Judge: Lynette Gridiron Winston, Case: 23PSCV03334, Date: 2024-08-08 Tentative Ruling

Case Number: 23PSCV03334    Hearing Date: August 8, 2024    Dept: 6

CASE NAME:  Marvin Hodges v. Ford Motor Company, et al. 

Plaintiff’s Motion for Attorney’s Fees for Time Actually Expended and Reasonably Incurred 

TENTATIVE RULING 

The Court GRANTS Plaintiff’s motion for attorney’s fees for time actually expended and reasonably incurred in the reduced amount of $15,337.50, plus costs of $786.80, for a total of $16,124.30. 

            Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a lemon law case. On October 27, 2023, plaintiff Marvin Hodges (Plaintiff) filed this action against defendants Ford Motor Company (Ford), Performance Ford, and Does 1 through 50, alleging causes of action for Violation of Song-Beverly Act – Express Warranty, Violation of Song-Beverly Act – Breach of Implied Warranty, Violation of the Song-Beverly Act section 1793.2(b), and Violation of the Song-Beverly Act section 1796.5. 

On June 20, 2024, Plaintiff moved for attorney’s fees. On July 26, 2024, Ford opposed the motion. On August 1, 2024, Plaintiff replied. 

LEGAL STANDARD 

If the buyer prevails in an action under [the Song-Beverly Act], 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. 

(Civ. Code, §1794, subd. (d).) 

            The prevailing party has the burden of showing that the requested attorney fees are reasonable. (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817-818 (Robertson).) The party seeking attorney fees “is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him].” (Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816, brackets in original and internal citations omitted.) “’A trial court may not rubber stamp a request for attorney fees, but must determine the number of hours reasonably expended.’ [Citation.]” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 38.) 

            The lodestar approach is the prevailing method for calculating attorney fees under Song-Beverly Act claims. (Robertson, supra, 144 Cal.App.4th at pp. 818-819.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [Citation.] The court may also consider whether the amount requested is based upon unnecessary or duplicative work. [Citation.]” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus. [Citation.]” (569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436–437.) 

DISCUSSION 

Summary of Arguments 

            Plaintiff seeks an award of attorney fees in the amount of $17,020.50 and costs in the amount of $786.80. Plaintiff contends the parties have agreed Plaintiff is the prevailing party for purposes of the present fee motion per the terms of the settlement agreement, and therefore Plaintiff is entitled to recover attorney fees and costs per Civil Code section 1794, subdivision (d). Plaintiff contends his counsel achieved his litigation objective by getting the vehicle repurchased under California law. Plaintiff contends that a settlement offer refusal does not factor into the reasonableness of fees and the fact that the parties could not agree on the amount of attorney fees should not reduce the award sought here. 

Plaintiff contends his counsel’s fees and costs should be awarded in full, and that the rates his counsel charged are commensurate with the experience and skill of attorneys in Los Angeles. Plaintiff’s counsel charges $695.00 for Michael Saeedian, $525.00 for managing attorney Christopher Urner, and $350.00 per hour for Jorge L. Acosta. Plaintiff cites the Laffey Matrix for contingency attorney rates to support the reasonableness of the fees requested. Plaintiff contends it is improper to tie an award of attorney fees to Plaintiff’s damages, and that the time required for a fee motion is recoverable. Plaintiff also references the memorandum of costs filed in conjunction with this motion to support the request for costs. 

In opposition, Ford contends that all fees should be cutoff after November 29, 2023, when Ford made a settlement offer to buyback the subject vehicle, and that the result achieved here is ultimately no better than what Ford offered back then. Ford contends Plaintiff over-litigated this case and that, based on the billing records, Plaintiff’s counsel does not appear to have communicated the November 29, 2023, settlement offer to Plaintiff. Ford notes another case in Los Angeles County Superior Court before Judge Kalra (LASC Case No. 22STCV00335 (Rocha)), in which Plaintiff’s counsel was criticized for over-litigating the case and failing to communicate settlement offers with the client. 

Ford contends the requested hourly rates for Plaintiff’s counsel are unreasonable and that Plaintiff’s counsel does not explain how his rates are set, other than citing the Laffey Matrix, which is used for assessing legal fees in the Washington-Baltimore Area. Ford notes the rejection of Mr. Saeedian’s rate in Rocha, which found that the matter was not complex and that Mr. Saeedian lacked significant experience in lemon law cases. Ford also notes Mr. Saeedian offered no additional statements here. Ford contends Mr. Urner’s rate is too high, as he only graduated law school in 2016 and is a junior attorney. Ford requests Mr. Saeedian’s and Mr. Urner’s rates be reduced to $350.00 and $250.00, respectively, or alternatively that their billing entries be deducted altogether, as this litigation was not one requiring partner level involvement given the repurchase offer made just weeks after service of the complaint. 

Ford further contends the number of hours Plaintiff’s counsel charged are unreasonable given the routine nature of the case and Ford’s settlement offers that obviated Plaintiff’s discovery efforts. Ford notes one entry for 1.6 hours searching the NHTSA database, arguing that is excessive and would only require a minute or two of work. Ford notes there are no entries showing Plaintiff’s counsel communicated the November 2023 settlement offer. Ford also contends Plaintiff did not achieve his litigation objectives regarding civil penalties by continuing to litigate this after the November 2023 repurchase offer. Ford also argues Plaintiff improperly attempts to charge for work related to the claims against the dealership defendant, who paid nothing in the settlement and achieved a dismissal. 

In reply, Plaintiff contends Ford’s arguments about settlement are actively deceptive, noting that Ford’s initial settlement offer in November 2023 was for $68,787.04, but the parties settled on $100,000.00 in response to a Code of Civil Procedure section 998 offer. Plaintiff obtained at least $30,000.00 more by continuing to litigate this matter. Plaintiff contends Ford’s arguments that the result was essentially the same is false and misleading. 

Plaintiff then contends Ford cannot comply with the Song-Beverly Act by making a post-litigation settlement offer, and that Ford’s claim that it should not be liable for attorney fees because it made a settlement after the lawsuit was filed is unsupported by legal authority. Plaintiff contends Ford fails to acknowledge that it is ultimately the client who accepts or rejects the settlement offer, not the attorney, which is what happened in connection with the November 2023 offer. Plaintiff reiterates that his refusal to accept an earlier offer does not factor into the reasonableness of Plaintiff’s requested fees, and Ford’s arguments here effectively impose a higher legal standard than that required by a section 998 offer. 

Plaintiff further contends absent a specific and direct challenge to billing items in this case, Plaintiff does not have the legal burden to prove again the items on the verified billing statement. Plaintiff contends that contingency and delay of payment factors into the rate requested here. Plaintiff also notes that, other than the rates charged for this fee motion itself, Plaintiff’s blended rates equal $338.32 an hour since a substantial amount of the work in this case was delegated to lower priced paralegals and attorneys. Plaintiff contends Ford did not identify a single billing entry relating to the motion that it disputes. Plaintiff then cites to various cases in Los Angeles and San Diego in which Plaintiff’s counsel’s rates have been awarded. Finally, Plaintiff argues Ford only made general complaints about the fees being unreasonable when Ford was required to identify specific items to challenge them, and only points out one or two items that it specifically disputed, namely the NHTSA database billing entry and claims regarding legal work relating to the dealership. 

Prevailing Buyer 

            To be a prevailing buyer in a lemon law case, there are two approaches: (1) the buyer achieves a net monetary recovery vis-à-vis Civil Code section 1032, subdivision (a)(4); or (2) the buyer achieves his or her litigation objectives. (Duff v. Jaguar Land Rover N. Am., LLC (2022) 74 Cal.App.5th 491, 502-503.) 

The Court finds that Plaintiff is the prevailing buyer here. Ford does not dispute that Plaintiff obtained a net monetary recovery. Ford instead contends that Plaintiff did not achieve his litigation objectives. (Opp., 6:27-7:8.) However, Ford also contends Plaintiff’s attorney fees should be limited to $3,660.00. (Id., 2:24.) These are inherently contradictory positions. If Plaintiff is entitled to any attorney fees in this action, then Plaintiff must necessarily be the prevailing party. (See Civ. Code, § 1794, subd. (d).) 

Moreover, Plaintiff obtained at least $30,000.00 more than what Ford originally offered him for settlement in November 2023. (Reply, 1:9-20; Saeedian Reply Decl., ¶ 2.) Whether these were civil penalties is not necessarily the point; the point is Plaintiff sought and ultimately obtained larger damages than that which Ford originally offered. (Saeedian Decl., ¶ 22; see Campos v. Ford Motor Co. (C.D. Cal. 2020) 2020 WL 256125, at *2 [“[W]hat was Plaintiffs' litigation objective? Ford's willingness to repurchase the vehicle and pay a substantial amount of money in damages and penalties, and Plaintiffs' repeated reluctance to accept that offer leads the Court to conclude that Plaintiffs primary objective was to pursue larger damages.”]) 

Furthermore, the Court notes Defendant does not dispute Plaintiff’s contentions that the parties agreed Plaintiff is the prevailing buyer per their settlement agreement. (Motion, 4:16-17; see generally, Opp.) The Court construes this as a tacit admission that Plaintiff’s contention is correct. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”]) 

Therefore, Plaintiff is the prevailing buyer here. 

Reasonableness of Hourly Rate 

Plaintiff, as the prevailing buyer, bears the burden of proving the reasonableness of the fees requested. (Robertson v. Fleetwood Travel Trailers of California, Inc., supra, 144 Cal.App.4th at pp. 817-818.) 

The Court finds the hourly rates of Mr. Saeedian and Mr. Urner to be excessive. Mr. Saeedian’s declaration does not explain how long he has been working in the field of lemon law. (See Saeedian Decl., ¶¶ 2-3.) But, Mr. Saeedian does reference other lemon law cases in Los Angeles County Superior court involving approval of his rates. (Saeedian Decl., ¶ 15.) Notwithstanding, the Court finds the rate of $695.00 in and of itself to be excessive for the relevant legal community. (See 569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc., supra, 6 Cal.App.5th at pp. 436–437 [“The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus. [Citation.]”]) Mr. Urner, while having extensive experience in lemon law cases, is not a partner. (Saeedian Decl., ¶ 4.) $525.00 for a non-partner attorney in this area is on the excessive side. Furthermore, the Laffey Matrix is not sufficient to justify the hourly rates sought, as that does not address rates in the Los Angeles area. “Just because the Laffey matrix has been accepted in the District of Columbia does not mean that it is a sound basis for determining rates elsewhere, let alone in a legal market 3,000 miles away.” (Prison Legal News v. Schwarzenegger (9th Cir. 2010) 608 F.3d 446, 454.) 

Accordingly, the Court will reduce Mr. Saeedian’s hourly rate to $525.00 and Mr. Urner’s hourly rate to $425.00. 

            Reasonableness of Number of Hours 

“A verified fee bill is prima facie evidence that the costs, expenses, and services listed were reasonable.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682). “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal…. [Citation.]” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) 

            Plaintiff presented a verified fee bill. (Saeedian Decl., Ex. A.) The only specific entry that Ford challenged was the entry on November 10, 2023, for 1.6 hours regarding research in the NHTSA database. (Saeedian Decl., Ex. A, p. 11 of pdf.) The Court agrees that this seems excessive, even if Plaintiff was purportedly searching for potential class actions. (See Reply, 10:11-19.) The Court reduces this entry to 0.5 hours. Otherwise, given Ford’s lack of challenges to other specific items in Plaintiff’s fee bill, the Court finds the number of hours claimed to be reasonable. The fact that Plaintiff continued to litigate this action after the initial settlement offer in November 2023 does not mean Plaintiff acted unreasonably, especially considering the significantly higher settlement amount obtained thereafter. (See Saeedian Reply Decl., ¶ 2; Reck v. FCA USA LLC (2021) 64 Cal.App.5th 682, 699-700.) 

            With respect to Ford’s arguments regarding the continued litigation after the initial settlement offer in November 2023, the Court finds these arguments unavailing. True, the fee bill does not reflect Plaintiff’s counsel having immediately communicated the settlement offer to Plaintiff. (Saeedian Decl., Ex. A, p. 12 of pdf.) However, the fee bill does depict subsequent communications to Plaintiff regarding other settlement offers and communications, such as on January 9, 2024, February 19, 2024, February 29, 2024, and March 29, 2024. (Saeedian Decl., Ex. A, pp. 12-14 of pdf.) The absence of entries regarding such communications is not necessarily proof that the communications did not occur. (See Saeedian Reply Decl., ¶ 5.) Nevertheless, the Court admonishes Mr. Saeedian to be more diligent in the future so as to avoid this problem going forward, and more importantly to ensure compliance with his ethical obligations. (See Cal. Rules of Professional Conduct, rule 1.4.1 [communication of settlement offers].) 

            The Court notes that Ford does not challenge the $786.89 in costs sought by Plaintiff. 

            Based on the foregoing, the Court GRANTS Plaintiff’s motion in part, and awards attorney fees and costs in the reduced amount of $16,124.30, comprised of $15,337.50 in attorney fees and $786.80 in costs. 

CONCLUSION 

The Court GRANTS Plaintiff’s motion for attorney’s fees for time actually expended and reasonably incurred in the reduced amount of $15,337.50, plus costs of $786.80, for a total of $16,124.30.