Judge: Frank M. Tavelman, Case: 20BBCV00564, Date: 2023-02-21 Tentative Ruling

Case Number: 20BBCV00564    Hearing Date: February 21, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ATTORNEY FEES, COSTS AND EXPENSES

This Ruling after Hearing is being posted on the Court’s Tentative Ruling System to permit the attorney’s timely access to the ruling.   It should not be considered a Tentative Ruling.   The Clerk will mail a copy to the parties via a minute order.

MP:     Denise Bautista (Plaintiff)

RP:      General Motors (Defendant)

Case Summary:

Plaintiff brought suit under the Song-Beverly Consumer Warranty Act, Civ. Code §1794(d).  Plaintiff purchased a previously owned 2015 vehicle in 2016, but still under the manufacturer’s warranty.  The vehicle had numerous mechanical issues, and a request to repurchase the vehicle was made.   Defendant declined to do so, which resulted in Plaintiff filing this lawsuit. 

In May 2021, Defendant presented a settlement offer pursuant to CCP §998, which Plaintiff declined.  On April 7, 2022, the Court of Appeal published Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, in which the court determined that the Song-Beverly Consumer Warranty Act did not apply to previously owned vehicles.  The parties then entered into a settlement agreement in May 2022 in the same dollar amount as offered in the CCP §998 offer.  The settlement agreement included reasonable attorney’s fees.

Plaintiff’s Request:

Plaintiff asserts Plaintiff is the prevailing party on the Song-Beverly Consumer Warranty Act claim at issue in this lawsuit, and under said Act is entitled, by both agreement and statute, to an award of fees, costs, and expenses.

Plaintiff’s counsel is requesting attorney fees, costs, and expenses in the total amount not to exceed $42,655.51. Such amount consists of a) $35,719.50 in attorney fees and $2,936.01 in recoverable costs and expenses for Consumer Law Experts, P.C.; and reservation for an additional $5,000.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply brief, and attend the hearing on this issue.

Request for Judicial Notice:

Plaintiff’s request for judicial notice of items 1-19 is granted.   There being no opposition to the request.

Memorandum of Costs:

Plaintiff filed a Memorandum of Costs on September 2, 2022, supporting costs in the amount of $2,936.01 from filing to conclusion.

Defense Argument:

Defense argues that Plaintiff’s award for attorney’s fees should be limited pursuant to CCP §998.  “By failing to beat the 998 offered earlier, Plaintiff is not entitled to attorneys’ fees incurred after rejecting the settlement offer because Counsel did not advance the case at all.  (Opp. 2:13-15).  Defense does not attack the hourly rate requested by Plaintiff’s counsel but believes fees and costs should be limited to those incurred through the CCP §998 date.  As to the post CCP §998 costs, the Defense does question the hours associated with certain work which the Defense suggests were “boiler plate” motions simply customized to this case with little additional work.

Law and Analysis:

A review of the case law shows the interplay between the Song-Beverly Act and CCP §998.  In Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 697 the trial court rejected a claim for approximately $100,000 in attorney's fees incurred after the defendant presented a CCP § 998 offer to settle a Song-Beverly Act case for $81,000 plus fees and costs.  The parties later settled the case during trial for $89,500. The appellate court reversed, holding that "in the context of public interest litigation with a mandatory fee shifting statute such as the Song-Beverly Act, it is an error of law for the trial court to categorically deny or reduce an attorney fee award on the basis of a plaintiff s failure to settle when the ultimate recovery exceeds the CCP § 998 settlement offer." (Id. at 687.) Although the court "retains broad discretion to evaluate post-offer attorney fees and costs under a lodestar analysis, and to reduce the fee recovery in the appropriate circumstance, it may not categorically deny all fees from the date of the offer when the plaintiffs decision to press forward with litigation has been vindicated by a more favorable judgment or award." (Id. at 697.)

However, the facts of this case are contrary to Reck.  In this case the Plaintiff was not “vindicated by a more favorable judgment or award” as was the Plaintiff in Reck.  In this instance, the settlement was the same as the CCP §998 offer.  The language of the CCP § 998 offer that Plaintiff ultimately accepted states that Plaintiffs attorney's fees “shall be determined by way of notice motion to the court.”   It does not provide more details, such as attorney fees, "shall be calculated as if Plaintiff was found to have prevailed in an action under section 1794(d) as of the date of this settlement agreement, or “… as of the date of the CCP § 998 offer.”  “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.”
(Fair v. Bakhtiari (2006) 40 Cal.4th 189, 202).  The Court will not read into a settlement agreement terms that the parties did not choose to include, absent specific circumstances.  “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, subject, however, to the other provisions of [the Civil Code.].  (Cal. Civil Code §1639).  The parties did not express any intention to exclude the provisions of CCP §998 in the attorney’s fees provision, nor would public policy dictate that such an intent be read into the agreement.

Nothing in the relevant statutes or applicable case law suggests the Legislature intended to exempt lemon law plaintiffs from the incentives of CCP § 998's provisions encouraging settlement of pending cases.  Nor is the Song-Beverly Act's purpose inconsistent with the application of the CCP § 998 provision restricting the ability of prevailing plaintiffs to recover attorney fees and costs if they fail to recover more at trial than a rejected pretrial settlement offer. Furthermore, the California Supreme Court has held that, even though the cost-shifting feature of the Song-Beverly Act is the more specific statute because it concerns the recovery of costs in a more specific type of litigation, it does not trump or supersede the provisions of CCP § 998 when, as here, the two may be reconciled. (Murillo v. Fleetwood Enterprises, Inc., (1998)17 Cal.4th 985, 992.)

In Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718 the Court of Appeal reversed a trial court’s order awarding post-offer attorney’s fees and costs when the trial award was $49,885 but the CCP §998 offer was $51,466.  The Court of Appeal ruled that only pre-offer attorney’s fees and costs should have been awarded, and it was error to award post-offer fees and costs. The Court sees no reason to apply a different standard to settlement agreement awards and trial awards.

Reasonableness of Attorney’s Fees, Costs and Expenses:

Plaintiff requests attorney’s fees at a rate of $450 per hour prior to the end 2022, at which point the hourly rate increased to $515 (Moore Decl. ¶21).   Plaintiff then lists a plethora of cases to support this rate.  (Plaintiff’s Motion pp 8-9).  In Defendant’s opposition, they do not contest the hourly rate requested by Plaintiff’s counsel, nor the work done up to the date of the CCP §998 settlement offer.  The Court has reviewed the hours worked, the type of work completed, and the hourly rate sought in light of fair and reasonable rates in the community, and finds the rate and pre CCP §998 work to be fair and reasonable.  

Conclusion: 

Plaintiff’s claim seeking attorney’s fees for work completed post CCP §998 offer is not supported by CCP §998 and the relevant case law.  While Plaintiff’s counsel’s hard work, skill and expertise may have resulted in an ultimate settlement, it does not alter the limitations imposed under applicable law and the terms of the settlement agreement. 

The Court awards attorney’s fees in the amount of $14,932 and costs in the amount of $945.30.  Total award for costs and fees is $15,877.30.

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If a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Plaintiff’s Motion for Attorney Fees, Costs and Expenses came on the regular calendar for hearing on February 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises.   After consideration of the moving, opposing and reply papers as well as argument of counsel on the hearing date, the Court rules as follows: 

THE MOTION IS GRANTED.  THE COURT AWARDS ATTORNEY’S FEES IN THE AMOUNT OF $14,932 AND COSTS OF $945.30 FOR A TOTAL AWARD OF $15,877.30

CLERK TO GIVE NOTICE.

IT IS SO ORDERED. 

                                                                        /s/ F.M. Tavelman

DATE:  February 21, 2023                             _______________________________ 

                                                                         F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles