Judge: John J. Kralik, Case: 22BBCV01283, Date: 2025-05-09 Tentative Ruling

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Case Number: 22BBCV01283    Hearing Date: May 9, 2025    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Yamile Colque and Wilson Colque (“Plaintiffs”) allege that on September 2, 2018, they entered into a warranty contract with Defendant Ford Motor Company (“Ford”) regarding a 2018 Ford Fusion for a total price of $30,808.59.  They allege that defects and nonconformities to the warranty manifested themselves within the applicable express warranty period, including but not limited to transmission, electrical, brakes, steering, and suspension.  Plaintiffs allege that they delivered the vehicle to Ford’s repair facility for repair of the nonconformities, but Ford was unable to conform the vehicle to the applicable express warranties after a reasonable number of repair attempts.  Plaintiff alleges that Ford failed to promptly offer to repurchase or replace the vehicle or make restitution.

The complaint, filed December 23, 2022, alleges causes of action for: (1) violation of Song-Beverly Act – breach of express warranty; and (2) violation of Song-Beverly Act – breach of implied warranty.

B.     Relevant Background and Motion on Calendar

On May 30, 2024, Plaintiffs filed a Notice of Settlement of Entire Case. 

On September 30, 2025, the Court held an OSC re: Dismissal (Settlement), noting that a notice of settlement was filed on May 30, 2024.  The Court dismissed Ford without prejudice from Plaintiffs’ complaint. 

On March 3, 2025, Plaintiffs filed a motion for attorney’s fees and costs and expenses pursuant to Civil Code, § 1794(d). 

On April 28, 2025, Ford filed an opposition brief.

On May 2, 2025, Plaintiffs filed a reply brief.

DISCUSSION

            Plaintiffs move for attorney’s fees, costs, and expenses pursuant to Civil Code, § 1794(d), CCP § 664.6, and based on the CCP § 998 offer accepted by Plaintiffs.  Plaintiffs seek $36,720 as the prevailing party pursuant to Defendant Ford Motor Company’s Statutory Offer to Compromise Pursuant to C.C.P. § 998 (“998 Offer”).  (Mot., Ex. C [998 Offer].) 

A.    Entitlement to Attorney’s Fees

            Plaintiffs argue that prior to filing the lawsuit, they contacted Ford directly about ongoing problems with the vehicle, but Ford refused to repurchase the vehicle.  (Mizrahi Decl., ¶14.)  Plaintiffs filed this action on December 23, 2022, and Ford denied the allegations and commenced discovery.  (Id., ¶¶15-16.)  Plaintiffs argue that after a year and a half of litigation, Ford agreed to repurchase the vehicle and the matter immediately settled.  (Id., ¶17.) 

In the 998 Offer, the parties agreed: (1) Ford will pay Plaintiff $50,000 concerning the subject vehicle; (2) (a) judgment may include an award of attorney’s fees against Ford pursuant to CCP § 1794(d) in the amount of $9,500, or (b) Plaintiffs shall retain the right to petition the Court for an award of reasonably and actually incurred attorney’s fees and costs against Ford pursuant to CCP § 1794(d), plus a reasonable amount to bring the motion, and the amount shall be calculated as if Plaintiffs were found to have prevailed under section 1794(d) as of the date of the offer of judgment; (3) Plaintiffs will surrender the vehicle  to Ford; (4) Ford waives all claims to attorney’s fees and costs; (5) Plaintiff will file a request for dismissal with prejudice; etc.  (998 Offer at pp.1-2.)   (The Court notes that while the 998 Offer references CCP § 1794, the correct citation is Civil Code § 1794.) 

            Civil Code, § 1794(d) states: “If 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.” 

            Here, the parties do not dispute that Plaintiffs are the prevailing party and entitled to attorney’s fees under the Act.  While Plaintiffs had the opportunity to opt for attorney’s fees in the amount of $9,500, they have chosen to file a motion for attorney’s fees and costs against Ford.  (See 998 Offer at § 2.)  Thus, there is a basis for attorney’s fees and costs. 

            The Court will presume that the parties stipulated that this motion could be brought at this late date.

B.     Reasonableness of Fees

            Plaintiffs seek $36,720 in attorney’s fees and costs.  Specifically, Plaintiffs seek $30,055 in attorney’s fees, a 1.2 multiplier on top of the fees (which amounts to an additional $6,011), and $654 in costs. 

            Plaintiffs provide the declaration of their counsel Guy Mizrahi.  Mr. Mizrahi states that he has been practicing law for over 22 years and currently bills at $550/hour, which he believes is in line with, if not lower, than the majority of attorneys with experience practicing law in this area.  (Mizrahi Decl., ¶¶20-21, 24.)  He states that his associate attorney Nicholas Yakoobian has practiced law since 2023, has focused almost exclusively on lemon law, and bills at $350/hour.  (Id., ¶25.)  Mr. Mizrahi provides examples of his hourly rate being accepted in other cases from 2019 to the present (id., ¶¶26-49), and also provides examples of other specific attorney’s billing rates who practice lemon law (id., ¶50).  Mr. Mizrahi provides billing records and the memorandum of costs.  (Id., ¶4, Ex. A [Billing Records], Ex. B [Memorandum of Costs].)   Based on the billing records, Plaintiffs’ counsel incurred 57.7 hours ($30,055) in attorney’s fees.  (Id., Ex. A.)  Mr. Mizrahi states that he personally reviewed the entries and wrote of 12.4 hours of attorney time.  (Id., ¶5.)  He also seeks a 1.2 multiplier, for an additional $6,011. 

            In opposition, Ford argues that the motion should be denied in its entirety or adjusted to no more than $11,632.50 because the hourly rates are excessive, Plaintiffs’ counsel seeks fees associated with tasks not performed in this case and/or are not recoverable under the Act and the lodestar multiplier is not justified.

            The Court finds the hourly rates sought by Mr. Mizrahi and Mr. Yakoobian to be high for this action, which appears to be a routine case.  The Court will reduce Mr. Mizrahi’s hourly rate of $550/hour to $400/hour.  To the extent that Mr. Mizrahi is actually billing at $550/hour he is to at least some extent deploying this expertise to relatively ordinary tasks that could be handled at a much lower billing rate, in some cases by clerical personnel.  Mr. Yakoobian has only been practicing since 2023. The Court will lower the hourly rate recoverable to $200/hour, a reasonable rate for someone of his experience. 

            The Court considers Ford’s request for reductions to the attorney’s fees and makes the following adjustments to the hours billed:

·         July 2023 to September 2023 for the hours incurred before Plaintiffs’ counsel’s substitution into the action: Plaintiffs’ current counsel (JGSM Law LLP) substituted into this action on September 18, 2023.  The Court will disallow that time prior to September 18, 2023. There is no evidence of when the client signed the representation agreement, but the time spent prior to September 18, 2023 appears to have been spent on the initial intake of the client which is normally a matter of law firm administration. Counsel declares that his firms “agreement to handle this case on a contingency based on an hourly rate.” (Mizrahi Decl., ¶2.) The agreement is not disclosed but it would be highly unusual to bill a client an hourly rate for time spent before a retention agreement was signed.  This totals 7 hours from Mr. Mizrahi’s billed time.

·         April 2024 for the hours incurred to prepare an opposition brief to Ford’s motion to compel Plaintiffs’ depositions: Ford argues that it attempted to informally resolve the deposition issues, but Plaintiffs were uncooperative until they offered to be available for their deposition on April 17, 2024.  Ford argues it was forced to file a motion to compel to ensure that Plaintiffs would appear for their deposition, which Plaintiffs opposed.   On April 17, 2024, Ford withdrew the motion as Plaintiffs’ depositions were taken on April 17, 2024.  The Court will reduce the hours for Plaintiffs’ filing of the opposition brief. In light of the number of times that Plaintiffs had postponed their depositions, and the imminent trial, Ford’s filing of a motion was reasonable, and appeared necessary to insure their appearance.  The opposition was not necessary provided that Plaintiffs did appear and, when they did, Ford withdrew the motion.  This totals 5 hours from Mr. Yakoobian’s billed time.

·         April 10 and 16, 2024 for drafting supplemental discovery responses: Ford argues that although Plaintiffs billed 0.4 and 1.8 hours respectively to prepare supplemental responses, no responses were provided to Ford.  The Court will allow the reduction of 2.2 hours incurred by Mr. Yakoobian. 

·         Fees post-May 9, 2024 (June 13, 2024 to September 3, 2024): Ford also argues that any fees incurred after the 998 Offer was accepted should be excluded.  From June 13, 2024 to September 3, 2024, Mr. Mizrahi billed for administrative tasks in the amount of 1.5 hours related to his client surrendering the vehicle, corresponding with Plaintiffs regarding the settlement check and conclusion of the case, etc.  The Court will find these amounts reasonable, and will not reduce the amount of time associated with them.

·         September 26, 2024 to May 9, 2025 related to the motion for attorney’s fees: Ford argues that the time sought by Plaintiffs’ counsel to file this motion in the amount of 7.9 hours is unreasonable as it is more than 14% of the entire amount billed for the litigation.  The 998 Offer allowed fees to be recoverable for filing this motion for attorney’s fees.  The fees sought related to filing this motion include correspondence with Ford’s counsel regarding attorney’s fees without motion (9/26/24 at 0.2 hour; 10/10/24 at 0.1 hour; 10/22/24 at 0.1 hour); auditing the timesheet to reduce 12.4 hours and prepare the motion (2/24/25 at 4 hours); and anticipated review of the opposition, preparation of the reply, and attendance of the hearing (5/9/25 at 3.5 anticipated hours).  The Court will reduce this time by 5 hours.  Mr. Mizrahi declares:

o   “Prior to filing this motion, I sought to resolve Plaintiff’s attorneys’ fees, costs, and expenses directly with defense counsel. Unfortunately, Defendant refused to make any offers. While I was open to a reasonable resolution without the need for a motion, Defendant would not budge.” (Mizrahi Decl., ¶2.)

The Court disagrees with counsel’s declaration of his own reasonableness. The correspondence reflects that he refused to produce invoices from which Ford could evaluate his claims of reasonableness and instead demanded an amount in excess of what he seeks from the Court—even with the multiple he demands. Perhaps it is not required that counsel meet and confer prior to the motion, but when the reasonableness of the negotiation is put in issue by counsel’s own statements, the reasonableness can be considered on this motion. Counsel’s refusal to provide invoices does not seem reasonable to the Court.  Thus, taking into account the 5-hour reduction, Mr. Mizrahi may only recover 2.9 hours for the time spent on this motion for attorney’s fees. 

·         Total: The Court will reduce Mr. Mizrahi’s time by 12 hours and Mr. Yakoobian’s time by 7.2 hours.   

Based on the Court’s calculation of the billing records, Mr. Mizrahi billed 49.3 hours total and Mr. Yakoobian billed 8.4 hours total.  Taking into account the reductions discussed above, the total hours that will be awarded for counsel’s time shall be: (a) Mr. Mizrahi: 37.3 hours at $400/hour, or $14,920; and (b) Mr. Yakoobian: 1.2 hours at $200/hour, or $240.  This amounts to $15,160 in recoverable attorney’s fees.

The Court declines to award a 1.2 multiplier as requested by Plaintiffs.  Mr. Mizrahi states in his declaration that his fees were contingent, there was a substantial delay in payment associated with a contingency fee case as the case was filed in December 2022, the skill in advancing the issues of the case, the litigation precluded other employment and the outcome counsel received on behalf of Plaintiffs was excellent.  (Mizrahi Decl., ¶52.)  While the Court recognizes that Plaintiffs’ counsel obtained a favorable outcome for their clients, the Court declines to award a lodestar multiplier based on the facts of this case, which were not a complicated lemon law case.  The request for a multiplier is denied. 

C.     Costs

            Plaintiffs seek $654 in costs.  The Memorandum of Costs is attached as Exhibit B to the motion papers.  It seeks:

·         Item 1. Filing and motion fees: $54

·         Item 16. Other: $600

·         Total: $654

The attached worksheet states that the filing and motion fees relate to a substitution of attorney ($13.20), opposition to Ford’s motion to compel Plaintiff’s deposition ($13.60), acceptance of offer to compromise ($13.60), and notice of settlement ($13.60).  It also states that the costs for “Other” include “SMART ADR” in the amount of $600.  No receipts were attached to the Memorandum of Costs.  It is only with the reply brief that Plaintiffs filed receipts for the costs billed. 

            In opposition, Ford argues that no documentation is provided to show that costs were reasonably incurred, such that Ford is unable to determine if the costs were actually or reasonably incurred.  (Opp. at p.10.)  Ford also argues that the Court should not consider costs if Plaintiffs provide supporting documents in opposition as Ford would be unable to address any additional reply evidence.  (Id. at p.11.) 

            With the reply brief, Plaintiffs submitted receipts showing: (1) a $600 receipt of Smart ADR with respect to the mediation on May 2, 2024; and (2) All-N-One Legal Support, Inc. receipts for the 4 court filings.  (Reply at Ex. B.) 

            Based on the Court’s review of the receipts, the costs are modest and were reasonably incurred to file documents with the Court with respect to this action and to pay for mediation fees.  Ford does not dispute that the meditation took place and the costs for filing documents is not unreasonable and is a necessary cost.  As such, the Court will allow the $654 in costs. However, Ford may raise arguments at the hearing if it disputes that the costs were reasonable and necessary.

D.    Potential for Double Recovery of Attorneys’ Fees

            Plaintiffs’ counsel declares that he has achieved “an Outstanding Settlement.”  (Mizrahi Decl. at 3:13.) He states that “Plaintiff was reimbursed all of his repurchase damages and obtained a substantial civil penalty.” (Id., ¶51.) Counsel relies on the contingency arrangement as a demonstration of the reasonableness of the fees. (Id., ¶52.) Yet the contingency arrangement is described in a murky way that indicates it is also based on an hourly rate.  (Id., ¶3.)  In light of this, the Court is concerned with whether Plaintiffs are truly receiving the benefit of the “excellent settlement” they are claimed to have received or whether they are also paying an hourly or contingent fee out of that settlement in addition to the amount sought in court. Therefore, the Court requests that the agreement be produced or that Plaintiffs’ counsel certify that they are not being compensated out of the settlement funds in addition to the amount sought in Court.

CONCLUSION AND ORDER

Provided that Plaintiffs’ counsel can certify that they are not being compensated out of Plaintiffs’ recovery, the Court intends to grant Plaintiffs’ motion for attorney’s fees as costs in granted in the total amount of $15,160 in attorney’s fees and $654 in costs. 

Plaintiffs shall provide notice of this order.  

DATED: May 9, 2025                                                                        ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court