Judge William A. Crowfoot, Case Number: 23AHCV01034, Date: 2024-04-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01034, Date: 2024-04-10 Tentative Ruling

Plaintiffs Michael Machowsky and Cameron Machowsky (collectively, “Plaintiffs”) filed this action against Ford Motor Company (“Defendant”) on May 8, 2023. This motion is for $63,252.09 in attorneys’ fees and costs following a settlement agreement entered into between the parties on December 11, 2023, which identified Plaintiffs as the prevailing parties.

On March 15, 2023, Plaintiffs submitted a claim through Defendant’s third-party dispute resolution provider, the Better Business Bureau Auto Line program (“BBB Auto Line”), requesting that Defendant repurchase their 2020 Ford Ranger (“Subject Vehicle.”) (Sanjur-Van Brande Decl., ¶ 6.) An arbitration hearing was held through BBB Auto Line on April 18, 2023, but no decision was rendered within 40 days of the opening of the claim (April 24, 2023). (Ibid.) Therefore, Plaintiffs filed this action on May 8, 2023. (Ibid.) On May 9, 2023, BBB Auto Line issued its decision, found the Subject Vehicle to be a lemon, and ordered Defendant to repurchase the vehicle within 30 days. (Ibid.) Defendant accepted this decision on May 11, 2023, giving it 30 days to complete the repurchase and provide payment. (Dizon Decl., ¶¶ 6-7.) On May 23, 2023, Defendant requested additional information from Plaintiffs to complete the repurchase. (Dizon Decl., ¶ 8.) On May 26, 2023, Defendant presented a settlement offer and release. (Dizon Decl., ¶ 9.) On May 30, 2023, Plaintiffs’ counsel requested for the registration fee to be added to the settlement. (Ibid.) On June 19, 2023, Defendant repurchased the Subject Vehicle. (C. Machowsky Decl., ¶ 7.)

On December 11, 2023, the parties entered into a Settlement Agreement. (Sanjur-Van Brande Decl., Ex. 1.)

Pursuant to Civil Code section 1794(d), “[i]f 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 is applicable to calculating attorney fees under section 1794, subdivision (d).” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997.) As stated by the court in Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462:

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, supra at p. 470 [quoting Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 103.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) “The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in [her] court.” (Ibid.)

The Court cannot tie the attorney fee award to the amount of plaintiff’s recovery. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37 (“it is inappropriate and an abuse of a trial court's discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff's damages or recovery in a Song-Beverly Act action.”).) Furthermore, “[t]he law is clear . . . that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “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 Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)

As an initial matter, Defendant argues that this motion should be denied because the case should have settled in May 2023. (Opp., pp. 4-5.) Defendant argues that Plaintiffs unnecessarily filed this lawsuit and increased fees and costs by demanding additional money for the registration fee as part of the settlement agreement and refusing to extend Defendant’s deadline to comply with the BBB Auto Line decision. This is unpersuasive. Defendant failed to include the registration fee in its settlement payment even though it is explicitly included as restitution under Civil Code section 1793.2(d)(2)(A). Also, Plaintiffs sent a settlement demand on June 30, 2023, to which Defendant did not respond until November of 2023. (Supp. Sanjur-Van Brande Decl., ¶ 4.) Instead, Defendant served written discovery on October 4, 2023. Therefore, the Court rejects Defendant’s invitation to deny the motion and proceeds to consider the reasonableness of Plaintiffs’ fee request.

Plaintiffs state that they have billed a total of $42,427.34 for this matter and request a multiplier of 1.5 for a total of $62,474.25 in fees. Plaintiffs provide declarations from counsel, as well as their billing records to support the fees claimed. (Sanjur-Van Brande Decl., Ex. 2; ¶¶ 7, 9-10; Kaufman Decl., ¶¶ 6-10.) Plaintiffs seek recovery for work performed by 3 attorneys and 2 paralegals handling this action:

- Joseph A. Kaufman, attorney practicing for over 20 years with an hourly rate of $595, who supervised this matter and billed 10.8 hours setting case evaluation, settlement, and discovery strategies;

- J. Brian Lynn, attorney practicing for 17 years with an hourly rate of $475, who billed 9.4 hours for editing and finalizing Plaintiffs’ discovery responses and preparing filings related to this fee motion;

- Maria Sanjur-Van Brande, attorney practicing for 2 years with an hourly rate of $375, who was the lead attorney and billed 79.4 hours representing Plaintiff in the BBB Auto Line arbitration, handling discovery, investigating Plaintiffs’ claims, and representing Plaintiffs at case management conferences;

- Adrian Flansburg, a paralegal with 25 years’ experience with an hourly rate of $210, who billed 6.1 hours on tasks mostly related to the vehicle repurchase; and

- Melissa Lopez, a paralegal with 3 years’ experience with an hourly rate of $175, who billed 8.5 hours mostly on tasks related to discovery.

(Kaufman Decl., ¶ 14.) Plaintiffs’ counsel provide evidence that their rates have been previously approved in other cases in the Los Angeles Superior Court. (Kaufman Decl., ¶ 9; Sanjur-Van Brande Decl., ¶ 9.) “[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

Defendants argue that Plaintiffs’ counsel’s hourly rates are excessive and argue that their declarations are self-serving. Defendants instead suggest that the Court should base its award on an hourly rate of $500 for Mr. Kaufman and $325 for Mr. Lynn and Ms. Sanjur Van-Brande. Defendants’ sole authority for this is Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 256, in which the trial court set a reasonable hourly rate of $350. However, the Mikehaeilpoor court set this hourly rate after considering that similar or more experienced attorneys had been awarded billable rates of $345 and $350. (Ibid.) Also, the attorney in Mikhaeilpoor had only been practicing for approximately five years and had litigated hundreds of automotive defect cases involving the Song-Beverly Act. (Ibid.) Here, in contrast, Plaintiffs’ counsel also declare that other plaintiffs-side lemon law attorneys with over 20 years of experience have hourly rates ranging from $595 to $850, which supports the finding that the requested rates are reasonable.

As for whether the hours expended by Plaintiffs’ counsel is reasonable, Defendant first identifies blockbilled entries which it claims should be discounted. (Opp., pp. 10-14.) The Court has reviewed the described tasks and amount of time expended and does not find that they are excessive or unreasonable. Second, Defendant challenges the amount of time Plaintiffs’ counsel expended on drafting Plaintiffs’ responses to initial written discovery and preparing documents for production. The Court rejects this contention. Defendant served approximately 133 discovery requests on each plaintiff, whereas Ms. Sanjur-Can Brande only billed 22.2 hours to respond to all 266 requests, which amounts to approximately 6 minutes per request. This is a reasonable amount of time to respond to discovery requests even if such responses are boilerplate and the matter is uncomplicated.

Defendant further contends the costs anticipated for the reply brief in support of this fee motion are not allowed. Plaintiffs’ counsel estimated that it would spend 3 hours and $1,325 in fees to respond to Defendant’s opposition and prepare for and attend the hearing. Given the length of Defendants’ opposition brief and the number of arguments raised, this amount of time is reasonable.

Last, the Court addresses whether a lodestar multiplier is appropriate. Plaintiffs argue that this case required extensive effort due to Defendant’s misconduct in refusing to repurchase Plaintiffs’ vehicle in accordance with the arbitration award. Plaintiffs also emphasize that this case was taken on contingency and argue that a multiplier would properly account for counsel’s opportunity costs, the delay in payment, and the contingent risk. However, Plaintiffs do not show how the facts of the case present any unusual legal challenge. Defendant’s conduct may have added a considerable amount of frustration to the process but addressing this did not require any particularly advanced amount of skill, especially when Plaintiffs consistently refer to the binding nature of the BBB Auto Line arbitration award and their statutory entitlement to registration fees. Accordingly, no lodestar multiplier will be applied.

Plaintiffs seek costs in the amount of $777.84 pursuant to the memorandum of costs. This is not challenged and the Court awards Plaintiffs’ the entire amount of the requested costs.

In conclusion, the Court awards fees in the amount of $41,649.50 and costs in the amount of $777.84 for a total of $42,427.34.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.