Judge: Jon R. Takasugi, Case: BC718660, Date: 2023-05-09 Tentative Ruling

Case Number: BC718660    Hearing Date: May 9, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff is awarded $6,000 in reasonable attorney fees.

Given the pending motions to tax costs, the Court does not consider the request for costs here.

            On August 21, 2018, Plaintiff Lizet Luevano (Plaintiff) filed suit against Ford Motor Company (Defendant). Plaintiff’s second amended complaint (SAC) alleges: (1) violation of the Song Beverly Act—breach of express warranty; (2) violation of the Song Beverly Act—breach of implied warranty; (3) violation of the Song Beverly Act section 1793.2; (4) violation of Business and Professions Code section 17200; and (5) violation of the consumer legal remedies act section 1750, et seq.

            Now, Plaintiff moves to recover attorney fees totaling $965,712.11

Discussion

            Plaintiff seeks to recover attorney fees based on the Jury’s award of $38,478.18 in damages to Plaintiff.

            In opposition, Defendant argues that Plaintiff is not the prevailing party, and even if she were, she is not entitled to fees after she rejected Defendant’s section 998 offer.

            While the Court finds Plaintiff to be the prevailing party—she did obtain a net monetary recovery—the Court agrees that her fee recovery is limited to those fees incurred before she rejected Defendant’s 998 offer.

Under CCP section 998, “[i]f 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.” (CCP § 998(c)(1).) The shifting effect of section 998 extends to bar the recovery of attorney’s fees following the rejection of a superior 998 offer. (Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 461, quoting, as modified (Jan. 11, 2023), quoting Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 832 [“a valid and reasonable section 998 offer by the seller, where the buyer recovers less than the offer, precludes recovery by the buyer of postoffer attorneys’ fees and costs under Civil Code section 1794, subdivision (d)”]; Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718, 724.)

Here, Defendant presented an unconditional section 998 offer of $75,001.00 on January 28, 2019, and Plaintiff rejected the offer. (See Ford’s 998 Offer, Exh. 8.) The offer was rejected. At trial, Plaintiff recovered only $38,478.18. As such, Plaintiff rejected Defendant’s offer, and failed to obtain a more favorable judgment, thus limiting her recovery to pre-offer fees.

Here, the billing records disclose roughly $10,000 in pre-offer billing records. However, there are indications of padding in these billings. The vast majority of the billings are for review and meetings, 5.8 hours were filled to review an opposition and draft a reply to motion for leave to amend, and $1,350 was billed to “[p]repare for and attend hearing on Plaintiff's motion for leave to amend complaint.”

In sum, the Court finds some of the hours claimed to be  “excessive, redundant, or otherwise unnecessary.” (Hensley v. Eckerhart, 461 U.S. 424, 434.)  Given the Court’s power to make “across-the-board percentage cuts either in the numbers of hours claimed or in the final lodestar figure,” the Court finds only $6,000  in attorney fees reasonably recoverable. (Gonzalez v. City of Maywood (9th Cir. 2013) 729 F.3d 1196, 1203.)

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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