Judge: Glenn R. Salter, Case: 19-1094633, Date: 2023-07-27 Tentative Ruling

Motion for Attorney Fees

This is a Lemon Law case.  The matter has been settled by plaintiff’s acceptance of defendant’s Offer to Compromise pursuant to Code of Civil Procedure section 998.  The Offer was accepted March 8, 2022.

Plaintiff filed this motion for attorney fees.  The motion, however, is unclear as to the amount of attorney fees being sought.  Different numbers appear at different points in the papers.  But the various numbers bantered about hover around $225,000.

Counsel claims attorney fees at an hourly rate of $675, and paralegal fees at an hourly rate of $175.

Defendant compares the initial 998 Offer to Compromise on March 3, 2020 (which was rejected), with the 998 Offer accepted on March 8, 2022.

1.    The 2020 Offer was for a buy-back, dismissal of the action with prejudice, a payment to the plaintiff of $28,658.78, and $10,000 for attorney fees and other costs. 

2.    The 2022 Offer was for a buy-back, a payment to the plaintiff of $26,658.78, and plaintiff’s reasonably incurred attorney fees.

What stands out starkly from a review of the two Offers is that after two years of additional litigation (i.e., from March 2020 to March 2022), plaintiff’s recovery went down by $2,000.  Meanwhile, counsel’s attorney fees went up about $200,000.

Plaintiff asserts the first 998 Offer was invalid.  But other than general statements of invalidity, he does not explain in any detail why or how it is invalid.  But even if it were, the court is not tasked with enforcing an award of attorney fees under Code of Civil Procedure section 998.  Rather, it must determine whether the additional fees were “reasonably” incurred under the Song-Beverly Act.

If, as here, plaintiff’s personal recovery actually went down $2,000, how can counsel assert that the attorney fees claimed for work done between March 2020 and March 2022 were “reasonably” incurred?  The court must take into account the fact that the first 998 Offer included an amount for fees and costs that was less than what plaintiff asserts had been incurred.  But there is nothing in the record suggesting that the Offer that was finally accepted could not have been achieved—and should have been achieved—in March of 2020.

No tentative.