GONZALEZ VS AMERICAN HONDA MOTOR CO., INC.

3. CASE # CASE NAME HEARING NAME SKY MESA PROPERTY MOTION TO COMPEL ATTENDANCE AT OWNERS ASSOCIATION CVME2403469 DEPOSITION OF DEFENDANT JOSEPH VS MCCABE PROPERTY MCCABE MANAGEMENT, INC. Tentative Ruling: Unopposed Motion to Compel attendance at Deposition granted. Defendant Joseph McCabe ordered to sit for a deposition within 10 days of this order. Sanction imposed against defendant in the amount of $1,100.

4. CASE # CASE NAME HEARING NAME SKY MESA PROPERTY MOTION TO COMPEL ATTENDANCE AT OWNERS ASSOCIATION CVME2403469 DEPOSITION OF DEFENDANT VS MCCABE PROPERTY JONATHAN JENSEN MANAGEMENT, INC. Tentative Ruling: Unopposed Motion to Compel attendance at Deposition granted. Defendant Jonathan Jensen ordered to sit for a deposition within 10 days of this order. Sanction imposed against defendant in the amount of $1,100.

5. CASE # CASE NAME HEARING NAME GONZALEZ VS CVSW2307900 AMERICAN HONDA MOTION FOR ATTORNEY’S FEES MOTOR CO., INC. Tentative Ruling: Motion for Attorney’s Fees granted in the reduced amount of $16,315.75. Following Entry of this order, case is dismissed pursuant the OSC.

On September 20, 2023, Plaintiff filed the Complaint in this action against Defendant American Honda Motor Co., Inc., asserting causes of action for violations of the Song- Beverly Consumer Warranty Act. This lawsuit relates to the 2022 Honda Accord vehicle which Plaintiff purchased on June 25, 2022. Plaintiff alleged that the vehicle had serious defects during the warranty period, including transmission, electrical, and structural system defects, and that Plaintiff presented the vehicle to Defendant's authorized repair facilities on at least seven occasions. Defendant, after failing to conform the vehicle to the express warranty within a reasonable number of repair attempts, failed to either refund or replace the vehicle as required under the Song-Beverly Act. In the Complaint, Plaintiff sought damages, civil penalty of two times the actual damages, and attorney fees and costs.

On or about April 30, 2024, Defendant served a CCP 998 offer to settle, offering to pay $60,000 to Plaintiff, plus attorney's fees, costs, and expenses to be determined by a motion. (Decl. of Kevin Y. Jacobson in Supp. of Mot., ¶ 90; Decl. of Elizabeth C. Rein in Supp. Of Oppo., ¶ 20.) The 998 offer provided that fees should be awarded in the following manner: "Plaintiff's statutory costs and expenses under California Civil Code section 1794(d)(2), including reasonable attorneys' fees, in the amount determined by the Court to have been reasonably incurred by Plaintiff in connection with the commencement and prosecution of this action to, and including, the date of this Offer." (Decl. of Elizabeth C. Rein, ¶ 6.) Plaintiff accepted the offer on August 3, 2024.

Plaintiff now moves for fees in the total amount of $21,063.75 (consisting of the lodestar figure of $13,651, 1.25 multiplier of $3,412.75, and $4,000 for anticipated time to prepare a reply), which Plaintiff contends are recoverable under Civil Code section 1794, subdivision (d) as reasonably necessary fees. Plaintiff presents the time record of the attorneys of the firm which represented him, for 36.7 hours billed at various hourly rates. (Decl. of Kevin Y. Jacobson in Supp. of Mot., ¶ 91, Ex. 40.)

Defendant opposes the motion, contending that the fees should be reduced on the ground that this lawsuit was a routine lemon law case. (Opposition 2:16-20.) Defendant argues that Plaintiff should not recover fees incurred after August 3, 2024, in the amount of $4,698, because the 998 offer limited fees to those incurred "to, and including, the date of this Offer." (Id. 5:2-13 Id. 5:14-17.) Defendant also contends that Plaintiff should not be allowed to recover $4,000 for speculative future fees. (Id. 5:2-13 Id. 5:14-17.) Defendant further argues that a 25% blanket reduction should be applied to Plaintiff's fees. (Id. 2:16-20.)

Fees are to be calculated through use of the Lodestar method.

A prevailing party in a civil lawsuit is entitled to recover costs as a matter of right. (Code Civ. Proc., § 1032(b).) Statutory attorney fees are included as recoverable costs. (Code Civ. Proc., § 1033.5(a)(10)(B)&c(5)(A).) Here, under the relevant fee-shifting statute, the prevailing plaintiff in action under Song-Beverly Consumer Warranty Act, commonly known as the lemon law, is entitled to award of reasonable attorney’s fees. (Civ. Code, §1794(d).)

However, “[t]he statutory scheme governing costs and section 998 offers allows parties to allocate costs and attorney fees in their compromise agreement.” (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 183, disapproved on other grounds by Desaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1144; Code Civ. Proc., §§ 998, 1032, subd. (c).) “Section 998 permits the parties to determine the nature of the judgment to be entered and to resolve collateral matters, including costs.” (Id. at 184 [“costs allowed under section 1031 and 1032 shall be withheld or augmented as provided in this section”].) “Section 1032 also allows the parties to stipulate to procedure for resolving the matters of costs.” [Citation.] (Ibid.)

Hence, the basis for fees in this instance is the parties’ agreement. On August 03, 2024, Plaintiff accepted Defendant’s 998 offer, which provided that fees should be awarded in the following manner: “Plaintiffs’ statutory costs and expenses under California Civil section 1794(d)(2), including reasonable attorneys’ fees, in the amount determined by the Court to have been reasonably incurred by Plaintiff in connection with the commencement and prosecution of this action to, and including, the date of this Offer.” (Rein Decl., ¶ 6, Ex. 1.)

Plaintiff cites no valid legal authority holding otherwise or to support his claim that the above provision is unlawful. Therefore, Plaintiff should be entitled to recover reasonable and necessary fees pursuant to Civil Code section 1794, subdivision (d)(2), as determined by the Court but limited to the parameters set by the 998 offer, that is, fees incurred up to the date on which they accepted Defendant’s 998 offer.

The court is to use lodestar method to determine reasonable fee. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 997-1001.) Under the lodestar method, the judge must first determine the lodestar figure the reasonable hours spent multiplied by the reasonable hourly rate of each attorney who was involved in presenting the case. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 35 (Morris).)

When using the lodestar method, the reasonable hourly rate is the prevailing hourly rate for private attorneys in the community who conduct noncontingent litigation of the same type. (Glaviano v. Sacramento City Unified Sch. Dist. (2018) 22 Cal.App.5th 744, 751 (Glaviano).) Prevailing hourly rates apply even when attorney represented party on contingent fee basis, charged nothing for attorney’s services, charged below-market or discounted rates, or was in-house counsel. (Ibid.)

The hours billed by Plaintiff's counsel's office should be subject to reduction.

The following language of Civil Code section 1794, subdivision (d), providing for award of fees and cost to prevailing party requires trial court to base the prevailing buyer’s attorney fee award upon actual time expended on the case, as long as such fees are reasonably incurred: “the buyer shall be allowed by the court to recover as part of the judgment as 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.” (Civ.

Code, § 1794(d), italics added.) The starting point for this determination is the attorney’s time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397.) The approach to determining reasonable attorney fee award under Song-Beverly Consumer Warranty Act is “consistent with approach to determining a reasonable attorney fee in various statutory and contractual contexts, which ‘ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Warren v.

Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 36.)

“Testimony of an attorney as to the number of hours worked on a particular case is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) “In challenging attorneys 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.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550 564 (Premier Medical).) “General arguments that fees are excessive, duplicative, or unrelated do not suffice.” (Ibid.) A challenge to reasonableness of fees must be supported by evidence by citation to record and explanation of which fees are challenged. (Id. at 562.)

Here, Defendant contends that Plaintiff should not be allowed to recover $4,698 in fees incurred after August 3, 2024, the date on which Plaintiff accepted Defendant's 998 offer. Defendant's proposed reduction should be applied. The 998 offer expressly limited fees to those "reasonably incurred by Plaintiff in connection with the commencement and prosecution of this action to, and including, the date of this Offer." Plaintiff accepted these terms. Therefore, fees incurred after August 3, 2024, in the amount of $4,698, should be deducted from Plaintiff's fee request.

Defendant also contends that Plaintiff is unreasonably seeking an additional $4,000 as anticipated fee for preparing a reply and attending the hearing. Defendant's proposed reduction should be applied to deduct the speculative $4,000 in anticipated fees from Plaintiff's request. However, Plaintiff is entitled to “fees on fees,” that is, reasonable fees for the work reasonably necessary to prepare the fee motion and any reply. (See Grahm v. DaimlerChrylser Corp. (2004) 34 Cal.4th 553, 580 [“it is well established that plaintiffs and their attorney may recover attorney fees for fee-related matters”].) Based on the scope of the issues raised in this motion, an additional 10 hours at the associate attorney rate of $395 per hour is reasonable for the preparation of the fee motion and reply, for a total of $3,950.

Defendant also contends that a 25% blanket reduction should be applied to all fees on the grounds that this was a routine, simple lemon law case. Defendant's proposed blanket reduction should be rejected. There are a number of factors that a judge may consider in determining that a reduction in fees is warranted. (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34 (Morris).) “In evaluating whether the attorney fee request is reasonable, the trial court should consider ‘ “ ‘whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.’ ” ’ [Citation.]” (Id. at 38.) “ ‘A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” ’ [Citation.]” (Ibid.)

Based on a general observation, the fees billed by Plaintiff's attorneys for the time period up to and including August 3, 2024, do not appear excessive or unreasonable. Defendant has not identified specific billing entries that are duplicative, excessive, or unrelated to the prosecution of this action. The similarity of filings between cases pending between the parties, alone, is no justification to reduce billed hours expended in this matter. Defendant should not second guess the soundness of Plaintiff's litigation strategy.

A general, blanket reduction is not warranted where Defendant has failed to meet its burden of pointing to specific items challenged with sufficient argument and citations to the evidence.

Therefore, the appropriate reductions are: (1) $4,698 for fees incurred after August 3, 2024; and (2) $4,000 for speculative future fees. Deducting these amounts from Plaintiff's total fee request of $21,063.75 yields $12,365.75. Plaintiff is entitled to an additional $3,950 for 10 hours of work on the fee motion and reply at the associate rate of $395 per hour. The total award of fees should therefore be $16,315.75.

No multiplier should be applied - The trial court has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on many factors. (Glaviano, supra, 22 Cal.App.5th at 751.) The court may consider factors unique to the case such as risks associated with contingent fee, quality of work, novelty and complexity of issues, and results obtained. (Graham v. DaimlerChryserl Corp. (2004) 34 Cal.4th 553, 579-580.) The decision to apply multiplier is is entirely discretionary. (Galbiso v. Orosi Pub. Util. Dist. (2008) 167 Cal.App.4th at 1089.) The purpose of a fee enhancement is “primarily to compensate the attorney for prevailing party at a rate reflecting the risk of nonpayment in contingency cases as a class.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)

Plaintiff seeks the court to award a multiplier of 1.25 times the lodestar figure. Plaintiff argues that his attorneys represented him while undertaking the risk of litigating the case on a fully contingent basis without being assured of payment for their services. However, Plaintiff's counsel claims to have significant experience and specialized knowledge in handling lemon law cases. That would imply that the law firm managed by seasoned litigators in the field possess the ability to properly evaluate the strength of and the probability of success on a case, and the associated risk before taking it on.

Having handled numerous similar cases and prevailed, Plaintiff's attorneys could have understood the risk of recovery in this case was not high. The settlement amount of $60,000 without engaging in extensive litigation shows lack of such risk. Thus, no multiplier should apply in increasing the amount of fee recovery.

The reasonableness of attorneys' hourly rates - Attorney's fees under the lodestar method is to be "based on the prevailing hourly rates for comparable legal services in the community." Premier Medical Management Systems, Inc. v. California Insurance Guarantee Ass'n, 163 Cal. App. 4th 550, 558 (2008).)

Here, Plaintiff submits the declaration of his counsel, demonstrating that courts in different counties have awarded fees at comparable hourly rates in other lemon law cases. (Declaration of Kevin Y. Jacobson, ¶¶ 7-44.) The hourly rates billed by attorneys and staff at the firm representing Plaintiff ($175-$550) are consistent with the rates of lemon law attorneys that have been approved by Courts in Riverside County and other California counties.

In sum, the fees should be reduced by $4,698 for time spent after the 998 offer acceptance and by $4,000 for speculative future fees. No multiplier should apply. Plaintiff is entitled to an additional $3,950 for preparing the fee motion and reply. Defendant has otherwise presented no grounds for further reduction of fees or adjustment of hourly rates.