Case Number: BC640103 Hearing Date: July 23, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

leovigildo suarez,

Plaintiffs,

vs.

ford motor company, et al.

Defendants.

Case No.:

BC 640103

Hearing Date:

July 23, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS, AND EXPENSES

Background

Plaintiff Leovigildo Suarez (“Plaintiff”) filed this action on November 7, 2016 against Defendant Ford Motor Company (“Defendant”). Plaintiff alleges that he purchased a new vehicle from Defendant which he later discovered suffered from numerous defects and malfunctions. Plaintiff alleges that Defendant refused to repurchase the nonconforming vehicle. The Complaint asserts causes of action under the Song-Beverly Consumer Warranty Act (“Song-Beverly”).

On or about May 26, 2017, Defendant made a Code of Civil Procedure section 998 offer for $54,000, which was rejected by Plaintiff for containing vague and ambiguous terms. (Mikhov Decl. ¶ 11.) On October 4, 2017, the parties participated in a private mediation which resulted in a settlement in the amount of $160,745.04, which was inclusive of a full statutory buy-back of the vehicle, incidental and consequential damages, and a civil penalty. (Mikhov Decl., ¶ 15.) On March 23, 2018, the Court dismissed the case following a hearing on an order to show cause re: dismissal. (Proudfoot Decl., ¶ 12.)

Plaintiff now moves for an award of attorneys’ fees and costs. Defendant opposes.

Evidence and Procedural Issues

The Court denies Defendant’s request for judicial notice.

The Court rules on Plaintiff’s evidentiary objections to the Declaration of Matthew M. Proudfoot as follows: No. 1 is overruled except as to the word “standard;” No. 2 is sustained as to the portions “The parties then conducted routine discovery. This is template discovery that KLG has used dozens or hundreds of times. Nevertheless, KLG alleges 4.0 hours at $350/hour was incurred to draft this discovery” and overruled as to the remainder; No. 3 is overruled; No. 4 is overruled; No. 5 is sustained as to the portion “…they are of little value beyond inflating their fee demand” and overruled as to the remainder; No. 6 is overruled; No. 7 is overruled; No. 8 is sustained as to the portion “Once again, these are form documents used in every case,” as to “astronomical,” and overruled as to the remainder; No. 9 is overruled; No. 10 is overruled; No. 11 is overruled as to the first and last sentences and sustained as to the rest of the paragraph; No. 12 is sustained; No. 13 is sustained; No. 14 is sustained; No. 15 is sustained as to the portion “Upon information and belief, Mr. Mikhov currently has pending hundreds, if not thousands of cases against automobile manufacturers” and overruled as to the remainder; No. 16 is overruled.

The Court declines to strike Defendant’s opposition for failure to include a table of contents and table of authorities pursuant to California Rules of Court, Rule 3.1113(g).

Discussion

Civil Code section 1794(d) 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.”

“[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 Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted]); (see Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818 [applying the lodestar method to determine attorneys’ fees in Song-Beverly action].)

Timeliness

Defendant 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 after the case was dismissed, 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, 429 [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 attorneys’ fee was filed within the 180-day deadline. Therefore, the Court finds that the motion is not untimely.

The Hourly Rate of Counsel

From November 2016 through the present, the Knight Law Group billed 63.2 hours for services rendered. (Mikhov Decl., Ex. A.) From September 2017 to February 2018, Wirtz Law (associated trial counsel) billed 26.8 hours for services rendered.[1] (Wirtz Decl., Ex. A.) Plaintiff requests applicable hourly billing rates ranging from $225 to $500 for the Knight Law Group as follows: Jennifer Reiz, $225/hour, Deepak Devabose, $250/hour, Michael Ouziel, $250/hour, Hadi Gerami, $350/hour, Kristina Stephenson-Cheang, $350/hour, Amy Morse, $350/hour, Kirk Donnelly, $375/hour, and Steve Mikhov, $500/hour. (Mikhov Decl., ¶¶ 37-44.) Plaintiff requests applicable hourly billing rates ranging from $250 to $500 for Wirtz Law as follows: attorneys Jessica Underwood, $250/hour, Amy Smith, $325/hour, and Richard Wirtz, $500/hour; and paralegal Rebecca Evans, $175/hour.[2] (Wirtz Decl., ¶ 3-6, 8.) For all of the above attorneys and paraprofessionals, Mr. Mikhov and Mr. Wirtz attest to the rates and experience of the attorneys and paraprofessionals in their respective law firms. The Court finds that the hourly rates requested by Plaintiff’s counsel are reasonable and commensurate with rates charged by attorneys with comparable skill and experience.

Lodestar Multiplier

While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including “(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” and (4) the success achieved. ((See Serrano v. Priest (1977) 20 Cal.3d 25, 49.)

However, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included within the lodestar. ((Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138-1139.) “[A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable.” ((Id. at p. 1139.)

Here, Plaintiff argues that a 1.5 lodestar multiplier is appropriate primarily because this is a contingency case. Plaintiff also contends that Defendant dragged this case out for a year before agreeing to a reasonable settlement. However, the Court does not find sufficient support for the application of a multiplier. There is no indication that this case was complex or presented challenging legal issues, particularly considering that Plaintiff’s counsel specializes in these types of cases. There is no evidence that Plaintiff’s counsel was precluded from taking other cases because of the nature of this case. Nor is the success achieved by Plaintiff’s counsel exceptional. Finally, there is no evidence that Defendant did anything to unreasonably delay resolution of this case.

The Court also notes that the hourly rate requested by Plaintiff’s counsel is reasonable because of counsel’s demonstrated skill and experience. Because the quality of representation and the degree of skill exercised by Plaintiff’s counsel is already factored into the lodestar, it would be unreasonable to award an enhancement. ((See Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1333 [“Where, as here, the court determines that the lodestar itself constitutes a reasonable fee for the action at issue, no enhancement is warranted.”].)

Accordingly, the Court declines to apply a multiplier to the lodestar amount.

Reasonableness of the Requested Fees

“[T]he court’s discretion in awarding attorney fees is … to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client.” ((Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.) “[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. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 396.)

Here, Plaintiff’s counsel has attached billing statements to the instant motion detailing the nature of the work performed. (Mikhov Decl., Ex. A; Wirtz Decl., Ex. A.)

Defendant contends that Plaintiff is not entitled to his claimed fees when Plaintiff’s counsel has already obtained approximately $42,867.52 in attorney’s fees given their 40% collection on Plaintiff’s civil penalty award. Notwithstanding that Plaintiff’s objections to the evidence of its retainer agreement have been sustained, the Court is not inclined to deny the fees motion based solely on this civil penalty argument. Defendant cites to no authority that authorizes denial of a fees motion in a Lemon Law case based on the fact that a plaintiff’s retainer agreement provides that a portion of a recovered civil penalty goes to his or her attorney.

Next, Defendant argues that the requested fees for Kirk Donnelly and Hadi Gerami are unreasonable because they are not employees of the Knight Law Group, and Plaintiff fails to include invoices from these attorneys. The Court notes that Defendant did not file any evidentiary objections to any of the evidence presented by Plaintiff in support of the fees motion. Nonetheless, the Court finds that Mr. Mikhov’s testimony regarding the hourly billing rates of theses attorneys is not hearsay, and Defendant has failed to provide any evidence to suggest that the hourly billing rates are inaccurate. Defendant also argues that the case was overstaffed, as 14 attorneys billing on one case was inefficient and unreasonable. The Court finds that the billing entries do not clearly evidence inefficient or unreasonable billing as a result of the staffing on the case. Finally, Defendant objects to Plaintiff’s counsel’s use of form documents or templates and argues that the time spent on tasks was inflated as a result. However, as Plaintiff notes, although the use of forms and templates help with efficiency, counsel is still expected to modify each document for each individual case, and time spent to ensure that each document is appropriately modified is reasonable. Therefore, absent any indication that the billing records are erroneous or inflated, the Court finds that the fees requested by Plaintiff are reasonable.

Conclusion

Based on the foregoing, Plaintiff’s motion for attorneys’ fees, costs, and expenses is granted. Plaintiffs are entitled to recover $30,935 in attorneys’ fees and $3,749.49 in costs from Defendant.

Plaintiff is ordered to give notice.

DATED: July 23, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

[1] This total does not include the hours that were marked as “no charge” in the invoice.

[2] This list does not include any attorneys or paraprofessionals who performed “no charge” work as reflected in the invoice.