Judge Carolyn M. Caietti, Case 37-2021-00014390-CU-BC-CTL 2023-11-03 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2021-00014390-CU-BC-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00014390-CU-BC-CTL BRADFORD VS FORD MOTOR COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 05/05/2023

Plaintiffs Russ Bradford and Jack Bradford's Motion for Attorney Fees, Costs and Expenses is GRANTED IN PART.

Plaintiffs' unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Defendant Ford Motor Company's opposition objections are overruled. (ROA 181.) On February 26, 2020, Plaintiffs filed this lawsuit for breach of warranty and violation of the Song-Beverly Act, alleging Defendant failed to replace or repurchase their vehicle after Defendant was unable to repair it. After filing a motion to change Plaintiffs' initial venue and stipulating to such change (ROA 7, 11), on May 18, 2022, Defendant answered. (ROA 136.) The parties engaged in discovery, attended at least six informal discovery conferences with the Court and the Court heard multiple contested discovery motions. (See, ROA 40, 45, 65, 74, 78, 82, 91, 106, 108, 111, 128.) On January 14, 2022, the Court granted in part Defendant's motion for protective order. (ROA 108.) On February 10, 2022, the Court granted in part Plaintiffs' motion to compel further document responses and production.

(ROA 128.) The parties settled the case before the Court heard Defendant's motion for summary judgment. (ROA 167; Declaration of Zavig Mkrdech, at Ex. 5.) In this motion, Plaintiffs request $80,993.50 in attorney fees, plus a lodestar multiplier of 1.35 for $28,347.73, fees incurred to review the opposition, prepare a reply and attend the hearing in the amount of $3,500 and $15,393.40 in costs. The total request is $128,234.63. Defendant agrees Plaintiff is entitled to reasonable fees, costs and expenses, but disagrees with the rates sought, time incurred, the lodestar multiplier and costs.

Civil Code section 1794(d) states the buyer can recover attorney 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.' The trial court must initially determine the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 247.) In making its calculation on the hourly rate, courts 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, the difficulty or complexity of the litigation to which the skill was applied and affidavits from other attorneys regarding Calendar No.: Event ID: TENTATIVE RULINGS

2970477 40 CASE NUMBER: CASE TITLE: BRADFORD VS FORD MOTOR COMPANY [IMAGED] 37-2021-00014390-CU-BC-CTL 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.) Here, the hourly rates range from $350 to $595. (Shahian Decl., at ¶¶ 41-69 & Ex. 35.) The reasonableness of these rates is established by Attorney Shahian's declaration. (Ibid.) In the Court's experience, these rates are not out of line with what experienced counsel might charge in a similar case.

(See also, Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 474 (affirming an award based on an hourly rate of $575 for counsel in a lemon law case in San Diego County).) At most, the hourly rate of Zavig Mkrdech as an attorney admitted in 2022 seemed high. But his entries related to this motion and the motion is well done and organized. Thus, the Court will not reduce any of the hourly rates.

For the time expended on this case, Plaintiffs' counsel billed 186.80 hours. (Declaration of Payam Shahian, at Ex. 35.) Plaintiffs demonstrated the fees incurred for this time were mostly reasonably necessary to the conduct of the litigation, reasonable in amount and not duplicative. (Mikhaeilpoor, supra.) According to Plaintiffs, Defendant did not offer a buyback or repair the vehicle within a reasonable number of attempts, denied Plaintiffs' pre-litigation plea for a buyback and owed civil penalties. This caused Plaintiffs to work up and prosecute the case. (Ibid.) After substantial discovery work, including six informal discovery conferences with the Court and two contested discovery motions, the parties settled.

Plaintiffs received a good result of what amounts to a full buyback and about 2.5x in civil penalties. (Ibid.) The settlement required further fees to be incurred to bring the settlement to completion. The Court closely reviewed Plaintiffs' time sheet. The following entries are either unreasonably incurred, unreasonably high or duplicative of other entries. The Court will deduct them from the lodestar for a total of $12,635.50: - Entries dated 2/23/21, 2/24/21, 3/1/21 re Motion to Transfer in the amount of $897.

- Entries dated 1/2/22, 1/3/22 re: opposition to Motion for Protective Order in the amount of $7,217.50.

- Entry dated 1/28/22 re: drafting an amended notice of the Motion to Compel in the amount of $1,087.50.

- Entry dated 2/11/22 re: drafting an updated proposed order in the amount of 337.50.

- Entry dated 2/25/22 re: revising an updated proposed order in the amount of $225.00.

- Entry dated 11/10/22 re: drafting objections to a Notice of Deposition in the amount of $269.50.

- Entry dated 12/23/22 re: drafting objections to a Notice of Deposition in the amount of $231.00.

- Entry dated 1/26/22 re: attending an ex parte to advance the Motion for Summary Adjudication in the amount of $908.00.

- Entries dated 5/2/23, 5/3/23 re: drafting this motion in the amount of $1,462.50.

Thus, the Court approves an award of attorney fees in the amount of $68,358.00.

Plaintiffs request a 1.35 multiplier or $28,347.73 in additional fees. Trial courts may use a multiplier in awarding attorney fees under the Song-Beverly Act. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247-48.) Trial courts are neither foreclosed from, nor required to award a multiplier. (Ibid.) Here, the questions presented are not novel or difficult, the extent to which the case precluded other employment is low and the contingent nature of the fee award is already reflected in the hourly rates as they consider the risk and delay in payment. (Id., at p. 248.) Accordingly, the Court declines to award a multiplier.

Plaintiffs are also entitled to costs and expenses under Civil Code section 1794(d) and requests $15,393.40. The Court reviewed the costs itemized on Exhibit 35. (Shahian Decl.) All appear reasonable and related to this litigation except for three items listed next. The Court will reduce the amount requested by $1,087.30, comprised of: (i) an expense for process service on Ken Groudy Ford in the amount of $122.10 on March 4, 2020; (ii) an expense paid to First Legal Network for the filing of a 'Minute Order' in the amount of $530.20 on March 8, 2021; and (iii) expense paid to First Legal Network for the filing of a 'Minute Order' in the amount of $435.00 on March 22, 2021 Costs of $14,306.10 will be awarded.

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2970477 40 CASE NUMBER: CASE TITLE: BRADFORD VS FORD MOTOR COMPANY [IMAGED] 37-2021-00014390-CU-BC-CTL For these reasons, the motion is GRANTED IN PART.

Defendant is ordered to pay $68,358.00 in attorney fees and $14,306.10 in costs, for a grand total of $82,664.10.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Plaintiffs are ordered to give written notice of the Court's final order on all parties by November 7, 2023, unless all parties submit on the tentative ruling or waive notice at the hearing.

Defendant is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion paperwork.

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2970477 40