Also, Denial Of Trial Transcript Expenses Reversed Because They Were Compensable Under Song-Beverly Act Costs/Fee-Shifting Provision.
Although occurring in the civil rights context, we foresaw in our December 20, 2015 post on Kerkeles v. City of San Jose, 243 Cal.App.4th 88, 102-104 (2015) that it would have much more significance in other substantive areas. Our prophecy has been borne out in a recent decision arising under Song-Beverly Act’s “lemon law.”
Warren v. Kia Motors America, Inc., Case No. E068348 (4th Dist., Div. 2 Dec. 12, 2018) (published) involved a situation where a plaintiff won a compensatory jury verdict of $17,455.57 in a “lemon law” case against defendant. (As an aside, the defendant made an invalid CCP § 998 offer of $12,500—and maybe more, but that was what rendered it ambiguous—plus $5,000 in fees, an offer which was rejected.) Then, plaintiff moved to recover attorney’s fees and expenses under the lemon law fees/costs-shifting statute, Civil Code section 1794(d). Plaintiff sought $526,582.89 in fees (a $351,055.26 lodestar plus a positive 1.5 multiplier) and $40,151.11 in costs ($5,882 being trial transcripts ordered by plaintiff’s attorneys). The lower court awarded plaintiff $115,848.24 in fees, applying a negative 33% multiplier, and $24,436.65 in costs (denying prejudgment interest and striking the trial transcript expenses).
Plaintiff appealed, obtaining relief on appeal.
With respect to costs, prejudgment interest was properly denied but it was error not to grant the $5,882 in trial transcripts. Even if this item was not allowable under the CCP routine costs provisions, Civil Code section 1794(d) defines “expenses” more broadly such that these costs were recoverable.
That brought the Court of Appeal to the fees issue. Although not taking issue with a lot of the lower court’s reasoning, the appellate court found a flaw because it appeared that the trial judge was trying to make the fee award proportional to the modest compensatory award—something which was antithetical to the consumer statute at play with respect to a fees award. Given that a one-third discount was applied, Kerkeles required a more particularized explanation for this specific reduction. Also, the reviewing court rejected the idea that plaintiff’s consumer attorney’s fees must be compared to defense fees as far as hourly rates given the difference in billing arrangements and expertise. Reversed and remanded for a “re-do” and an award of trial transcript costs.