Case Number: BC612232 Hearing Date: April 16, 2018 Dept: 53

mary morris vs. hyundai motor america, et al. ; BC612232, APRIL 16, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION FOR ATTORNEY’S FEES, COSTS AND EXPENSES

Plaintiff’s Motion for Attorney’s Fees, Costs and Expenses is GRANTED to the extent that Plaintiff is entitled to recover attorney’s fees of $73,864.00 and costs in the amount of $13,068.96.

BACKGROUND

Plaintiff Mary Morris (“Plaintiff”) filed this action on March 3, 2016 against Defendant Hyundai Motor America (“HMA”). The Complaint asserted causes of action for violations of the Song-Beverly Act and the Magnuson-Moss Act stemming from the purchase by Plaintiff of a used 2011 Hyundai Sonata. Plaintiff alleged that during her ownership of the vehicle, she suffered persistent transmission and engine problems that required six repair visits over fifteen months of ownership. Thereafter, HMA refused to repurchase the vehicle.

On April 11, 2017, on the day that trial was to commence, the parties agreed to settle the matter for the sum of $85,000.00, which consisted of a full statutory “buy-back” of Plaintiff’s vehicle, incidental and consequential damages, and a civil penalty. On August 11, 2017, the Court entered an order dismissing the case without prejudice on the stipulation of the parties.

Plaintiff now moves for an award of her attorney’s fees in the amount of $192,688.75 (reflecting billed fees of $127,792.50 and a 1.5 multiplier) and costs in the amount of $13,068.96. HMA opposes.
EVIDENCE

The Court rules as follows on the parties’ evidentiary objections:

· HMA’s objection to the Declaration of Brian C. Altman is sustained;

· Plaintiff’s objections to the Declaration of Brian Takahashi: Nos. 1, 3, 4, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 are overruled; Nos. 2, 5, 6, 7, 8, 19, 20, 21, 22, 23, 24, and 25 are sustained.

DISCUSSION

A. Timeliness

HMA contends that Plaintiff’s motion is untimely, as it was brought more than 60 days after dismissal of the case. (See Cal. Rules of Court, Rule 8.104; Cal. Rules of Court, Rule 3.1702.) The Court notes that on August 11, 2017, when the case was dismissed, the parties waived notice. Therefore, no notice of dismissal was served by either party. As a result, the 60-day deadline does not apply. Instead, the 180-day deadline is applicable, as “entry of judgment” is equivalent to entry of dismissal. (See Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 427 [finding that the time for filing a motion for attorney fees commences upon service of notice of entry of dismissal in situations where the case was voluntarily dismissed].) Here, the motion for fees was filed on February 7, 2018, which is exactly 180 days after August 11, 2017. Therefore, the Court finds that the motion is not untimely.

B. Costs

The Court notes that although HMA opposes Plaintiff’s motion for an award of its costs, HMA did not file a motion to tax Plaintiff’s costs. Fifteen days after service of a memorandum of costs by the prevailing party, the losing party may dispute any or all of the items in the prevailing party’s costs memorandum by a motion to strike or tax costs. (See CRC 3.1700(b).) “A ‘verified memorandum of costs is prima facie evidence of the propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486-1487 (italics and brackets omitted).) Where the objections are based on factual matters (e.g., disputes as to nature or amount of particular costs), the motion to strike must be supported by declarations under penalty of perjury. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113-1114; see also Rappenecker v. Sea-Land Serv., Inc. (1979) 93 Cal.App.3d 256, 266 (“mere statements in the points and authorities accompanying [a party’s] notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing”).). HMA has failed to challenge any of Plaintiff’s costs as unreasonable or unnecessary, other than it being purportedly untimely. Since the Court has found that the request for fees is not untimely, the request for costs is similarly not untimely. Therefore, the Court finds that Plaintiff is entitled to its costs in the amount of $13,068.96.

C. Attorney’s Fees

Plaintiff seeks a determination of awardable fees as calculated by the lodestar method. “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. … The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (PLCM Grp. v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted).) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Bd. Of Trustees Of California State Univ. (2005) 132 Cal.App.4th 359, 396.)

From May 2016 through April 2017, the Altman Law Group billed 151.50 hours for services rendered. (Altman Decl., Ex. A.) From February 2016 to the present, the Knight Law Group billed 131.8 hours for services rendered. (Mikhov Decl., Ex. A.) Plaintiff requests an applicable hourly billing rate ranging from $250 to $500 for the Knight Law Group as follows: attorney Lauren Ungs, $375/hour; attorney Kristina Stephenson-Cheang, $350/hour; attorney Russell Higgins, $400/hour; attorney Amy Morse, $350/hour; attorney George Aguilar, $250/hour; partner Roger Kirnos, $375/hour; and partner Steve Mikhov, $500/hour. (Mikhov Decl., ¶¶ 29-36.) Plaintiff requests an applicable hourly billing rate ranging from $300 to $650 for attorneys and $150 for paralegals for the Altman Law Group as follows: partner Bryan Altman, $650/hour; attorney Joel Elkins, $450/hour; attorney Jordan Cohen $300/hour; attorney Gary Klein, $450/hour; and paralegal Roxane L’Yvonnet, $150/hour. (Altman Decl., ¶¶ 2-7.) For all of the above attorneys, Mikhov and Altman attest to the rates and experience of the other attorneys in their respective law firms.

The Court finds that the rates requested by Plaintiff for Mr. Altman and Mr. Mikhov are not reasonable and therefore reduces Mr. Altman’s rate to $500/hour and Mr. Mikhov’s rate to $400/hour. HMA objects to the fees request on the grounds that the case was overstaffed with 11 attorneys, 2 law firms, and resulted in inefficient litigation. HMA contends that Plaintiff never submitted any counter-demands to HMA’s settlement offers, and that any alleged discovery disputes never resulted in a filed motion to compel. For a case that did not present particularly complex or unique issues, which did not require any discovery motions, and which did not go to trial, the Court finds that a reasonable number of attorneys is one partner and at most two associates/paralegals. Therefore, the Court will only grant those fees requested by Mr. Mikhov, Ms. Stephenson-Cheang, and Ms. Ungs from Knight Law Group and Mr. Altman, Mr. Elkins, and Ms. L’Yvonnet from Altman Law Group. The Court further finds that the fees requested by Plaintiff for the associate attorneys are not reasonable and therefore fixes all associate rates at $300/hour. Ms. L’Yvonnet’s rate is unchanged.

In its opposition, HMA notes certain improper entries, and Plaintiff, in her reply, has withdrawn those entries, both attributed to Ms. Stephenson-Cheang. Therefore, 2.4 hours are subtracted from Ms. Stephenson-Cheang’s totals.

Based on the foregoing, the Knight Law Group’s fees are set as follows:

· Mr. Mikhov: 18.1 hours x $400/hour = $7,240

· Ms. Ungs: 46.8 hours x $300/hour = $14,040

· Ms. Stephenson-Cheang: 21.9 hours x $300/hour = $6,570

Based on the foregoing, the Altman Law Group’s fees are set as follows:

· Mr. Altman: 66 hours x $500/hour = $33,039

· Mr. Elkins: 39.5 hours x $300/hour = $11,850

· Ms. L’Yvonnet: 7.5 hours x $150/hour = $1,125

The Court therefore grants Plaintiff’s motion for attorney’s fees in the total amount of $73,864.00.

Plaintiff seeks an adjustment to her attorneys’ fee request by a lodestar multiplier of 1.5. “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant here, (1) the novelty and difficult 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, (4) the contingent nature of the fee award. (Serrano v. Priest (1977) 20 Cal. 3d 25, 49.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.) The Court finds that although Plaintiff’s case was taken on a contingency basis, the supposed “delay” occasioned by HMA’s refusal to admit liability throughout the pendency of the case is not a sufficient reason to impose a multiplier. The Court is not convinced by the evidence in the record that HMA “dragged” this case out for longer than necessary, as a 13-month interval between case commencement and trial is neither extraordinary or excessive. Further, the Court notes that this case did not present particularly complex or unique issues. It is a kind of case both plaintiff’s and defense counsel have tried numerous times and involve similar issues, both legally and factually. Finally, HMA’s counsel submits that the reason HMA decided to settle was because when both experts inspected the subject vehicle, the defective noise was observed. (Takahashi Decl., ¶ 22.) Therefore, the Court declines to grant Plaintiff’s request for a multiplier.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion for Attorney’s Fees, Costs and Expenses is GRANTED, to the extent that Plaintiff is entitled to recover attorney’s fees of $73,864.00 and costs in the amount of $13,068.96.

Plaintiff is ordered to give notice of this ruling.

DATED: April 16, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court