Judge: Stephen Morgan, Case: 21AVCV00444, Date: 2023-01-03 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 21AVCV00444    Hearing Date: January 3, 2023    Dept: A14

Background

This is a lemon law action. Plaintiff Brandy Brown (“Plaintiff”) alleges that she purchased a 2015 Kia Optima vehicle, VIN: 5XXGN4A73FG441583 (“the Vehicle”) on January 16, 2020 manufactured by Defendant Kia Motors America, Inc. (“Kia”) from Rally Auto Group, Inc. in Palmdale, California. The vehicle came with an express warranty and an implied warranty. Plaintiff further alleges that since purchasing the Subject Vehicle, Plaintiff has had to deliver the Subject Vehicle for repair to Defendant or its authorized repair facility(s) no less than seven (7) times for repair of nonconformity(s) to warranty, including, but not limited to defect(s) which have manifested in: engine malfunction, illumination of the vehicle’s check engine light, the vehicle’s check engine light flashing while driving, the vehicle losing power while driving, the vehicle shutting off while driving, the vehicle hesitating on acceleration, and smoke coming from the vehicle and that each time the vehicle was returned to Plaintiff without properly repairing the nonconformity(s).

On June 02, 2021, Plaintiff filed her Complaint alleging one cause of action for Violation of the Song-Beverly Consumer Warranty Act.

On December 27, 2021, Kia filed its Answer.

On November 23, 2022, Plaintiff filed this Motion for Attorney’s Fees.

On December 19, 2022, Kia filed its Opposition.

On December 27, 2022, Plaintiff filed her Reply.

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Legal Standard

Standard for Attorney’s Fees – A prevailing party in entitled to recover costs, including attorneys’ fees, as a matter of right. (See Cal. Code Civ. Proc., §§ 1032(a)(4), 1032(b), 1033.5.) 

The fee setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. 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. 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 (1977) 20 Cal.3d 25, 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 48, n.23.) After the trial court has performed the lodestar calculations, 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.  (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.) 

The factors considered in determining the modification of the lodestar include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm, LLC v. Teitler Family Trust (2008) 162 Cal. App. 4th 770, 774 (emphasis in original).) A negative modifier was appropriate when duplicative work had been performed. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819.) 

Under the Song-Beverly Act, Civil Code section 1794:

“(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.”

The lodestar method of calculating fees is appropriate in motions for attorney’s fees under Civil Code section 1794. (Robertson v. Fleetwood Travel Trailers of California, Inc (2006) 144 Cal.App.4th 785, 818.)

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Discussion

Application – It appears that the parties did not conclude their meet and confer prior to bringing this motion:

Prior to bringing this motion, Plaintiff’s counsel attempted to settle the claim for attorney’s fees and costs in an effort to encourage judicial economy and avoid wasting the court’s time and resources. On July 12, 2022, Plaintiff’s counsel offered to resolve Plaintiff’s fees and costs for $50,000.00. [Decl. Diamse, ¶15]. On July 15, 2022, Defendant’s counsel advised that he had not received any authority to negotiate fees. [Decl. Diamse, ¶16]. On July 21, 2022, counsel for both parties spoke telephonically regarding attorney’s fees and costs. [Decl. Diamse, ¶¶ 17-18, Ex. E]. During the conversation, Defendant’s counsel offered $40,000. Plaintiff’s counsel offered a compromise of $45,000. Id. On July 26, 2022, Defendant’s counsel advised that $40,000 was its best and final offer. Id.

Following the execution of the settlement agreement, on September 16, 2022, Plaintiff’s counsel sent Defendant’s counsel a meet and confer letter and advised that fees and costs were $52,684.11 and requesting a counteroffer. Defendant did not respond to the meet and confer letter. [Decl. Diamse, ¶19, Ex. F]. On November 9, 2022, attorney Aaron Fhima, the partner on the matter, called and spoke with defense counsel Matthew Proudfoot and again reiterated that Plaintiff’s counsel was willing to resolve the matter of fees and costs for the compromised amount of $45,000. [Decl. Diamse, ¶20]. Defense counsel stated that he would speak with Kia and respond shortly. Despite following up on November 14 and 18, as of the date of this motion, no response has been provided. Id.

(Motion 4:17-28, 5:1-7. See also cited Decl. of D)

Defendant does not address this presentation by Plaintiff.

The Reply does not provide new information regarding counsels’ discussions.

The court believes that, should defense counsel, Matthew M. Proudfoot, speak to his client and further the meet and confer discussion, this issue may be resolved.

The Court declines to rule on Plaintiff Brandy Brown’s Motion for Attorney’s Fees at this time.

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Conclusion

The Court declines to rule on Plaintiff Brandy Brown’s Motion for Attorney’s Fees at this time.

Counsels are ordered to meet and confer within ten (10) days of this Court Order.