Camie Osteen vs. Hyundai Motor America

2012-00130836-CU-BC

Camie Osteen vs. Hyundai Motor America

Nature of Proceeding:    Motion for Attorney Fees

Filed By:   Chae, Larry W.

Plaintiff Camie Osteen’s motion for attorney’s fees and costs is granted, in part, as set
forth below.
In this Song-Beverly Consumer Warranty Act action, the parties ultimately reached a
settlement pursuant to which defendant Hyundai Motor America repurchased Plaintiff’s
vehicle.  Pursuant to the settlement, “Defendant agree[d] to pay plaintiff’s incurred
attorney’s fees, costs, and expenses in the amount determined by the Court to be
reasonable upon noticed motion.  For purpose of this motion, and this motion only,
plaintiff will be deemed the ‘prevailing party.’”  (Chae Decl. ¶ 7; Exh. C.)  Plaintiff now
seeks fees and costs in the amount of $17,686.55 which consists of $14,627 in fees
(including $3,678 in “anticipated” fees for reviewing the opposition, preparing a reply
and appearing at a hearing on the fee motion), $869.75 in costs and a 0.2 multiplier for
an additional $2,189.80.  Defendant opposes the motion and argues that Plaintiff
should be awarded no more than $1,834.95 in fees and costs.

A prevailing buyer in a Song-Beverly action is entitled 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).)

Here, the Court finds that while Plaintiff is entitled to fees pursuant to Civil Code §
1794(d) and the parties’ settlement, its review of the billing entries submitted with the
motion reveals that a downward reduction in the lodestar amount is required to
achieve an amount which was “reasonably incurred by the buyer.”  However, the Court
does not agree with Defendant that fees should be denied outright or that fees incurred
after March 13, 2013 should not be allowed apparently because Plaintiff could have
settled when Defendant offered to pay $5,400 in fees when Plaintiff’s demand was
$6,120,90.  The Court will not penalize Plaintiff for continuing to litigate the action.

The Court rejects Defendant’s suggestion that fees should not be awarded because
Plaintiff would not be obligated for the fees given the contingent nature of the
representation.  Such an argument has been flatly rejected in Song-Beverly actions.  (
Robertson v. Fleetwood Travel Trailers of California (2006) 144 Cal.App.4th 785, 818.)

In a nutshell, Plaintiff seeks recovery of fees for filing the complaint, drafting discovery,
engaging in settlement negotiations and drafting the instant fee motion.  These tasks
amounted to 37.8 hours.  While the total number of hours does not at first glance
appear unreasonable, a closer review reveals that it is.  Indeed the 37.8 hours were
spread out between four attorneys (33.5 hours) and three paralegals (4.3 hours).  In
the Court’s opinion, the use of four separate attorneys in this matter alone
demonstrates duplication and inefficiency and requires a downward adjustment.  (
th
Ketchum v. Moses (2001) 24 Cal.4   1122, 1132 [“padding in the form of inefficient or
duplicative efforts is not subject to compensation”].)  The Court will not go line by line
through the billing entries but will simply state that nothing about this action, which was
not extensively litigated, required the use of four attorneys.  Further, the billing entries
are replete with block billing.  Thus, the Court finds that the 33.5 hours in this matter
were not reasonably incurred.  Rather, based on the Court’s experience in these types
of matter and its general experience with civil litigation, the Court finds that 24.5 hours
is a reasonable amount of hours based on the tasks performed in this action.  The
Court will therefore allow 10 hours of time for attorney Brian Cline who did the initial
intake for the matter (no reduction), 7.5 hours for attorney Michael Devlin who appears
to have been responsible for the day to day handling of the matter (reduced from 9.2),
7 hours for attorney Larry Chae who drafted the fee motion (reduced from 12.4), and 0
hours for attorney Brian Bickel who appears to have done little more than review               attorney Chae’s fee motion (reduced from 1.9 hours).  The Court will also allow
attorney Chae 3 hours for the reply.  The Court awards no paralegal or legal assistant
fees, as the billing records indicate a contemporaneous duplication of effort between
the paralegal and attorneys on the same matters, for essentially nonbillable secretarial
work.

The Court finds that the hourly rates of the counsel are reasonable.  Specifically the
Court finds that attorney Chae’s rate of $295/hr, attorney Cline’s rate of $325/hr and
attorney Devlin’s rate of $275/hr (2012) and $305/hr (2013) are reasonable.  While
Defendant argues that they are not reasonable based on the fact that its counsel billed
at much lower rates, the Court’s own experience leads to a finding that the rates are
reasonable. Though, the Court will utilize attorney Devlin’s lower 2012 rate for its
award. “The experienced trial judge is the best judge of the value of professional
services rendered in his court.” Ketchum, supra, at p. 1139.

Finally, the Court declines to apply a multiplier in this action.  Indeed, to obtain a
multiplier, Plaintiff must show that the totality of the following factors favors a multiplier:
(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.  (
th
Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4   553, 579.)  Plaintiff only argues
that the delay in payment and the contingent nature of the fee justifies a multiplier
without any analysis of the above.  Plaintiff’s attempt to address the other factors for
the first time in a single brief paragraph in reply is not only inappropriate but entirely
unpersuasive.  The Court finds no basis in the record to justify any multiplier.

As to costs, Plaintiff requests $869.75 pursuant to the parties’ settlement agreement
which allowed Plaintiff to seek costs allowed by statute.  Defendant argues that this
only allows costs permitted by CCP § 1033.5.  However, the settlement stated that
Plaintiff could recover attorney’s fees, costs, and expenses as provided by statute.
The relevant statute here is Civil Code § 1794(d) and case law clarifies that
“expenses” include items beyond the “costs” set forth in Code of Civil Procedure §
th
1033.5.  (Jensen v. BMW of North America (1995) 35 Cal.App.4   112, 137-38.)  Thus,
Defendant’s request to disallow $219.80 in costs/expenses on the sole basis that
certain items are not recoverable under CCP § 1033.5 is rejected and the Court
awards the full amount of costs.

The Court notes both parties’ citations to various trial court attorney fees awards in
these types of actions obtained by Plaintiff’s counsel.  None of them are binding or
relevant.  The question of reasonableness in this action is determined solely be
reference to the facts of this case.

In sum, the Court awards Plaintiff a total of $9,132.25 in fees and costs.  This includes
10 hours for attorney Cline at $325/hr for $3,250, 10 hours for attorney Chae at
$295/hr for $2,950, 7.5 hours for attorney Devlin at $275/hr for $2,062.50,  and
$869.75 in costs and expenses.

Plaintiff’s counsel shall prepare a formal order for the court’s signature.

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