Villafan v. Northwest Motorsport LLC

Opinion

1 2

3 4 WESTERN DISTRICT OF WASHINGTON 7 WOLFGANG OLSON, 8 Plaintiff, 9 v. C20-1616 TSZ 10 NORTHWEST MOTORSPORT, ORDER INC. and NORTHWEST 11 MOTORSPORT, LLC, 12 Defendants. 13 THIS MATTER comes before the Court on Plaintiff Wolfgang Olson’s motion for 14 attorney’s fees and costs, docket no. 113, and motion to alter or amend the judgment, 15 docket no. 126. Having reviewed all papers filed in support of, and in opposition to, the 16 motions, the Court enters the following Order. 17 Background 18 This case began as a putative class action with three named plaintiffs: Seth 19 Villafan, Josh Graves, and Wolfgang Olson. On June 14, 2023, the Court dismissed Mr. 20 Villafan’s, Mr. Grave’s, and the putative class claims. Order at 2 (docket no. 70). Only 21 Plaintiff Wolfgang Olson’s claims remained. Olson’s claims arose from his purchase of a 22 1 2001 Dodge Ram 3500 pickup truck (“the truck”) from Defendant Northwest Motorsport, 2 Inc.1 At the time Olson purchased the truck, he signed, among other documents, a

3 “Vehicle Buyer’s Order” containing a prevailing party attorney’s fees shifting provision. 4 See Order at 4–5 ¶¶ 20–21 (docket no. 111). Olson alleged that the truck had a modified 5 emissions control system, that these modifications caused the truck to be noncompliant 6 with various federal and state regulations, that the modifications caused the truck’s 7 mechanical condition and resale value to deteriorate at an accelerated rate, and that the 8 modifications caused the truck to lose coverage under the vehicle service contract he

9 purchased from Defendants. Olson proceeded to trial on claims against Defendants for 10 violation of the Washington Consumer Protection Act (“CPA”), breach of contract, 11 breach of implied warranties, and negligence. 12 After a two-day bench trial, the Court issued Findings of Fact and Conclusions of 13 Law. See Order (docket no. 111). The Court found that Olson had proved his CPA and

14 breach of contract claims but had not proved his breach of implied warranties or 15 negligence claims. The Court awarded Olson $3,999 in damages for the amount he paid 16 for the service contract and $182 in damages for the amount he paid to an emissions 17 control repair shop, Gateway Auto Repair. The Court concluded that Olson was not 18 entitled to treble damages under the CPA. The Court also concluded that, under the CPA

19 and the prevailing party fee clause in the “Vehicle Buyer’s Order,” Olson was entitled to 20 an award of his attorney’s fees and costs. 21 22 1 Defendant Northwest Motorsport, LLC is Defendant Northwest Motorsport, Inc.’s successor-in-interest. 1 Olson was represented throughout this case and at trial by Eugene N. Bolin, Jr. of 2 the Law Offices of Eugene N. Bolin, Jr., P.S., and by Guy W. Beckett of the law firm

3 Berry & Beckett PLLP. Olson has now filed a motion for his attorney’s fees and costs, 4 docket no. 113, and a motion for the Court to alter its judgment for an award of treble 5 damages and prejudgment interest, docket no. 126. 6 Discussion 7 A. Motion for Attorney’s Fees and Costs 8 Olson moves for an award of attorney’s fees and costs totaling $514,658.83. Of

9 that amount, $379,718.75 is attorney’s fees for services provided by the Law Offices of 10 Eugene N. Bolin, Jr., P.S., $48,105.00 is attorney’s fees for the services provided by 11 Berry & Beckett PLLP, and $86,835.08 is for litigation costs, including expert witness 12 fees. Defendants suggest that Olson be awarded no more than $52,942.50 in attorney’s 13 fees.

14 The reasonableness of an attorney’s fees request is evaluated using the lodestar 15 method. Collins v. City First Mortg. Servs., LLC, 177 Wn. App. 908, 927, 317 P.3d 1047 16 (2013) (citation omitted). Under the lodestar method, the Court must determine the 17 reasonable number of hours expended on a matter, excluding any “wasteful or duplicative 18 hours and any hours pertaining to unsuccessful theories or claims” from the total. Id.

19 at 928 (citations omitted). Once the total reasonable number of hours has been 20 determined, the Court multiplies that number by a reasonable hourly rate to determine the 21 lodestar amount. Id. (citations omitted). The lodestar amount may, in the Court’s 22 discretion, be increased or decreased based on various factors such as the contingent 1 nature of success, id. at 929 (citation omitted), the level of skill required by the litigation, 2 see Brand v. Dep't of Labor & Indus. of State of Wash., 139 Wn.2d 659, 666,

3 989 P.2d 1111 (1999), and whether any work is “useful in ancillary or parallel litigation,” 4 Absher Const. Co. v. Kent School Dist. No. 415, 79 Wn. App. 841, 847, 917 P.2d 1086 5 (1995) (citation omitted). “The Court is not bound by the lodestar value, but rather, is 6 charged with making ‘an independent decision’ as to what represents a reasonable 7 amount of attorneys' fees.” Seattle Times Co. v. LeatherCare, Inc., No. C15-1901, 8 2019 WL 1651664, at *1 (W.D. Wash. Apr. 17, 2019) (quoting Nordstrom, Inc. v.

9 Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987)) 10 Costs under the CPA are limited to those statutorily authorized under RCW 11 4.84.010. See Nordstrom, Inc., 107 Wn.2d at 743; accord Mayer v. Sto Indus., Inc., 12 156 Wn.2d 677, 693–94, 132 P.3d 115 (2006). RCW 4.84.010 lists what costs are always 13 allowed to a prevailing party and also allows for the recovery of “costs otherwise

14 authorized by law.” “Thus, where the parties have entered into an agreement regarding 15 costs, the costs are ‘otherwise authorized by law’” and are recoverable by the prevailing 16 party. Ernst Home Center, Inc. v. Sato, 80 Wn. App. 473, 491, 910 P.2d 486 (1996). 17 Olson submitted Mr. Bolin’s and Mr. Beckett’s billing records to show that their 18 hourly rates and time expended on this case were reasonable. See Mar. 27, 2024, Bolin

19 Decl. (docket no. 114); Apr. 19, 2024, Bolin Decl. & Exhibits (docket nos. 132-1 & 132- 20 2); Mar. 27, 2024, Beckett Decl. (docket no. 115); Apr. 19, 2024, Beckett Decl. (docket 21 no. 133). Mr. Bolin billed his services at a rate of $425 per hour, the services of two 22 contract attorneys at $325 and $350 per hour, and the services of his paralegals at $200 1 per hour; Mr. Beckett billed his services at a rate of $450 per hour. Defendants do not 2 challenge these hourly rates. In light of Mr. Bolin’s and Mr. Beckett’s experience, and

3 based on the Court’s knowledge of prevailing hourly rates for attorneys and legal services 4 in the area, the Court finds Mr. Bolin’s and Mr. Beckett’s hourly rates to be reasonable. 5 Defendants contend that the 1,209.52 hours sought for Mr. Bolin are not 6 reasonable because much of the time is unrelated to the claims that Olson succeeded on at 7 trial or are otherwise duplicative. The Court agrees with Defendants that Mr. Bolin’s 8 total hours are not reasonable. As Defendants outline in their response brief and related

9 declaration, many of the hours Olson seeks for Mr. Bolin are related solely to the 10 dismissed claims of Mr. Villafan, Mr. Graves, and/or the putative class. Olson is not 11 entitled to attorney’s fees for work done for dismissed claims or plaintiffs or done for 12 claims which Olson did not succeed on at trial. Olson fails to allocate Mr. Bolin’s hours 13 to the unsuccessful claims and the Court’s review indicates that at least half of Mr.

14 Bolin’s hours went to dismissed or otherwise unsuccessful claims. Accordingly, the 15 Court finds that a reduction in the hours awarded to Mr. Bolin is warranted, see Sign-o- 16 Lite Signs, Inc. v. DeLaurenti Florists, Inc., 64 Wn. App. 553, 566, 825 P.2d 714 (1992) 17 (citation omitted) (“Time spent developing theories essential to the CPA claim must be 18 segregated from time spent on legal theories relating to other causes of action.”); Broten

19 v. May, 49 Wn. App. 564, 573–74, 744 P.2d 1085 (1987); see also Absher Const., 79 Wn. 20 App. at 848 (noting that the Court need not provide an hour-by-hour analysis of the fee 21 award), and the Court will reduce the fees for Mr. Bolin’s time to $189,859.37. 22 1 Likewise, a substantial portion of the 106.9 hours sought for Mr. Beckett are 2 related solely to claims that were dismissed prior to trial. Of Mr. Beckett’s remaining

3 billed hours, many are duplicative of the hours billed by Mr. Bolin. Mr. Beckett did, 4 however, participate in this case through all its phases, including at trial, and Olson is 5 entitled to some amount of attorney’s fees for Mr. Beckett’s work. Accordingly, the 6 Court will reduce the amount of attorney’s fee awarded to Olson for Mr. Beckett’s time 7 by $28,105.00, bringing the amount of attorney’s fees awarded for Mr. Beckett’s time to 8 $20,000.

9 Olson also seeks an award of $86,835.08 for costs he incurred in this litigation. 10 Defendants raise no objections to the majority of the costs Olson seeks. Defendants do, 11 however, argue that some of the expert witness fees Olson is seeking are for reports that 12 were prepared and disclosed after this case’s expert witness disclosure deadline and that 13 were stricken by the Court. See Minutes of Proceedings (docket no. 89) (striking the

14 supplemental reports of Ed Schaplow, Michael St. Denis, and Christopher Cowland). 15 Expert reports that were stricken from the record were of no use to Olson during this 16 litigation and he is not entitled to an award of costs for those reports. Nor is Olson 17 entitled to an award of costs for work performed by the experts in relation to the 18 dismissed claims of Mr. Villafan, Mr. Graves, or the putative class. Accordingly, the

19 Court reduces Olson’s costs by $15,000. In total, Olson is AWARDED $209,859.37 in 20 attorney’s fees, consisting of $189,859.37 for services provided by Mr. Bolin, $20,000 21 for services provide by Mr. Beckett, and $71,835.08 in costs. 22 1 B. Motion to Alter or Amend Judgment for Award of Treble Damages and Prejudgment Interest 2 1. Treble Damages 3 Olson moves the Court to amend its judgment to award him treble damages for 4 prevailing on his CPA claim. In its Findings of Fact and Conclusions of Law, the Court 5 explicitly found that Olson was not entitled to treble damages under the CPA. Order 6 at 19 ¶ 49 (docket no. 111). The Court treats Olson’s motion to amend the judgment for 7 an award of treble damages as a motion for reconsideration. Motions for reconsideration 8 are disfavored and will only be granted when the moving party has made a “showing of 9 manifest error in the prior ruling or a showing of new facts or legal authority” that were 10 not previously known. See Local Civil Rule 7(h). Because whether to award treble 11 damages to a prevailing CPA plaintiff is within the discretion of the Court, see 12 RCW 19.86.090, the Court finds that it was not manifest error to deny Olson treble 13 damages. Further, the Court advised Olson’s counsel before trial that, even if successful, 14 Olson’s damages were very limited. The Court, in its discretion, concludes that the case 15 does not justify treble damages under all the circumstances. Olson’s motion to amend or 16 alter the judgment is DENIED in part to the extent that it seeks an award of treble 17 damages. 18 2. Prejudgment Interest 19 Prejudgment “interest is awardable (1) when the amount claimed is liquidated, or 20 (2) when the amount claimed is unliquidated but is determinable by computation with 21 reference to a fixed standard in a contract.” Lake v. von der Mehden, 117 Wn. 22 1 App. 212, 217, 70 P.3d 154 (2003) (citation omitted). “A claim is liquidated if data in the 2 evidence makes it possible to compute the amount with exactness, without reliance on

3 opinion or discretion.” Id. (citing Lester N. Johnson Co. v. City of Spokane, 22 Wn. 4 App. 265, 277, 588 P.2d 1214 (1978)). Exactness does not depend on whether or not a 5 defendant disputes an amount claimed, rather, “it is the character of the claim and not of 6 the defense that is determinative of the question whether an amount of money sued for is 7 a ‘liquidated sum.’” Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 33, 442 P.2d 621 8 (1968). Prejudgment interest is favored under the law to compensate individuals who

9 were deprived of the use of their money. See Lake, 117 Wn. App. at 217 (citations 10 omitted). 11 Olson contends that an award of prejudgment interest is warranted here because 12 his damages are determinable with exactness and without reliance on the Court’s opinion 13 or discretion. Defendants do not dispute this contention but nonetheless offer two

14 reasons to justify no award of prejudgment interest. 15 First, Defendants contend that because Olson never made a claim under the 16 purchased service contract, he was never deprived of the use of the money he paid for the 17 service contract. This argument has no merit. Whether Olson tried to use the service 18 contract or not does not change the fact that Olson could not use the $3,999 he paid for

19 the service contract for other purposes. 20 Second, Defendants argue that Olson should not get prejudgment interest for the 21 time period during which the case was sought to be certified as a class action. This 22 argument is contrary to Washington law. Prejudgment interest begins accruing when the 1 claim arises and continues accruing through the date of judgment. E.g., Taie v. Ten 2 Bridges LLC, No. C21-0526, 2024 WL 1676798, at *2 (W.D. Wash. Apr. 18, 2024)

3 (quoting Seattle-First Nat. Bank v. Wash. Ins. Guar. Ass'n, 94 Wn. App. 744, 760, 4 972 P.2d 1282 (1999)). Defendants offer neither case law nor any reasoning for why the 5 time period when this case was a putative class action should be excluded from the 6 prejudgment interest calculation. The Court finds that Olson is entitled to an award of 7 prejudgment interest from the date his claims arose through the date of judgment. 8 Having found that Olson is entitled to an award of prejudgment interest, the Court

9 must set the interest rate. “State law generally governs awards of prejudgment interest in 10 diversity actions, but federal law may apply to the calculation of prejudgment interest 11 when a substantive claim derives from federal law alone.” Oak Harbor Freight Lines, 12 Inc. v. Sears Roebuck & Co., 513 F.3d 949, 961 (9th Cir. 2008). Washington law allows 13 for, and Olson proposes, a prejudgment interest rate of 12 percent. See RCW

14 19.52.020(1). Defendants do not dispute that 12 percent is an appropriate prejudgment 15 interest rate and, in fact, use it as the interest rate in their own prejudgment interest 16 calculations. See Defs.’ Resp. at 4 (docket no. 135). The Court sets the prejudgment 17 interest rate at 12 percent per year. 18 Applying the prejudgment interest rate of 12 percent per year to Olson’s total

19 damages of $4,181 results in a prejudgment interest award of $3,295.96.2 20

21 2 The prejudgment interest commenced on November 1, 2017, for the date of payment of the service 22 contract and on October 22, 2018, the date of the Gateway Auto Repairs. 1 Conclusion 2 For the foregoing reasons, the Court ORDERS:

3 (1) Plaintiff Wolfgang Olson’s motion for attorney’s fees and costs, docket no. 4 113, is GRANTED in part and DENIED in part. The motion is GRANTED in part and 5 Olson is AWARDED $209,859.37 in attorney’s fees, consisting of $189,859.37 for 6 services provided by Mr. Bolin, $20,000 for services provide by Mr. Beckett, and 7 $71,835.08 in costs. The motion is DENIED as to all other relief sought therein. 8 (2) Plaintiff Wolfgang Olson’s motion to alter or amend the judgment, docket

9 no. 126, is GRANTED in part and DENIED in part. The motion is GRANTED as to 10 Olson’s request for prejudgment interest. Olson is AWARDED $3,295.96 in 11 prejudgment interest. The motion is DENIED as to Olson’s request to modify the 12 judgment to award treble damages. 13 (3) The Clerk is DIRECTED to enter an amended judgment consistent with

14 this Order. 15 (4) The Clerk is directed to send a copy of this Order to all counsel of record. 17 Dated this 12th day of June, 2024. 18 A

19 Thomas S. Zilly United States District Judge 20 21 22