Judge Robert B. Broadbelt, Case Number: 20STCV30852, Date: 2025-01-31 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 20STCV30852, Date: 2025-01-31 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court (1) sustains defendant Ford Motor Company’s objections to plaintiff Steven Munoz’s request for judicial notice as to Exhibits 3-5 and 7-15 because rulings from other trial courts do not have binding or precedential value on the court and should not be cited by the parties, and therefore (2) denies plaintiff Steven Munoz’s request for judicial notice as to those exhibits. (Cal. Rules of Ct., rule 8.1115; Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761 [“a written trial court ruling has no precedential value”].)

The court denies plaintiff Steven Munoz’s request for judicial notice as to exhibit 6 because the United States District Court, Central District of California’s ruling is not relevant to the court’s disposition of the pending motion for attorney’s fees in this action. (Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825.)

The court rules on defendant Ford Motor Company’s evidentiary objections, filed on October 29, 2024, as follows:

Plaintiff Steven Munoz (“Plaintiff”) moves the court for an order awarding attorney’s fees and costs in his favor and against defendant Ford Motor Company (“Defendant”) in the total amount of $263,103.75, consisting of (1) $103,241.50 in attorney’s fees, (2) $154,862.25 for a 1.50 multiplier, and (3) an additional $5,000 to review any opposition papers to the pending motion, prepare reply papers, and appear at the hearing on this motion.

First, the court finds that Plaintiff has shown that he is entitled to attorney’s fees and costs from Defendant pursuant to the Song-Beverly Act.

Civil Code section 1794, subdivision (d), provides:¿ “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 filed a Notice of Settlement of Entire Case in this action on March 1, 2024, representing that the parties had settled this case. (Mar. 1, 2024 Notice.) The parties entered into a “Settlement Agreement and Release,” in which the parties agreed (1) to settle this action for $17,500, and (2) that Plaintiff’s counsel shall be entitled to recover attorney’s fees, costs, and expenses reasonably incurred for this case. (Dizon Decl., Ex. C, Settlement Agreement and Release, ¶¶ 1, 7.) The court therefore finds that Plaintiff may recover from Defendant attorney’s fees, costs, and expenses that were reasonably incurred in connection with the commencement and prosecution of this action. (Civ. Code, § 1794, subd. (d).)

Second, the court finds that Plaintiff is entitled to recover reasonable attorney’s fees and costs from Defendant until and including November 23, 2020, which is the date on which Defendant made an offer to allow an award to be entered in accordance with its terms pursuant to Code of Civil Procedure section 998.[1] (Code Civ. Proc., § 998, subd. (c)(1).)

“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their postoffer costs . . . .” (Code Civ. Proc., § 998, subd. (c)(1).) An offer to compromise under this statute “must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer.” (Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 833 [internal quotation marks omitted].) “Once the offeror shows the section 998 offer is valid, the burden shifts to the offeree to show the offer was not made in good faith.” (Ibid.) “[A]n offer is only made in good faith if the offer carri[ies] with it some reasonable prospect of acceptance.” (Id. at p. 834 [internal quotation marks omitted].) Determining whether the offer has a reasonable prospect of acceptance “is a function of two considerations[:]” (1) whether the offer is within the range of reasonably possible results at trial, considering all of the information the offeror knew or should have known, and (2) whether the offeror knew that the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the offer was a reasonable one. (Ibid.)

Defendant has presented evidence showing that it served a Code of Civil Procedure section 998 offer on Plaintiff on November 23, 2020 (the “998 Offer”). (Dizon Decl., ¶ 5 and Ex. B, 998 Offer.) Defendant’s 998 Offer offered to settle this action with Plaintiff for $49,505.27 as “reimbursement of the paid or payable for Plaintiff’s” vehicle, as well as incidental and consequential damages under the Song-Beverly Act. (Dizon Decl., Ex. B, 998 Offer, ¶¶ 1-2.) Plaintiff does not dispute that he did not accept the November 998 Offer, and it appears that Plaintiff might have served objections to the 998 Offer on December 29, 2020, i.e., more than 30 days after Defendant served its 998 Offer on Plaintiff. (Fennell Decl., ¶ 37 [Plaintiff’s counsel drafted and served Plaintiff’s “Settlement Offer Objections” on December 29, 2020]; Dizon Decl., ¶ 5; Code Civ. Proc., § 998, subd. (b)(2) [“If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn . . . .”].) Further, as set forth above, the parties settled this action for the total amount of $17,500 on February 28, 2024. (Dizon Decl., Ex. C, Settlement Agreement and Release.)

The court finds that Defendant has shown that (1) the 998 Offer was valid by attaching a copy of the 998 Offer, which (i) states that it will pay to Plaintiff $49,505.27 to constitute reimbursement of the vehicle, incidental, and consequential damages, and $8,000 for attorneys’ fees, which is “sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer[,]” and (ii) includes a statement of the offer, the terms and conditions of the judgment (i.e., that Plaintiff will file a request for dismissal when the settlement check is tendered and cleared), and a provision that allows Plaintiff, as the accepting party, to indicate acceptance of the offer by signing a statement that it is accepted, and (2) Plaintiff failed to obtain a more favorable award. (Covert, supra, 73 Cal.App.5th at p. 832; Code Civ. Proc., § 998, subds. (b), (c)(1); Dizon Decl., Ex. B, 998 Offer, ¶¶ 1-2 [statement of offer], 5 [terms of dismissal], 7 [statement of acceptance by signature].)

Plaintiff contends that he received a more favorable outcome from the parties’ ultimate settlement of this action because (1) the subject vehicle was repossessed, such that “the parties had to agree to a cash and keep settlement because there was no vehicle to return[,]” and thus the $17,500 settlement—consisting of $9,952.10 amount paid + $7,547.90 in civil penalties—was more favorable since “it amounted to almost a 1X” civil penalty award, and (2) if the vehicle had not been repossessed, the case would have settled for an amount higher than the 998 Offer. (Reply, p. 2:1-12 [internal emphasis omitted].) The court disagrees and finds that Plaintiff has not presented evidence showing that the settlement was more favorable for the reasons described in his reply papers.

Plaintiff did not present competent evidence showing that (1) the $9,952.10 of the $17,500 is meant to compensate Plaintiff for the amount paid for the vehicle, or (2) the remaining amount is meant to be a civil penalty. The court notes that Plaintiff’s counsel has stated, in his declaration, that this amount consists of a full repurchase of the subject vehicle and $7,547.90 in civil penalty damages. (Fennell Decl., ¶ 336.) However, the Settlement Agreement, as noted by Defendant, states only that the settlement amount is $17,500, the amount of which is meant to “satisfy[] all damages[,]” and without clarifying whether the amount is for repurchase or for a penalty. (Dizon Decl., Ex. C, Settlement Agreement and Release, ¶ 1 [“Upon receipt of the fully executed Agreement, Defendant shall compensate Plaintiff and Plaintiff’s attorney(s) of record the total amount of $17,500 within 45 days from the date this Agreement was executed by Plaintiff and delivered to Defendant’s counsel of record, with said payment satisfying all damages, excluding attorneys’ fees and costs, to which Plaintiff is entitled to under applicable law”]; Dizon Decl., ¶ 8 [“The signed settlement agreement has no mention of a civil penalty”].) Thus, the language of the parties’ agreement provides only that Plaintiff has recovered damages in the amount of $17,500, and not civil penalties, from Defendant.

The court further finds that Plaintiff has not met his burden to show that the 998 Offer was not made in good faith. (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924 [“A 998 offer is valid only if it is made in ‘good faith’”], 926 [“Although the party making a 998 offer generally has the burden of showing that her offer is valid [citations], it is the 998 offeree who bears the burden of showing that an otherwise valid 998 offer was not made in good faith”].) Specifically, Plaintiff has not shown that (1) the 998 Offer was not within the range of reasonably possible results at trial, or (2) Defendant knew that Plaintiff did not have sufficient information, at the time the 998 Offer was made, to assess whether it was reasonable. (Covert, supra, 73 Cal.App.5th at p. 833.)

Plaintiff concedes that, at the time that Defendant made the 998 Offer, the repurchase price for the subject vehicle was $46,813.27, such that Defendant’s offer of $49,505.27 exceeded that repurchase price and therefore was favorable to Plaintiff. (Reply, p. 1:20-22; Dizon Decl., Ex. B, 998 Offer, ¶ 1.) Moreover, because the 998 Offer offered a higher repurchase price (or the correct repurchase price and an additional amount for incidental and consequential damages), it was within the range of reasonably possible results at trial. (Covert, supra, 73 Cal.App.5th at p. 833; Licudine, supra, 30 Cal.App.5th at pp. 924-925.)

Plaintiff further argues that the 998 Offer was invalid because Defendant did not provide Plaintiff with the benefit of discovery it expired before discovery could have been accomplished. (Reply, p. 2:14-17.) The court finds that the timing of the 998 Offer, alone, does not show that Defendant knew that Plaintiff did not have sufficient information to evaluate the reasonableness of the 998 Offer. (Covert, supra, 73 Cal.App.5th at p. 833; Licudine, supra, 30 Cal.App.5th at p. 925.)

In assessing the second consideration of good faith, the court will evaluate, inter alia, how far into litigation the offer was made. (Licudine, supra, 30 Cal.App.5th at p. 925.) The court recognizes that, “[a]lthough section 998 fixes no ‘minimum period that must elapse following commencement of suit for service of a valid 998 offer’ [citation], a litigant receiving a 998 offer at the time a lawsuit is filed or soon thereafter is, as a general matter, less likely to have sufficient information upon which to evaluate that offer.” (Ibid. [internal citation omitted] [emphasis in original].) However, Plaintiff did not present evidence or argument showing that he did not have sufficient information to evaluate the 998 Offer.[2]

As set forth above, the 998 Offer offered $49,505.27 for reimbursement of the payment of the subject vehicle, plus incidental and consequential damages. (Dizon Decl., Ex. B, 998 Offer, ¶ 1.) Plaintiff did not, for example, present evidence showing that he did not know, and could not have calculated with the information available to him, the repurchase price of the subject vehicle at the time the 998 Offer was made or the incidental and consequential damages that he suffered. Plaintiff also did not (1) set forth the specific discovery that he needed to conduct to evaluate the 998 Offer, or (2) present evidence showing that he alerted Defendant that he lacked sufficient information to evaluate the 998 Offer and Defendant’s response thereto to support a finding of lack of good faith. (Licudine, supra, 30 Cal.App.5th at p. 926 [“If, after hearing the offeree’s concerns [regarding having insufficient information to evaluate a section 998 offer], the offeror’s response is less than forthcoming, ‘such obstinacy’ is ‘potent evidence that [the] offer was neither reasonable nor made in good faith’”].)

Thus, for the reasons set forth above, the court finds that Plaintiff has not met his burden to show that the 998 Offer was not made in good faith. (Covert, supra, 73 Cal.App.5th at p. 833; Licudine, supra, 30 Cal.App.5th at p. 926.)

Third, the court finds, as to the attorney’s fees incurred by Plaintiff in connection with the commencement and prosecution of this action until November 23, 2020 and the preparation of this fee motion, that Plaintiff has established a lodestar amount of $7,902.50.

“[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. . . . .¿ The reasonable hourly rate is that prevailing in the community for similar work.¿ 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.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (internal citations omitted); Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 691 [“To determine a reasonable attorney fee award, the trial court applies the lodestar method”].)¿ “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.”¿ (Horsford v. Board of Trustees of California State Univ. (2005) 132 Cal.App.4th 359, 396.)¿¿¿¿

Plaintiff has submitted the declaration of Joshua Fennell, in which Fennell attests to the qualifications, skill, and experience of the legal staff that worked on this case. (Fennell Decl., ¶¶ 359 [paralegal Astorga’s qualifications], 339 [attorney Fennell’s qualifications], 341 [attorney Xie’s qualifications].) The court finds that a reasonable hourly rate for (1) paralegal Elaine Astorga is $175, as requested, and (2) attorney Joshua Fennell from the commencement of the action to November 23, 2020 is $370.[3] The court further finds that the 9.1 hours expended from August 14, 2020 through November 23, 2020 were reasonably expended. (Fennell Decl., Ex. 16, pp. 1-3.) The court therefore finds that Plaintiff has established a lodestar of $3,152.50 ((1.1 hours x paralegal Astorga’s $175 hourly rate) + (8 hours x attorney Fennell’s $370 hourly rate) for that work. (Ibid.)

The court further finds that Plaintiff has shown that attorney Fennell reasonably expended 10 hours in preparing the pending fee motion, reviewing Defendant’s opposition papers, and preparing the reply papers. (Fennell Decl., Ex. 16, p. 98; Fennell Decl., ¶ 356; Supp. Fennell Decl., ¶ 3.) The court notes that Fennell’s hourly rate, as shown on the billing invoices, increased from $370 at the commencement of this action to $475. (Fennell Decl., Ex. 16, pp. 1 [showing $370 hourly rate], 98 [showing $475 hourly rate].) Considering the increase in experience from 2020 to 2024, the court finds that the hourly rate of $475 is reasonable.

The court therefore finds that Plaintiff has established a total lodestar amount of $7,902.50.

Fourth, the court finds that Plaintiff is not entitled to a lodestar multiplier of 1.5.

“[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.¿ [Citation omitted.]¿ 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.¿ 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.”’”¿ (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)¿¿¿¿¿¿

Although the court recognizes that this matter was taken on a contingency basis, the court finds that there is no evidence that this lemon law matter involved complex or novel issues that would justify the imposition of a multiplier. (Fennell Decl., ¶ 358.) The court therefore denies that request.

The court grants in part plaintiff Steven Munoz’s motion for attorneys’ fees as follows.

The court orders that plaintiff Steven Munoz shall recover a total of $7,902.50 from defendant Ford Motor Company pursuant to Civil Code section 1794, subdivision (d).

[1] Plaintiff has not argued that section 998 does not apply to pretrial settlements, and the court finds that the conclusion that this statute does apply to settlements, as set forth in Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, review granted August 30, 2023, S280598 and Ayers v. FCA US, LLC (2024) 99 Cal.App.5th 1280, review granted May 15, 2024, S284486, is persuasive. (Madrigal, supra, 90 Cal.App.5th at p. 397, rev. granted Aug. 30, 2023, S280598 [concluding that the terms of the parties’ stipulated settlement under section 664.6 constituted a judgment within the meaning of section 998]; Ayers, supra, 99 Cal.App.5th at p. 1297, rev. granted May 15, 2024, S284486 [agreeing with Madrigal that section 998 applies “where the litigation is terminated by settlement”]; Cal. Rules of Ct., rule 8.1115, subd. (e)(1) [pending review and filing of Supreme Court’s opinion, a published Court of Appeal decision may be cited for potentially persuasive value].)

[2] The supplemental declaration of Joshua Fennell does not address these issues, and instead concerns the amount of time spent by counsel in connection with briefing the fee motion. (Supp. Fennell Decl., ¶¶ 1-3.)

[3] The court notes that other attorneys performed work on this case, but after November 23, 2020. (See, e.g., Fennell Decl., Ex. 16, Invoices, pp. 4 [attorney Xie billing entry], 26 [attorney Beck billing entry].)

steven munoz ; Plaintiff, vs. ford motor company , et al.; Defendants.	Case No.:	20STCV30852

	Hearing Date:	January 31, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: plaintiff’s motion for attorneys’ fees