Preview
1 SPENCER P. HUGRET (SBN 240424)
shugret@grsm.com
2 AMY MACLEAR (SBN 215638)
amaclear@grsm.com
3 KATHERINE P. VILCHEZ (SBN 212179)
kvilchez@grsm.com
4 HAILEY M. ROGERSON (SBN 311918) 2/2/2021
hrogerson@grsm.com
5 GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
6 San Francisco, CA 94111
Telephone: (415) 986-5900
7 Facsimile: (415) 986-8054
8 Attorneys for Defendant
FORD MOTOR COMPANY
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SAN MATEO
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
DAVID FERGUS TAGGART and MICHELE ) Case No. CIV538275
13 TAGGART, ) Unlimited Jurisdiction
)
14 Plaintiffs, ) DEFENDANT FORD MOTOR
) COMPANY’S RESPONSE TO
15 vs. ) PLAINTIFFS’ EVIDENTIARY
) OBJECTIONS TO THE DECLARATION
16 FORD MOTOR COMPANY, a Delaware ) OF JOHN SHEA PIERCE
Corporation, and DOES 1 through 10, )
17 inclusive, ) [Served concurrently with Ford’s Reply, the
) Declaration of Katherine P. Vilchez; and the
18 Defendants. ) Objections to the Declarations of Erin K.
) Barnes, Steve Mikhov and Jessica
19 ) Underwood]
)
20 ) Date: February 9, 2021
) Time: 2:00 p.m.
21 ) Dept.: 4
)
22 ) Complaint Filed: April 20, 2016
)
23 )
)
24 )
)
25
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28
-1-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1 TO THIS HONORABLE COURT, PLAINTIFFS, AND THEIR ATTORNEYS
2 OF RECORD:
3 Defendant FORD MOTOR COMPANY (“Ford”) hereby submits its responses to
4 Plaintiffs DAVID FERGUS TAGGART and MICHELLE TAGGART’s (“Plaintiffs”)
5 Evidentiary Objections to the Declaration of John Shea Pierce filed in Support of Ford’s
6 Motion to Strike/Tax Plaintiffs’ Memorandum of Costs and filed in Support of Ford’s
7 Opposition to Plaintiffs’ [Third] Motion for Attorneys; Fees, Costs and Expenses.
Obj.
8 RESPONSES
No.
9
1. Plaintiffs’ Objections:
10
Relevance, Evid. 201:
11
Gordon Rees Scully Mansukhani, LLP
Evidence is relevant if it has any tendency to make a fact more or less probable than it
275 Battery Street, Suite 2000
12 would be without the evidence and the fact is of consequence in determining the action.
San Francisco, CA 94111
Evid Code §201. Mr. Pierce’s opinions do not make any fact more or less probable.
13
Rather, they usurp the Court’s role in determining if the fees incurred are reasonable and
14 recoverable.
15 Mr. Cagawan’s declaration is legally irrelevant, should be stricken and disregarded.
16 Ford’s Responses to Objection No. 1.
17
Mr. Pierce’s testimony is directly relevant to whether Plaintiffs’ fees were “reasonably
18 necessary to the conduct of the litigation.” (Nightingale v. Hyundai Motor America
(1994) 31 Cal.App.4th 99, 152 [Plaintiffs are required to establish, their fees are
19 reasonable in amount and reasonably necessary to the conduct of the litigation].) Ford
contends that a vast majority of fees were incurred as a result of improper billing
20 practices (i.e., excessive staffing, “unit billing,” billing for clerical tasks, and excessive
travel). Mr. Pierce provides the Court with a foundational blocks necessary to support
21
these contentions. That is, Mr. Pierce personally reviewed the time and billing entries
22 of each of attorney and conducted a reasonableness analysis to determine if the
attorneys exercised reasonable billing judgment.
23
Moreover, Ford contends that the Court should greatly reduce Plaintiffs’ request for
24 attorney’s fees based upon on the high hourly rates. A “reasonable” hourly rate is the
prevailing rate charged by attorneys of similar skill and experience in the relevant
25
community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
26 Specifically, Plaintiffs’ counsel may only refer to non-contingent rates of attorneys that
practice the same area of law in the same county. (Ketchum v. Moses (2001) 24 Cal.4th
27 1122, 1129 [“The lodestar was based on the market rate for comparable legal services
in a noncontingent matter”].) Here, Plaintiffs offer no evidence as to the reasonable
28 hourly rates in San Mateo County for these cases. Again, Mr. Pierce provides the
-2-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1 Court with a foundational block necessary to support Ford’s contention that Plaintiff’s
hourly rates are excessive. Further, he proposes significant hourly deductions in line
2 with recent court orders and the market for comparable legal services.
3
Court’s Ruling:
4
Sustained: _______________ Overruled: __________________
5
2. Plaintiffs’ Objections:
6
7 CRC 3.1113(d)
8 California Rule of Court Rule 3.113(d) states: “Except in a summary judgment or
summary adjudication motion, no opening or responding memorandum may exceed 15
9 pages.” Mr. Pierce’s ninety-eight (98) page declaration (including exhibits) contains
nothing but legal citations, analysis, and conclusions. It is additional argument in blatant
10
violation of CRC 3.1113(d).
11
Gordon Rees Scully Mansukhani, LLP
Ford’s Responses to Objection No. 2.
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
California Rule of Court 3.1113(d) states that “[t]he page limit does not include the
13 caption page, the notice of motion and motion, exhibits, declarations, attachments, the
14 table of contents, the table of authorities, or the proof of service.” (Emphasis added.)
Moreover, the statements made by Mr. Pierce’s declaration are facts and do not
15 constitute legal analysis.
16 Additionally, Plaintiffs’ objection is clearly disingenuous. Contrary to Plaintiffs’
assertions, Mr. Pierce’s declaration is only 16-pages, with 80-pages of exhibits. In
17 support of Plaintiffs’ [Third] Motion for Attorney’s Fees, Costs and Expenses, Mr.
18 Mikhov submitted a declaration that was 23-pages in length, with an additional 206-
pages of exhibits. As such, Plaintiffs’ objection is specious.
19
Court’s Ruling:
20
Sustained: _______________ Overruled: __________________
21
22 3. Plaintiffs’ Objections:
23 Evidence 702:
24 Reliable expert testimony must be grounded in the methods and procedures of science and
signify something beyond “subjective belief or unsupported speculation.” Daubert v.
25 Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). The inferences or assertions drawn
by the expert must be derived by the scientific method. Id.; see also Jinro Am. Inc., v.
26 Secure Incs. Inc., 266 F.3d 993, 1005 (9th Cir. 2002) (unsupported speculation is not a
27 proper subject of exert testimony). see also Kennedy v. Collagen Corp., 161 F.3d 1226,
1228 (9th Cir. 1998) (a court may reject an expert’s opinion any time “the analytical gap
28 between the data and the expert’s conclusion is too great.”)
-3-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1
Mr. Pierce cites to no evidence of reasonable attorney’s fee rates in Song Beverley
2 Act cases and/or cases in San Mateo specifically. His listing of Expert Trial and
3 Deposition Testimony reveals that he has never opined in a Song Beverly Act case before.
His CV shows he has no relevant experience on which to rely. All he did was review the
4 moving papers and offer his opinion on how this Court should rule. Furthermore, Mr.
Pierce’s experience evaluating fees in non-Song Beverley Act cases is irrelevant. In Song
5 Beverly Act cases, the court is expressly not permitted to compare the amount recovered
by the plaintiff to the fees incurred to achieve that recovery. (Graciano, supra, 144
6 Cal.App.4th at 164.) In fact, in Warren v. Kia Motors America, Inc. (2018) 2018 WL
7 6520889, which was decided on December 12, 2018, the California Court of Appeals
held unequivocally that “it is inappropriate and an abuse of a trial court’s discretion to tie
8 an attorney fee award to the amount of the prevailing buyer/plaintiff’s damages or
recovery in a Song-Beverly Act action...” (at *7.) In fact, the very purpose of the fee
9 shifting provision in the Song Beverley Act is to remove the hindrance of payment from
consumers’ consideration of whether to bring a lawsuit. The legislature recognized that
10
California consumers with relatively small damage calculations are no less entitled to
11 highly qualified attorneys litigating aggressively to achieve the best possible results for
Gordon Rees Scully Mansukhani, LLP
their clients. Mr. Pierce’s analysis of Rule 1.5 and “unconscionability” is irrelevant. The
275 Battery Street, Suite 2000
12 client is not the one paying these fees, Ford is.
San Francisco, CA 94111
13 An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an
ultimate issue of law. E.g., McHugh v. United Serv. Auto. Ass'n, 164 F.3d 451, 454 (9th
14
Cir.1999); United States v. Duncan, 42 F.3d 97, 101 (2d Cir.1994) ("When an expert
15 undertakes to tell the jury what result to reach, this does not aid the jury in making a
decision, but rather attempts to substitute the expert's judgment for the jury's.") (emphasis
16 in original). See Elsayed Mukhtar v. California State Univ., Hayward (9th Cir. 2002) 299
F.3d 1053, 1066 amended sub nom. Mukhtar v. California State Univ., Hayward (9th Cir.
17 2003) 319 F.3d 1073; See also, Mako v. Burlington N. & Santa Fe R.R., (W.D. Wash.
Feb. 12, 2009) 2009 WL 364979 (excluding expert testimony concluding a railroad
18
crossing was unsafe); Maffei v. N. Ins. Co. of New York (9th Cir. 1993) 12 F.3d 892, 898-
19 99 (excluding an expert's opinion that a vapor cloud constituted a hostile fire); U.S. v.
Scholl (9th Cir.1999) 166 F.3d 964, 973(finding that testimony concerning the
20 reasonableness of defendant's belief that he could net out wins and losses was legal
conclusion inappropriate for expert testimony); Aguilar v. International Longshoremen's
21 Union, Local # 10 (9th Cir.1992) 966 F.2d 443, 447 (finding expert testimony that
workers reasonably and foreseeably relied on defendants' promises addressed "matters
22
of law for the court's determination" that were "inappropriate subjects for expert
23 testimony"). Mr. Cagawan’s legal opinions invade the province of this Court and should
be disregarded. The rationale is that such opinions on questions of law interferes with
24 the judge's role as the "sole arbiter of the law." Pinal Creek Group v. Newmont Mining
Corp. (D.Ariz.2005) 352 F.Supp.2d 1037, 1043 (quoting Wollan v. U.S. Department of
25 the Interior, Bureau of Land Management (D.Colo.1998) 997 F.Supp. 1397, 1403). In
26 addition, courts have prohibited expert opinion that applies the law to the facts, as this
usurps the role of the jury, or in this case, the judge. See Marx & Co. v. Diners' Club,
27 Inc.(2d Cir.1977) 550 F.2d 505, 50811. In Marx, the expert construed the contract at
issue in the case and repeatedly gave his conclusions as to the legal significance of
28 various facts adduced at trial. He testified as to what the defendant "should have" done
-4-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1 to fulfill its contractual obligation and that there were no legal excuses for
nonperformance. See Marx, 550 F.2d at 510. The court concluded that this expert
2 testimony was improper and superfluous, stating, "[t]he admission of such testimony
3 would give the appearance that the court was shifting to the witnesses the responsibility
to decide the case. It is for the jury to evaluate the facts in the light of the applicable rules
4 of law, and it is therefore erroneous for a witness to state his opinion on the law of the
forum." Id. In Pinal Creek, the court excluded the expert reports of law professors where
5 such reports "offer[ed] nothing other than a discussion of the law and an application of
the law. The report reads more like a legal brief than an expert report." Pinal Creek, 352
6 F.Supp.2d at 1044.
7
Mr. Pierce’s declaration is not a proper expert opinion and itshould be stricken and
8 disregarded.
9 Ford’s Responses to Objection No. 3.
10 Mr. Pierce offers foundation with regard to his knowledge and expertise in reasonable
11 and necessary legal billing, including both his educational and professional
Gordon Rees Scully Mansukhani, LLP
experiences, such as his membership on the Advisory Sub-Committee of the California
State Bar Committee on Professional Responsibility and Conduct, as well as the
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
Council for Litigation Management and Ethical Billing. (Pierce Decl., ¶¶ 2-5.) He has
13 established competent testimony to opine as a legal billing expert based upon his
established proficiency of the applicable rules of professional responsibility, other
14 precedents bearing on the reasonableness of attorneys’ fees, and the custom and
15 practice within the legal community.
16 Court’s Ruling:
17 Sustained: _______________ Overruled: __________________
18
4. Plaintiffs’ Objections:
19
To Declaration of John Shea Pierce ¶ 25 and Exhibit H:
20
a. Foundation. Mr. Pierce cannot authenticate this order.
21
b. Relevance. This order is just a trial court opinion, not binding
22 authority. It is just one order which can be and is contradicted by the
23 numerous orders submitted by Plaintiffs.
24
Ford’s Response to Objection No. 4.
25
Mr. Pierce is stating a fact after his review of the U.S. District Court’s order in Pedante
26 v. Ford Motor Co., issued on August 13, 2020. This is relevant to the Court’s analysis
as to whether the hourly rates charged by Plaintiffs’ counsel are reasonable. (PLCM
27
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [A “reasonable” hourly rate is the
28
-5-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1 prevailing rate charged by attorneys of similar skill and experience in the relevant
community].)
2
Court’s Ruling:
3
Sustained: _______________ Overruled: __________________
4
5
6 Dated: February 2, 2021 GORDON REES SCULLY MANSUKHANI, LLP
7
8 By: __________________________
Spencer P. Hugret
9 Amy Maclear
Katherine P. Vilchez
10 Hailey M. Rogerson
Attorneys for Defendant
11 FORD MOTOR COMPANY
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
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-6-
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JOHN SHEA PIERCE
1 PROOF OF SERVICE
David Fergus Taggart, et al. v. Ford Motor Company, et al.
2 San Mateo County Superior Court, Case No. CIV538275
3 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is Gordon Rees Scully Mansukhani, LLP, 275
4 Battery Street, Suite 2000, San Francisco, CA 94111. On the date below, I served the within
documents:
5
DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’
6 EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE
7 by transmitting VIA ELECTRONIC MAIL the document listed above to the email
8 address set forth below on this date before 5:00 p.m. per agreement of the parties.
9
10 Steve Mikhov, Esq. Bryan C. Altman, Esq.
Amy Morse, Esq. THE ALTMAN LAW GROUP
11 Roger Kirnos, Esq. 10250 Constellation Blvd., Ste. 2500
Gordon Rees Scully Mansukhani, LLP
Deepak Devabose, Esq. Los Angeles, CA 90067
KNIGHT LAW GROUP, LLP Tel: (310) 277-8481
275 Battery Street, Suite 2000
12
10250 Constellation Blvd. #2500 Fax: (310) 277-8483
San Francisco, CA 94111
13 Los Angeles, CA 90067 Email: bryan@altmanlawgroup.net
Tel: (310) 552-2250
14 Fax: (310) 552-7973 Attorney for Plaintiffs
Email: stevem@knightlaw.com Richard M. Wirtz, Esq.
15 Email: amym@knightlaw.com Amy R. Rotman, Esq.
Email: rogerk@knightlaw.com WIRTZ LAW APC
16 Email: deepakd@knightlaw.com 4370 La Jolla Village Drive, Suite 800
Email: emailservice@knightlaw.com San Diego, CA 92122
17 Tel.: (858) 259-5009
Attorneys for Plaintiffs Email: rwirtz@wirtzlaw.com
18 Email: arotman@wirtzlaw.com
19
I declare under penalty of perjury under the laws of the State of California that the
20 above is true and correct.
21 Executed on February 2, 2021, at San Francisco, California.
22
23
Jesica Cortez
24
25
26
27
28
1118939/56245440v.1
PROOF OF SERVICE
Preview
1 SPENCER P. HUGRET (SBN 240424) shugret@grsm.com 2 AMY MACLEAR (SBN 215638) amaclear@grsm.com 3 KATHERINE P. VILCHEZ (SBN 212179) kvilchez@grsm.com 4 HAILEY M. ROGERSON (SBN 311918) 2/2/2021 hrogerson@grsm.com 5 GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 6 San Francisco, CA 94111 Telephone: (415) 986-5900 7 Facsimile: (415) 986-8054 8 Attorneys for Defendant FORD MOTOR COMPANY 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN MATEO Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 DAVID FERGUS TAGGART and MICHELE ) Case No. CIV538275 13 TAGGART, ) Unlimited Jurisdiction ) 14 Plaintiffs, ) DEFENDANT FORD MOTOR ) COMPANY’S RESPONSE TO 15 vs. ) PLAINTIFFS’ EVIDENTIARY ) OBJECTIONS TO THE DECLARATION 16 FORD MOTOR COMPANY, a Delaware ) OF JOHN SHEA PIERCE Corporation, and DOES 1 through 10, ) 17 inclusive, ) [Served concurrently with Ford’s Reply, the ) Declaration of Katherine P. Vilchez; and the 18 Defendants. ) Objections to the Declarations of Erin K. ) Barnes, Steve Mikhov and Jessica 19 ) Underwood] ) 20 ) Date: February 9, 2021 ) Time: 2:00 p.m. 21 ) Dept.: 4 ) 22 ) Complaint Filed: April 20, 2016 ) 23 ) ) 24 ) ) 25 26 27 28 -1- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 TO THIS HONORABLE COURT, PLAINTIFFS, AND THEIR ATTORNEYS 2 OF RECORD: 3 Defendant FORD MOTOR COMPANY (“Ford”) hereby submits its responses to 4 Plaintiffs DAVID FERGUS TAGGART and MICHELLE TAGGART’s (“Plaintiffs”) 5 Evidentiary Objections to the Declaration of John Shea Pierce filed in Support of Ford’s 6 Motion to Strike/Tax Plaintiffs’ Memorandum of Costs and filed in Support of Ford’s 7 Opposition to Plaintiffs’ [Third] Motion for Attorneys; Fees, Costs and Expenses. Obj. 8 RESPONSES No. 9 1. Plaintiffs’ Objections: 10 Relevance, Evid. 201: 11 Gordon Rees Scully Mansukhani, LLP Evidence is relevant if it has any tendency to make a fact more or less probable than it 275 Battery Street, Suite 2000 12 would be without the evidence and the fact is of consequence in determining the action. San Francisco, CA 94111 Evid Code §201. Mr. Pierce’s opinions do not make any fact more or less probable. 13 Rather, they usurp the Court’s role in determining if the fees incurred are reasonable and 14 recoverable. 15 Mr. Cagawan’s declaration is legally irrelevant, should be stricken and disregarded. 16 Ford’s Responses to Objection No. 1. 17 Mr. Pierce’s testimony is directly relevant to whether Plaintiffs’ fees were “reasonably 18 necessary to the conduct of the litigation.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 152 [Plaintiffs are required to establish, their fees are 19 reasonable in amount and reasonably necessary to the conduct of the litigation].) Ford contends that a vast majority of fees were incurred as a result of improper billing 20 practices (i.e., excessive staffing, “unit billing,” billing for clerical tasks, and excessive travel). Mr. Pierce provides the Court with a foundational blocks necessary to support 21 these contentions. That is, Mr. Pierce personally reviewed the time and billing entries 22 of each of attorney and conducted a reasonableness analysis to determine if the attorneys exercised reasonable billing judgment. 23 Moreover, Ford contends that the Court should greatly reduce Plaintiffs’ request for 24 attorney’s fees based upon on the high hourly rates. A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant 25 community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) 26 Specifically, Plaintiffs’ counsel may only refer to non-contingent rates of attorneys that practice the same area of law in the same county. (Ketchum v. Moses (2001) 24 Cal.4th 27 1122, 1129 [“The lodestar was based on the market rate for comparable legal services in a noncontingent matter”].) Here, Plaintiffs offer no evidence as to the reasonable 28 hourly rates in San Mateo County for these cases. Again, Mr. Pierce provides the -2- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 Court with a foundational block necessary to support Ford’s contention that Plaintiff’s hourly rates are excessive. Further, he proposes significant hourly deductions in line 2 with recent court orders and the market for comparable legal services. 3 Court’s Ruling: 4 Sustained: _______________ Overruled: __________________ 5 2. Plaintiffs’ Objections: 6 7 CRC 3.1113(d) 8 California Rule of Court Rule 3.113(d) states: “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 9 pages.” Mr. Pierce’s ninety-eight (98) page declaration (including exhibits) contains nothing but legal citations, analysis, and conclusions. It is additional argument in blatant 10 violation of CRC 3.1113(d). 11 Gordon Rees Scully Mansukhani, LLP Ford’s Responses to Objection No. 2. 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 California Rule of Court 3.1113(d) states that “[t]he page limit does not include the 13 caption page, the notice of motion and motion, exhibits, declarations, attachments, the 14 table of contents, the table of authorities, or the proof of service.” (Emphasis added.) Moreover, the statements made by Mr. Pierce’s declaration are facts and do not 15 constitute legal analysis. 16 Additionally, Plaintiffs’ objection is clearly disingenuous. Contrary to Plaintiffs’ assertions, Mr. Pierce’s declaration is only 16-pages, with 80-pages of exhibits. In 17 support of Plaintiffs’ [Third] Motion for Attorney’s Fees, Costs and Expenses, Mr. 18 Mikhov submitted a declaration that was 23-pages in length, with an additional 206- pages of exhibits. As such, Plaintiffs’ objection is specious. 19 Court’s Ruling: 20 Sustained: _______________ Overruled: __________________ 21 22 3. Plaintiffs’ Objections: 23 Evidence 702: 24 Reliable expert testimony must be grounded in the methods and procedures of science and signify something beyond “subjective belief or unsupported speculation.” Daubert v. 25 Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). The inferences or assertions drawn by the expert must be derived by the scientific method. Id.; see also Jinro Am. Inc., v. 26 Secure Incs. Inc., 266 F.3d 993, 1005 (9th Cir. 2002) (unsupported speculation is not a 27 proper subject of exert testimony). see also Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998) (a court may reject an expert’s opinion any time “the analytical gap 28 between the data and the expert’s conclusion is too great.”) -3- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 Mr. Pierce cites to no evidence of reasonable attorney’s fee rates in Song Beverley 2 Act cases and/or cases in San Mateo specifically. His listing of Expert Trial and 3 Deposition Testimony reveals that he has never opined in a Song Beverly Act case before. His CV shows he has no relevant experience on which to rely. All he did was review the 4 moving papers and offer his opinion on how this Court should rule. Furthermore, Mr. Pierce’s experience evaluating fees in non-Song Beverley Act cases is irrelevant. In Song 5 Beverly Act cases, the court is expressly not permitted to compare the amount recovered by the plaintiff to the fees incurred to achieve that recovery. (Graciano, supra, 144 6 Cal.App.4th at 164.) In fact, in Warren v. Kia Motors America, Inc. (2018) 2018 WL 7 6520889, which was decided on December 12, 2018, the California Court of Appeals held unequivocally that “it is inappropriate and an abuse of a trial court’s discretion to tie 8 an attorney fee award to the amount of the prevailing buyer/plaintiff’s damages or recovery in a Song-Beverly Act action...” (at *7.) In fact, the very purpose of the fee 9 shifting provision in the Song Beverley Act is to remove the hindrance of payment from consumers’ consideration of whether to bring a lawsuit. The legislature recognized that 10 California consumers with relatively small damage calculations are no less entitled to 11 highly qualified attorneys litigating aggressively to achieve the best possible results for Gordon Rees Scully Mansukhani, LLP their clients. Mr. Pierce’s analysis of Rule 1.5 and “unconscionability” is irrelevant. The 275 Battery Street, Suite 2000 12 client is not the one paying these fees, Ford is. San Francisco, CA 94111 13 An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. E.g., McHugh v. United Serv. Auto. Ass'n, 164 F.3d 451, 454 (9th 14 Cir.1999); United States v. Duncan, 42 F.3d 97, 101 (2d Cir.1994) ("When an expert 15 undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's.") (emphasis 16 in original). See Elsayed Mukhtar v. California State Univ., Hayward (9th Cir. 2002) 299 F.3d 1053, 1066 amended sub nom. Mukhtar v. California State Univ., Hayward (9th Cir. 17 2003) 319 F.3d 1073; See also, Mako v. Burlington N. & Santa Fe R.R., (W.D. Wash. Feb. 12, 2009) 2009 WL 364979 (excluding expert testimony concluding a railroad 18 crossing was unsafe); Maffei v. N. Ins. Co. of New York (9th Cir. 1993) 12 F.3d 892, 898- 19 99 (excluding an expert's opinion that a vapor cloud constituted a hostile fire); U.S. v. Scholl (9th Cir.1999) 166 F.3d 964, 973(finding that testimony concerning the 20 reasonableness of defendant's belief that he could net out wins and losses was legal conclusion inappropriate for expert testimony); Aguilar v. International Longshoremen's 21 Union, Local # 10 (9th Cir.1992) 966 F.2d 443, 447 (finding expert testimony that workers reasonably and foreseeably relied on defendants' promises addressed "matters 22 of law for the court's determination" that were "inappropriate subjects for expert 23 testimony"). Mr. Cagawan’s legal opinions invade the province of this Court and should be disregarded. The rationale is that such opinions on questions of law interferes with 24 the judge's role as the "sole arbiter of the law." Pinal Creek Group v. Newmont Mining Corp. (D.Ariz.2005) 352 F.Supp.2d 1037, 1043 (quoting Wollan v. U.S. Department of 25 the Interior, Bureau of Land Management (D.Colo.1998) 997 F.Supp. 1397, 1403). In 26 addition, courts have prohibited expert opinion that applies the law to the facts, as this usurps the role of the jury, or in this case, the judge. See Marx & Co. v. Diners' Club, 27 Inc.(2d Cir.1977) 550 F.2d 505, 50811. In Marx, the expert construed the contract at issue in the case and repeatedly gave his conclusions as to the legal significance of 28 various facts adduced at trial. He testified as to what the defendant "should have" done -4- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 to fulfill its contractual obligation and that there were no legal excuses for nonperformance. See Marx, 550 F.2d at 510. The court concluded that this expert 2 testimony was improper and superfluous, stating, "[t]he admission of such testimony 3 would give the appearance that the court was shifting to the witnesses the responsibility to decide the case. It is for the jury to evaluate the facts in the light of the applicable rules 4 of law, and it is therefore erroneous for a witness to state his opinion on the law of the forum." Id. In Pinal Creek, the court excluded the expert reports of law professors where 5 such reports "offer[ed] nothing other than a discussion of the law and an application of the law. The report reads more like a legal brief than an expert report." Pinal Creek, 352 6 F.Supp.2d at 1044. 7 Mr. Pierce’s declaration is not a proper expert opinion and itshould be stricken and 8 disregarded. 9 Ford’s Responses to Objection No. 3. 10 Mr. Pierce offers foundation with regard to his knowledge and expertise in reasonable 11 and necessary legal billing, including both his educational and professional Gordon Rees Scully Mansukhani, LLP experiences, such as his membership on the Advisory Sub-Committee of the California State Bar Committee on Professional Responsibility and Conduct, as well as the 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 Council for Litigation Management and Ethical Billing. (Pierce Decl., ¶¶ 2-5.) He has 13 established competent testimony to opine as a legal billing expert based upon his established proficiency of the applicable rules of professional responsibility, other 14 precedents bearing on the reasonableness of attorneys’ fees, and the custom and 15 practice within the legal community. 16 Court’s Ruling: 17 Sustained: _______________ Overruled: __________________ 18 4. Plaintiffs’ Objections: 19 To Declaration of John Shea Pierce ¶ 25 and Exhibit H: 20 a. Foundation. Mr. Pierce cannot authenticate this order. 21 b. Relevance. This order is just a trial court opinion, not binding 22 authority. It is just one order which can be and is contradicted by the 23 numerous orders submitted by Plaintiffs. 24 Ford’s Response to Objection No. 4. 25 Mr. Pierce is stating a fact after his review of the U.S. District Court’s order in Pedante 26 v. Ford Motor Co., issued on August 13, 2020. This is relevant to the Court’s analysis as to whether the hourly rates charged by Plaintiffs’ counsel are reasonable. (PLCM 27 Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [A “reasonable” hourly rate is the 28 -5- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 prevailing rate charged by attorneys of similar skill and experience in the relevant community].) 2 Court’s Ruling: 3 Sustained: _______________ Overruled: __________________ 4 5 6 Dated: February 2, 2021 GORDON REES SCULLY MANSUKHANI, LLP 7 8 By: __________________________ Spencer P. Hugret 9 Amy Maclear Katherine P. Vilchez 10 Hailey M. Rogerson Attorneys for Defendant 11 FORD MOTOR COMPANY Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 San Francisco, CA 94111 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 1 PROOF OF SERVICE David Fergus Taggart, et al. v. Ford Motor Company, et al. 2 San Mateo County Superior Court, Case No. CIV538275 3 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Gordon Rees Scully Mansukhani, LLP, 275 4 Battery Street, Suite 2000, San Francisco, CA 94111. On the date below, I served the within documents: 5 DEFENDANT FORD MOTOR COMPANY’S RESPONSE TO PLAINTIFFS’ 6 EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JOHN SHEA PIERCE 7 by transmitting VIA ELECTRONIC MAIL the document listed above to the email 8 address set forth below on this date before 5:00 p.m. per agreement of the parties. 9 10 Steve Mikhov, Esq. Bryan C. Altman, Esq. Amy Morse, Esq. THE ALTMAN LAW GROUP 11 Roger Kirnos, Esq. 10250 Constellation Blvd., Ste. 2500 Gordon Rees Scully Mansukhani, LLP Deepak Devabose, Esq. Los Angeles, CA 90067 KNIGHT LAW GROUP, LLP Tel: (310) 277-8481 275 Battery Street, Suite 2000 12 10250 Constellation Blvd. #2500 Fax: (310) 277-8483 San Francisco, CA 94111 13 Los Angeles, CA 90067 Email: bryan@altmanlawgroup.net Tel: (310) 552-2250 14 Fax: (310) 552-7973 Attorney for Plaintiffs Email: stevem@knightlaw.com Richard M. Wirtz, Esq. 15 Email: amym@knightlaw.com Amy R. Rotman, Esq. Email: rogerk@knightlaw.com WIRTZ LAW APC 16 Email: deepakd@knightlaw.com 4370 La Jolla Village Drive, Suite 800 Email: emailservice@knightlaw.com San Diego, CA 92122 17 Tel.: (858) 259-5009 Attorneys for Plaintiffs Email: rwirtz@wirtzlaw.com 18 Email: arotman@wirtzlaw.com 19 I declare under penalty of perjury under the laws of the State of California that the 20 above is true and correct. 21 Executed on February 2, 2021, at San Francisco, California. 22 23 Jesica Cortez 24 25 26 27 28 1118939/56245440v.1 PROOF OF SERVICE