Judge: Ralph C. Hofer, Case: 23GDCV01241, Date: 2025-02-14 Tentative Ruling
Case Number: 23GDCV01241 Hearing Date: February 14, 2025 Dept: D
TENTATIVE RULING
Calendar: 8
Date: 2/14/2025
Case No.: 23 GDCV01241
Case Name: Mendoza v. Ford Motor Company
MOTION FOR ATTORNEYS’ FEES
Moving Party: Plaintiff Naomi Mendoza
Responding Party: Defendant Ford Motor Company
RELIEF REQUESTED:
Order awarding attorneys’ fees, costs, and expenses in the total amount of $37,893.12.
FACTUAL AND PROCEDURAL BACKGROUND;
Plaintiff Naomi Mendoza alleges that in October of 2022 plaintiff purchased a 2021 Ford Explorer vehicle for which defendant Ford Motor Company (Ford) issued a written warranty, pursuant to which Ford agreed to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.
Plaintiff alleges that the vehicle was delivered to plaintiff with serious defects and nonconformities to warranty, including electrical and structural system defects.
Plaintiff alleges that the defects and nonconformities to warranty manifested themselves within the express warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff delivered the vehicle to manufacturer’s authorized repair facility for repair of the nonconformities, and defendant has been unable to conform plaintiff’s vehicle to the applicable express warranties after a reasonable number of repair attempts. The complaint alleges that notwithstanding plaintiff’s entitlement, defendant has failed to either promptly replace the new motor vehicle or to promptly make restitution in accordance with the Song-Beverly Act.
The file shows that on December 12, 2023, plaintiff filed a Notice of Settlement of Entire Case.
ANALYSIS:
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).
The fees here are sought under statute, specifically Civil Code § 1794 (d), which provides with respect to consumer warranty protection:
“(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. [Jacobson Decl., para. 70]. The opposition indicates that the CCP section 998 Offer provided for either $10,000 in fees and costs or fees by motion. Unfortunately, neither party has submitted with the motion or opposition a copy of the Offer to Compromise to permit the court to evaluate the terms of the agreement for attorneys’ fees, costs and expenses.
In any case, there appears to be no dispute here that plaintiff is the prevailing party under section 1784(d), entitled to attorney's fees 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 $37,893.12, consisting of (1) $20,736.00 in attorney’s fees; (2) a 1.5 multiplier enhancement on the attorney’s fees ($10,368.00) (this appears to be a 0.5 multiplier, not 1.5); (3) $789.12 in costs incurred; and (4) an additional $6,000.00 for plaintiff’s counsel to review opposition, draft a reply and attend the hearing on this motion. The motion seeks approximately 55 hours of time spent by attorneys for Quill & Arrow LLP at billing rates ranging from $350 to $525 per hour.
The California Supreme Court in PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 established the standard for evaluating the appropriate amount of attorney’s fees to be awarded:
“[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
"It is well established that the determination of what constitutes
reasonable attorney fees is committed to the discretion of the trial court . . .
[Citations.] The value of legal services performed in a case is a
matter in which the trial court has its own expertise. [Citation.] The trial
court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. [Citations.] The trial court
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].)
PLCM, at 1095. (emphasis added).
The court also held that the standard of review with respect to this determination is abuse of discretion:
“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.”
PLCM at 1094, quoting Serrano v. Priest (1977) 20 Cal.3d 25, 49.
It has been held that in that in connection with attorneys’ fees award under the Song-Beverly Act, as sought here:
“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.” ’ ”
Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470, quoting Nightingale v. Hundai Motor America (1994) 31 Cal.App.4th 99, 104.
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 court should use the 2021 Real Rate Report, which has been relied upon by California courts to determine the reasonable hourly rates in the lemon law field. [Dizon Decl., para. 11, Ex. E]. Defendant argues that the report contains two data sets that are relevant here, the general liability by city and general liability by firm size, arguing that the report includes consumer related claims in the general liability category. Defendant also argues that the court should apply the lowest figures in the general liability by city category (first quartile), because the matter was a simple matter, and for firm size, the lowest figures because the firm has fewer than 50 attorneys. The argument is then that once the court averages those two sets of rates, the reasonable hourly rates are $252 for partners and $231 for associates. Defendant then argues that rather than reduce the fees line by line, the court should apply a negative multiplier of .20. It is not clear from the 2021 Real Rate Report that the figures in that report should not in any case be adjusted to account for rates after 2021, and it would appear that the rates claimed fall well within the median quartile for Los Angeles, California attorneys, with partners at $638 and associates at $475. [See Ex. E, p. 138].
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 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 Jacobson Decl., paras. 3- 28, Exs. 1-6]. The rates conform with what this court would expect to be charged in matters of this nature, and are not inconsistent with the 2021 Real Rate Report relied upon by defendant; as read by this court, the Report confirms that the rates are well within and below the median range billing figures in 2021. While defendant argues that the testimony of Kevin Jacobson, who is an owner, shareholder and partisan advocate, and not an impartial expert, should be disregarded here, the court finds that such an argument goes to the weight of the evidence, not its admissibility. 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 rates charged.
The moving papers submit detailed billing records with the Jacobson Declaration as Exhibit 7. [Jacobson Decl., para. 71, Ex. 7]. The opposition argues that the hours billed consist of numerous entries that should be reduced or eliminated altogether, and include entries for the same work performed by multiple attorneys. It is also argued that the case was overlitigated, justifying the court to exercise its discretion to reduce plaintiff’s claimed fees.
Defendant argues that there was nothing complicated about this case, but in connection with this argument does not clearly point to any specific entries which were overstated, other than a later argument that the case involved only standard discovery, consisting of written discovery and one PMQ deposition. There are no discovery motions in the file. The opposition argues that there were an excessive number of hours spent for form and routine tasks, such as spending 3.9 hours, for a total of $1,470, on routine discovery.
It is not clear which of the discovery billings are being challenged. A review of the billings seems to show that 14.6 hours were spent on what could be considered discovery tasks. These hours were spent mostly by associates, and mostly in under an hour increments. The tasks include drafting several forms of written discovery, reviewing discovery responses, evidently attempting to obtain further discovery responses which were then received and reviewed, and preparing both a subpoena and a notice of deposition with respect to defendant’s witnesses, including a PMQ. Plaintiff’s attorneys also prepared summaries outlining the documents produced to assist in pursuing further discovery and in preparing for trial. It is not clear which of the entries appears excessive to defendant.
In Premier Medical Management Systems, Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, the Second District affirmed an attorney fee award made by the trial court, observing:
“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.”
Premier, at 564.
Under the circumstances, it is not clear to the court that any of the hours spent were not reasonably necessary to pursuing plaintiff’s claims in this case.
Defendant also argues that there was duplication of effort between the eight different attorneys assigned to this matter over its course. The specific billing challenged is an entry on page 6 of the billings in which attorney Jacobson and attorney Pakbaz each charged 0.4 hours for an interoffice communication. [Jacobson Decl., Ex. 7, p. 6]. It does appear that both attorneys charged 0.4 hours for this meeting, regarding the opposition to the motion for judgment on the pleadings. While the court is not convinced that this is improper, given the evident decision to have a lower billing attorney perform the major portion of the substantive work on the opposition, which appears appropriate, the court will consider the charges duplicative, allow only the charge by the associate, and reduce the sum sought by the 0.4 hours claimed by the partner at the billing rate of $500 for a reduction of $200.00.
This entry is the only specific entry challenged as duplicative, which is defendant’s burden to pursue. The court has nevertheless reviewed the billings and has identified what appear to be improper charges in connection with two attorneys, Daniel Cox and Andrew Jung, having billed for reviewing the case file, when the court views the choice of counsel for plaintiff to internally transfer responsibilities for this matter within the law firm should not be charged to defendant. The court accordingly reduces the fees claimed by half of the time charged on May 30, 2024 by Daniel Cox to review and analyze case file and prepare a declaration in support of OSC re dismissal of 0.8 hours, at $395 per hour for a fee of $316, and reduce the fees by 0.4 hours at $395 per hour for a fee reduction of $158.00. The court will also reduce the fees claimed by all of the time charged on August 28, 2024 by Andrew Jung to review and analyze case file for .04 hours billed at $400 per hour for an additional reduction of $160.00.
The other specific item which defendant has challenged is plaintiff’s billing for this motion for attorney’s fees, which defendant argues could and should have been avoided.
Defendant argues that the court should not award the 4.9 hours requested to prepare the motion, at $2,005, or the additional sum claimed of $6,000 in anticipated time to review the opposition, draft the reply and attend the hearing. In general, a party is entitled to all fees reasonably incurred, including the fees for time expended in obtaining a reasonable fee award. Serrano v. Unruh (1982) 32 Cal.3d 621, 631.
As noted above, neither party has submitted the CCP section 998 offer so that the court can confirm its terms. However, even assuming that defendant is correct that the offer was for $10,000.00 in fees and expenses or to be determined by a motion, it does not appear that it was unreasonable to have filed this motion given that defendant here does not dispute that $789.12 in expenses are recoverable, and plaintiff has produced billing records showing that the billings in this matter exceeded the remaining approximately $9,200.00 in the offer by over $11,000.00, even without a multiplier, and not including the expense to file reply and attend the hearing on this motion. This motion for fees does not appear to have been unreasonably brought or unnecessary, and was evidently authorized by the settlement terms if plaintiff intended to pursue an award above $10,000.00. With respect to the anticipated time estimated in connection with responding to the opposition and attending the hearing, it is customary to estimate the fees to be incurred in following through on a motion to recover attorney’s fees, including reviewing opposition, preparing reply, and preparing for and appearing at a hearing on such a motion. This conclusion seems especially appropriate in this case, where the opposition to this motion is lengthy, challenges the billing rates charged in some detail, and unusually requests a negative fee multiplier. The fees sought do not appear to be fees which would not in fact have been reasonably anticipated to be incurred or would not be required to be incurred, and do not appear to be unreasonable in time or overall amount. It would appear that the time claimed to review such and opposition and prepare a thorough reply, is not excessive. No reduction will be made.
Overall, in reviewing the file and the billings, it appears that in addition to the fees discussed above, a motion for judgment on the pleadings was filed by defendant, which plaintiff was required to oppose. That motion argued that the Song Beverly Act did not provide remedies to plaintiff in this action, because the Song Beverly Act only applies to a “new motor vehicle” and plaintiff in this case purchased the subject vehicle used. The motion itself dealt with an issue on which court of appeal cases had reached inconsistent holdings, requiring legal research and analysis to oppose the motion, and argument concerning plaintiff’s claim that the vehicle was sold as a dealer-owned commercial/occupation fleet vehicle. 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 does not appear to be appropriate to make further reduction to the lodestar figure other than those set forth above.
This posture leaves the lodestar calculation at $20,736.00 in attorney’s fees claimed reduced by the sums of $200.00, $158.00 and $160 ($20,218.00) plus $6,000.00 in preparing reply and attending the hearing on this motion, for a total lodestar, before costs, of $26,218.00.
This result leaves the issue with respect to the multiplier requested. In this case, each side requests a multiplier. Plaintiff seeks a fee award which would include the sum of $10,368.00, which plaintiff indicates is a 1.5 multiplier enhancement on the attorney’s fees other than those sought in connection with responding to the opposition and attending the hearing. As noted in the opposition, this appears to be a 0.5 multiplier, not a multiplier of 1.5. The opposition seeks a negative multiplier of 0.2, based primarily on arguments concerning the billing rates charged, which is discussed in some detail above.
Plaintiff argues that a lodestar enhancement is appropriate here to adjust the fee award based on factors such as the results obtained, and the risk undertaken by counsel in taking on the case, including delayed recovery.
The opposition argues that no multiplier is warranted in this case, as the case is a routine Song-Beverly case, with limited stakes, involving straightforward proof and the availability of standard form jury instructions and special verdict forms, and that the case did not present novel issues or preclude plaintiff’s counsel from handling other matters while this case was litigated. The opposition argues that there are no public interest factors here, as plaintiff is a private litigant prosecuting the matter solely for her own benefit, and that the factors actually justify the application of a negative multiplier.
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.
In Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132, the California Supreme Court set forth the factors to be considered by the trial court in determining whether to augment a fee award:
“[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.
Ketchum, at 1132.
The declaration of counsel here indicates that this matter was taken on a contingency basis:
“Plaintiff contacted Q&A and told the firm about their problems with the Subject Vehicle and the way FORD had treated them. After reviewing the repair history and discussions with Plaintiff, Q&A agreed to represent them and bear the risk of litigating the case on a fully contingent basis. Because Q&A’s compensation was purely contingent, the firm faced a genuine risk of not being paid for its services for years – if at all – while advancing thousands of dollars in costs and expenses on Plaintiff’s behalf.”
[Jacobson Decl., para. 40].
The declaration also indicates that the law firm faced the risk of losing all costs and expenses incurred, and “endured a significant risk of not being paid for its fees, costs, and expenses for almost a year against Defendant.” [Jacobson Decl., para. 74]. Absent from the showing by plaintiff is any indication that counsel was prevented from taking on other clients by the representation.
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 defendant, 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 did not involve any novel or difficult issues beyond those which ordinarily arise in a Song-Beverly action, and any prejudice claimed from passing on other cases is not established by the declaration. It would appear that the billing rates take into account the level of recovery expected, and the nature of the representation. As discussed above, the court has declined to apply a negative multiplier to the billing rates. 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 court also finds that no negative multiplier is warranted. The lodestar will not be further adjusted.
The court notes that defendant does not challenge the request by plaintiff for costs in the sum of $789.12. This sum will accordingly be added to the adjusted lodestar of $26,218.00, for a total award of attorney’s fees, costs and expenses to plaintiff in the total sum of $27,007.12.
RULING:
Plaintiff’s Motion for Attorney Fees, Costs and Expenses is GRANTED.
The Court finds that plaintiff Naomi Mendoza 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 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.
The Court finds that reasonable attorney’s fees and expenses are:
Lodestar Adjusted= $26,218.00
Expenses= $789.12.
Total Award= $27,007.12
The total award of $27,007.12 [$37,893.12 sought] is to be awarded to plaintiff Naomi Mendoza against defendant Ford Motor Company and added to the judgment.
Defendant’s Objections to the Declaration of Kevin Jacobson are OVERRULED.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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