Judge Ralph C. Hofer, Case Number: 22GDCV00514, Date: 2025-03-21 Tentative Ruling

Plaintiff Khristophour Kobaian alleges that in March of 2018 plaintiff entered into a warranty contract with defendant Ford Motor Company regarding a 2018 Ford F-150 vehicle which was manufactured or distributed by defendant Ford Motor Company. Plaintiff alleges that the warranty contract contained various warranties, including a bumper to bumper warranty, powertrain warranty, and emissions warranty.

Plaintiff alleges that since entering into the warranty agreement, and during the warranty period, the vehicle manifested defects and nonconformity to warranty, including but not limited to, the electrical system, the engine, and the transmission, which defects substantially impair the use, value, or safety of the vehicle.

Plaintiff alleges that defendant Ford Motor Company and its representatives have been unable to service or repair the vehicle to conform to the applicable express warranties after a reasonable number of opportunities, and have failed to promptly replace the subject vehicle or make restitution to plaintiff as required under Civil Code sections 1793.2 and Civil Code section 1793.1, and that plaintiff has been damaged by defendant’s failure to comply with its obligations. It is also alleged that defendant’s failure to comply was willful, in that defendant and its representatives were aware they were unable to service or repair the vehicle to conform to applicable express warranties, and do not maintain a qualified third party dispute resolution process complying with statute, entitling plaintiff to civil penalties.

The complaint alleges that plaintiff delivered the subject vehicle to defendant Star Ford Lincoln for substantial repair on at least one occasion and that defendant Star Ford Lincoln failed to properly store, prepare, and repair the subject vehicle in accordance with industry standards, proximately causing plaintiff damages.

Under CCP §1032 (b), “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” CCP § 1033.5 (a) provides that an allowable cost under §1032 includes attorney’s fees, when authorized by contract, statute or law. CCP § 1033.5 (a)(10).

“(d) 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.”

Plaintiff indicates in the motion that the matter has been settled pursuant to a CCP section 998 Offer to Compromise which provided for an award of attorneys’ fees, costs, and expenses to be determined by motion. [Baker Decl., para. 87, Ex. 5].

(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 against Ford 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’s fee/costs motion(s). Plaintiff may recover for attorney fees and costs reasonably and actually incurred in bringing such a fee/cost motion(s). Ford will pay the attorney fees and cost amounts determined by the Court within 30 days’ written notice of entry of the Court’s ruling awarding those amounts.”

There appears to be no dispute here that plaintiff is the prevailing party under section 1784(d), entitled to attorney's fees and costs actually and reasonably incurred in the commencement and prosecution of this action, and that the parties have been unable to agree to the amount of fees and are seeking fees by motion.

This posture leaves the issue of the reasonableness of the attorney’s fees sought by plaintiff. Plaintiff seeks an award of attorney’s fees and expenses in the total amount of $143,646.52, consisting of (1) $96,719.50 in attorney’s fees; (2) a 1.35 multiplier enhancement on the attorney’s fees of $33,851.83; (3) $8,575.19 in costs and expenses; and (4) an additional $4,500.00 for plaintiff’s counsel to review opposition, draft a reply and attend the hearing on this motion. The motion seeks approximately 202.7 hours of time spent by attorneys for Strategic Legal Practices, APC at billing rates ranging from $325 to $595 per hour, plus $4,500 in anticipated fees related to this motion.

“[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. "California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award." Margolin v. Regional Planning Com. (1982) 134 Cal. App. 3d 999, 1004 1005 [185 Cal. Rptr. 145].) The reasonable hourly rate is that prevailing in the community for similar work. Id. at p. 1004; Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993, 1002 [39 Cal. Rptr. 2d 506].) The 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. (Serrano v. Priest, supra, 20 Cal. 3d at p. 49 .) Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary. ( Id. at p. 48, fn. 23.)

...After the trial court has performed the calculations of the lodestar, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure

makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case." ( Melnyk v.Robledo (1976) 64 Cal. App. 3d 618, 623 624 [134 Cal. Rptr. 602].)

“The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong’-- meaning that it abused its discretion.”

“The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of ‘showing that the fees incurred were “allowable,” were “reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” ’ ”

An award of attorney fees under the Song-Beverly Act is reviewed for abuse of discretion, and the determination of the value of professional services rendered in the trial court “will not be disturbed unless the appellate court is convinced that it is clearly wrong.” Goglin, at 470-471, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.

The opposition argues that the billing rates charged are excessive. Defendant argues that the moving papers fail to present evidence concerning what the prevailing community rate is, but argues the rates are reasonable because of counsel’s experience and because a handful of other courts in different locations have granted them those rates in other unrelated cases. Defendant argues that over the past few years, numerous courts in California have analyzed rates in similar lemon law cases and found that appropriate rates for such cases are $225 to $275 per hour for associates, and $325 to $450 per hour for partners. Defendant argues that the prevailing community rates can be found in the 2022 Real Rate Report, applying the median insurance defense rates, since this case similarly involves routine, cookie cutter and high volume cases. It is not clear that the insurance defense rates should apply here, and the declaration submitted does not explain the data submitted, which consists of only a few pages of what appears to be a lengthy report, or the rationale for applying the significantly reduced rates suggested. [Moawad Decl., para. 4, Ex. C].

The moving papers submit evidence justifying the billing rates claimed, describing the experience and expertise of each attorney who billed on this matter, as well as citation to orders in other cases in Southern California in which rates in the range now claimed for the attorneys for work performed in lemon law cases were approved as reasonable. [See Shahian Decl., paras. 4-9 (a)-(u), 17]. Plaintiff also submits an analysis based on the Laffey Matrix which suggests that the rates are within the reasonable range for practice in the Los Angeles area. [Shahian Decl., para. 12]. The rates requested conform with what this court would expect to be charged in matters of this nature. The court has reviewed all evidence submitted and is familiar with the customary billing rates in this county and in cases of this nature. Under the circumstances, the court finds the billing rates reasonable, and the court will not reduce the billing rates charged.

The opposition argues that the hours billed include excessive amounts and unreasonable time entries for template and unreasonable work. Defendants argue that, for example, plaintiff’s counsel billed 11.7 hours preparing to take the deposition of Ford’s person most qualified, and, when the deposition was cut short, spent an additional 12 hours preparing for the deposition of the same deponent. Defendants also argue that excessive fees were charged to prepare boilerplate responses to interrogatories, and to prepare a motion to compel production of documents which was brought despite a failure to meet and confer. Defendant also challenges entries which were block billed or tasks that are clerical in nature. A list of challenged entries is attached to the Moawad Declaration as Exhibit D.

“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.”

The court has reviewed the entries and finds that the time spent to prepare for the PMQ deposition or depositions, a total of 23.7 hours is excessive. The reply argues that the preparation included reviewing produced documents in connection with the matter, but with the expertise of counsel, the court finds that the preparation should have taken far less time than claimed. The court will limit the hours reasonably spent to 12 hours, and reduce the hours by 11.7 hours at $595 per hour, for a reduction in the sum of $6,961.50.

The court also finds that the following entries, reflecting some of the other time spent to draft and serve discovery, and pursue discovery, is not reasonable given that this matter was subject to case management orders which streamline discovery, and the court file does not show that plaintiff sought or obtained leave of court to pursue discovery beyond the case management order provisions, including pursuing more than the permitted document disclosure or deposition on the number of subjects or production of documents beyond the limits at a PMQ deposition. The discovery time is also excessive due to the experience of counsel in these matters and the use of recognized templates in these discovery matters. The court accordingly reduces the following time entries:

With respect to the fees challenged as involving block billed and clerical tasks, the court agrees with plaintiff in the reply that in this particular case, which does not require an allocation of specific tasks which might not involve fees for recoverable work, the billings complained of are not objectionable because more than one task is mentioned. The court cannot identify any specific tasks which would be defined as strictly clerical and required to be billed at a lower billing rate.

The court agrees with defendant that there does appear to be some duplication with respect to the billing for ex parte applications to continue defendants’ motion for summary judgment/adjudication. Specifically, on 2/26/2024 plaintiff’s counsel billed 3.8 hours at $435 per hour to draft an ex parte application to continue the motion, and again on 7/12/2024 billed 3.1 hours at $395 per hour to draft an ex parte to enter a joint stipulation to continue the motion. The court expects that a reasonable amount of time to revise the earlier ex parte application, particularly once a joint stipulation is involved, would be 1 hour of time at $395 per hour. The time accordingly is reduced by 2.1 hours at $395 per hour for a reduction of $829.50.

Defendants also challenge the fees being claimed to bring the instant motion for fees. Defendants argue that counsel billed 13.5 hours, or $ 8,023.50 related to this motion which is identical to the motions brought in other lemon law cases, so improperly requests excessive fees for preparing such template motions. Defendants also point out that the motion seeks an additional $4,500 for future anticipated events without specifying how many hours or what rates are to be applied to that work.

The court does not find the time spent to prepare the motion excessive. However, the court is concerned that there are no hours or billing rates submitted in support of the “anticipated” hours, and finds that the reasonable time spent in reply, particularly at the highest experienced rate of $595 per hour, should have consumed no more than one hour to review the opposition, 3 hours to prepare the reply, and one hour to attend the hearing by video appearance, for total anticipated fees of $2,975. The court also notes that the sum of $4,500 in anticipated costs is sought separately from the lodestar. In making this separate award, the court awards $2,975 instead of $4,500.00.

Overall, in reviewing the file and the billings, it appears that in addition to the fees discussed above, a motion to compel arbitration was filed by defendants, which plaintiff was required to oppose, and raised evolving issues in this area and required time and legal research. Defendants also pursued a motion for summary judgment/adjudication which plaintiff was also required to oppose, which motion also required analysis of evolving legal doctrine. Although the motion for summary judgment/adjudication was not ultimately ruled on by the court due to the settlement, it was required at the time to be opposed. There were also reasonable hours spent, in addition to those mentioned above, in back and forth concerning the CCP section 998 offer, and in communicating with the client and appearing at various hearings required by the court. Under the circumstances, it is not appropriate to make further reductions to the lodestar figure other than those set forth above.

This leaves the lodestar calculation at $96,719.50 in attorney’s fees claimed reduced by the sums of $6,961.50, $770.00, $2,625.00, $3,400.00, $4,200.00, and $829.50 ($18,786.00) for a total lodestar, before costs and expenses, of $77,933.50.00.

This posture leaves the issue with respect to the multiplier requested by plaintiff. Plaintiff seeks a fee award which would include the sum of $33,851.83, which plaintiff indicates is a 1.35 multiplier enhancement on the attorney’s fees other than those “anticipated” fees sought in connection with responding to the opposition to the current motion and attending the hearing.

The opposition argues that no multiplier is warranted in this case, as the case is a routine Song-Beverly case, with no novel or difficult legal questions, and the Song-Beverly Act contains an express provision for recovery of attorney’s fees by consumers, reducing the change that plaintiff’s counsel would not recover for their work.

It has been held that despite the specific language of Civil Code § 1794(d) that fees must be “based on actual time expended, determined by the Court to have been reasonably incurred by the buyer,” the lodestar adjustment method, including use of a lodestar fee multiplier, is applicable to an award of attorney’s fees under the Song-Beverly Act. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 821.

The court of appeal in Robertson, although concluding that the use of a multiplier is authorized in such cases, remanded that case to the trial court to recalculate the award, on the ground the trial court had considered some of the same factors in reaching the lodestar amount as it did in applying a multiplier. Robertson, at 821.

“[T]he 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. (Serrano III, supra, 20 Cal.3d at p. 49, 141 Cal.Rptr. 315, 569 P.2d 1303.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.

“14. Our firm took Plaintiffs’ case on a contingent basis. Accordingly, our costs and fees were completely contingent upon a successful resolution of Plaintiffs’ case. Because this case was undertaken on a contingent fee basis, had we lost, our firm would have lost all expenses incurred and fees generated in this case. SLP also faced the risk of not being paid for its services for years while potentially advancing thousands in costs and expenses to prosecute this high risk, high reward case.”

In any case, the court notes that in connection with this motion, the court has accepted the various billing rates claimed in their entirety, over the protest of defendants, based on successful arguments by plaintiff and the submission of evidence establishing that the attorneys are experienced specialists in this area of law.

This matter was not a complicated case, and any prejudice claimed from passing on other cases is not established by the declaration. The billing rates take into account the level of recovery expected, and the nature of the representation. It would appear, as argued in the opposition, that to the extent the level of counsel’s expertise was considered in setting a billing rate, that a multiplier would duplicate those elements of the lodestar, as was of concern in both Ketchum and Robertson. See Ketchum, at 1142, Robertson, at 822.

Under the circumstances, the contingent nature of the representation, by itself, does not justify the application of a multiplier. The court finds that no multiplier in favor of plaintiff is warranted here. The lodestar will not be further adjusted.

Finally, with respect to costs and expenses, plaintiff argues that in the executed CCP section 998 agreement, defendant Ford agreed to pay plaintiff’s costs and expenses by motion to the court, and requests that the court order Ford to reimburse plaintiff for the $8,575.19 in litigation costs and expenses incurred.

Plaintiff shall retain the right to petition the Court for an award of reasonably and actually incurred attorney fees and costs against Ford 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.

Plaintiff attaches to the billing statement a list of the costs and expenses being claimed. [Shahanian Decl., Ex. 24, pp. 5, 6]. These include filing fees, service of process and service fees, and expenses for mediation services, transcript services and deposition transcript services, and courtesy deliveries.

Case law has interpreted this section to permit a prevailing buyer to recover both costs and “expenses” to cover costs which may not be included in the statutory definition of costs under CCP §1033.5. In Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, for example, the court of appeal found the trial court had erred in denying plaintiff expert witness fees claimed in her cost bill.

Accordingly, under these authorities the question for the court in this matter is whether the costs and expenses are proper on their face insofar as they either fall within the categories of CCP section 1033.5 and/or were incurred in the “commencement and prosecution” of this case. Civil Code section 1794 (d); Jensen, at 138.

In general, where a cost item does not appear proper and necessary on its face, the burden of proof is on the claimant to show the cost is appropriate. Murphy v. F.D. Cornell Co., (1930) 110 Cal. App. 452, 454. If the items appear to be proper charges, the burden is on the party seeking to tax costs to show they were not reasonable or necessary. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761.

The opposition argues that plaintiff seeks unrecoverable costs, does not present any evidence to support the costs, and improperly brings a request for costs without a motion for costs. The opposition does not challenge any of the specific costs claimed in the moving papers. Instead, defendant seems to argue solely that the costs should be disallowed because plaintiff failed to file a timely memorandum of costs. Plaintiff cites to no legal authority under which a cost memorandum is required to be filed where the parties expressly have agreed in a settlement agreement that the costs and expenses may be determined by petition/motion to the court, which, as discussed above, is what was done here.

Although a detailed listing of the costs and expenses sought was included in the moving papers, defendants have failed to argue that any of those specific charges were improper or unnecessary or were not reasonably incurred by the buyer in connection with the commencement and prosecution of this action. This motion presented defendants’ opportunity to challenge the costs, as set forth in the CCP section 998 agreement. Defendants have failed to challenge the costs and expenses, and the costs and expenses will be awarded in full as requested in the sum of $8,575.19.

As a final note, the motion is confusing, as it appears to seek fees, costs and expenses only against defendant Ford Motor Company, but the motion is opposed by defendant Ford Motor Company and defendant Star Ford Lincoln. The court will hear argument concerning whether the fees award is to be entered only against defendant Ford Motor Company.

The Court finds that plaintiff Khristophour Kobaian was a prevailing party in the action, and so is under Civil Code § 1794 (d) allowed by the Court to recover as part of the judgment a sum to cover costs and expenses, including attorney's fees based on actual time expended, and determined by the Court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of this action.

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