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KNIGHT
CoCoClUNUOlUCUOOMN LAW GROUP LLP Ni
Steve Mikhov (SBN 224676)
stevem@knightlaw.com
Amy Morse (SBN 290502)
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amym@knightlaw.com
10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
Telephone: (310) 552-2250
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Fax: (310) 552-7973
THE ALTMAN LAW GROUP
Bryan C. Altman (SBN 122976)
10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
Telephone: (323) 653-5581
Fax: (323) 653-5542
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Attorneys for Plaintiff,
ANNA P. KING
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER ~<
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ANNA P. KING, Case No.: SCV0038637 x
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PLAINTIFF’S REPLY IN SUPPORT O
Plaintiff, MOTION FOR ATTORNEYS’ FEES,
COSTS AND EXPENSES
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[Filed Concurrently with Plaintiffs
Evidentiary Objections to the Declaration of
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HYUNDAI MOTOR AMERICA, INC., a Sohey! Tahsildoost]
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California Corporation; and DOES 1
through 10, inclusive, Assigned for allpurposes to the
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Honorable Michael Jones
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Defendants.
Date: January 3, 2020
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Time: 8:30 a.m.
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Department: 31
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
I. INTRODUCTION
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Plaintiff Anna P. King isthe prevailing party in this case, one that was tried tojury verdict
in July 2019. She now seeks to recover her attorneys’ fees, costs and expenses for three years of
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hard-fought and, ultimately, successful litigation brought under the Song-Beverly Act, a remedial
statute enacted to provide California car-buying consumers with recourse when vehicles purchased
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or leased prove defective and cannot be conformed to warranty after a reasonable number of repair
attempts. The Opposition filed by HYUNDAI MOTOR AMERICA, INC. (“Defendant” or “HMA”)
in this matter would have the Court believe that “this case was never about Plaintiff recovering for
a defective vehicle or consumer protection” (Opposition, 2:18-19), but rather that the litigation was
“entirely the result of Plaintiff's counsel’s self-interested drive for attorney’s fees.” (Id.,2:15-17.)
While Plaintiff's counsel, Knight Law Group, LLC (“Knight Law”) is used to such insults
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and cynicism from haughty HMA, the truth of this case is very much different than HMA suggests.
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HMA would have the Court believe that Plaintiff was merely a pawn inKnight Law’s sinister game,
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a passive bystander lured into a money-making scheme by unscrupulous lawyers out to turn a quick
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buck. In truth, Plaintiff came to Knight Law; Knight Law did not go to Plaintiff. Further, Plaintiff
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came to Knight Law only after Hyundai had been unable to remedy problems with an important
safety feature — the back-up camera — of the 2010 Hyundai Tucson at issue in this case and only
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after HMA failed to offer to replace or repurchase her defective vehicle. Had HMA wanted to avoid
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this litigation and the resulting fees, costs and expenses, HMA could simply have honored Plaintiff s
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January 2016 repurchase request. HMA refused to do so and now has only itselfto blame.
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The Song-Beverly Act
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This case highlights the fundamental purpose for which the California legislature passed the
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Act. Like most Californians, Plaintiff did not have the financial resources, or the expertise, to litigate
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against an automobile giant like HMA. She could not have taken on HMA by herself — a fact not
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lost on HMA when it responded to Plaintiffs pre-suit repurchase request with an inadequate offer
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to continue trying to repair the vehicle’s back-up camera, a critical safety feature that HMA had tried
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unsuccessfully to repair on numerous occasions. Without benefit of the Act and a law firm with
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keen litigation skillsand lemon law expertise on her side, Plaintiffs purchase would almost certainly
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
have ended as just another consumer life lesson in loss. With the help of a savvy team of consumer-
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oriented lawyers, Plaintiff's rights were vindicated, and her claim for repurchase was won.
The Act was designed to aid California consumers with claims against automobile giants
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acting with perceived impunity because of their wealth and size. Given the huge investment
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reflected in the purchase or lease of an HMA automobile, itisas much a moral imperative as itisa
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statutory obligation that HMA does right when things go wrong: either fix the defective car promptly
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or buy it back. The Act was enacted because companies like HMA were not doing the right thing.
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In this case, HMA’s own words reveal the manufacturer’s true feelings: “this was a case with only
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a single issue (backup camera) and only four repair visits.” (Opposition, 9:24-25.) In other words,
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the Subject Vehicle was not a lemon and Plaintiff's repurchase claim should have been denied. It
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was not. HMA reveals even more, calling this “a simple lemon law case involving a $27,000 car.”
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(/d., 16:2-3.) In other words, had Plaintiff wanted a better vehicle, Plaintiff should have purchased
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a more expensive one. Clearly, the Act remains a critical piece of consumer rights legislation.
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Plaintiff's Reasonable and Necessary Fees
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Because HMA assumed itscustomarily belligerent posture — firstdismissing Plaintiff's pre-
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suit buyback request with an inadequate response, then denying liability,denying that Plaintiff was
damaged in any way, constructing a firewall of affirmative defenses and litigating aggressively at
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every turn — it ultimately took Plaintiff's counsel three (3) years of litigation to secure justice for
Plaintiff. Throughout the litigation, HMA stubbornly insisted that the Subject Vehicle was not a
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lemon and that no repurchase or other accommodation was necessary, while Plaintiff firmly believed
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all along that HMA willfully failed to comply with itswarranty obligations and that civilpenalties
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were justified. During the course of the litigation,HMA served Plaintiff with what purported to be
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In the end, neither party was fully satisfied: the jury found that the Subject Vehicle did suffer from
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covered defects that substantially impaired Plaintiff's use, value or safety, and further that HMA did
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failto conform the vehicle to warranty or replace or repurchase itafter a reasonable number of repair
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attempts, so Plaintiff prevailed on her repurchase claim. The jury further found that HMA’s failures
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did not warrant an additional award of civil penalties, a disappointment to Plaintiff, who believed
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that HMA’s conduct was willful and that civilpenalties were warranted.
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
During the course of the litigation,HMA twice made overtures regarding settlement, sending
Plaintiff what purported to be 998 offers in late 2016 and early 2017, but Plaintiff found those
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purported offers to be vague, uncertain, ambiguous and incomplete, so Plaintiff's counsel served
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detailed written objections. HMA never cured those deficiencies and ignored several attempts by
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Plaintiff to resolve the case short of trial. While HMA notes that Plaintiff's October 2019 Motion
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to Tax and/or Strike Costs refers to HMA’s 2017 deficient 998 offer without pointing out its
deficiencies as evidence that Plaintiff concedes the validity and enforceability ofthe purported offer,
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Plaintiff's reference was not, and was not intended to be, acomment on the legal sufficiency of
HMA’s settlement overtures.
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10 The Bottom Line
11 Throughout its Opposition, HMA repeatedly suggests that Plaintiff's counsel took too long
12 to perform many of the tasks necessarily performed on Plaintiff's behalf. But by comparison to
13 what? HMA never says. By comparison to HMA’s own invoices? Certainly not —HMA does not
14 produce them. By comparison to researching and drafting from scratch? Certainly not — doing so
15 would have taken multitudes of the actual time incurred and billed by Plaintiff's counsel. Like any
16 smart litigation firm, Knight Law did not “reinvent the wheel” to litigate this case. Instead,
17 Plaintiff's counsel deftly repurposed pleadings and discovery proven successful in past cases by
18 tailoring them extensively to fitthe specific facts and posture of Plaintiff's case, doing so in a fraction
19 of the time it would have taken to research and draft from scratch. HMA complains but never
20 overcomes the fact that Plaintiff submitted detailed, verified invoices accounting for the hours
21 actually spent and tasks necessarily performed, as well as plentiful evidence of the reasonableness
22 of the requested fees. Plaintiff should therefore be awarded allrequested fees, costs and expenses,
23 and should further be rewarded with a lodestar multiplier for the extraordinary result obtained.
24 Il. ARGUMENT
25 A. HMA’s Opposition Violates California Rules of Court 3.1113(d)
26 While HMA’s Opposition is nominally an impermissible sixteen (16) pages long when,
27 properly, the Court includes the substantive content that begins on the caption page, HMA attempts
28 to skirt the California Rules of Court in even more flagrant fashion by attaching sixty-eight (68)
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
= additional pages of argument disguised as Exhibits A and B to the Declaration of Soheyl
Tahsildoost. HMA’s Opposition thus violates the mandatory California Rules of Court that guide
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this proceeding and should be disregarded. California Rules of Court Rule 3.11 13(d) limits the
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length of an Opposition tojust 15 pages and states, in relevant part, as follows:
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“Except in a summary judgment or summary adjudication motion, no opening or
responding memorandum may exceed 15 pages....the page limit does not include
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the caption page, the notice of motion and motion, exhibits, declarations,
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attachments, the table of contents, the table of authorities, or the proof of service.”
Exhibits are excluded from the page limit requirement only because exhibits must not contain
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argument, but argument is exactly what HMA’s Exhibits A and B contain. HMA was obligated to
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seek the Court’s permission, by ex parte application (at least 24 hours before filing itspaper), but
with
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notice to the opposing side, to file a super-sized memorandum under CRC 3.1113(e). These
mandatory Rules exist to preserve precious judicial resources and constrain the scope and scale of
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argument,
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but they
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also exist to prevent one party, HMA in this instance, from forcing another party,
Plaintiff here, to attempt to respond to, in this case, eighty-one (81) pages of argument within the
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bounds of a 10-page Reply.
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In itsoutrage, HMA could not be bothered with such technicalities, so
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under CRC 3.1113(g), HMA’s Opposition is to be “considered in the
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same way as a late-filedpaper.”
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The Court can and should refuse to consider itat all and issue a minute order reflecting its sound
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judgment. (CRC 3.1300(d).)
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B. HMA Fails to Rebut the Presumption of Credibility Given to Plaintiffs Fee Bill
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A verified fee bill is prima facie evidence the costs, expenses, and services listed were
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necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) A declaration attesting
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to the accuracy of the fee bill isentitled to a presumption of credibility. (Horsford v. Board of
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Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [holding that “the verified
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time statements of the attorneys, as officers of the court, are entitled to credence inthe absence of a
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clear indication that the records are erroneous”].) Where a party presents an itemized fee bill,the
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burden shiftsto the opposing party to make specific objections to particular time entries. (McGrath
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v. Country of Nevada (1995) 67 F.3d 248, 255 [a fee opponent “bears the burden of providing
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specific evidence to challenge the accuracy and reasonableness of the hours charged”].) HMA has
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the burden of showing that the requested hours are duplicative, excessive or unnecessary. (See Gates
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
v. Rowland, (1994) 39 F.3d 1439, 1449.) Failure to submit evidence on any specific aspect of
Plaintiff's fee claim results in waiver of any objection. (Blum v.Stenson (1984) 465 U.S. 886, 892.)
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Plaintiff submitted a highly detailed, itemized fee billand attorney declaration attesting to its
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accuracy, even though an itemization isnot required to support a fee motion. (See Weber v.Langholz
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(1995) Cal.App.4th 1578, 1587.) In many cases, itis sufficient to simply submit a declaration
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attesting to the total number of hours. (Jbid.) Moreover, Plaintiff did not just rest on the
presumption, but also presented additional support in the form of: (i) a survey of hourly rates for
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well-known consumer attorneys in the state (Declaration of Steve Mikhov in Support of Plaintiff's
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Motion for Attorney’s Fees, Costs and Expenses (“SM Dec.”), § 37); (ii)over one dozen court orders
evidencing how
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Placer (and neighboring) County courts and those in neighboring counties have
consistently awarded allor significantly all of the fees requested by Plaintiff's counsel (SM Dec.,
38-53, Exs. D-S); and (iii)a National Survey further supporting the reasonableness of the hourly
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rates. (BCA Dec., § 12, Ex. B, atpp. 42-45.)
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With regard to the fees incurred in this matter, itisHMA’s burden to rebut Plaintiff's prima
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facie showing of fees necessarily and reasonably incurred, not merely by objecting to specific time
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entries, but by supporting those objections with competent evidence. HMA fails tocarry itsburden.
Cc. Plaintiff's Attorneys’ Hourly Rates Are Reasonable Under the Lodestar Method
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The United States Supreme Court stated, “awards in similar cases” is one of twelve factors
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to be considered when determining an appropriate rate. (Hensley v. Eckerhart (1983) 461 U.S. 424,
429-430.) “Affidavits of the Plaintiffs attorney and other attorneys regarding prevailing fees inthe
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community, and rate determinations in other cases, particularly those setting a rate for the Plaintiff s
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attorney, are satisfactory evidence of the prevailing market rate.” (United Steelworkers ofAm. v.
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Phelps Dodge Corp. (9th Cir. 1990) 896 F.2d 403, 407.) Plaintiff offers ample evidence of this type.
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Plaintiff's counsel, Knight Law, has developed effective and efficient litigation strategies
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that generate extremely positive outcomes for itsclients. Knight Law is unlike any other lemon law
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firm. While most other firms will accept settlements for the amount of the purchase price of the
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vehicle, Knight Law seeks to protect consumers by pursuing civil penalties against manufacturers.
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Instead of settling for a quick buck, Knight Law actively litigates these cases: obtaining
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
comprehensive discovery, traveling for depositions if needed, and engaging in successful motion
practice. Asa result of the number of lemon law cases ithas taken
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on—and won—Knight Law has
significant experience in lemon law cases. Plaintiff's attorneys are also familiar with the defense
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strategies of the car manufacturers, including HMA. This specialized knowledge and experience
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resulted inPlaintiff receiving arecovery that was inclusive of a full statutory “buyback” of Plaintiff's
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defective vehicle. Knight Law’s knowledge, expertise and skill are reflected in the rates the firm
charges.
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Plaintiff provided ample, directly relevant evidence supporting the reasonableness of the
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hourly rates requested, including multiple orders from a variety of California state courts showing
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the requested hourly rates have consistently been awarded. These orders come from a variety of
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venues over a longer arc of time, and HMA does nothing to rebut. HMA’s suggestion that Plaintiff's
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counsel’s rates are unreasonably high also ignores Song-Beverly Act precedent. In Goglin v.BMW
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of North America, LLC, for instance, the appellate court held $180,000 in attorney’s fees, at a rate
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of $575 per hour, was not unreasonable for a plaintiff's attorney in a lemon law matter. (Goglin v.
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BMW of North America, LLC (2016) 4 Cal.App.5th, 462, 473-474. Absent contrary evidence from
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HMA, the Court can accept Plaintiff's declaration as conclusive, unrebutted evidence of the
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reasonableness of the requested rates.
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D. The Hours Billed For the Work Performed Are Reasonable
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Because Plaintiff is expressly the prevailing party, she is entitled to recover reasonable
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attorneys’ fees and litigation costs under the Song-Beverly Act. (Civ. Code § 1794(d); Civ. Code §
1780(e); Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) Absent a showing
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of “special circumstances” that would render an award unjust, a prevailing party’s attorney’s time
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spent and hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621,
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639). HMA’s Opposition does not inany event demonstrate such “special circumstances.”
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1) Reasonable Billing with the Use of Form Documents
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In keeping with itscynical and insulting theme, HMA repeatedly accuses Plaintiff's counsel
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of producing only “copy-paste” work product. (Opposition, 10:2.) The notion HMA seems to
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promote — that anything other than “starting from scratch” is something lessthan “drafting” — isout
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
of touch with the realities of litigation. Like all successful litigation firms, Knight Law achieves
efficiency as well as efficacy by starting with templates of pleadings and discovery proven successful
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in past cases, then tailoring them extensively to fitthe specific facts of the case. HMA, which does
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the same, knows that even with templates, no two lemon law cases are alike. Like HMA, Plaintiff's
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counsel may use similar forms and arguments, but the forms and arguments must be thoroughly
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modified in myriad ways to fit each individual case. This strategy does not increase Plaintiff's
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litigation costs — itreduces them. Further, while HMA may not have required itsattorneys to prepare
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and review each pleading, discovery request or response it sent out inthis case, Plaintiff's counsel
does perform the necessary review and modification of each document to meet its obligation to its
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client. Plaintiff's counsel does not delegate attorney work to secretaries or paralegals but also does
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not bill for secretarial or paralegal time. This strategy should be rewarded, not castigated.
HMA’s companion argument — that Plaintiff's attorneys engage in the practice known as
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“value-billing” (Opposition, 12:8) — is equally unavailing. Plaintiff's counsel submitted detailed
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invoices reflecting the actual hours worked for each task performed in connection with Plaintiff's
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litigation, and HMA offers no evidence to the contrary. In making this argument, HMA tells the
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Court how littletime HMA’s attorneys spent performing certain tasks, but HMA does not produce
itsbilling invoices or other documentary support, so these claims should be disregarded.
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2) The Use of Multiple Attorneys is Both Reasonable and Efficient
HMA complains of “gross overstaffing” (Opposition, 11:15) because, by itscount, a total of
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twenty (20) different lawyers assumed professional responsibility for some aspect of Plaintiff's case.
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Case law recognizes that multiple attorneys can be problematic if and only if there is “over-
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conferencing, attorney stacking (multiple attorneys at court functions), and excessive research.”
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(Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.) This was not the case here. To the
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contrary, each task performed was done in less time than if one attorney performed all of them as
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the various attorneys performed tasks that they specialize in and have become experts in. Knight
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Law’s strategy of having different, specialized attorneys work on different aspects of the case
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actually results in efficiency and efficacy. For instance, some attorneys specialize indrafting written
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discovery requests while others in responding to written discovery requests. This particularized
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
knowledge results in minimal time spent for each attorney to review the file and learn the relevant
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facts of the case, while substantial time issaved from having to switch gears to become familiar with
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procedural rules and specific issues of each phase of the case.
The firm’s strategy also places the bulk of the work on younger attorneys with senior
attorneys providing supervision and litigation strategy. As part of this strategy, Mr. Mikhov, as the
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senior attorney inthe practice, must be familiar with the pleadings, discovery, and motions to provide
strategic direction in how they should be handled. For this reason, Mr. Mikhov must spend a
reasonable number of hours reviewing various pleadings, discovery, motions, and correspondence
in each case. The majority of the hours incurred in Mr. Mikhov’s entries include time billed not just
to review, but also to communicate with the client on numerous dates and communicate with younger
attorneys to give them direction in responding to Defendant’s pleadings or motions and ensure the
case ismoving forward per overall strategy. Mr. Mikhov’s minimal time billed here ismore than
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compensated by the cost-savings of using younger, lower-billing attorneys to perform the bulk of
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the work, thereby reducing Plaintiffs bill.
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E. Tahsildoost Declaration Exhibits “A” and “B” are Impermissible Argument
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As noted above, HMA skirts the mandatory page-limit rules by attaching sixty-eight (68)
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pages of additional argument disguised as “Exhibits A and B” to the Declaration of Soheyl
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Tahsildoost. Declarations are meant to attestto fact and are not intended to supplement Opposition
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argument without leave of court to add more, yet this is exactly what Tahsildoost Declaration
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Exhibits A and B do. These arguments, like the Opposition generally, should be ignored.
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To summarize the additional arguments, HMA wishes Plaintiff's counsel would divulge
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information protected by attorney-client privilege by telling HMA exactly what was discussed
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during each client communication, and HMA believes every task performed should have been
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performed more quickly, and by someone less senior, than it was. HMA’s firstobjection to alleged
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billing abuses, for example, complains because managing partner Steve Mikhov himself handled the
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initialevaluation of Plaintiff's claim. HMA’s remaining “wish list” of proposed reductions, which
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add impermissibly to the length of HMA’s Opposition, are similarly devoid of merit. HMA, of
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course, refuses to show the Court itsown bills for comparison, likely because HMA’s argument
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PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES
would not withstand such a comparison.
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HMA also claims that TALG’s practice of billing in quarter-hour increments was improper
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but fails to rebut the presumption of credibility for these entries. While quarter-hour billing might
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not be the industry standard, itis by no means impermissible. TALG, as isstandard practice, will
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either round up or round down, depending upon the actual time a task takes. HMA fails to provide
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any evidence of specific instances in which TALG’s quarter-hour billing was unreasonable. Further,
HMA’s citation to the Welch case, a federal case, not a state case, contorts what the case actually
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says. The district court ruled that quarter-hour increments were improper under the extreme
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circumstances of that case where the attorney was apparently incompetent. The appellate court
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merely stated it would not disturb the lower court's finding and the quoted portion in HMA’s
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Opposition issimply stating what the lower court observed. Welch does not say that quarter-hour
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increments are unreasonable.
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F. A Multiplier is Justified in This Case
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This is a rare and exceptional case where a wronged consumer fought back against the car
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manufacturer and achieved a significant settlement. While there has been an increase in the number
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of lemon law cases brought before the courts, these cases stillrepresent a tiny fraction of consumers
who suffer through defective vehicle problems. The fact remains that a shocking number of HMA’s
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customers, like Plaintiff here, purchased or leased defective vehicles. When those consumers seek
help from the auto manufacturers for theirdefective vehicles, the manufacturers uniformly refuse to
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comply with their legal obligations. Itis only as the result of the efforts of counsel such as Knight
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Law that consumers have begun recovering what they are entitled to.
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Plaintiff's counsel was required to perform an enormous amount of work in this case and
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ultimately tried it to conclusion, winning an award that recognized HMA’s error in determining the
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Subject Vehicle to be a lemon even though HMA fought for three (3) years to prove otherwise.
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Plaintiff's counsel undertook this case on a contingent-basis, knowing that Plaintiff's buyback
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request had been inadequately handled, knowing that HMA, with unlimited resources, would assume
its customary posture of denial and display itscustomary attitude of dismissiveness, risking the
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ability to recover any fees and expenses if Plaintiff did not prevail and facing certain delays in the
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PLAINTIFF’S
Preview
KNIGHT CoCoClUNUOlUCUOOMN LAW GROUP LLP Ni Steve Mikhov (SBN 224676) stevem@knightlaw.com Amy Morse (SBN 290502) Oa amym@knightlaw.com 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Telephone: (310) 552-2250 DO Fax: (310) 552-7973 THE ALTMAN LAW GROUP Bryan C. Altman (SBN 122976) 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 Telephone: (323) 653-5581 Fax: (323) 653-5542 = Attorneys for Plaintiff, ANNA P. KING NO SUPERIOR COURT OF CALIFORNIA WY ee Ww COUNTY OF PLACER ~< FF "Tl ANNA P. KING, Case No.: SCV0038637 x DBO PLAINTIFF’S REPLY IN SUPPORT O Plaintiff, MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES HN [Filed Concurrently with Plaintiffs Evidentiary Objections to the Declaration of DO HYUNDAI MOTOR AMERICA, INC., a Sohey! Tahsildoost] CO —O California Corporation; and DOES 1 through 10, inclusive, Assigned for allpurposes to the RO FEF Honorable Michael Jones YO NY Defendants. Date: January 3, 2020 NY WY Time: 8:30 a.m. fF KN Department: 31 un NO Dn NO NI NO Oo NO PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES I. INTRODUCTION lUlUCOON Kl Plaintiff Anna P. King isthe prevailing party in this case, one that was tried tojury verdict in July 2019. She now seeks to recover her attorneys’ fees, costs and expenses for three years of Oa hard-fought and, ultimately, successful litigation brought under the Song-Beverly Act, a remedial statute enacted to provide California car-buying consumers with recourse when vehicles purchased CoColUNCOU De or leased prove defective and cannot be conformed to warranty after a reasonable number of repair attempts. The Opposition filed by HYUNDAI MOTOR AMERICA, INC. (“Defendant” or “HMA”) in this matter would have the Court believe that “this case was never about Plaintiff recovering for a defective vehicle or consumer protection” (Opposition, 2:18-19), but rather that the litigation was “entirely the result of Plaintiff's counsel’s self-interested drive for attorney’s fees.” (Id.,2:15-17.) While Plaintiff's counsel, Knight Law Group, LLC (“Knight Law”) is used to such insults = and cynicism from haughty HMA, the truth of this case is very much different than HMA suggests. PPO me HMA would have the Court believe that Plaintiff was merely a pawn inKnight Law’s sinister game, WY a passive bystander lured into a money-making scheme by unscrupulous lawyers out to turn a quick ee buck. In truth, Plaintiff came to Knight Law; Knight Law did not go to Plaintiff. Further, Plaintiff DBO came to Knight Law only after Hyundai had been unable to remedy problems with an important safety feature — the back-up camera — of the 2010 Hyundai Tucson at issue in this case and only NY after HMA failed to offer to replace or repurchase her defective vehicle. Had HMA wanted to avoid FH Om this litigation and the resulting fees, costs and expenses, HMA could simply have honored Plaintiff s OD January 2016 repurchase request. HMA refused to do so and now has only itselfto blame. TD The Song-Beverly Act RO Fe This case highlights the fundamental purpose for which the California legislature passed the Ne KN Act. Like most Californians, Plaintiff did not have the financial resources, or the expertise, to litigate Ww NO against an automobile giant like HMA. She could not have taken on HMA by herself — a fact not fF HO lost on HMA when it responded to Plaintiffs pre-suit repurchase request with an inadequate offer un NO to continue trying to repair the vehicle’s back-up camera, a critical safety feature that HMA had tried DA HNO unsuccessfully to repair on numerous occasions. Without benefit of the Act and a law firm with NAY NO keen litigation skillsand lemon law expertise on her side, Plaintiffs purchase would almost certainly moa NO l PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES have ended as just another consumer life lesson in loss. With the help of a savvy team of consumer- S KNO oriented lawyers, Plaintiff's rights were vindicated, and her claim for repurchase was won. The Act was designed to aid California consumers with claims against automobile giants WD acting with perceived impunity because of their wealth and size. Given the huge investment Re reflected in the purchase or lease of an HMA automobile, itisas much a moral imperative as itisa OO statutory obligation that HMA does right when things go wrong: either fix the defective car promptly DBO or buy it back. The Act was enacted because companies like HMA were not doing the right thing. NN In this case, HMA’s own words reveal the manufacturer’s true feelings: “this was a case with only eH a single issue (backup camera) and only four repair visits.” (Opposition, 9:24-25.) In other words, S50 the Subject Vehicle was not a lemon and Plaintiff's repurchase claim should have been denied. It OC was not. HMA reveals even more, calling this “a simple lemon law case involving a $27,000 car.” ee KF (/d., 16:2-3.) In other words, had Plaintiff wanted a better vehicle, Plaintiff should have purchased NYO a more expensive one. Clearly, the Act remains a critical piece of consumer rights legislation. wm W Plaintiff's Reasonable and Necessary Fees F&F. Because HMA assumed itscustomarily belligerent posture — firstdismissing Plaintiff's pre- nO DBD suit buyback request with an inadequate response, then denying liability,denying that Plaintiff was damaged in any way, constructing a firewall of affirmative defenses and litigating aggressively at nN DB every turn — it ultimately took Plaintiff's counsel three (3) years of litigation to secure justice for Plaintiff. Throughout the litigation, HMA stubbornly insisted that the Subject Vehicle was not a ODO lemon and that no repurchase or other accommodation was necessary, while Plaintiff firmly believed TD RO all along that HMA willfully failed to comply with itswarranty obligations and that civilpenalties KFKF& RO were justified. During the course of the litigation,HMA served Plaintiff with what purported to be NY RO In the end, neither party was fully satisfied: the jury found that the Subject Vehicle did suffer from Ww KN covered defects that substantially impaired Plaintiff's use, value or safety, and further that HMA did fF KN failto conform the vehicle to warranty or replace or repurchase itafter a reasonable number of repair On KN attempts, so Plaintiff prevailed on her repurchase claim. The jury further found that HMA’s failures Dn NO did not warrant an additional award of civil penalties, a disappointment to Plaintiff, who believed NI NO that HMA’s conduct was willful and that civilpenalties were warranted. DO mH 2 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES During the course of the litigation,HMA twice made overtures regarding settlement, sending Plaintiff what purported to be 998 offers in late 2016 and early 2017, but Plaintiff found those WN purported offers to be vague, uncertain, ambiguous and incomplete, so Plaintiff's counsel served WW detailed written objections. HMA never cured those deficiencies and ignored several attempts by F&F Plaintiff to resolve the case short of trial. While HMA notes that Plaintiff's October 2019 Motion DH to Tax and/or Strike Costs refers to HMA’s 2017 deficient 998 offer without pointing out its deficiencies as evidence that Plaintiff concedes the validity and enforceability ofthe purported offer, YN eH Plaintiff's reference was not, and was not intended to be, acomment on the legal sufficiency of HMA’s settlement overtures. So 10 The Bottom Line 11 Throughout its Opposition, HMA repeatedly suggests that Plaintiff's counsel took too long 12 to perform many of the tasks necessarily performed on Plaintiff's behalf. But by comparison to 13 what? HMA never says. By comparison to HMA’s own invoices? Certainly not —HMA does not 14 produce them. By comparison to researching and drafting from scratch? Certainly not — doing so 15 would have taken multitudes of the actual time incurred and billed by Plaintiff's counsel. Like any 16 smart litigation firm, Knight Law did not “reinvent the wheel” to litigate this case. Instead, 17 Plaintiff's counsel deftly repurposed pleadings and discovery proven successful in past cases by 18 tailoring them extensively to fitthe specific facts and posture of Plaintiff's case, doing so in a fraction 19 of the time it would have taken to research and draft from scratch. HMA complains but never 20 overcomes the fact that Plaintiff submitted detailed, verified invoices accounting for the hours 21 actually spent and tasks necessarily performed, as well as plentiful evidence of the reasonableness 22 of the requested fees. Plaintiff should therefore be awarded allrequested fees, costs and expenses, 23 and should further be rewarded with a lodestar multiplier for the extraordinary result obtained. 24 Il. ARGUMENT 25 A. HMA’s Opposition Violates California Rules of Court 3.1113(d) 26 While HMA’s Opposition is nominally an impermissible sixteen (16) pages long when, 27 properly, the Court includes the substantive content that begins on the caption page, HMA attempts 28 to skirt the California Rules of Court in even more flagrant fashion by attaching sixty-eight (68) 3 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES = additional pages of argument disguised as Exhibits A and B to the Declaration of Soheyl Tahsildoost. HMA’s Opposition thus violates the mandatory California Rules of Court that guide KO this proceeding and should be disregarded. California Rules of Court Rule 3.11 13(d) limits the |W length of an Opposition tojust 15 pages and states, in relevant part, as follows: ek “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages....the page limit does not include NO the caption page, the notice of motion and motion, exhibits, declarations, DRO attachments, the table of contents, the table of authorities, or the proof of service.” Exhibits are excluded from the page limit requirement only because exhibits must not contain FN argument, but argument is exactly what HMA’s Exhibits A and B contain. HMA was obligated to ODO seek the Court’s permission, by ex parte application (at least 24 hours before filing itspaper), but with oO notice to the opposing side, to file a super-sized memorandum under CRC 3.1113(e). These mandatory Rules exist to preserve precious judicial resources and constrain the scope and scale of ee argument, ee but they LO also exist to prevent one party, HMA in this instance, from forcing another party, Plaintiff here, to attempt to respond to, in this case, eighty-one (81) pages of argument within the oe W bounds of a 10-page Reply. eR In itsoutrage, HMA could not be bothered with such technicalities, so ee under CRC 3.1113(g), HMA’s Opposition is to be “considered in the Wn same way as a late-filedpaper.” DB The Court can and should refuse to consider itat all and issue a minute order reflecting its sound em NID judgment. (CRC 3.1300(d).) DOH B. HMA Fails to Rebut the Presumption of Credibility Given to Plaintiffs Fee Bill ee ODO A verified fee bill is prima facie evidence the costs, expenses, and services listed were DOD necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) A declaration attesting HNO to the accuracy of the fee bill isentitled to a presumption of credibility. (Horsford v. Board of F& CN Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [holding that “the verified NY HN time statements of the attorneys, as officers of the court, are entitled to credence inthe absence of a WY YN clear indication that the records are erroneous”].) Where a party presents an itemized fee bill,the fF N burden shiftsto the opposing party to make specific objections to particular time entries. (McGrath Ow NO HD v. Country of Nevada (1995) 67 F.3d 248, 255 [a fee opponent “bears the burden of providing N specific evidence to challenge the accuracy and reasonableness of the hours charged”].) HMA has NO A So the burden of showing that the requested hours are duplicative, excessive or unnecessary. (See Gates NO 4 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES v. Rowland, (1994) 39 F.3d 1439, 1449.) Failure to submit evidence on any specific aspect of Plaintiff's fee claim results in waiver of any objection. (Blum v.Stenson (1984) 465 U.S. 886, 892.) NYO Plaintiff submitted a highly detailed, itemized fee billand attorney declaration attesting to its WD accuracy, even though an itemization isnot required to support a fee motion. (See Weber v.Langholz ee (1995) Cal.App.4th 1578, 1587.) In many cases, itis sufficient to simply submit a declaration OW DOD attesting to the total number of hours. (Jbid.) Moreover, Plaintiff did not just rest on the presumption, but also presented additional support in the form of: (i) a survey of hourly rates for NN well-known consumer attorneys in the state (Declaration of Steve Mikhov in Support of Plaintiff's OOH Motion for Attorney’s Fees, Costs and Expenses (“SM Dec.”), § 37); (ii)over one dozen court orders evidencing how Co Placer (and neighboring) County courts and those in neighboring counties have consistently awarded allor significantly all of the fees requested by Plaintiff's counsel (SM Dec., 38-53, Exs. D-S); and (iii)a National Survey further supporting the reasonableness of the hourly NO Ree rates. (BCA Dec., § 12, Ex. B, atpp. 42-45.) Ww With regard to the fees incurred in this matter, itisHMA’s burden to rebut Plaintiff's prima ee facie showing of fees necessarily and reasonably incurred, not merely by objecting to specific time Dn entries, but by supporting those objections with competent evidence. HMA fails tocarry itsburden. Cc. Plaintiff's Attorneys’ Hourly Rates Are Reasonable Under the Lodestar Method FN The United States Supreme Court stated, “awards in similar cases” is one of twelve factors DOD to be considered when determining an appropriate rate. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429-430.) “Affidavits of the Plaintiffs attorney and other attorneys regarding prevailing fees inthe CO community, and rate determinations in other cases, particularly those setting a rate for the Plaintiff s RO F|& attorney, are satisfactory evidence of the prevailing market rate.” (United Steelworkers ofAm. v. YO Nn Phelps Dodge Corp. (9th Cir. 1990) 896 F.2d 403, 407.) Plaintiff offers ample evidence of this type. Ww NY Plaintiff's counsel, Knight Law, has developed effective and efficient litigation strategies NY FF that generate extremely positive outcomes for itsclients. Knight Law is unlike any other lemon law OA NY firm. While most other firms will accept settlements for the amount of the purchase price of the Dn NY vehicle, Knight Law seeks to protect consumers by pursuing civil penalties against manufacturers. NY A Instead of settling for a quick buck, Knight Law actively litigates these cases: obtaining Oo NO 5 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES comprehensive discovery, traveling for depositions if needed, and engaging in successful motion practice. Asa result of the number of lemon law cases ithas taken NO on—and won—Knight Law has significant experience in lemon law cases. Plaintiff's attorneys are also familiar with the defense WD strategies of the car manufacturers, including HMA. This specialized knowledge and experience Fe resulted inPlaintiff receiving arecovery that was inclusive of a full statutory “buyback” of Plaintiff's DO defective vehicle. Knight Law’s knowledge, expertise and skill are reflected in the rates the firm charges. YN Plaintiff provided ample, directly relevant evidence supporting the reasonableness of the OH hourly rates requested, including multiple orders from a variety of California state courts showing So the requested hourly rates have consistently been awarded. These orders come from a variety of CO venues over a longer arc of time, and HMA does nothing to rebut. HMA’s suggestion that Plaintiff's KF Ee counsel’s rates are unreasonably high also ignores Song-Beverly Act precedent. In Goglin v.BMW NY of North America, LLC, for instance, the appellate court held $180,000 in attorney’s fees, at a rate WY EE of $575 per hour, was not unreasonable for a plaintiff's attorney in a lemon law matter. (Goglin v. FSF KE BMW of North America, LLC (2016) 4 Cal.App.5th, 462, 473-474. Absent contrary evidence from KE Dn HMA, the Court can accept Plaintiff's declaration as conclusive, unrebutted evidence of the Re reasonableness of the requested rates. RR HN D. The Hours Billed For the Work Performed Are Reasonable Om Because Plaintiff is expressly the prevailing party, she is entitled to recover reasonable OU Om CDT attorneys’ fees and litigation costs under the Song-Beverly Act. (Civ. Code § 1794(d); Civ. Code § 1780(e); Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) Absent a showing NO KF of “special circumstances” that would render an award unjust, a prevailing party’s attorney’s time NO NY spent and hourly rate are presumed to be reasonable. (Serrano v. Unruh (1982) 32 Cal.3d 621, NO Ww 639). HMA’s Opposition does not inany event demonstrate such “special circumstances.” fF NO 1) Reasonable Billing with the Use of Form Documents NO Dn In keeping with itscynical and insulting theme, HMA repeatedly accuses Plaintiff's counsel NO of producing only “copy-paste” work product. (Opposition, 10:2.) The notion HMA seems to NO A promote — that anything other than “starting from scratch” is something lessthan “drafting” — isout oa DO 6 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES of touch with the realities of litigation. Like all successful litigation firms, Knight Law achieves efficiency as well as efficacy by starting with templates of pleadings and discovery proven successful YO in past cases, then tailoring them extensively to fitthe specific facts of the case. HMA, which does Ww the same, knows that even with templates, no two lemon law cases are alike. Like HMA, Plaintiff's ee counsel may use similar forms and arguments, but the forms and arguments must be thoroughly OW modified in myriad ways to fit each individual case. This strategy does not increase Plaintiff's DD litigation costs — itreduces them. Further, while HMA may not have required itsattorneys to prepare ON and review each pleading, discovery request or response it sent out inthis case, Plaintiff's counsel does perform the necessary review and modification of each document to meet its obligation to its (Oo client. Plaintiff's counsel does not delegate attorney work to secretaries or paralegals but also does oO ee not bill for secretarial or paralegal time. This strategy should be rewarded, not castigated. HMA’s companion argument — that Plaintiff's attorneys engage in the practice known as YO mmm “value-billing” (Opposition, 12:8) — is equally unavailing. Plaintiff's counsel submitted detailed WD invoices reflecting the actual hours worked for each task performed in connection with Plaintiff's ee litigation, and HMA offers no evidence to the contrary. In making this argument, HMA tells the DBO Court how littletime HMA’s attorneys spent performing certain tasks, but HMA does not produce itsbilling invoices or other documentary support, so these claims should be disregarded. FH NY 2) The Use of Multiple Attorneys is Both Reasonable and Efficient HMA complains of “gross overstaffing” (Opposition, 11:15) because, by itscount, a total of ODO twenty (20) different lawyers assumed professional responsibility for some aspect of Plaintiff's case. DD NO Case law recognizes that multiple attorneys can be problematic if and only if there is “over- F|& NRO conferencing, attorney stacking (multiple attorneys at court functions), and excessive research.” NY KN (Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.) This was not the case here. To the WD KN contrary, each task performed was done in less time than if one attorney performed all of them as FF NO the various attorneys performed tasks that they specialize in and have become experts in. Knight NO Dn Law’s strategy of having different, specialized attorneys work on different aspects of the case NO actually results in efficiency and efficacy. For instance, some attorneys specialize indrafting written NO aN discovery requests while others in responding to written discovery requests. This particularized NO 7 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES knowledge results in minimal time spent for each attorney to review the file and learn the relevant NSN facts of the case, while substantial time issaved from having to switch gears to become familiar with oolUNUlClCUCUCOOOM ea procedural rules and specific issues of each phase of the case. The firm’s strategy also places the bulk of the work on younger attorneys with senior attorneys providing supervision and litigation strategy. As part of this strategy, Mr. Mikhov, as the De senior attorney inthe practice, must be familiar with the pleadings, discovery, and motions to provide strategic direction in how they should be handled. For this reason, Mr. Mikhov must spend a reasonable number of hours reviewing various pleadings, discovery, motions, and correspondence in each case. The majority of the hours incurred in Mr. Mikhov’s entries include time billed not just to review, but also to communicate with the client on numerous dates and communicate with younger attorneys to give them direction in responding to Defendant’s pleadings or motions and ensure the case ismoving forward per overall strategy. Mr. Mikhov’s minimal time billed here ismore than NYO Se compensated by the cost-savings of using younger, lower-billing attorneys to perform the bulk of = W the work, thereby reducing Plaintiffs bill. FF KS E. Tahsildoost Declaration Exhibits “A” and “B” are Impermissible Argument | DN As noted above, HMA skirts the mandatory page-limit rules by attaching sixty-eight (68) FF pages of additional argument disguised as “Exhibits A and B” to the Declaration of Soheyl FF FN Tahsildoost. Declarations are meant to attestto fact and are not intended to supplement Opposition F— argument without leave of court to add more, yet this is exactly what Tahsildoost Declaration OD | Exhibits A and B do. These arguments, like the Opposition generally, should be ignored. DOD NO To summarize the additional arguments, HMA wishes Plaintiff's counsel would divulge F& NN information protected by attorney-client privilege by telling HMA exactly what was discussed NY ND during each client communication, and HMA believes every task performed should have been Ww ND performed more quickly, and by someone less senior, than it was. HMA’s firstobjection to alleged fF NO billing abuses, for example, complains because managing partner Steve Mikhov himself handled the wn NB initialevaluation of Plaintiff's claim. HMA’s remaining “wish list” of proposed reductions, which NO AD add impermissibly to the length of HMA’s Opposition, are similarly devoid of merit. HMA, of NO course, refuses to show the Court itsown bills for comparison, likely because HMA’s argument ao NY 8 PLAINTIFF’S REPLY ISO MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES would not withstand such a comparison. — HMA also claims that TALG’s practice of billing in quarter-hour increments was improper NYO but fails to rebut the presumption of credibility for these entries. While quarter-hour billing might WY not be the industry standard, itis by no means impermissible. TALG, as isstandard practice, will FF either round up or round down, depending upon the actual time a task takes. HMA fails to provide nO DBD any evidence of specific instances in which TALG’s quarter-hour billing was unreasonable. Further, HMA’s citation to the Welch case, a federal case, not a state case, contorts what the case actually NI says. The district court ruled that quarter-hour increments were improper under the extreme Fe circumstances of that case where the attorney was apparently incompetent. The appellate court So merely stated it would not disturb the lower court's finding and the quoted portion in HMA’s CO Opposition issimply stating what the lower court observed. Welch does not say that quarter-hour KF increments are unreasonable. NY F. A Multiplier is Justified in This Case Ww This is a rare and exceptional case where a wronged consumer fought back against the car FF manufacturer and achieved a significant settlement. While there has been an increase in the number DH of lemon law cases brought before the courts, these cases stillrepresent a tiny fraction of consumers who suffer through defective vehicle problems. The fact remains that a shocking number of HMA’s FN customers, like Plaintiff here, purchased or leased defective vehicles. When those consumers seek help from the auto manufacturers for theirdefective vehicles, the manufacturers uniformly refuse to OU comply with their legal obligations. Itis only as the result of the efforts of counsel such as Knight TD Law that consumers have begun recovering what they are entitled to. KF Plaintiff's counsel was required to perform an enormous amount of work in this case and Nn ultimately tried it to conclusion, winning an award that recognized HMA’s error in determining the Ww Subject Vehicle to be a lemon even though HMA fought for three (3) years to prove otherwise. FF Plaintiff's counsel undertook this case on a contingent-basis, knowing that Plaintiff's buyback DH request had been inadequately handled, knowing that HMA, with unlimited resources, would assume its customary posture of denial and display itscustomary attitude of dismissiveness, risking the oN ability to recover any fees and expenses if Plaintiff did not prevail and facing certain delays in the 9 PLAINTIFF’S