Judge Daniel M. Crowley, Case Number: 21STCV26542, Date: 2023-11-13 Tentative Ruling

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Plaintiff Maria Tejada’s motion for attorneys’ fees is granted in the reduced total of $74,526.34.

Plaintiff Maria Tejada (“Tejada”) (“Plaintiff”) moves for an order awarding her attorneys’ fees, costs, and expenses against Defendant Ford Motor Company (“FMC”) (“Defendant”) on behalf of Quill and Arrow, LLP (“QA”) in the total amount of $123,701.39, reflecting (1) $82,282.50 in attorney fees for QA; (2) a 1.35 multiplier enhancement on the attorney fees (or $28,798.87); (3) $6,620.02 in costs incurred by QA; and (4) an additional $6,000.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply, and attend the hearing on this Motion. (Notice of Motion, pg. 2; Civ. Code §1794(d).) Plaintiff makes this motion pursuant to a signed settlement offer. (Notice of Motion, pg. 2.)

Plaintiff’s 11/6/23 evidentiary objections to the Declaration of Matthew M. Proudfoot (“Proudfoot”) are sustained as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.

This is a lemon law action brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). Defendant served Plaintiff with a C.C.P. §998 Offer to Compromise (“998 Offer”) in this matter on or about November 12, 2021, in the amount of $52,195.80, plus attorney’s fees, costs, and expenses to be determined by agreement or decided by this Court by way of motion for attorney’s fees, costs, and expenses and that Plaintiffs would be the prevailing party for purposes of that motion. (Decl. of Sogoyan ¶74.)

On or about July 22, 2022, the Parties held a telephonic conference during the break of Plaintiff’s deposition in which Defendant made an offer to resolve this matter in the amount of $65,000.00, plus attorney’s fees, costs, and expenses to be determined by agreement or decided by this Court by way of motion for attorney’s fees, costs, and expenses and that Plaintiffs would be the prevailing party for purposes of that motion. (Decl. of Sogoyan ¶75.) On or about July 28, 2022, Defendant served a §998 Offer to Compromise in the amount of $85,000.00, plus attorney’s fees, costs, and expenses to be determined by agreement or decided by this Court by way of motion for attorney’s fees, costs, and expenses and that Plaintiff would be the prevailing party for purposes of that motion. (Decl. of Sogoyan ¶76.)

On December 13, 2022, Plaintiff attended private mediation with Ron Akasaka of SMART ADR. (Decl. of Sogoyan ¶77.) On or about January 3, 2023, Defendant served a §998 Offer to Compromise in the amount of $95,000.00, plus attorney’s fees, costs, and expenses to be determined by agreement or decided by this Court by way of motion for attorney’s fees, costs, and expenses and that Plaintiffs would be the prevailing party for purposes of that motion. (Decl. of Sogoyan ¶78.) Plaintiff accepted Defendant’s §998 Offer to Compromise, dated December 3, 2023. (Decl. of Sogoyan ¶79.) On February 24, 2023, Plaintiff’s counsel filed a conditional Notice of Settlement with this Court. (Decl. of Sogoyan ¶80.)

On July 7, 2023, Plaintiff filed this motion for attorneys’ fees. Defendant filed its opposition on October 30, 2023. Plaintiff filed her reply on November 6, 2023.

Civil Code §1794(d) provides that a buyer who prevails in an action under that section, “shall be allowed by the court to recover as a 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 the prosecution of such action.”

C.C.P. §998(c)(1) provides as follows: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer.” (C.C.P. §998(c)(1).) “In determining whether the plaintiff obtains a more favorable judgment, the court . . . shall exclude the post offer costs.” (C.C.P. §998(c)(2)(A).) “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff.” (C.C.P. §998(e).)

Section 998’s plain language only penalizes plaintiffs who “fail[] to obtain a more favorable judgment or award” than a §998 offer by cutting off their post-offer costs and requiring them to pay “defendant’s [post-offer] costs” out of any “damages awarded.” (C.C.P. §§998(c)(1), (e).)

A party who settles cannot “fail” to obtain a more favorable “judgment or award.” “Fail[ure]” connotes defeat, abandonment, or “[i]nvoluntarily” falling short of one’s purpose. (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, 413-414, citing Burton’s Legal Thesaurus (3d ed. 1998) p. 228, col. 1, Black’s Law Dict. (rev. 4th ed. 1968) at pg. 711, col. 1; accord Cambridge Dict. Online (2023) [“fail” means “to not succeed in what you are trying to achieve”].) Section 998(d) is explicit: A “judgment or award entered pursuant to this section shall be deemed to be a compromise settlement.” (C.C.P. §998(d).)

Here, Plaintiff is the prevailing party and is entitled to attorneys’ fees and costs pursuant to the §998 offer.

Civil Code §1794(d) provides, “[i]f the buyer prevails in an action under this section, the buyer 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.”

To calculate a lodestar amount, the Court must first determine the reasonableness of the hourly rates sought by the Plaintiff’s counsel. The Supreme Court of California has concluded that a reasonable hourly lodestar rate is the prevailing rate for private attorneys “conducting non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, emphasis added.)

Plaintiff’s Counsel declares the following hourly rates for attorneys who worked on this case: (1) Kevin Jacobson (2021, 2022, and 2023 rate of $500/hr); (2) Gregory Sogoyan (2022 rate of $450/hr. and 2023 rate of $500/hr.); (3) Allen Amarkarian (2022 and 2023 rate of $395/hr.); (4) Daniel Nickfardjam (2023 rate of $350/hr.); and (5) Leon Tao (2021 rate of $300/hr.). (Decl. of Jacobson ¶¶3-22. Exh. 1-6.) Plaintiff has sufficiently demonstrated her counsel’s hourly rates are reasonable in their community of practice in their specialized area of law. (Decl. of Jacobson ¶¶3-22. Exh. 1-6.)

Defendant does not challenge Plaintiff’s counsel’s hourly rates as unreasonable, and the Court finds Plaintiffs’ counsel’s rates to be reasonable and do not warrant a reduction.

The party seeking fees and costs bears the burden to show “the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount.” (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.)

In this case, the declarations and billing records provided by Plaintiff’s counsel are sufficient to meet the burden of proving the reasonableness of the claimed fees in terms of amounts and tasks. To satisfy this burden, evidence and descriptions of billable tasks must be presented in sufficient detail, enabling the court to evaluate whether the case was overstaffed, the time attorneys spent on specific claims, and the reasonableness of the hours expended. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486-487.)

Plaintiff’s fee recovery is based on the approximately 195 hours spent by her attorneys litigating this case through this motion. The fees incurred are reasonable, as captured in the billing records submitted to this Court. (Decl. of Jacobson ¶23, Exh. 7.) Plaintiff’s counsel’s billing records reflect the actual time and clear descriptions of services performed in connection with litigating this case, which has been carefully reviewed and audited to remove any entry that may be duplicative, redundant, unnecessary, or otherwise. (Decl. of Jacobson ¶23, Exh. 7.) Although the submission of such detailed time records is not necessary under California law, if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.)

Defendant argues the following billed hours were not reasonably incurred: (1) 3.6 hours on QA’s Standard “Set One” Discovery Requests to Defendant; (2) 9.8 hours Responding to Defendant’s Discovery; (3) 8.0 hours on Template and Unnecessary Motion to Compel; (4) 35.6 hours on Motions in Limine; (5) 16.8 hours and “additional” $6,000 in connection with plaintiff’s Motion for Attorney’s Fees; (6) 17.1 Hours on Deposition Notices and Objections; and (7) “Review” of Documents. (Opposition, pgs. 6-8.)

The Court reviewed the hours billed in each of Defendant’s seven categories and finds Plaintiff’s counsel’s billing for tasks were excessive, given the repetitive nature of the litigation. Accordingly, the Court reduces the total hours billed on these tasks as follows:

(1) 3.6 hours on QA’s Standard “Set One” Discovery Requests to Defendant (-1.6 hours);

(5) 16.8 hours and “additional” $6,000 in connection with plaintiff’s Motion for Attorney’s Fees (-10 hours and $4,000); and

This reduction of 70.4 hours at a rate of $195.40 and $4,000, results in a reduction of $17,756.16 of the fee awarded.

To obtain a costs award, a party must serve and file a memorandum of costs. (C.R.C. Rule 3.1700(a).) Plaintiff’s instant fee motion does not include a memorandum of costs, and the expense invoices submitted with Plaintiffs’ billing records are insufficient in form and function to satisfy this requirement.

Accordingly, the Court cannot award costs unless a Memorandum of Costs is submitted by Plaintiff. The Court therefore does not rule on the issue of costs in this motion.

The Court denies Plaintiffs’ request for a 1.35 lodestar multiplier. Given the routine work done in this case and the results obtained in this lemon law area, a multiplier is not appropriate. Any contingency risk factor is already accounted for in the hourly rates, which the Court has found to be reasonable.

Accordingly, Plaintiff’s motion for attorneys’ fees is granted in the reduced amount of $72,526.34 in attorney fees and $2,000.00 on the instant motion for a total reduced amount of $74,526.34. The Court does not rule on Plaintiff’s request for costs.

Accordingly, Plaintiff’s motion for attorneys’ fees is granted in the reduced total of $74,526.34.

Hon. Daniel M. Crowley

Judge of the Superior Court