Judge Bruce G. Iwasaki, Case 22STCV12884 2022-08-24 Tentative Ruling

Responding Party: Defendants Ford Motor Company and Antelope Valley Ford Lincoln

Tentative Ruling: The Motion for Attorney’s Fees is granted in part for a total of $43,895.00 in fees ($23,250.00 for Zolonz and $20,645.00 for Century). Costs are awarded in the amount of $5,040.52.

The parties have settled this Song-Beverly matter and have agreed that Plaintiff Marcia McKinney is the prevailing party entitled to fees and costs under Civil Code section 1794, subdivision (d).

Plaintiff moves for an order awarding attorneys’ fees under the lodestar method in the amount of $49,315.00 (divided between two law firms: $26,350.00 for the Law Offices of Adam Zolonz, APC, and $22,965.00 for Century Law Group). They also request an enhancement of 0.5, in the amount of $24,657.50, and costs of $5,040.52. The total requested is $79,013.02.

Plaintiff purchased a new 2019 Ford Transit Connect from Antelope Valley Ford Lincoln (dealership). After experiencing issues related to reduced power, backup camera, loss of power, and various error messages, Plaintiff, through the Law Offices of Adam Zolonz, APC (Zolonz), filed this action against the dealership and Ford Motor Company (Defendants) alleging violations of the Song-Beverly Act. On July 29, 2021, Zolonz associated with the law firm, Century Law Group LLP (Century) for trial purposes.

Prior to filing the Complaint, Plaintiff requested a buyback from Ford in October 2020, requesting at least $11,262.00 and reasonably incurred fees. (Dizon Decl., Ex. 2.) Ford did not respond to the offer.

On June 23, 2021, Plaintiff filed a “Notice of Settlement.” The settlement was initially for $7,500.00 and attorney’s fees by motion; it was then supposedly amended for $15,000.00, with $7,500.00 for Plaintiff and $7,500.00 for attorney’s fees. Plaintiff subsequently rejected the settlement and the case moved forward.

On July 28, 2021, Plaintiff served a Code of Civil Procedure section 998 offer to Defendants, requesting $16,000.00 and attorney’s fees by motion. Defendants declined. (Lear Decl., ¶ 14.) Defendants then sent their own offer on October 28, 2021, for $15,000.00 inclusive of attorney’s fees. Plaintiff never responded.

The matter was scheduled for trial on May 16, 2022; however, the parties settled on April 6, 2022, for $10,000.00 to Plaintiff, with fees by motion. The only remaining issue is to resolve Plaintiff's attorneys' fees and costs. The Court grants the motion for attorneys’ fees in part.

Plaintiff’s objection number 1 is overruled. Objection number 2 is sustained. Defendant’s counsel’s hourly rate is irrelevant.

A prevailing buyer in an action under Song-Beverly “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.”¿¿(Civ. Code, § 1794,¿subd. (d).)

The prevailing party has the burden of showing that the requested attorney fees were “reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees “ ‘is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].’ ” (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the “time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿

A court may “reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”¿¿(Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be “reasonably specific” and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyer’s damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.)

Plaintiff seeks $49,315.00 in attorneys’ fees with a 0.5 multiplier in the amount of $24,657.50. The amount includes anticipated fees of $3,475.00 for preparation, review, drafting the reply, and attendance of the hearing for the fee motion itself.

Defendants contend that fees should be limited based upon the earlier settlement offers. As to the specific billing entries, they argue that Plaintiff’s hourly rate and hours expended is excessive; the case was overstaffed; there are block-billed and inappropriate billing entries such as for routine tasks; anticipated entries should not be included; and no multiplier is warranted.

A calculation of attorneys’ fees for a Song-Beverly action¿begins with the “lodestar” approach, under which the Court fixes the lodestar¿at¿“the number of hours reasonably expended multiplied by the reasonable hourly rate.”¿ (Margolin v. Regional Planning Com.¿(1982) 134 Cal.App.3d 999, 1004-1005.)¿ “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.”¿ (Ibid.)¿ “ ‘The reasonable hourly rate is that prevailing in the community for similar work.’ ”¿ (Id.¿at p. 1004.)¿ The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services¿provided.¿ (Serrano v. Priest¿(1977) 20 Cal.3d 25, 49;¿PLCM Group, Inc. v. Drexler¿(2000) 22 Cal.4th 1084, 1095.)

“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” (Fox v. Vice (2011) 563 U.S. 826, 838.)

The “more favorable” standard to evaluate Code of Civil Procedure section 998 offers does not apply if the case never proceeded to trial.

Defendants first argue that the Court should only award $7,500.00 in attorney’s fees or, alternatively, fees up to June 23, 2021, because that is when the parties agreed to settle the case. The argument is unavailing. Defendants admit that these were “informal settlement negotiations.” (Opposition, p. 10:15.) While Plaintiff filed a “Notice of Settlement,” Defendants do not argue that this was binding. Nor did they file a motion to enforce the settlement under Code of Civil Procedure section 664.6; but even if they did, such a notice “is not intended as a means to enforce settlements.” (Irvine v. Regents of University of California (2007) 149 Cal.App.4th 994, 1001.)

Secondly, Defendants contend that Plaintiff is not entitled to any fees incurred after her October 2020 buyback demand or July 2021 offer because she failed to obtain a more favorable judgment.

There are two issues with this argument. First, the buyback and July 2021 offers were made by Plaintiff to Defendants, who failed to respond to the offer. Therefore, if the “more favorable” standard applies, it would be in the context of evaluating whether Defendants failed to obtain a more favorable judgment or award, not the Plaintiff. (Code Civ. Proc., § 998, subd. (d).)

Second, the “more favorable” standard does not apply at all in this case because the parties never went to trial. Defendants attempt to argue that subsequent offers constitute a “judgment or award.” Evaluating the language of “a more favorable judgment or award” in the context of the statute, the Legislature intended this to apply to judgment after a court trial or award after an arbitration. For example, subdivision (b) states “Not less than 10 days prior to commencement of trial or arbitration.” (Code Civ. Proc., § 998, subd. (b), italics added; see Oakes v. Progressive Transportation Services, Inc. (2021) 71 Cal.App.5th 486, 499 [“plaintiff who rejects a defendant’s section 998 offer and fails to obtain a more favorable judgment at trial faces both mandatory and discretionary penalties”].)

Even if this Court applied a “more favorable” standard, the eventual settlement on April 6, 2022, was more favorable to Plaintiff than the earlier offers from Defendants, who only made two offers – on June 23, 2021, and October 28, 2021. The June 23 offer was either for: (1) $7,500.00 with fees by motion, or (2) $15,000.00, with $7,500.00 for Plaintiff and $7,500.00 for fees. The eventual $10,000.00 settlement is more than both amounts, and Plaintiff is allowed to seek reasonable fees by motion. The October 28, 2021 offer is identical, with Defendants offering $15,000.00 inclusive of all fees.

Thus, the Court declines Defendants’ request to categorically reduce the fees based upon earlier settlement offers. (See Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 697 [trial court “may not categorically deny all fees from the date of the offer when the plaintiff’s decision to press forward with litigation has been vindicated by a more favorable judgment or award”].)

Defendants contend that the hourly rates for attorneys’ fees are unreasonable.

In assessing the reasonableness of hourly billing rates,¿“the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees [citation], the difficulty or complexity of the litigation to which that skill was applied [citations], and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases.”¿¿(569 East County Boulevard LLC v. Backcountry Against the Dump, Inc.¿(2016) 6 Cal.App.5th 426, 437; see¿Mountjoy v. Bank of America, N.A.¿(2016) 245 Cal.App.4th 266, 272 [“ ‘ “a reasonable hourly rate is the product of a multiplicity of factors…[including] the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case” ’ ”].)¿

The Court disagrees with Defendants’ contention that the rates are unreasonable. Here, a review of the Zolonz and Lear Declarations in support of the motion for attorney’s fees, the descriptions of each attorneys’ years of experience, the accompanying exhibits, and the arguments and evidence brought forth by Plaintiff leads to the conclusion that Plaintiff’s attorneys’ fees as requested are reasonable: $500.00 per hour for Zolonz and rates ranging from $50.00 to $700.00 per hour for Century. The rates are supported by substantial evidence under the present circumstances. (Zolonz Decl., ¶¶ 2, 14-17, 19, 20; Lear Decl., ¶¶ 3-8.) Specifically, Lear submitted the 2019 United States Consumer Law Attorney Fee Survey Report indicating that counsel’s rates fall within the average range for attorneys with the corresponding years of experience. (Lear Decl., Ex. 2.)

Defendants also argue that some tasks such as organizing post-deposition documents, exhibits, and summaries were “unnecessary and excessive.” The Court does not find the number of hours billed to be unreasonable.

Defendants also argue that the billing entries were padded because five attorneys across two law firms was excessive.

While a total of five attorneys were overall involved in this case, the bulk of the work was done by only two: Adam Zolonz and Rizza Gonzales for Century. Defendant has failed to indicate that the billing entries were duplicative. (McGrath v. County of Nevada (9th Cir. 1995) 67 F.3d 248, 255 [recognizing “that ‘the participation of more than one attorney does not necessarily constitute an unnecessary duplication of effort.’ ”].) Therefore, the Court will not reduce the number of hours awarded merely because several attorneys worked on this matter.

As a preliminary matter, the Court notes that Exhibit 1 of the Lear Declaration for Ms. Gonzalez and Ms. Contreras’ time appears to be missing the letters “I” and “L” and potentially other letters as well.

· Vague entries: $3,275.00 – These entries are vague, with insufficient detail. For example, “Emails w/TL’s office” or ““Call w. client.” While counsel should not disclose information subject to the attorney-client privilege, there should at least be some brief specificity as to what these conversations involved. Generic notes such as: “Email to client”; “TC with PC”; or “TC with P” is insufficient because it provides no details. Counsel is aware of how to do so: for example, in a separate entry, Zolonz indicates “TC with P re paid $3k down, not reflected in RISC. need proof of payment for itemized settlement demand.” Such an entry is specific without releasing confidential information.

o $925.00 for Century Law Group – phone call between Richard Bayless and Rizza Gonzales listed on both billing sheets; and two billing entries by “EOL” on the same date for the same status conference.

o $500.00 for Zolonz – two billing entries on November 18, 2020 for attending the CMC. The Court strikes the higher amount.

· Improper entries: $720.00. The Court reduces Century’s request for $720.00 (1.6 hours @ $450.00 rate) for administrative tasks conducted by Richard Bayless. This included organization of deposition exhibits and separating out PDF documents into multiple files.

While Defendants argue that Plaintiff cannot bill for time not actually incurred, this argument is moot given that Plaintiff has filed the corresponding motion for fees and the reply.

Plaintiff seeks a 1.5 lodestar multiplier based on the risk of taking on the case and the delay involved. The Court does not find that any multiplier is warranted as this was not a complex or novel matter. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 834.)

Relevant factors to determine whether an enhancement is appropriate include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The Court’s review of this action leads it to conclude that this case involved a straightforward Song-Beverly case. There was no novelty and difficulty in the questions involved. The¿contingent risks, skill, and difficulty¿Plaintiffs’ attorneys¿assert are absorbed by¿their¿hourly rates.¿¿(See¿Robertson v. Fleetwood Travel Trailers of California. Inc.¿(2006) 144 Cal.App.4th 785, 822.)

Plaintiff seek a total of $5,040.52 in costs.[1] Defendants do not contest the memorandum of costs. The “ ‘failure to file a motion to tax costs constitutes a waiver of the right to object.’ ” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289.) A “ ‘verified memorandum of costs is prima facie evidence of [the] propriety’ of the items listed on it, and the burden is on the party challenging these costs to demonstrate that they were not reasonable or necessary.” (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486.) Because Defendants do not challenge the costs, the Court finds that Plaintiff has met her burden and awards the full amount.

[1] Under California Rules of Court, rule 3.1700, the “prevailing party” must serve and file a memorandum of costs within a specified time period. Upon filing the memorandum, the opposing party may serve and file a motion to strike or to tax costs. Here, Plaintiff combined the motion for attorney’s fees and attached the memorandum of costs as a supporting exhibit. Defendants did not separately file a motion to tax costs nor did they object to the Court considering both the fees and costs together in one hearing.

Department 58