Judge Bruce G. Iwasaki, Case Number: 23STCV08692, Date: 2024-05-06 Tentative Ruling

Tentative Ruling: The Motion for Attorney’s Fees is granted in part for a total of $22,410.00. Costs are awarded in the amount of $2,886.55.

The parties have settled this Song-Beverly matter and have agreed that Plaintiff Jorge Gonzalez Luna 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 $24,204.50. Plaintiff also requests $2,886.55 in costs. The total requested is $27,091.05.

Plaintiff leased a new 2020 Ford Explorer Sport from Bob Wondries Ford (dealership) with ninety (90) miles on the odometer, for a total price of $59,579.85. After experiencing issues related to brakes, electrical, transmission, front axle, and other nonconformities to warranty, Plaintiff, through The Lemon Pros LLP, filed this action against the dealership and Ford Motor Company (Defendants) alleging violations of the Song-Beverly Act on April 19, 2023.

On May 16, 2023, before appearing in this action, Ford offered to repurchase the vehicle pursuant to statutory formula of Song Beverly. (Proudfoot Decl., ¶ 6; Ex. C.) Plaintiff assertedly ignored this offer. Instead, on July 20, 2023, Plaintiff served a 998 offer for $130,000 plus attorney’s fees. (Proudfoot Decl., ¶ 7.)

On January 25, 2024, Plaintiff filed a “Notice of Settlement.” The settlement was for $37,906.00 and attorney’s fees by this motion.

A prevailing buyer in a Song-Beverly action “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 $24,204.50 in attorneys’ fees. The amount includes anticipated fees of $5,473.50 for preparation, review, drafting the reply, and attendance at the hearing for the fee motion itself.

Defendant contends 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 are excessive; there are inappropriate billing entries such as for routine and administrative tasks; anticipated entries should not be included; templates were used; and the lodestar should be reduced by 33.5 hours.

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.)

Defendant first argues that the attorney’s fees sought are unreasonable because Defendant complied with its obligation under Song-Beverly by providing a repurchase offer. (Opposition, p. 4:13.) The argument is unavailing. Defendant does not provide any comparison beteen a repurchase and the settlement amount. (Saeedian Reply Decl., ¶ 5.) Further, Defendant did not make a section 998 offer to settle the case. (Id.) Moreover, the January 19, 2024, appears to have been more favorable to Plaintiff than the earlier offer from Defendant, on May 16, 2023. The May 2023 offer was based on a statutory formula, not a specific amount apart from the attorney’s fees in the amount of $8,500, although it did offer to provide the numbers if Plaintiff provided the contract and payment history. (Proudfoot Decl. ¶ 6; Ex. C.) The eventual $37,906.00 settlement is approximately $10,500 higher than Mr. Luna’s total payments, indicating the settlement was better for Plaintiff than Ford’s initial proposal. (Saeedian Reply Decl. ¶ 4.)

Thus, the Court declines Defendant’s 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 Defendant’s contention that the rates are unreasonable. Here, a review of both Saeedian 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: $695.00 per hour for Michael Saeedian, $525.00 per hour for Christopher Urner, and $250.00 for the certified law clerk, Jorge L. Acosta. The rates are supported by substantial evidence under the present circumstances. (Saeedian Decl., ¶¶ 1-8, 10-12, 18-21.) Specifically, Saeedian states that the rates charged by his office are reflected in the Laffey Matrix. (Saeedian Decl., ¶ 12.)

The Court has reviewed the itemized entries and makes the following reductions because they are essentially clerical, and should not be charged to a client or claimed under a fee-shifting provision, because they are part of law firm overhead.

The Court removed 31 clerical and administrative entries. Examples of these entries are as follows:

o 5/2/2023 JLA Receipt and review of POS of Summons for FMC from Process Server. 0.2 $250 $50.00

o 5/3/2023 JLA Receipt of Conformed POS of Summons for FMC and update file regarding same. 0.1 $250 $25.00

o 5/3/2023 JLA Receipt and review of confirmation for assigning service of process to FMC. 0.1 $250 $25.00

o 9/25/2023 JLA Review FMC's Document Production, separate documents for attorney review, name and update case file. 2.2 $250 $550.00

o 2/10/2023 JLA Request of lease documents and vehicle registration from Client. 0.1 $250 $25.00

Thus, the Court grants Plaintiff’s attorney’s fees in a reduced amount of $22,410.00 (24,204.50-1,794.50).

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 total of $2,886.55 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 his burden and awards the full amount.

The motion for attorneys’ fees and costs is granted in part. In sum, the Court grants Plaintiff’s request for attorneys’ fees in the total amount of $22,410.00. Costs are awarded in the amount of $2,886.55. Defendant shall pay to Plaintiff’s counsel the total of $25,296.55 on or before June 28, 2024.

[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