Judge: Robert S. Draper, Case: 20STCV27865, Date: 2023-03-29 Tentative Ruling

Case Number: 20STCV27865    Hearing Date: March 29, 2023    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiffs’ Motion for Attorneys’ Fees is GRANTED in the amount of $88,201.52.

Plaintiffs’ Motion to Strike Costs is GRANTED.  

DISCUSSION 

I.             MOTION FOR ATTORNEYS’ FEES

Plaintiffs move for attorneys’ fees in the amount of $123,582.00, pursuant to Civil Code section 1786.50(a)(2).

On February 10, 2023, the Court (Hon. Robert S. Draper) held a hearing on the instant motion and issued a tentative ruling to GRANT plaintiff’s Motion for Attorney’s Fees in the amount of $83,637.  (Murphy Sur-Reply Decl. ¶ 2 & Ex. 6.)  The Court, however, continued the hearing and requested supplemental briefing on the issue of whether Michael Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450 is controlling on this matter and mandates that the Court find that Solari’s 998 offer exceeded Plaintiffs’ eventual award.

Upon review of the supplemental papers, the Court finds that Doran v. North State Grocery Inc. (2006) 137 Cal.App.4th 484, and Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628 are controlling, and that Smalley is inapplicable here.

As an initial matter, Solari attempts to differentiate Linton and Doran from the instant matter as those cases were not decided under ICRAA.  That argument is curious because Smalley was decided under the Song-Beverly Consumer Protection Act (“SBA”), which would render Smalley similarly inapposite if the Court were to disregard Linton and Doran for this reason advanced by Solari.

Second, as Plaintiffs note in their Sur-Reply, the central issue facing the Smalley court was whether defendant’s 998 offer was rendered invalid due to defendant’s failure to concede liability under the SBA. The Court found that the 998 offer included “fees and costs of either $10,000 or the reasonable amount of attorney fees and costs incurred to that date, to be determined by the court, in exchange for dismissal of the action with prejudice. . .Smalley could clearly evaluate the offer’s worth.” (Smalley, 87 Cal.App.5th at 456.)

As the Court found that plaintiff was offered a definite award, including attorney fees in at least the amount of $10,000, the 998 award was definite and did not exceed the eventual award. As such, the Smalley Court considered neither Linton nor Doran in determining the outcome.

Here, by contrast, Solari’s offer explicitly states that Plaintiffs’ “right to recover reasonable attorney’s fees and costs shall be subject to a separately negotiated settlement amount, or a Motion for Fees and Costs brought pursuant to Civil Code section 1750.50(a)(2), or other applicable statute if no additional settlement agreement can be reached. . .”

While, in Smalley, plaintiff was guaranteed attorney fees in the amount of $10,000 or costs to be determined by the Court, at plaintiff’s election, here, Plaintiffs’ right to recover attorney fees was contingent on a motion for attorney fees based on a statute that did not afford Plaintiffs that right, or “other applicable statute if no additional settlement agreement can be reached.”

Simply put, in Smalley, defendant’s 998 offer was not conditional and offered plaintiff attorney fees in a definite amount, or in an amount to be determined by the court. Here, Solari’s 998 offer did not include such a guaranteed right, instead stating that Plaintiffs’ right to attorney fees was subject to further motion practice, in which Solari was free to argue that Plaintiffs were not owed any attorney fees whatsoever.

Accordingly, the Court again finds that Linton and Doran are controlling, and, for the reasons stated in Discussion Sections I and II of the 2/10/23 tentative ruling, which the Court adopts as if fully herein, Plaintiffs’ Motion for Attorney Fees should be granted.  In addition, Plaintiffs request attorney fees for the time spent in supplemental briefing in the amount of $4,564.52. The Court finds this amount reasonable, and supplements Plaintiffs’ original award of attorney fees by this amount.

Accordingly, Plaintiffs’ Motion for attorney fees is GRANTED in the amount of $88,201.52.

II.           PLAINTIFFS’ MOTION TO TAX COSTS

Plaintiffs also move to tax or strike Solari’s Memorandum of Costs.

As Solari’s right to recover costs is predicated on the validity of its section 998 offer, which the Court addressed above, and as the Court has previously ruled that Plaintiffs are the prevailing party under Code of Civil Procedure section 1032(b), Solari is not entitled to litigation costs. 

Plaintiffs’ Motion to Strike Solari’s Costs is GRANTED in its entirety.