instant motion, totaling $74,388.00 in attorney’s fees. (Kirnos Decl. Ex. B.) 

Plaintiff acknowledges that 22 separate attorney worked on this case, but assert that only seven attorneys (Ms. Morrison, Mr. Dreblow, Mr. Mohrman, Mr. Lehrmann. Mr. Davina, and Ms. Melero) account for 65% of the hours billed (138.00 hours). The other billers are alleged to have performed discrete nonduplicative tasks. Moreover, associate turnover is commonplace and 10 of the billers no longer work at KLG. 

“[J]ust as there 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.)   

Simply because Defense counsel finds the hourly billing rates of Plaintiff’s counsel unreasonable, does not support the finding that billing rates are in fact unreasonable. Plaintiff cites other cases in which courts, including this Court, have approved Plaintiff’s billing rates. (Kirnos Decl. ¶¶ 59-71, Ex. E-Y.) Plaintiff is also correct that this Court is not obligated to accept Defense counsel’s much lower hourly rates as conclusive evidence of the appropriate hourly rate. (See Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 474.) 

Having reviewed the various hourly billing rates, this Court finds the hourly rates of KLG’s attorneys to be reasonable.   

i. Motion to Compel Vehicle Inspection 

Defendant asserts that Plaintiff repeatedly delayed in providing dates for the vehicle inspection. (Takahashi Decl. ¶ 17.) Due to two canceled vehicle inspections, Defendant was forced to file a Motion to Compel which was granted on April 19, 2021. (Takahashi Decl. ¶ 18, Ex. D.) In relation to Plaintiff’s canceled vehicle inspections, Plaintiff billed for 5.1 hours for Constance Morrison to attend the inspection on March 13, 2020, in addition to 1.3 hours of travel.  (Takahashi Decl. ¶ 18, Ex. C.) 

Defendant asks that KLG not be compensated for the time spent on a canceled vehicle inspection initiated by Plaintiff and for opposing Defendant’s motion to compel the vehicle inspection. The Court granted sanctions because it found that Plaintiff was unjustified in agreeing twice to a vehicle inspection date and failing twice to produce the subject vehicle for inspection. (See Min. Or. 04/19/21; Takahashi Decl. ¶ 18, Ex. D.) Moreover, Plaintiff cannot show that the cancelations and opposition to the motion were reasonably necessary for the conduct of the litigation. 

The Court agrees that $6,549.50 should be subtracted from the loadstar. 

ii. Opposition to Motion for Leave to Amend  

Defendant JLRLNA asserts that Plaintiff’s refusal to meet and confer and stipulate to JLRNA’s leave to amend its answer resulted in Plaintiff spending 8.3 hours of unnecessary work.  

The Court has the discretion “to determine whether time spent on an unsuccessful legal theory was reasonably incurred” but “all time reasonably spent should be compensated.” (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 274.) Given that a motion for leave to amend is liberally granted, and Plaintiff has failed to show that opposing the motion led to a successful claim, the Court agrees that the hours billed in opposing the motion for leave to amend were not reasonably incurred or necessary for the litigation. “Compensation is ordinarily warranted even for those unsuccessful attacks, to the extent that those attacks led to a successful claim.” (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.) 

4.5 hours billed at a rate of $200.00 per hour, totaling $2,025.00 will be subtracted from the loadstar amount. 

iii. Opposition to Motion for Summary Adjudication (MSA) 

Defendant asserts that the amount billed opposing the MSA was excessive and unnecessary. The Court finds that Plaintiff’s opposition to the MSA was proper and necessary to the conduct of the litigation. 

Having reviewed the hours billed in opposing the MSA, the Court finds the hours billed were reasonable. 

iv. Motion for a Protective Order 

Defendant asserts it was forced to file a Motion for a Protective Order because Plaintiff’s counsel refused to stipulate to entry of the Los Angeles County Superior Court’s Model Stipulation and Protective Order. (Takahashi Decl. ¶ 22.) Only after the motion was filed, did Plaintiff agree to the standard order. 

The Court agrees that billing related to this matter was not necessary or reasonably incurred. 

The Court deducts 1. hour billed at $200.00 and 0.7 hours billed at $250.00 per hour, totaling $375.00, from the loadstar for matters related to Defendant’s Motion for a protective order. 

v. Plaintiff’s Improper Request for Production and Failed IDC 

Defendant asserts that Plaintiff served additional discovery in violation of the Case Management Order Addendum. Plaintiff was required to obtain a stipulation or file a motion showing good cause for the additional request. Plaintiff did neither and in the Informal Discovery Conference (IDC) held on March 16, 2022, the Court declined to order any additional production by JLRNA. (Takahashi Decl. ¶ 23, Ex. G.) Defendant asserts that Plaintiff billed 11.7 hours totaling $3,312.50 in connection with the discovery and the IDC despite no further document being produced by JLRNA. (Id.) 

Having reviewed the parties’ IDC Statements, the Court finds that the IDC related to a genuine discovery dispute related to the CMO and that an IDC was appropriate. 

Therefore, no deductions will be made. 

vi. Billing for Secretarial or Clerical Tasks 

Defendant asserts that Plaintiff’s counsel billed high hourly rates for assignments that should have been handled by a paralegal. (Takahashi Decl. ¶ 25.) 

“Morris ignores that there are a number of factors that the trial court may have taken into consideration in determining that reductions in the attorneys’ hourly rates were warranted. The court reasonably could have reduced the rates based on its finding that the matter was not complex; that it did not go to trial; that the name partners were doing work that could have been done by lower-billing attorneys; and that all the attorneys were doing work that could have been done by paralegals.” 

(Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41) 

Having reviewed Plaintiff’s counsel’s billing records, the Court finds that the fact senior attorney’s reviewed and prepare the exhibits they used to prepare and draft their motions does not mean that that work should have been performed by a paralegal. 

No deductions will be made as to this issue. 

vii. Duplicative Tasks 

Defendant argues that some of Plaintiff’s counsel’s billing entries are duplicative. 

The Court finds that the following entries are duplicative. 

·       The 07/14/22 entry for “Attend deposition of Plaintiff's expert Tony Micale; Draft memo re key testimony and next steps” billed by “JWC” appears to be a duplicative of 08/12/22 “Analyze transcript of the deposition of Anthony Micale; Draft summary” billed by CWR. 

Therefore, 1.5 hours billed at $295.00 hours, totaling $442.50 will be subtracted. 

·       The 09/15/22 entry by CWR: “Analyze transcript of the deposition of Evan Sheehan; Draft summary” appears to be a duplicate of the 09/08/22 billing entry for “Draft notes from deposition of South Bay” by ZD at 0.7 hours. 

Since the summary and notes regard the same deposition and Plaintiff does not dispute this, 0.7 hours billed at $325.50, totaling $553.35, will be deducted. 

In total, $997.85 will be subtracted from the loadstar. 

viii. Fees Spent Preparing this Motion 

“[T]ime expended by attorneys in obtaining a reasonable fee is justifiably included in the attorneys' fee application, and in the court's fee award.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 631.) However “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Id. at 635.) 

Here, Plaintiff’s request fees for 12.6 hours (12 hours and 36 minutes) billed at a rate of $450.00 hours (totaling $5,570.00), for time spent filing this instant motion, including reviewing the billing records, drafting the motion, reviewing opposition papers, drafting a reply and appearing at the hearing. (Kirnos Decl. Ex. B.) 

The Court finds the hours billed regarding this Motion to be excessive and credits Plaintiff for 6.0 hours of work billed at a rate of $450.00 per hour, totaling $2,700.00 

Accordingly, $2,870.00 ($5,570.00 - $2,700.00) will be deducted from the lodestar. 

Request for a Multiplier 

Plaintiff requests a multiplier of 0.5 due to the risk of taking this case on a contingency basis, the delay in payment, and the results achieved. 

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 thereto “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.)¿¿ 

Plaintiff’s request to award a multiplier is DENIED.¿ The Court finds there is no basis to award a multiplier because the time and skill of counsel, as well as the contingent nature of the representation, are compensated with fees.¿ The settlement of this case is close to what JLRNA offered Plaintiff two years prior. Plaintiff failed 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 $74,388.00 in attorney’s fees. The following deductions were made: 

·       $6,549.50

·       $2,025.00

·       $375.00

·       $997.85

·       $2,870.00

Deductions total $12,817.35, making the adjusted loadstar $61,570.65. 

Plaintiff’s Motion for Attorney’s fees is GRANTED in the amount of $61,570.65 with no multiplier. 

Conclusion 

Plaintiff’s Motion for Attorney’s fees is GRANTED in the amount of $61,570.65 and denies Plaintiff’s request for a multiplier. 

Moving party to give notice.