2016-00191050-CU-BC

Mario P Aragon vs. Ford Motor Credit Company

Nature of Proceeding: Motion – Other – PJ Law and Motion

Filed By:

Plaintiff Mario Aragon’s Motion for Attorneys’ Fees and Costs is ruled upon as follows.

This is a lemon law case. Plaintiff accepted Defendant Ford Motor Company’s (“Ford”)

CCP §998 Offer (“Offer”) on August 14, 2017. Plaintiff had rejected an earlier §998

Offer made on August 16, 2016.

With respect to attorneys’ fees and costs, the Offer provides:

Ford will additionally pay Plaintiff’s attorneys’ fees, expenses and costs in the amount of $20,000.00 or, should the $20,000.00 be refused, Ford is willing to allow the Court determine, based on a noticed motion filed pursuant to Civil Code section 1794(d), the attorneys’ fees, expenses and costs reasonably incurred by Plaintiff’s counsel in the commencement and prosecution of this action, as provided by Civil Code section 1794(d). ruling on Plaintiff’s fee motion, and except as otherwise provided in this paragraph, the fees, expenses and cost amount shall be calculated as if Plaintiff was found to have prevailed in action under section 1794(d) as of the date of this Statutory Offer, except that (1) Ford shall not be liable for a multiplier greater than 1.00, and (2) Plaintiff may recover for fees and costs reasonably and actually incurred in bringing such a fee/cost motion. Ford will pay the attorneys’ fees and cost amounts determined by the Court within 30 days of notice of the Court’s ruling same.

(Declaration of Anthony J. Sperber, Ex. 1.)

Plaintiff’s attorneys expended 129.6 hours or $54,265 during the course of litigation. Plaintiff requests a multiplier of 1.5 for a total fee amount of $81,397.50. Costs incurred were $3,671.87 in costs. Thus, Plaintiff seeks a total amount of $85,069.37.

Attorneys’ Fees

In determining the reasonableness of a fee award, the Court is required to calculate the lodestar amount. The Court must determine the reasonable hourly rate and the reasonable number of hours expended in this matter. The reasonable market value of the attorney’s services is the measure of the reasonable hourly rate. (PLCM Group Inc . v. Drexler (2000) 22 Cal.4th 1084, 1094.)

Plaintiff seeks the loadstar attorneys’ fees in the amount of $54,265 for 129.6 hours.

This amount reflects the following:

· Anthony J. Sperber (Partner, 20 years of practice), $500/hr, 40.7 hours for $20,350

· Arthur J. Obolsky (Partner, 9 years of practice), $380/hr, 78.8 hours for $29,944

· Stacie Morris (Of Counsel, 30 years of practice), $475/hr, 2.9 hours for $1,377.50

· Kelli Herzog (Of Counsel, 17 years of practice), $380/hr, 5.7 hours for $2,166

· Alvaro Andres (Associate, 4 years of practice), $285/hr, 1.5 hours for $427.50

1. Billing Rates

The “‘reasonable hourly rate [used to calculate the lodestar] is the product of a multiplicity of factors…the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case.'” ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139, citing Margolin v. Regional Planning Com. (1972) 134 Cal.App.3d 999, 1004.) Generally, the reasonable hourly rate is the rate to which attorneys of like skill in the Court’s jurisdiction would typically be entitled. (Ketchum, supra, 24 Cal.4th at 1132.)

Ford insists that the requested billing rates are excessive and that Plaintiff fails to support the requested rates with evidence. Ford suggests that the more reasonable rate is $175 to $290 per hour based on non-contingent fees. The Court rejects Ford’s argument that the “[t]he California Supreme Court held that reasonable hourly loadstar rate is the prevailing rate for private attorneys ‘conducting non-contingent litigation of the same type.’ (Ketchum v. Moses, supra, at 1133.).” (Amended Opposition, 9:20-23.) Ketchum did not so hold. Rather, in the quoted portion, the California Supreme Court provided an overview of Serrano v. Unruh (1982) 32 Cal.3d 621, and merely explained that the court “approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type.” (Id. [emphasis in original].)

Plaintiff also provides support for his counsel’s hourly rates. Plaintiff’s counsel submits excerpts from the United States Consumer Law Attorney Fee Survey Report 2015-2016 (“Survey Report”). (Declaration of Arthur Obolsky, Ex. 15.) The Survey Report provides the average attorney rate for consumer law attorneys in both Sacramento and San Francisco. The Court has reviewed the Survey Report and concludes that the requested hourly rates are reasonable.

2. Hours Billed

Ford disputes certain hours billed as unnecessary.

· 8/15/2016 Motion to Compel: 10.8 hours for $4,104. Ford claims that the motion

compel was unnecessary because it was ultimately “dropped” due to the Coordination Proceedings regarding the DPS6 Transmission. The Court disagrees that the motion was unnecessary. The Court dropped the matter “in light of the Court’s ruling on motions to compel further responses” in other Ford Related Cases because the order was applicable to the instant case. (Declaration of Amy P. Maclear (“Maclear Decl.”), Ex. H.) Thus, a ruling was essentially issued, and the Court cannot conclude that the motion was unnecessary. Additionally, although the motion was similar to another filed by Plaintiff’s counsel in a different case (see Maclear Decl., Ex. G), the Court cannot conclude that the 10.8 hours were excessive and/or unnecessary. Thus, the Court declines to strike the fees.

· 7/30/2017 Mandatory Settlement Conference Statement: 2.5 hours for $950. Ford claims that the entry was “blatantly false” because no MSC was scheduled. The Court’s records reflect otherwise. An MSC was scheduled initially scheduled for 8/8/2017. It was rescheduled to 8/3/2017 to allow the parties to continue settlement negotiations. Thus, the Court declines to strike the fees.

Ford further claims certain “excessive time entries” after Ford’s first §998 Offer.

· 9/20/2016 Ex-Parte Application: 7 hours for $2,660. This was an ex-parte application to compel Ford’s PMK deposition and for production of documents, or OST. The Court denied the ex-parte application, explaining that Plaintiff should proceed by properly notice motion. Again, the Court cannot conclude that the 7 hours were excessive and/or unnecessary. Thus, the Court declines to strike the fees.

· 11/14/2016 Motion for Protective Order: 8.8 hours for $3,334. This motion was dropped “in light of the Court’s ruling on Ford’s motion for protective order” in another Ford Related Case because the order was applicable to the instant case. (Maclear Decl., Ex. I.) Thus, a ruling was essentially issued, and the Court cannot conclude that the motion was unnecessary. The Court cannot conclude that the

8.8 hours were excessive and/or unnecessary. Thus, the Court declines to strike the fees.

· Monitoring Status of Coordination Proceedings: 18.90 hours for $7,220. Ford insists that none of the billing items added anything of value to Plaintiff. In reply, Plaintiff claims that the time spent was necessary because “the subject vehicle contained the defective DPS6 transmission. Ford’s attempt to have all such cases coordinated directly affected Plaintiff and his case. Given the duration and impact of similar proceedings in Southern California, Plaintiff’s counsel could not simply ignore

these proceedings.” Plaintiff, however, makes no showing that his action was actually part of the coordination proceedings such that monitoring the proceedings

was necessary. The Court strikes 18.90 hours or $7,220.

Ford identifies a number of other billing entries as “overbilling.” (Amended Opposition, 6:25-7:15.) Ford fails to provide any analysis or explanation as to why these were “overbilled.” The Court the Court declines to strike the fees.

In sum, the Court will strike 18.90 hours or $7,220 from the requested loadstar fees.

3. Multiplier

The Court is not required to apply a multiplier in a given case. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1175.)

The lodestar calculation may be adjusted by the Court based on factors including, “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Taking each of these factors into consideration, along with the parties’ moving papers, arguments and evidence, Plaintiff’s request for a multiplier is DENIED. Plaintiff’s argument that a multiplier is warranted in this case is not persuasive. This was not the type of case that required exceptional skills because of its novelty or difficulty, nor has it been shown that Plaintiff’s counsel was precluded from taking on other cases due to this action.

Disposition

The motion for attorneys’ fees is GRANTED. The Court awards $47,045 for 110.7 hours, plus $3,671.87 in costs, for a total award of $50,716.87.