Judge Peter A. Hernandez, Case 22PSCV00010 2022-10-06 Tentative Ruling

Plaintiff Jessica LaForce’s Motion for Attorneys’ Fees and Litigation Expenses is GRANTED, in the reduced amount of $3,420.50 in attorney’s fees. Costs are awarded in the amount requested.

On or about September 13, 2017, Plaintiff purchased a 2017 Ford Edge, VIN #2FMPK3J91HBB43617 (“subject vehicle”). Plaintiff alleges that the subject vehicle suffers from various defects and that the subject vehicle has not been repaired after a reasonable number of attempts.

On January 6, 2022, Plaintiff filed a complaint, asserting causes of action against Ford Motor Company (“Defendant”) for:

1. Breach of Written Warranty Pursuant to the Magnuson-Moss Warranty Act Manufacturer

2. Breach of Implied Warranty Pursuant to the Magnuson-Moss Warranty Act Manufacturer

On May 5, 2022, the parties filed Plaintiff’s accepted Code of Civil Procedure § 998 offer.

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code § 1794, subd. (a).)

“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.” (Civ. Code § 1794, subd. (d).)

Plaintiff moves the court for an award of attorneys’ fees in the amount of $8,897.00 and costs in the amount of $499.51 pursuant to Civil Code § 1794 and 15 U.S.C. § 2301, et al.

On April 8, 2022, Defendant made a Code of Civil Procedure § 998 offer to compromise; said offer provided, in relevant part, as follows:

Defendant. . . hereby offers to allow judgment to be taken against it as follows:

1. Ford will pay to JESSICA LAFORCE (‘Plaintiff’) the sum of $45,500.00, less any remaining loan balance on Plaintiff's 2017 Ford Edge, VIN

2FMPK3J91HBB43617. Ford will pay this amount, to Plaintiff and Plaintiff's counsel of record, Krohn & Moss, LTD, within 30 days from acceptance of this Statutory Offer. Ford will pay any loan balance on the vehicle directly to the lienholder within seven (7) days after Plaintiff's surrender of the vehicle to Ford or its designee, as described in Paragraph 3.

pursuant to California Code of Civil Procedure Section 1794(d) in the amount of $2,500.00; or

(b) Alternatively, Ford offers to permit judgment to be entered solely upon the terms of paragraph 1, and Plaintiff shall retain the right to petition the Court for an award of reasonably and actually incurred attorney fees and costs recoverable pursuant to California Code of Civil Procedure Section 1794(d). In ruling on Plaintiff's fee/cost motion(s), the attorney fees, expenses and costs amount shall be calculated as if Plaintiff was found to have prevailed in this action under section 1794(d) of the California Code of Civil procedure as of the date of this offer of judgment. Ford expressly reserves all defenses to Plaintiff' fee/costs motion(s). Plaintiff may recover for attorney fees and costs reasonably and actually incurred in bringing such a fee/cost motion(s). . .”

Defendant asserts first that Plaintiff’s motion should be denied altogether; however, it subsequently asserts that Plaintiff’s request for fees should be reduced to disallow fees incurred after Defendant’s October 18, 2021 repurchase offer, on the basis that Plaintiff failed to achieve a better result by accepting the April 2, 2022 998 offer. The court agrees with Defendant’s second assertion.

“[T]rial courts have broad discretion in determining the amount of a reasonable attorney's fee award.” (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452.) “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4^th 1084, 1095.) “The lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (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, (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4^th 1122, 1132.) Further, fees must be limited under Civil Code § 1794, subdivision (d) to those which have been “reasonably incurred.” “Attorney time spent on services which produce no tangible benefit for the client is not time ‘reasonably spent.’” (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 452.)

On October 18, 2021, Defendant offered to repurchase the subject vehicle and pay $2,250.00 in attorneys’ fees. (Id., ¶ 13, Exh. B.) Plaintiff’s counsel subsequently initiated BBB arbitration and the arbitrator’s decision on December 14, 2021 awarded Plaintiff a repurchase of the subject vehicle and $1,500.00 in attorneys’ fees. (Proudfoot Decl., ¶ 4, Exh. A.) Plaintiff chose to file this action on January 6, 2022.

Defendant contends that “[t]he only material difference between the terms of the April 8, 2022 998 offer, Defendant FMC’s pre-litigation offer, and the BBB pre-litigation arbitration award is the amount of attorneys’ fees.” (Opposition, 3:18-20.) The court agrees. Plaintiff, in turn, asserts that the April 8, 2022 998 offer was better than the October 18, 2021 offer, because the latter offer “was a general offer to repurchase the vehicle with no specific figures given,” because Defendant only offered to pay $2,250 in attorney’s fees and because it included the following language: “Payment will be due 90 days from written acceptance of this offer, or when the COVID-19 Shelter in Place and/or business interruption is concluded, whichever is longer." (Basola Decl., ¶ 13, Exh. B.) The court disagrees. An offer to repurchase is an offer to repurchase. Plaintiff, moreover, ignores the obvious fact that the April 8, 2022 offer was made and accepted well after the expiration of 90 days from the date of the October 18, 2021 offer. Additionally, Plaintiff concedes that she had incurred only $2,397.50 in fees as of October 18, 2021. (Reply, 5:7-8.)[1] The court agrees that attorneys’ fees incurred after October 18, 2022 produced no tangible benefit for Plaintiff and determines that they should be disallowed (i.e., except as it pertains to fees incurred in preparing the instant motion).

The court further determines that a reduction in Basola’s $540.00 hourly rate is warranted under the circumstances. This is a straightforward lemon law case, with no cited complexities. Based on the court’s own experience and knowledge, as well as on the experience and qualifications of counsel as set forth in Basola’s declaration, the court finds that Basola’s requested hourly rate should be reduced from $540.00/hour to $400.00/hour.

The amount of attorney’s fees, then, is reduced from $8,897.00 to $3,420.50 (i.e., 7.5 hours at $400.00/hour [including 3 hours of total motion preparation/appearance time], plus 2.9 hours at $145.00/hour).

Plaintiff is entitled to costs in the amount sought. On May 18, 2021, Plaintiff filed a Memorandum of Costs. Defendant has not filed a motion to tax same, to date.

The motion is granted in the reduced amount of $3,420.50 in attorney’s fees. Costs are awarded in the amount requested.

[1] The court calculates fees incurred as of October 18, 2021 before a rate reduction at $2,310.50 (i.e., 3.5 hours at $540.00/hour for Basola and 2.9 hours at $145.00/hour for Reign).