Judge: Mel Red Recana, Case: 23STCV11608, Date: 2024-08-05 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 23STCV11608    Hearing Date: August 5, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing Date:             August 5, 2024

Moving Party:             Plaintiff Valerie Rosales

Responding Party:       Jaguar Land Rover North America, LLC

Motion for Attorneys’ Fees

The court has considered the moving, opposition, and reply papers.

The court GRANTS Plaintiff’s motion for attorney’s fees, at a reduced amount.

Background

On April 5, 2019, Plaintiff Valerie Rosales (“Rosales”) filed this lemon law action against Defendant Jaguar Land Rover North America, LLC (“Jaguar”) concerning the 2021 Land Rover Range Rover Velar Vehicle (“Vehicle”) Plaintiff leased from Defendant on August 31, 2021. Plaintiff filed the operative Complaint for the following causes of action: (1) violation of subdivision (d) of civil code section 1793.2; (2) violation of subdivision (b) of civil code section 1793.2; (3) violation of subdivision (a) (3) civil code section 1793.2; (4) breach of express written warranty of civil code section 1791.2 and 1794; (5) breach of implied warranty of merchantability (civil code § 1791.1; § 1794); and (6) violation of Tanner Consumer Protection Act.

On February 20, 2024, the parties entered into a Settlement Agreement containing a mutual release. (Opp., Wong Decl., ¶ 12, Ex. 9.) Rather than Plaintiff surrendering the subject Vehicle for $75,000, the parties agreed that Jaguar would pay $25,000 to Plaintiff and Plaintiff would keep possession of the vehicle. (Opp., Wong Decl., ¶¶ 6, 12, Ex. 4, 12.) The confidentiality provision of the Settlement Agreement provides an explicit exception to its terms for the purposes of court filings. (Wong Decl., Ex. 9 at pg. 3.)

On June 21, 2024, Plaintiff Rosales filed the instant Motion for Attorneys’ Fees, along with the Declarations of Plaintiff’s attorney, Sina Rezvanpour and Jonathan Mora.

On July 12, 2024, Defendant Jaguar filed its Opposition, along with the Declaration of its attorney, Liana A. Wong. On July 15, 2024, Defendant filed a Notice of Errata because Defendant recognized their original Opposition was three (3) pages over the fifteen (15) page limit and Defendant wished to amend it. Defendant also noted in its Opposition that Plaintiff had failed to file and serve a Memorandum of Costs.

On July 16, 2024, Plaintiff filed an MC-010 Memorandum of Costs.

On July 18, 2024, Plaintiff filed her Reply.

Plaintiff’s Request

Plaintiff requests the Court award attorneys’ fees, costs, and expenses in the amount of $66,926.18 which consists of (1) $49,265 in attorney fees; (2) $2,881.68; (3) a .3 multiplier on attorneys’ fees (or $14,779.50.) Plaintiff contends such fees are warranted because Plaintiff continued to actively attempt to engage Defendant in good faith settlement discussions throughout the period of proceedings. (Mot., pg. 7.) For example, Plaintiff served her first Section 998 offer under which Plaintiff would surrender her Vehicle in return for $69,790 on October 17, 2023. (Opp., pg. 4, Mora Decl., Ex. H.) Plaintiff served this first 998 approximately eighty (80) days after having failed to receive a discovery response from Defendant to Plaintiff’s September 19, 2023, email. (Mot., pg. 7.) On October 19, 2023, Defendant suggested Plaintiff provide an “inclusive cash and keep demand.” (Mot., Mora Decl., ¶ 22, Ex. F.) That same day, Plaintiff made such an offer, but Defendant never responded to Plaintiff’s demand. (Id.  23, Ex. G.) On October 31, 2023, Defendant served its objections to the 998. (Opp., pg. 4, Mora Decl., Ex. H.) Defendant’s objection to Plaintiff’s October 17, 2024, CCP 998 offer was based in part on Defendant’s failure to take Plaintiff’s deposition and perform an inspection of the vehicle, despite being provided ample opportunity to do so by Plaintiff. (Mot., pg. 8.)

On November 16, 2023, Defendant proceeded to take Plaintiff’s deposition and then on December 15, 2023, Plaintiff served her second CCP 998 offer on Defendant, increasing her demand to $75,000 in exchange for surrender of the Vehicle. (Mot., pg. 8.) However, Defendant responded by yet again objecting on the grounds that it had not inspected the Vehicle. (Mot., pg. 8, Mora Decl., ¶ 29, Ex. K.)

On February 20, 2024, the parties signed a release which provided Plaintiff with “substantially more compensation” than Defendant had offered throughout the litigation and contained the language allowing Plaintiff to bring the instant motion as the prevailing party. (Mora Decl., ¶ 31, Ex. L, Mot., pg. 8.)

On March 5, 2024, Plaintiff prepared a meet and confer letter in an effort to avoid the present motion. (Mot., pgs. 8-9.) Plaintiff sought less in fees than what had been incurred and, in an effort to resolve the fee issue prior to bringing the instant motion, offered to further reduce her already reduced fees by another ten (10) percent. (Id., Mora Decl., Ex. M.)

Plaintiff’s Counsels’ hourly rates are $600 per hour for attorney Sina Rezvanpour and $475 per hour for attorney Jonathan Mora. (Mot., pg. 9.) Together, the attorneys have seventeen (17) years of litigation experience combined. Moreover, California courts have consistently “rejected the notion the fee award must be proportionate to the amount of damages recovered.” (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1508, see also Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5^th 24, 37 “[I]t is inappropriate and abuse of a trial court’s discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff’s damages or recovery in a Song-Beverly Act action, or pursuant to another consumer protection statute with a mandatory fee-shifting provision.”) (“ It should be noticed than an attorney’s fee is to be based upon actual time expended rather than being tied to any percentage of the recovery. This requirement is designed to make the pursuit of consumer rights involving inexpensive consumer products economically feasible . . . The trial court did not err in calculating attorneys’ fees based on actual time expended.”)

Finally, Counsel argues that the time spent on the present action is reasonable and that the lodestar multiplier enhancement of .3 is warranted given (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award. (En Palm, LLC v. Teitler (2008) 162 Cal.App.4^th 770, 786; see also Molski v. Arclero Wine Group (2008) 164 Cal.App.4^th 786.) Plaintiff argues the multiplier is warranted because (a) the instant action was taken on a contingency basis, (b) Plaintiff obtained a result substantively higher than what Defendant maintained it was willing to offer throughout the litigation (which was nothing), and (c) that the litigation included depositions and the filing of motions.

Defendant’s Opposition

Defendant argues on Opposition that Plaintiff’s failure to include a memorandum of costs in her moving papers now precludes her from being awarded any costs connected with the instant matter. In addition, Defendant contends that Plaintiff’s counsel knew or should have known their client refused repair prior to litigation and had not contacted Jaguar prior to litigation. (Opp., pg. 4.) Moreover, the Court has discretion to reduce fees that result from inefficient or duplicative use of time. Horsford v. Board of Trustees of California State University, 132 Cal.App.4^th 359, 395 (2005). Defense Counsel argues that Plaintiff’s counsel misrepresented material facts to the Court in his moving papers by providing “[a]lthough the financial terms of the settlement agreement reached between Plaintiff and Defendant . . . are confidential, Plaintiff’s victory consists of recovery approximately more than several thousand times more than what Defendant initially believed Plaintiff’s damages to be.” (Mot., pgs. 6-7.) (Opp., pg. 9.)

Defendant argues that the proportionality of Plaintiff’s request for $49,265 fees to the $25,000 recovered is not in dispute. (Opp., pg. 15.) Instead, Defendant contends that Plaintiff’s work after July 28, 2024—the dates Plaintiff assert all parties had the requisite information to resolve the matter—would not change Jaguar’s position and thus, was unreasonable. (Id.) Given that Plaintiff ended up settling for one-third of the amount she demanded, Jaguar is not the party that ultimately “caved”, and Plaintiff unnecessarily and unreasonably extended the litigation. (Id. at pgs. 13-14.)

Finally, Defendant argues that the instant action was a straightforward Song-Beverly Consumer Warranty Act case involving no motion practice (except for two motions to compel), no ARD, and no trial. (Opp., pg. 14, Rezvanpour Decl., Ex. D, § IIIc.) Plaintiff’s case is not complicated. Thus, Jaguar requests that the Court reduce Rezvanpour’s rates to $475 per hour and Mora’s rate to $375 per hour, resulting in a more reasonable fee of $28,600 for this simple lemon law matter.

Reply

On Reply, Plaintiff argues that Defendant’s Opposition should not be considered as the initial Opposition exceeded the fifteen (15) page limit. Moreover, Plaintiff was not served with Defendant’s Notice of Errata to Defendant’s Motion for Attorney Fees until 3:48 PM on July 15, 2024. Such an oversight impermissibly prejudiced Plaintiff because Plaintiff’s work spent formulating her Reply had been cut by three days upon the filing of the second Opposition.

Legal Standard

General Attorneys’ Fees

“As a general rule, the prevailing party may recover certain statutory costs incurred in the litigation up to and including entry of judgment. [Citations.] These costs may include attorney fees, if authorized by contract, statute . . . or law. [Citation.] . . . attorney fees require a separate noticed motion. [Citations.]” (Lucky United Props. Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.) This motion may be brought: (1) after judgment or dismissal, for fees incurred “up to and including the rendition of judgment in the trial court--including attorney’s fees on an appeal before the rendition of judgment…”; and (2) on an interim basis, upon remittitur of appeal, of only fees incurred on appeal. (CRC, Rule 3.1702(b)-(c).)

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Id.) Relevant factors include: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Discussion

Here, Plaintiff has satisfied the meet and confer requirement with Defendant due to the March 5, 2024, Meet and Confer letter, along with her offer to reduce the fees by an additional ten (10) percent. The Court finds the hourly rate of Plaintiff’s attorneys reasonable because $600 per hour for an experienced attorney is reasonable and $475 per hour for a less experienced attorney in Los Angeles is also reasonable. Although Defendant claims that the .3 multiplier should be limited due to the case’s status as a lemon law action, the Court finds such argument unconvincing. Defendant does not specifically explain how the issues of the present case render it simple or uncomplicated. However, on the other hand, Plaintiff also does not sufficiently demonstrate how the issues are complex or novel when compared to a standard lemon law case. Although it is true that the case was taken on a contingency basis, Plaintiff’s multiplier analysis lacks substance. Thus, the Court finds a multiplier for the instant case unnecessary. While Defendant argues that the number of hours is unreasonable considering the fact Plaintiff should have settled around July of 2023, this argument fails to account for the fact Defendant rejected both of Plaintiff’s 998 Offers, the first being on October 17, 2023, and the second on November 16, 2023. Moreover, Defendant did not respond to Plaintiff’s first 998 offer other than to serve an objection and then maintained part of the same objection—Defendant’s non-inspection of the Subject Vehicle—on the second 998 offer.  Defendant had ample opportunity to do an inspection. Also, given Defendant is now insisting Plaintiff could have settled the case in July of 2023, yet Defendant insisted on taking Plaintiff’s deposition thereafter, Defendant contributed greatly to the protracted litigation post July 2023. For these reasons, the Court finds the number of hours reasonable and Plaintiff’s meet and confer efforts sufficient. Although it is true that the final settlement figure represents a large concession on Plaintiff’s part, it is also true that Defendant has failed to demonstrate a willingness to settle at any figure prior to the final settlement figure. Thus, the Court finds it reasonable to grant Plaintiff’s request for attorneys’ fees in the amount of $49,265.00. Although Defendant contends Plaintiff misrepresents the facts to the Court by stating that the final figure was thousands more than Defendant had been previously offered, Plaintiff is technically correct precisely because Defendant did not make a previous offer. Thus, if Defendant feels Plaintiff’s statement is a misrepresentation or a hyperbole, Defendant need consider its own role in establishing the statement as true. 

Regarding the subsequent submission of the Memorandum of Costs, the Court will accept Plaintiff’s belated Memorandum of Costs, just as it is accepting Defendant’s belated Opposition and Notice of Errata. Thus, the Court awards $2,881.68 in costs and expenses.

For the aforementioned reasons, the court GRANTS Plaintiff’s Motion for Attorneys’ Fees in the amount of $52,146.68.

The moving party is to give notice.

It is so ordered.

Date:   August 5, 2024

______________________

Mel RED recana

Judge of the Superior Court