Filed 9/16/19 Modified and Certified for Publication 10/11/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARY MORRIS, B290693
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC612232)
v.
HYUNDAI MOTOR AMERICA,
Defendant and
Respondent.
APPEAL from an order of the Superior Court for the
County of Los Angeles, Howard L. Halm, Judge. Affirmed.
Rosner, Barry & Babbitt, Hallen D. Rosner and Arlyn L.
Escalante for Plaintiff and Appellant.
Bowman and Brooke, Brian Takahashi, Jimmy Y. Park and
Adele V. Karoum; and SJL Law, Julian G. Senior, for Defendant
and Respondent.
_____________________________________
Mary Morris appeals from the trial court’s order awarding
her attorney fees following the settlement of Morris’s action
against Hyundai Motor America (Hyundai) under the
Song-Beverly Consumer Warranty Act (the Song-Beverly Act).
(Civ. Code, § 1790 et seq.) Morris sued Hyundai after she
purchased a defective used Hyundai vehicle that Hyundai
refused to repurchase. The parties settled the litigation, with
Hyundai agreeing to pay Morris $85,000, plus reasonable
attorney fees and expenses.
After failing to reach agreement with Hyundai on the
attorney fees amount, Morris moved for a fee award using the
lodestar method1 that consisted of a $127,792.50 base amount
with a 1.5 multiplier, for a total of $191,688.75. The trial court
awarded $73,864 in fees. Morris now contends the court abused
its discretion in reducing her attorney fee award. We affirm.
PROCEDURAL HISTORY
1. Morris’s Complaint
On March 3, 2016, Morris filed a complaint against
Hyundai asserting causes of action under the Song-Beverly Act
and the Magnuson-Moss Warranty Act stemming from Morris’s
purchase on June 30, 2014 of a used 2011 Hyundai vehicle for
1 Using the lodestar method to calculate attorney fees, “the
trial court first determines a touchstone or lodestar figure based
on a careful compilation of the time spent by, and the reasonable
hourly compensation for, each attorney, and the resulting dollar
amount is then adjusted upward or downward by taking various
relevant factors into account.” (Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 985; see Serrano v. Priest (1977) 20 Cal.3d
25, 48-49.)
2
which Hyundai issued a warranty. Morris paid $35,183.60 for
the car, including sales tax, fees, interest and other charges.
Morris alleged the vehicle’s interior, transmission, engine and
electrical system had serious defects. She asserted Hyundai
failed to conform her vehicle to its warranties after a number of
repair attempts, and Hyundai wrongfully refused to replace her
car or make restitution as required under the Song-Beverly Act.
Her complaint sought restitution, an award of actual damages, a
civil penalty of two times actual damages2 and attorney fees and
costs.
On April 11, 2017, the date the trial was to commence, the
parties agreed to settle the matter for the sum of $85,000, which
consisted of a full statutory “buy-back” of Morris’s car, incidental
and consequential damages, and a civil penalty. The settlement
also provided that Morris would receive reasonable attorney fees
and expenses to be determined by the court in the absence of an
agreement by the parties.
2. Morris’s Motion for Attorney Fees and Costs
Morris moved for attorney fees and costs pursuant to Civil
Code section 1794, subdivision (d). Morris argued her counsel
were able to marshal their expertise and significant experience in
lemon law cases to litigate Morris’s case efficiently. However,
Morris contended that Hyundai’s obstreperous and aggressive
positions in the litigation required extensive efforts by Morris’s
counsel, the Knight Law Group, including adding the law firm
2 The Song-Beverly Act authorizes a civil penalty of up to two
times the amount of actual damages if the purchaser establishes
the manufacturer’s failure to comply with the Act’s provisions
was willful. (Civ. Code, § 1794, subd. (c).)
3
Altman Law Group as co-counsel in May 2016 to assist in the
litigation.3
Morris contended Hyundai’s improper objections and
evasive responses to discovery requests required extensive “meet
and confer” efforts. Further, Morris’s counsel was required to
prepare for and defend the depositions of Morris and her expert
witness, and to prepare for and take the depositions of several
Hyundai employees and Hyundai’s expert witness. Morris’s
counsel also attended the inspection of Morris’s vehicle as well as
an unsuccessful mediation in February 2017.
Morris’s counsel engaged in extensive preparation in
anticipation of the trial set for April 2017, including: drafting
11 motions in limine and oppositions to Hyundai’s 12 motions in
limine; preparing witness and exhibit lists, proposed jury
instructions, verdict forms, and subpoenas; reviewing deposition
testimony; drafting an opening statement and outlines for
witness examinations; and preparing Morris and her expert for
their trial testimony. On the scheduled trial date, counsel
appeared and participated in a settlement conference, which was
successful.
Morris argued that lemon law cases such as hers are
“rarely simple” and require specialized knowledge of consumer
protections, the intricacies of automobiles, and manufacturers’
and dealers’ policies and protocols for repairs and legal
compliance. Morris urged the trial court to factor into its
analysis of the appropriate fee award the skill, knowledge and
experience that led to an excellent result for Morris, namely a
3 We note, however, that the Altman Law Group is listed as
co-counsel on the caption of Morris’s original complaint filed in
February 2016.
4
settlement figure amounting to nearly two and a half times the
vehicle’s purchase price.
Morris requested lodestar attorney fees of $127,792.50,
consisting of $50,055 in fees incurred by seven attorneys at the
Knight Law Group and $77,737.50 in fees incurred by four
attorneys and one paralegal at the Altman Law Group. Morris
requested the court apply a 1.5 multiplier to the lodestar figure to
compensate her attorneys for the fact that the law firms had
taken the matter on contingency and that payment for their work
was delayed. She thus sought a total of $191,688.75 in attorney
fees for 283.3 hours of work.
Morris’s motion was supported by the declarations of the
lead attorneys from each of the law firms, Steve Mikhov from the
Knight Law Group and Bryan Altman from the Altman Law
Group. Mikhov’s declaration cited numerous consumer rights
cases in which California courts awarded attorney fees for time
billed by attorneys from Mikhov’s firm and from the Altman Law
Group, in most cases at similar rates to those the attorneys billed
in the instant case. Altman’s declaration attached an Attorney
Fee Survey Report in support of his contention that the hourly
rates charged by Morris’s attorneys were reasonable and
commensurate with the rates charged by other attorneys with
comparable experience in consumer rights law.
3. Hyundai’s Opposition
Hyundai opposed Morris’s attorney fee motion, asserting
Morris had failed to meet her burden to establish the
reasonableness of the requested fee award for litigating this “very
simple case.” Hyundai’s opposition was supported by a
declaration from its attorney Brian Takahashi, who submitted a
5
spreadsheet with numerous, specific objections to Morris’s
attorneys’ billing entries.
Hyundai disputed Morris’s contention that Hyundai
dragged out the litigation and was overly aggressive, contending
the parties engaged in standard discovery and there were no
discovery motions. Hyundai attached examples of discovery
responses served by Morris’s counsel to demonstrate that they
were stock objections and responses that were virtually identical
to those served in all the firms’ other cases. Similarly, Hyundai
submitted evidence that Morris’s meet and confer letter was the
same stock letter sent by her counsel in every case they litigated.
Further, Hyundai contended the amount sought in lodestar
attorney fees was excessive, as much of the billing by Morris’s
attorneys was “inefficient, unreasonable, duplicative, exaggerated
and/or not actually incurred.” Hyundai pointed out that
11 different lawyers at two different firms worked on the case for
Morris, with very little paralegal time. Hyundai noted the lack of
any explanation in Morris’s motion papers as to why two firms
and so many attorneys were necessary to prosecute the case. In
addition, Hyundai argued the firms had attorneys billing for
work that paralegals should have done, driving up the cost
substantially.
Hyundai also asserted that Morris’s counsel appeared to
have billed for what they believed the “value” of a task should be,
as opposed to the actual time spent. Hyundai asserted this was
the case with respect to the drafting of the complaint, discovery
requests and responses, declarations, deposition notices, and
other pleadings in the case, which varied from the firms’
pleadings in other cases only in their caption, names of the
plaintiff, and year, model, and identification number of the
6
vehicle. Hyundai further pointed to examples of duplicative
billing among attorneys, specific excessive billing entries, billing
in quarter-hour increments by the Altman Law Group instead of
one-tenths, and vague billing entries that made it impossible to
assess the actual value of the work.
Hyundai further contended Morris’s attorneys had charged
excessive hourly rates, considering the lack of complexity of the
case. Hyundai noted the lead attorney for Hyundai charged only
$245 per hour, while Morris’s lead attorney, Altman, billed his
time at $650 per hour. Further, Hyundai asserted that Mikhov
unnecessarily billed at his $500 hourly rate to review virtually
every pleading in the case. Referencing another lemon law case
brought to trial by Mikhov’s and Altman’s firms, Hyundai noted
the court limited their billing rates to a range of $175 to $400 per
hour, and Hyundai argued the same range should apply in
Morris’s case. Hyundai objected to the admission of the Attorney
Fee Survey Report attached to Altman’s declaration, alleging it
lacked foundation and constituted unreliable hearsay.
4. Morris’s Reply
In her reply, Morris explained that the Altman Law Group
was associated in because that firm’s attorneys were trial
specialists, and any resulting duplication of work would have
been offset by the “gains in trial preparation efficiency.” Morris
further argued, without any supporting declaration or evidence,
that the use of 11 attorneys on her case was reasonable and
efficient because each attorney performed tasks in which he or
she specialized. According to Morris, “[m]inimal time is spent for
each attorney to review the file and learn the relevant facts of the
case, while substantial time is saved from having to switch gears
to become familiar with procedural rules and specific issues of
7
each phase of the case.” Morris asserted that even though her
counsel used “form documents” in the case, work was necessary
to conform those templates to the actual facts of this case.
5. Tentative Ruling, Hearing, and Final Order on Attorney
Fees
Before the April 16, 2018 hearing on the motion for
attorney fees, the trial court issued a tentative ruling.4 The court
acknowledged it was required to use the lodestar method to
calculate Morris’s fee award, but it found Morris’s requested fee
award required reductions. The court found that “[f]or 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 . . . a reasonable number of attorneys is one partner and at
most two associates/paralegals.” The court thus included in its
lodestar calculation the fees incurred by Mikhov and only two of
the seven associates from Knight Law; and of the four lawyers
from the Altman Group who billed time on the case, the court
included the fees billed only by Altman and one associate. Out of
a total of 283.3 hours of billed work, the court did not award any
fees for 82.5 hours of work billed by six associates.
Further, the court found the stated hourly rates for each of
the attorneys were not reasonable. It reduced Altman’s rate from
$650 to $500 per hour, and Mikhov’s rate from $500 to $400 per
hour. The court fixed each of the associate’s rates at $300 per
hour, thus reducing one associate’s rate from $350 to $300 per
hour, the second from $375 to $300 per hour, and the third from
4 In its tentative ruling the court sustained Hyundai’s
objections to the fee survey attached to Altman’s declaration as
well as Morris’s objections to select portions of Takahashi’s
declaration.
8
$450 to $300 per hour. The court granted the full amount of fees
billed by the paralegal from the Altman Law Group. The result
was a total lodestar calculation of $73,864, approximately
42.2 percent less than the requested lodestar award of
$127,792.50.
The court declined to apply a multiplier, noting it was “not
convinced . . . that [Hyundai] ‘dragged’ this case out for longer
than necessary . . . . Further, the Court notes that this case does
not present particularly complex or unique issues. It is a kind of
case both [Morris’s] and [Hyundai’s] counsel have tried numerous
times and involve similar issues, both legally and factually.”
Addressing the court’s tentative ruling during the hearing,
Morris argued that the court’s disallowance of fees incurred by
six of the billing attorneys was arbitrary and would “result[] in
cutting hours that it must be beyond dispute were actually . . .
and reasonably incurred,” such as the time spent defending
Morris’s deposition. Morris also argued that Hyundai had not
shown any reasons that her attorneys’ hourly rates should be
reduced.
The court noted it was taking a very similar approach to
that taken in another lemon law attorney fee award case cited in
Mikhov’s declaration that involved the same law firms on each
side.5 However, the court suggested Morris’s attorneys were less
efficient in prosecuting the instant case, which affected the
court’s determination of the reasonableness of the requested fees.
The court stated as follows: “[I]n a case like this . . . which is
similar to almost every other case that you have on your case list,
5 In that case, the same trial judge reduced Altman’s fee
from $650 to $550 but found Mikhov’s requested $500 hourly rate
to be reasonable.
9
there’s a certain methodology in prosecuting these cases. There’s
a template that you would follow. . . . And I understand that it
can’t be done just by the partner. The partner needs help. And
as I mentioned, two people, either both could be paralegals, or
one could be an associate. . . . But I think two people at the very
most is all that is needed and would make either the prosecution
or the defense of that litigation efficient and productive. Just
because attorneys’ fees are provided for under the Song Beverly
Act doesn’t give any counsel cart[e] blanche to put unlimited
people on the case doing different things, because every time that
somebody new to the file picks the file up in order to do whatever
the task is, there’s a certain amount of built-in startup [time].
You have to figure out what’s going on in the case, who’s who,
where things are located. You have to go through the file a little
bit. So for every one of those 11 people that worked on the case,
there was a little bit of that that was involved. . . . And that is
duplicative. It’s not a very efficient way of doing things.” The
court stated Morris had not provided a satisfactory explanation
as to why 11 attorneys were needed to prosecute the case.
The judge further noted his own experience in private
practice examining 30 to 50 bills a month to determine whether
charges were reasonable and demonstrated efficiency. The court
stated, “There has to be some constraint on the billable hours
that are generated here because the key term under the Song
Beverly is ‘reasonable,’ . . . . [I]t’s not just actual.”
After additional argument by Morris’s counsel asserting
that the court should not cut 100 percent of the fees billed by six
of the associates simply to account for some degree of lost
efficiency, the court remarked that Morris was requesting a fee
award of $192,000 for a case that did not go to trial and settled
10
for $85,000. The court asked Morris’s counsel, “Don’t you think
that just on its face, that’s a little much?” The court went on to
state, “[T]his is not Apple versus Samsung case. This is a case
that you handle on a daily basis. This is the kind of case that
your firm handles. . . . And I can’t conceive, lodestar or not, that
you would get up to $192,000 and ask for that in a very serious
way.” Further, the court reiterated, “[T]here’s got to be a cutoff
to what reasonableness means. And the way I described it in my
tentative ruling is what I think is reasonable under the
circumstance[s].”
The court adopted its tentative ruling as its final decision.
The court thus awarded Morris attorney fees in the amount of
$73,864 and costs in the amount of $13,068.96.
DISCUSSION
I. Recovery of Attorney Fees Under the Song-Beverly Act
“A prevailing buyer in an action under the Song-Beverly
Act ‘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, subd. (d); see
Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 35
[(Warren)] [‘[t]he “plain wording” of section 1794, subdivision (d)
requires the trial court to “base” the prevailing buyer’s attorney
fee award “upon actual time expended on the case, as long as
such fees are reasonably incurred—both from the standpoint of
time spent and the amount charged’” (italics omitted)].)”
(Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493,
11
506 (Hanna).) “By permitting prevailing buyers to recover their
attorney fees in addition to costs and expenses, our Legislature
has provided injured consumers strong encouragement to seek
legal redress in a situation in which a lawsuit might not
otherwise have been economically feasible.” (Murillo v.
Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994; accord,
Warren, supra, 30 Cal.App.5th at p. 35.)
Civil Code section 1794 “‘“‘requires the trial court to make
an initial determination of the actual time expended; and then to
ascertain whether under all the circumstances of the case the
amount of actual time expended and the monetary charge being
made for the time expended are reasonable. These circumstances
may include, but are not limited to, factors such as the
complexity of the case and procedural demands, the skill
exhibited and the results achieved. If the time expended or the
monetary charge being made for the time expended are not
reasonable under all the circumstances, then the court must take
this into account and award attorney fees in a lesser amount. A
prevailing buyer has the burden of “showing that the fees
incurred were ‘allowable,’ were ‘reasonably necessary to the
conduct of the litigation,’ and were ‘reasonable in amount.’”’”’”
(Hanna, supra, 36 Cal.App.5th at p. 507; accord, Warren, supra,
30 Cal.App.5th at p. 36; Etcheson v. FCA US LLC (2018)
30 Cal.App.5th 831, 840; Goglin v. BMW of North America, LLC
(2016) 4 Cal.App.5th 462, 470.)
“We review a trial court’s order awarding attorney fees and
costs under the Song-Beverly Act for abuse of discretion.”
(Hanna, supra, 36 Cal.App.5th at p. 507.) “‘“The ‘“experienced
trial judge is the best judge of the value of professional services
rendered in his [or her] court, and while his [or her] judgment is
12
of course subject to review, it will not be disturbed unless the
appellate court is convinced that it is clearly wrong.”’”’”
(Goglin v. BMW of North America, LLC, supra, 4 Cal.App.5th at
pp. 470-471; accord, Warren, supra, 30 Cal.App.5th at p. 36; see
PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096 [“[t]he
value of legal services performed in a case is a matter in which
the trial court has its own expertise. . . . The trial court may
make its own determination of the value of the services”].) In
particular, “the lodestar method vests the trial court with the
discretion to decide which of the hours expended by the attorneys
were ‘reasonably spent’ on the litigation” (Meister v. Regents of
University of California (1998) 67 Cal.App.4th 437, 449), and to
determine the hourly rates that should be used in the lodestar
calculus. (569 East County Boulevard LLC v. Backcountry
Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437
(569 East).)
II. The Trial Court Did Not Engage in an Inappropriate
Proportionality Analysis
“While the trial court has broad discretion to increase or
reduce the proposed lodestar amount based on the various factors
identified in case law, including the complexity of the case and
the results achieved, the court’s analysis must begin with the
‘actual time expended, determined by the court to have been
reasonably incurred.’ (Civ. Code, § 1794, subd. (d).) ‘[I]t is
inappropriate and an abuse of a trial court’s discretion to tie an
attorney fee award to the amount of the prevailing
buyer/plaintiff’s damages or recovery in a Song-Beverly Act
action.’” (Hanna, supra, 36 Cal.App.5th at p. 510, quoting
Warren, supra, 30 Cal.App.5th at p. 37.) A “rule of
proportionality” would make it difficult for individuals with
13
meritorious consumer rights claims to obtain redress from the
courts when they cannot expect a large damages award. (See
Warren, at p. 39.)
Morris contends the trial court engaged in a prohibited
proportionality analysis in setting the attorney fee award.
Specifically, she points to the following statement by the court
during the hearing: “So this is [a request for] $192,000 for a case
that you settled for $85,000 and didn’t go to trial. Don’t you
think that just on its face, that’s a little much?” Morris asserts
the court improperly slashed the requested award by more than
42 percent, to $73,864, to render the award “more in proportion to
the $85,000 damages.”
Morris relies on Warren to argue that the court’s remarks
during the hearing require reversal because they show that the
court improperly considered the proportion of the fee award to
the damages award. In Warren, a lawsuit under the
Song-Beverly Act went to trial, and the jury returned a verdict in
the plaintiff’s favor and awarded $17,455.57 in damages.
(Warren, supra, 30 Cal.App.5th at p. 31.) The plaintiff filed a
motion seeking $351,055.26 in lodestar attorney fees plus a
multiplier of 1.5. The defendant claimed the number of hours
and rates billed were excessive due to duplicative, inefficient
work by three different law firms. (Id. at p. 33.)
At the hearing, “[t]he court noted there was ‘a disconnect’
between the verdict amount of ‘$17,000’ and the over $500,000 in
requested attorney fees, and said it believed its tentative award
of $115,848.24 in attorney fees was ‘generous.’” (Warren, supra,
30 Cal.App.5th at p. 33.) The court then stated, “‘I’m not saying
that [proportionality is] the basis of my ruling,’” but expressed
that the disconnect between the verdict and the fee request did
14
not sit well with the court. (Id. at p. 34.) “In ruling on the
motion, the court wrote: ‘The three firms billed a total of
$351,055.26. This is an excessive amount for a non-complex case.
The court will exercise its discretion and reduce this amount to
33%, or $115,848.24, of the original requested amount. This
amount, while still much more than the $17,455.57 award, more
accurately reflects the reasonable amount of attorneys fees in a
case which was not particularly complex and which was handled
by counsel experienced in this area of law. Plaintiff has not
demonstrated that this many attorneys, at these high rates, were
necessary or reasonable to justify her requested billed amount.
Additionally, despite counsel[’]s argument that they carefully
avoided duplication between the 3 firms, the court is not
convinced that the repetitiveness of these types of cases would
necessarily require the amount of time requested.’ (Italics
added.)” (Ibid.)
On appeal, the court found that, although the trial court
had expressed some valid reasons justifying a reduction, “the
trial court’s comments at the hearing and in its written ruling on
the attorney fee motion indicate that the court applied a 33%
negative multiplier to Warren’s requested lodestar fees of
$351,055.26, with at least the partial goal of arriving at an
attorney fee award that was roughly proportional to or more in
line with Warren’s modest $17,455.57 damages award.” (Warren,
supra, 30 Cal.App.5th at p. 39.) The court held, “[W]hen a trial
court applies a substantial negative multiplier to a presumptively
accurate lodestar attorney fee amount, the court must clearly
explain its case-specific reasons for the percentage reduction.
(Kerkeles [v. City of San Jose (2015)] 243 Cal.App.4th [88,] 102-
15
104 [(Kerkeles)].)[6] If, as occurred here, the reasons for the
reduction include tying the fee award to some proportion of the
buyer’s damages recovery, the court abuses its discretion.” (Id. at
p. 37.)
6 In finding the trial court was required to “clearly explain”
its reasons for the sizeable reduction of the award, the court
relied on Kerkeles, supra, 243 Cal.App.4th 88. (See Warren,
supra, 30 Cal.App.5th at p. 37; see also id. at p. 41 [in reliance on
Kerkeles, finding it appropriate to “effectively appl[y] ‘heightened
scrutiny’ to the court’s selection of the 33% negative multiplier to
Warren’s lodestar figure”].) However, Kerkeles concerned an
award of attorney fees under 42 United States Code section 1988
that is subject to the more stringent federal standard requiring
district courts to “‘provide a reasonably specific explanation for
all aspects of a fee determination.’” (Kerkeles, supra,
243 Cal.App.4th at p. 102; see id. at p. 104 [holding that “the
reasoning expressed in the court’s order [awarding attorney fees]
does not meet the federal criterion of a clear and specific
explanation sufficient for meaningful appellate review” (italics
added)].) We disagree with the court in Warren that such a
heightened standard is appropriate for appellate review of fee
awards under the Song-Beverly Act. Rather, “‘“‘[w]e presume the
trial court’s attorney fees award is correct, and “[w]hen the trial
court substantially reduces a fee or cost request, we infer the
court has determined the request was inflated.”’”’” (Hanna,
supra, 36 Cal.App.5th at p. 507; accord, Etcheson v. FCA US
LLC, supra, 30 Cal.App.5th at p. 840; see California Common
Cause v. Duffy (1987) 200 Cal.App.3d 730, 754-755 [“trial court
has no sua sponte duty to make specific factual findings
explaining its calculation of the fee award and the appellate
courts will infer all findings to support the trial court’s
determination”].)
16
Unlike the trial court’s written ruling in Warren, which
suggested the relative proportion of the damages to attorney fees
was a factor in the court’s calculus, the trial court’s final written
order in the instant case did not suggest in any respect that the
court reduced the attorney fee award based on the size of the
settlement award. Rather, the trial court’s order indicated a fee
reduction was warranted because it was unreasonable to have so
many lawyers staffing a case that did not present complex or
unique issues, did not involve discovery motions, and did not go
to trial. Further, the court found the attorneys’ hourly rates to be
unreasonably high.
Morris contends that, as in Warren, the trial court’s
comments during the hearing – suggesting that the total
proposed fee was “a little much” considering the case settled for
$85,000 and did not go to trial – betrayed that at least one of the
court’s intentions in reducing the fee award was to bring it more
in line with the settlement amount. Given the court’s clear
expression in its final order of its reasons for the reductions, we
will not speculate, based on a stray remark the court made at the
hearing, that it had other, prohibited reasons that would require
reversal. (See Key v. Tyler (2019) 34 Cal.App.5th 505, 539
[holding the court’s “oral comments were not final findings and
cannot impeach the court’s subsequent written ruling”];
Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633
fn. 16 [“a judge’s comments in oral argument may never be used
to impeach the final order, however valuable to illustrate the
court’s theory they might be under some circumstances”].) Thus,
we reject Morris’s contention that the trial court applied a
proportionality analysis in making its attorney fee determination.
17
III. The Trial Court Did Not Abuse Its Discretion by
Cutting Fees Billed by Six of 11 Attorneys
Morris contends the trial court arbitrarily cut 83.5 hours of
reasonably incurred fees billed by six attorneys who worked on
the case, citing concerns about inefficiencies and duplication,
even when Hyundai did not object to these attorneys’ time and
billing entries in some instances. Morris notes the court did not
reference any specific examples of inefficiencies or redundancies
as a result of the number of attorneys staffing the case.
“A trial court may not rubber stamp a request for attorney
fees, but must determine the number of hours reasonably
expended.” (Donahue v. Donahue (2010) 182 Cal.App.4th 259,
271.) In evaluating whether the attorney fee request is
reasonable, the trial court should consider “‘whether the case was
overstaffed, how much time the attorneys spent on particular
claims, and whether the hours were reasonably expended.’”
(Ibid.) “Reasonable compensation does not include compensation
for ‘“padding” in the form of inefficient or duplicative efforts. . . .’
[Citations.] ‘A reduced award might be fully justified by a
general observation that an attorney overlitigated a case or
submitted a padded bill or that the opposing party has stated
valid objections.’” (Ibid.; see Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132 [“trial courts must carefully review attorney
documentation of hours expended; ‘padding’ in the form of
inefficient or duplicative efforts is not subject to compensation”].)
“‘[J]ust as there can be too many cooks in the kitchen, there can
be too many lawyers on a case.”’ (Donahue, at p. 272 [finding
that “simultaneous representation by multiple law firms posed
substantial risks of task padding, over-conferencing, attorney
18
stacking (multiple attendance by attorneys at the same court
functions), and excessive research”].)
In Warren, although the appellate court reversed the trial
court’s order on attorney fees because the court appeared to have
slashed the fee award in part to make it more proportional to the
modest damages award, the appellate court found “the court’s
other reasons for selecting the negative 33% multiplier were
appropriate.” (Warren, supra, 30 Cal.App.5th at p. 40.) Those
reasons included that 16 lawyers at three firms had billed a total
of $351,055.26, an “‘excessive amount for a non-complex case’”
that was “‘handled by counsel experienced in this area of law.’”
(Ibid.) Further, the trial court found the plaintiff “‘has not
demonstrated that this many attorneys, at these high rates, were
necessary or reasonable to justify her requested billed amount.
Additionally, despite counsel[’]s argument that they carefully
avoided duplication between the 3 firms, the court is not
convinced that the repetitiveness of these types of cases would
necessarily require the amount of time requested.’” (Ibid.) The
appellate court found the trial court was within its discretion to
reduce the fee award based on “the excessive time spent on the
‘not so complex case’ by [plaintiff’s] attorneys in the aggregate.”
(Id. at pp. 40-41.)
Plainly, it is appropriate for a trial court to reduce a fee
award based on its reasonable determination that a routine, non-
complex case was overstaffed to a degree that significant
inefficiencies and inflated fees resulted.7 The more unique issue
7 Morris contends that, contrary to the trial court’s findings,
her attorneys’ “conveyor belt management style,” in which each
stage of litigation of a lemon law case is handled by a single
attorney specializing in that stage, resulted in efficient billing.
19
presented here is whether the trial court’s decision to cut entirely
the fees for six billing attorneys, resulting in cutting 83.5 of
283.3 total hours of work – just under 30 percent of the total
billed hours – was an appropriate way to remedy such
inefficiencies and make the fee award a reasonable one.
In arguing that the trial court’s methodology was not
appropriate, Morris relies on Mountjoy v. Bank of America, N.A.
(2016) 245 Cal.App.4th 266 (Mountjoy). In that case, the trial
court reduced the total hours claimed by the plaintiffs’ attorneys
by 70 percent largely because the court found that over
70 percent of the billing entries were flawed, for reasons such as
excessive time spent on the stated task, duplicative billing, or
fees for unreasonable tasks. The appellate court found this
reduction arbitrary because “there appears to be no reasonable
basis for the conclusion that the total hours included in the
70 percent-plus time entries that were flawed in one or more
ways was even reasonably close to 70 percent of the total time
claimed. For example, it is possible that the hours included in
the flawed time entries amounted to only 50 percent of total
hours claimed, in which case the [plaintiffs] would have suffered
a 20 percent reduction in compensable hours for hours that were
However, Morris failed to present evidence to the trial court of
such streamlined practices, foreclosing any finding that the trial
court abused its discretion in finding that Morris’s counsels’
practices were inefficient. (See Mountjoy v. Bank of America
(2016) 245 Cal.App.4th 266, 278-279 [where plaintiff offered
reasons on appeal for double-staffing of certain tasks but failed to
“point to any evidence in the record in this case that that
justification applied here. . . . no abuse of discretion has been
shown in the trial court’s determination that the services of the
two attorneys were duplicative”].)
20
actually included in time entries that were not flawed.” (Id. at
pp. 280-281.) “An across-the-board reduction in hours claimed
based on the percentage of total time entries that were flawed,
without respect to the number of hours that were actually
included in the flawed entries, is not a legitimate basis for
determining a reasonable attorney fee award.” (Id. at p. 282.)
Mountjoy is distinguishable. In that case, the trial court
identified flaws of some sort in 70 percent of the attorneys’ billing
entries, but it never purported to assess the reasonable value of
the attorneys’ services or how many hours should be cut so that
the fee award would reflect the reasonable services provided. By
contrast, in the instant case, the trial court determined that
having too many lawyers work on the case led to inflated bills,
and its chosen remedy – not awarding fees for some of the
attorneys – was designed to yield a revised lodestar figure that
reflected a total amount of fees that were reasonably incurred.
Morris is correct that the trial court’s methodology of
cutting six attorneys’ hours entirely resulted in cutting non-
duplicative billing for some necessary tasks, such as defending
Morris’s deposition, attending the vehicle inspection, and
attending a case management conference. However, at the
hearing, the court made clear that its approach was designed to
reduce the total award to the reasonable amount that would have
been billed had there been an appropriate number of attorneys on
the case. The court could properly have made an across-the-
board reduction of 30 percent to accomplish the same purpose.
(See Warren, supra, 30 Cal.App.5th at p. 41 [“when a
“‘“voluminous fee application”’” is made . . . the court may . . .
“‘“make across-the-board percentage cuts either in the number of
hours claimed or in the final lodestar figure”’”].) The court got to
21
the same result by cutting particular attorneys’ billings. We are
satisfied that the trial court did not abuse its broad discretion to
determine the reasonable value of the professional services
performed by Morris’s attorneys. (See PLCM Group, Inc. v.
Drexler, supra, 22 Cal.4th at p. 1096 [“[t]he trial court may make
its own determination of the value of the services”]; Melnyk v.
Robledo (1976) 64 Cal.App.3d 618, 625 [“the trial court . . . is not
bound by the itemization claimed in the attorney’s affidavit”].)
IV. Morris Has Shown No Abuse of Discretion in the
Trial Court’s Reductions of the Attorneys’ Hourly
Rates
Morris asserts the trial court reduced the hourly rates for
her attorneys without a reasonable basis for doing so. She
contends she submitted ample evidence, which Hyundai failed to
rebut, that her counsel’s rates were reasonable and
commensurate with other consumer attorneys’ rates.8 (See
Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th
140, 156 [trial court abused its discretion in reducing counsel’s
hourly rates where “unrebutted declarations established the
prevailing rates in the region for attorneys with comparable skills
and expertise”].)
8 Morris complains that the court erred in excluding the
attorney fee survey attached to Altman’s declaration. However,
Morris fails to present any argument that the basis for the
ruling – that the survey was unauthenticated hearsay – was
incorrect. As such, she has forfeited the argument that the fee
survey was wrongly excluded. (DP Pham LLC v. Cheadle (2016)
246 Cal.App.4th 653, 674 [party forfeits argument by failing to
adequately support it with argument and relevant legal
authority].)
22
“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.” (569 East,
supra, 6 Cal.App.5th at p. 437; see Mountjoy, supra,
245 Cal.App.4th at p. 272 [“‘“a reasonable hourly rate is the
product of a multiplicity of factors . . . . [including] the level of
skill necessary, time limitations, the amount to be obtained in the
litigation, the attorney’s reputation, and the undesirability of the
case”’”].)
In Mountjoy, the plaintiff complained that the trial court
reduced her counsel’s hourly rate to that of the much less
experienced defense counsel. The appellate court found that the
plaintiff had failed to carry her burden to show the court abused
its discretion in reducing the rate where the court could have
reasonably determined that a lesser rate was justified due to
other factors besides experience. (Mountjoy, supra,
245 Cal.App.4th at pp. 272-273.)
Similarly here, even if Morris established that her
attorneys’ rates were generally commensurate with other
consumer law attorneys with the same level of experience and
skill, 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
23
been done by lower-billing attorneys; and that all the attorneys
were doing work that could have been done by paralegals. (See
569 East, supra, 6 Cal.App.5th at pp. 438-439 [finding billing rate
reduction of senior attorney was justified where the attorney did
“the yeoman’s work” that would ordinarily be done by more junior
associates with low billing rates].) Morris has not carried her
burden to show an abuse of discretion in the trial court’s
reduction of the attorneys’ hourly rates.
DISPOSITION
The order awarding fees and costs is affirmed. Hyundai is
to recover its costs on appeal.
STONE, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
24
Filed 10/11/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARY MORRIS, B290693
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC612232)
v.
ORDER MODIFYING AND
HYUNDAI MOTOR AMERICA, CERTIFYING OPINION FOR
PUBLICATION; NO CHANGE
Defendant and Respondent. IN APPELLATE
JUDGMENT
THE COURT:
The opinion filed on September 16, 2019 and not certified
for publication, is modified as follows:
On page 8, section 5, first paragraph, last sentence: “82.5”
should be replaced with “83.5.” The sentence should read as
follows:
Out of a total of 283.3 hours of billed work, the
court did not award any fees for 83.5 hours of
work billed by six associates.
The opinion in this case filed on September 16, 2019 was
not certified for publication. Because the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the requests by Defendant and Respondent, as
well as a non-party, pursuant to California Rules of Court, rule
8.1120(a) for publication are granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the opinion be published in the Official
Reports.
This order does not change the appellate judgment.
____________________________________________________________
9
PERLUSS, P. J., ZELON, J., STONE, J.
9 Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2