motion for attorney fees
evidence to show that Plaintiff signed or accepted or saw or was informed of the arbitration provision in the Warranty. In contrast, Plaintiff specifically attests that she did not see the arbitration agreement or even know of it when she bought the vehicle. (Johnson Decl., ¶¶ 2-14.)
HMA argues that equitable estoppel applies, as Plaintiff’s claims rely on the Warranty. But an essential element of any contract is mutual assent. (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270.) A warranty is not a traditional contract: it is effectively a unilateral promise to the consumer. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1258; Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 830.) Equitable estoppel thus cannot apply in this context. Nor are Plaintiff’s claims clearly dependent upon the Warranty. (See Ford Motor Warranty Cases (2025) 17 Cal.5th 1122, 1133 [warranty claims arise from a statutory scheme; unless properly disclaimed, every retail sale of consumer goods includes the implied warranty that the goods are merchantable], in addition to any express warranty provided by the manufacturer.)
HMA has thus failed to show that equitable estoppel applies here.
As HMA has failed to establish that an enforceable arbitration agreement exists between HMA and Plaintiff, the Motion is DENIED.
HMA’s Request for Judicial Notice is GRANTED under Ev. Code §452(d), as to the existence of the record.
Counsel for HMA is to give notice of this ruling. 7 Providence Capital Before the Court is a motion for attorney fees filed by plaintiff Funding, Inc. Providence Capital Funding, Inc. against defendants Rona Health, LLC (Rona), Pietz Enterprises, LLC (Pietz Enterprises), and Robert Pietz (Pietz)(collectively, Defendants) For the reasons set forth below, the motion is GRANTED in the reduced amount of $40,503.
Contractual attorney’s fees are recoverable as costs to the prevailing party. (Code Civ. Proc., § 1033.5
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The question becomes whether the amount of attorney fees sought by Plaintiff at $53,206.06 is reasonable. Generally, courts employ the lodestar method to determine if attorney’s fees are reasonable, which involves multiplying the reasonable rate of services by the number of hours spent on the case. (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242.) The party seeking attorney’s fees is not entitled to all hours
they claim in an attorney fee request and must prove that the hours sought are reasonable and necessary. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1320.)
Hourly Rate: A “reasonable” hourly rate used to calculate the lodestar is the prevailing rate for similar work in the community where the court is located. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 695-696.) The court may consider various factors when determining a reasonable hourly rate, including the attorney's skill and experience, the nature of the work performed, the relevant area of expertise and the attorney's customary billing rates. (Flannery v. California Highway Patrol (1998) 61 CA4th 629, 632.) The court may also rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009; 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 437.)
Here, Plaintiff seeks hourly rates ranging from $345 to $395 for attorney Adeline Tungate (Tungate) and $645 for attorney Mark Scott (Scott). (Tungate Decl. ¶ 6, Ex. 3.) Based on the court’s experience, the requested hourly rate for Tungate is reasonable for the work performed in the Orange County community based on her skill level and experience. As for Scott, the requested hourly rate is excessive considering the nature of the work performed, e.g., responding to written discovery, preparing pleadings and briefs related to simple motions that do not require extraordinary skill. The Court therefore reduces Scott’s hourly rate to $525.
Hours Expended: “[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 University (2005)132 Cal.App.4th 359, 396.) The court has discretion to reduce the hours it determines were excessive or not supported. (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816; Christian Research Institute v. Ahor (2008) 165 Cal.App.4th 1315, 1326-29.)
Here, Plaintiff seeks $53,206.06 in fees incurred through February 2026. (Tungate Decl. ¶ 18.) The billing statements submitted by Plaintiff, however, total $52,432 through December 2025. (Id., Ex. 3.) There is no mention in counsel’s declaration of what fees were incurred from December 2025 to February 2026, or any explanation of the discrepancy.
The Court otherwise finds the amount of time spent on each task is generally commensurate with the task. The only unreasonable time spent are the hours incurred preparing Plaintiff’s meritless motion for sanctions [5.1 hours (Scott) and 2.7 hrs (Tungate)]. The Court approves 63 hours spent by Scott and 20.4 hours by Tungate.
Thus, the Court GRANTS the motion and awards the total amount of $40,503, broken down as follows: $525 x 63 (Scott) plus $345 x 12.6 (Tungate) plus $395 x 7.8 (Tungate).
Counsel for Plaintiff shall provide notice of this ruling. 8 Jackson v. Before the Court is a motion by Plaintiff Chapter Kris Jackson to Phancao, et. al. compel Defendant Patrick Phancao to participate in binding arbitration of plaintiff’s complaint. The motion is DENIED, as set forth herein.
Both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See 9 U.S.C. §2 and Code Civ. Proc. §1281.2). "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92).
Here plaintiff has failed to establish the existence of an arbitration agreement between Jackson and Phancao. There is no evidence submitted along with the motion demonstrating the existence of an arbitration agreement. “Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.” (Rule 3.1306(a).) Accordingly, the motion is DENIED.
In addition, although plaintiff asserts the arbitration provision in the 2025 BMO Handbook is an arbitration agreement between Phancao and Jackson, the 2025 BMO Handbook contains an arbitration agreement between BMO and the account holder. (See page 19 of the 2025 BMO Handbook) Further, while plaintiff claims the arbitration provision in the 2025 BMO Handbook applies to banking transactions in 2015 and 2016 at the Bank of the West, such has not been established. Finally, plaintiff alleges “this is an independent action in equity” to set aside a default and default judgment based on fraud and not a dispute over Bank of the West’s handling of any banking transactions. (Complaint ¶14)
Accordingly, the motion is DENIED.
Phancao is ordered to give notice of this ruling. 9 Kennedy v. O/C Maksoud 10 Castenada v. Doe Before the Court is an unopposed Motion to be Relieved as Counsel of Record, filed by attorney Mark Ruszecki as to the representation of plaintiff Joseph Castaneda.