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This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 11:41:38 (UTC).

VICTOR M MOTA ET AL VS HYUNDAI MOTOR AMERICA

Case Summary

On 04/12/2016 VICTOR M MOTA filed a Contract - Other Contract lawsuit against HYUNDAI MOTOR AMERICA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM F. FAHEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6903

  • Filing Date:

    04/12/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM F. FAHEY

 

Party Details

Plaintiffs and Petitioners

MOTA CARLOS H

MOTA VICTOR M

Defendants and Respondents

DOES 1-10

HYUNDAI MOTOR AMERICA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

O'CONNOR & MIKHOV LLP

MIKHOV STEVE BORISLAV ESQ.

WIRTZ RICHARD

Defendant Attorneys

TAKAHASHI BRIAN ESQ.

LEE MARCELO LAW

 

Court Documents

HYUNDAI MOTOR AMERICA'S NOTICE OF NEW CASE LAW IN SUPPORT OF ITS MOTION IN LIMINE NO. 5 TO EXCLUDE NON-RECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES; DECLARATION OF JIMMY Y. PARK; EXHIBIT "B"

1/17/2018: HYUNDAI MOTOR AMERICA'S NOTICE OF NEW CASE LAW IN SUPPORT OF ITS MOTION IN LIMINE NO. 5 TO EXCLUDE NON-RECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES; DECLARATION OF JIMMY Y. PARK; EXHIBIT "B"

EX PARTE APPLICATION AND [PROPOSED] ORDER TO CONTINUE TRIAL

6/7/2018: EX PARTE APPLICATION AND [PROPOSED] ORDER TO CONTINUE TRIAL

Unknown

6/29/2018: Unknown

Notice

12/13/2018: Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/20/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

2/13/2019: Minute Order

Statement of the Case

5/10/2019: Statement of the Case

Opposition

5/24/2019: Opposition

NOTICE OF CASE MANAGEMENT CONFERENCE

5/4/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

MOTION IN LIMINE NO.5 HYUNDAI MOTOR AMERICA'S MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE AND REFERENCE TO NONRECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES; ETC

1/18/2017: MOTION IN LIMINE NO.5 HYUNDAI MOTOR AMERICA'S MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE AND REFERENCE TO NONRECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES; ETC

PLAINTIFFS' MOTION IN LIMINE NO. 1 TO PRECLUDE DEFENDANT FROM INTRODUCING WITNESSES, EVIDENCE, OR CONTENTIONS NOT DISCLOSED IN THEIR DISCOVERY

1/18/2017: PLAINTIFFS' MOTION IN LIMINE NO. 1 TO PRECLUDE DEFENDANT FROM INTRODUCING WITNESSES, EVIDENCE, OR CONTENTIONS NOT DISCLOSED IN THEIR DISCOVERY

HYUNDAI MOTOR AMERICA'S NOTICE OF NON-OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO.6 ETC.

1/27/2017: HYUNDAI MOTOR AMERICA'S NOTICE OF NON-OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO.6 ETC.

PLAINTIFFS? LIMITED OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO.7 TO EXCLUDE REFERENCE TO MPG SELECT CARE PROGRAM

1/31/2017: PLAINTIFFS? LIMITED OPPOSITION TO DEFENDANT'S MOTION IN LIMINE NO.7 TO EXCLUDE REFERENCE TO MPG SELECT CARE PROGRAM

HYUNDAI MOTOR AMERICA'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION IN LIMINE NO. 5 FOR AN ORDER TO EXCLUDE EVIDENCE AND REFERENCE TO NON-RECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES, ETC

8/29/2017: HYUNDAI MOTOR AMERICA'S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION IN LIMINE NO. 5 FOR AN ORDER TO EXCLUDE EVIDENCE AND REFERENCE TO NON-RECOVERABLE INCIDENTAL AND CONSEQUENTIAL DAMAGES, ETC

PLAINTIFFS' [PROPOSED] AMENDED WITNESS LIST

9/7/2017: PLAINTIFFS' [PROPOSED] AMENDED WITNESS LIST

STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

9/14/2017: STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

PLAINTIFFS' EX PARTE MOTION TO CONTINUE TRIAL

10/3/2017: PLAINTIFFS' EX PARTE MOTION TO CONTINUE TRIAL

ORDER ON PLAINTIFFS' EX PARTE MOTION TO CONTINUE TRIAL DATE

10/3/2017: ORDER ON PLAINTIFFS' EX PARTE MOTION TO CONTINUE TRIAL DATE

138 More Documents Available

 

Docket Entries

  • 06/04/2019
  • Proof of Service (not Summons and Complaint); Filed by Victor M Mota (Plaintiff); Carlos H Mota (Plaintiff)

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  • 06/04/2019
  • Notice (of New Trial Date); Filed by Victor M Mota (Plaintiff); Carlos H Mota (Plaintiff)

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  • 05/28/2019
  • at 10:00 AM in Department 49; Jury Trial - Not Held - Advanced and Vacated

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  • 05/28/2019
  • at 09:30 AM in Department 49; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 05/28/2019
  • at 09:30 AM in Department 49; Mandatory Settlement Conference (MSC) - Held

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  • 05/28/2019
  • at 09:30 AM in Department 49; Final Status Conference - Held

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  • 05/28/2019
  • Stipulation and Order (re statement of policies and procedures for settlement conferences conducted by trial judge, stipulation and acknowledgment of receipt;); Filed by Clerk

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  • 05/28/2019
  • Minute Order ( (Final Status Conference; Mandatory Settlement Conference (MSC...)); Filed by Clerk

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  • 05/28/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (CSR: Gaye L. Limon/ #7416); Filed by Clerk

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  • 05/24/2019
  • Opposition (HMA's Opp to P's MIL No. 13); Filed by Hyundai Motor America (Defendant)

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261 More Docket Entries
  • 04/20/2016
  • Proof-Service/Summons

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  • 04/20/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 04/20/2016
  • AFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

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  • 04/15/2016
  • ORDER TO SHOW CAUSE HEARING

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  • 04/15/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/15/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/15/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/12/2016
  • COMPLAINT 1. SONG-BEVERLY ACT; ETC

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  • 04/12/2016
  • Complaint; Filed by Victor M Mota (Plaintiff); Carlos H Mota (Plaintiff)

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  • 04/12/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC616903    Hearing Date: February 02, 2021    Dept: 49

Superior Court of California

County of Los Angeles

Victor M. Mota, et al.,

Plaintiffs,

Case No.

BC616903

v.

[Tentative] Ruling

Hyundai Motor America,

Defendant.

Hearing Date: February 2, 2021

Department 49, Judge Stuart M. Rice

Plaintiffs’ Motion for Attorney’s Fees and Costs

Moving Party: Plaintiffs Victor M. Mota and Carlos H. Mota

Responding Party: Defendant Hyundai Motor America

Ruling: Plaintiffs’ motion is granted in the reduced amount of $11,358.

Plaintiffs Victor M. Mota and Carlos H. Mota (“Plaintiffs”) move for an award of attorney’s fees and costs in the amount of $320,663.94 as the prevailing parties in this action.

Procedural History

Plaintiffs initiated this action on April 12, 2016.

Defendant served a § 998 offer of compromise on Plaintiffs on August 30, 2016 for $41,986.76 plus a recovery of attorney’s fees by motion to the court. Plaintiffs rejected the offer.

The parties then engaged in attempted mediations and settlement conferences. On November 14, 2016, the parties participated in a private mediation. On January 26, 2017, the parties met in Department 18 for a mandatory settlement conference. The parties then completed a second mandatory settlement conference before Department 12 on September 14. 2017. On May 28, 2019, the parties stipulated to and engaged in a third  mandatory settlement conference before this court.

The initial trial date of March 2, 2017 was continued numerous times as the parties prepared for trial.

On May 14, 2020, Defendant served a second § 998 offer of compromise on Plaintiffs, this time for $25,000 and recovery of attorney fees by motion.

Plaintiffs accepted Defendant’s May 14, 2020 offer and filed on Notice of Settlement with the court on June 23, 2020.

On August 28, 2020, the court entered judgment against Defendant in favor of Plaintiff for $25,000 and attorney’s fees as well as costs and expenses per memorandum to the court.

On November 25, 2020, Plaintiffs filed the present motion to recover fees and costs pursuant to the terms of the accepted May 14, 2020 § 998 offer.

Request for Judicial Notice & Evidentiary Objections

Plaintiffs request that the court take judicial notice of the opinions of two appellate cases. This request is denied as untimely as it was made in connection with Plaintiffs’ reply, thus depriving Defendant of an opportunity to review the request and object thereto. Nonetheless, this is an unnecessary request for judicial notice as the court can and should review relevant published appellate opinions as it has herein.

Defendant objects to various declarations submitted in support of Plaintiffs’ motion. The court rules as follows:

Wirtz Declaration:

OBJECTION 1: overruled

OBJECTION 2: sustained

Mikhov Declaration:

OBJECTION 1: overruled

OBJECTION 2: sustained

OBJECTION 3: sustained

Altman Declaration:

OBJECTION 1: overruled

OBJECTION 2: sustained

OBJECTION 3: overruled

Plaintiffs object to declarations submitted in support of Defendant ‘s opposition. The court rules as follows:

Park Declaration:

OBJECTION 1: overruled

Senior Declaration:

OBJECTION 1: overruled

OBJECTION 2: overruled as to the first sentence: ““Even though Judge Deirdre Hill heard and ruled on the motions in limine, and the case was ready for trial, Wirtz Law APC (“Wirtz”) substituted in as trial counsel for Plaintiffs.” Sustained as to the second: “Wirtz prepared a whole new set of trial documents and filed additional motions in limine, causing unnecessary additional work.”

OBJECTION 3: sustained

OBJECTION 4: overruled

OBJECTION 5: overruled

OBJECTION 6: overruled

OBJECTION 7: overruled

OBJECTION 8: overruled

OBJECTION 9: overruled

Discussion

Plaintiffs move for an award of attorney’s fees in the amount of $193,182.50. Plaintiffs seek to add to that total a “lodestar” multiplier of 0.5 to increase the award by $96,591.25. Plaintiffs request costs in the amount of $30,890.19. Defendant does not dispute that Plaintiffs are entitled to seek attorney’s fees per the express terms of the Code Civ. Proc. § 998 May 14, 2020 offer but argues that the amount sought should either be denied all together or discounted.

Under Civil Code § 1794, subdivision (d), a buyer who prevails in an action under the Song-Beverly Act can recover costs and expenses, including attorneys’ fees. The attorney fees requested should be based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the action’s commencement and prosecution. (Civ. Code § 1794.) “The determination of what constitutes a reasonable fee generally “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the hourly rate.” (Graciano v. Robinson Ford Sales, Inc. 144 Cal.App.4th 140, 154.) The lodestar is the basic fee for comparable legal services in the community; it 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. (Id.)

As set forth in Plaintiffs’ motion:

[i]n prosecuting this case, the efforts of Knight Law amount to $20,675.00, including drafting this motion and time anticipated to be spent preparing the reply and attending the hearing. The billings by The Altman Law Group total $93,077.50. The billings by Wirtz Law APC total $79,430.00. Plaintiffs’ counsel also requests a modest 0.5 enhancement, in the amount of $96,591.25, to account for the delay in payment and contingent risk posed by this case. Lastly, the reimbursable costs and expenses set forth in Plaintiffs’ memorandum of costs are $30,890.19. In total, Plaintiffs request $320,663.94 in fees, costs and expenses.

(Motion 8:9-17.)

Code Civ. Proc. § 998 Offer to Compromise Served by Defendant on August 30, 2016

While Plaintiffs bear the burden of demonstrating that the amounts sought are reasonable, Defendant raises an argument which the court considers first. Defendant contends that fees incurred after it served a Code Civ. Proc. § 998 Offer in August 2016 should be denied. Code Civ. Proc. § 998 (c)(1) provides that “[i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her post offer costs and shall pay the defendant’s costs from the time of the offer.” “Just as the inclusion of costs incurred after an offer is made defeats the purpose of section 998, so would the inclusion of damages incurred after the date of an offer. This is especially so when those post offer damages are attorney's fees incurred in continuing the litigation after the offer.” (Harvard Inv. Co. v. Gap Stores, Inc. (1984) 156 Cal. App. 3d 704, 713.)

The Boddell court subsequently issued a holding explaining that “[t]he facts of the Harvard case illustrate why the purpose of section 998 would be defeated if “continuing” damages in the form of contractual attorney fees were included in the “more favorable judgment” analysis under section 998.” (Bodell Const. Co. v. Trustees of California State Univ. (1998) 62 Cal. App. 4th 1508, 1521.) The Bodell court concluded that “increasing of a judgment by means of a plaintiff's continuation of the litigation and the concomitant incurring of postoffer ‘continuing’ damages is clearly contrary to the legislative purpose of section 998, which is to encourage litigants to accept reasonable offers to compromise prior to trial.” (Id. at 1522.)

Here, Defendant first served a § 998 offer on Plaintiffs on August 30, 2016 for $41,986.76 plus a recovery of attorney’s fees by motion. (Park Decl. ¶ 2, Exh. 1.) The agreement provided two alternatives: (1) Defendant would reimburse past amounts paid for the vehicle, plus incidental and consequential damages, in addition to “an amount equal to one time the amount of actual damages,” and attorney’s fees in the amount of $5,000 or to be determined by motion to the court; or (2) HMA will pay a total amount of $41,986.76 to plaintiffs, in return for plaintiffs surrendering the subject vehicle with clear title to HMA, and again, “HMA will pay plaintiffs' attorney's fees, expenses and costs in the amount of $5,000.00, or, should the $5,000.00 be refused, HMA is willing to allow the Court to determine, in a noticed motion filed pursuant to Civil Code Section 1794(d), the reasonable, necessary and actually incurred amount of attorney's fees, expenses and costs in this matter.” (8/30/16 § 998 Offer, ¶¶ 3, 5, 9.)

However, Plaintiffs did not accept the offer and protracted litigation continued for several years. Plaintiffs elected to accept a subsequent Sec. 998 offer submitted by Defendant on May 14, 2020 for $25,000 plus attorney fees and costs per motion. (Senior Decl. ¶ 9, Exh. A.) This second offer did not provide for a fixed amount of fees, but like the first, provided that “[p]laintiffs may file a motion to be determined by the Court whether they are entitled to fees and costs and to determine the amount pursuant to Civil Code Section 1794(d) submitted within the time frame prescribed by California Rules of Court, Rule 3.1702(b)(1).” (5/14/20 § 998 Offer, ¶ 2.) Senior declares that “[a]fter the surrender, the parties negotiated to resolve the attorney’s fees and costs. HMA offered Plaintiffs $17,500 for the pre-August 2016 Offer fees and costs. However, this offer was rejected and a suggestion of $30,000 was ignored.” (Senior Decl. ¶ 10.)

Code Civ. Proc. § 998 provides that should a plaintiff reject a more favorable offer than what it ultimately obtains, “plaintiff shall not recover his or her post offer costs.”

A party who accepts a monetary offer of compromise under section 998 is the “prevailing party” for purposes of a cost award under section 1032. [Citation.] Allowable costs under section 1032 are specified in section 1033.5. Section 1033.5, subdivision (a)(10) provides that attorney fees are allowable costs under section 1032 when authorized by contract, statute, or law. Because attorney fees are costs under section 1033.5 it follows that when a section 998 offer provides that each party will bear its own costs, the word “costs” refers to all the costs described in section 1033.5, including attorney fees.

(Martinez v. Los Angeles Cty. Metro. Transportation Auth. (2011) 195 Cal. App. 4th 1038, 1041.)

Here, Plaintiffs are the prevailing party in this automobile warranty action, and pursuant to Code Civ. Proc. § 1794(d), “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.” Therefore, Plaintiffs’ “costs” under § 998 include their statutory attorney’s fees incurred post-rejection of the § 998 offer.

In Etcheson, the Court of Appeal ruled that the trial court abused its discretion by cutting off all attorney’s fees and costs incurred in automobile warranty action after service of a § 998 offer when the offer itself was impermissibly vague and the ultimate recovery was double what was initially offered by the defendant. (Etcheson v. FCA US LLC (2018) 30 Cal. App. 5th 831, 846.) The facts in Etcheson are instructive as they reflect an opposite scenario to what occurred in this matter.

Here, Defendant offered a valid § 998 offer for double Plaintiff’s actual damages and for recovery of fees. Plaintiffs rejected the offer, and three and one-half years later accepted a Sec. 998 offer of $25,000 plus fees and costs per motion. Plaintiffs’ ultimate recovery is substantially less than what had earlier been offered even subtracting the value of the car. In Etcheson, the court held that “FCA’s settlement offers were unacceptable; the first informal offer required them to sign a release without stating any release terms, and the second was insufficiently specific, as the trial court found.” (Id.) In the case at bar, Defendant argues: “Plaintiffs failed to meet their burden of showing that it was reasonably necessary for Plaintiffs to have continued to litigate the action after service of the August 2016 Offer, particularly in light of Plaintiffs’ ultimate decision to settle for less than offered.” (Opp. 4:18-20.)

Plaintiffs have made a variety of filings in response to Defendant’s opposition to the motion, including responses to evidentiary objections, and Plaintiffs’ own evidentiary objections. However, it does not appear that a reply brief has been filed. The court record reflects a total of seven (7) filings made in response to the opposition, which consist of the following: one request for judicial notice, three responses to Defendant’s evidentiary objections, Plaintiffs’ evidentiary objections to the declaration of Julian Senior, the declaration of Jacob Cutler, and one filing entitled “Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s Motion for Attorney’s Fees, Costs, and Expenses.” However, the latter is not in fact a reply brief, but rather Plaintiffs’ evidentiary objections to the declaration of Jimmy Park submitted in support of the opposition papers. Therefore, the court has no reply brief to consider.

Nevertheless, the court foresees no availing argument as to how the second § 998 offer could be viewed as exceeding the value of the earlier rejected 998 offer. In opposition, Defendant anticipates that Plaintiffs would argue that the August 2016 offer was inferior because it required return of the vehicle. To that anticipated argument, Defendant states that “Plaintiffs’ own moving papers demonstrate that the insurance company gave Plaintiffs $9,287.50 for the vehicle shortly after the 998 expired. Even if one were to deduct that vehicle value of $9,287.50 from the $41,986.76, the August 2016 998 Offer would still be the equivalent of $32,699.22 in cash to the Plaintiffs.” (Opp. 5:4-8.) Indeed, Plaintiffs assert in a footnote to the motion that “[a]fter the complaint was filed, and during the pendency of the lawsuit the Subject Vehicle was totaled in an accident on or about March 11, 2017. The total insurance payout to the plaintiff minus the deductible was $9,287.50.” (Motion 4, ft. 3.)

Critically, “Section 998 achieves its aim by punishing a party who fails to accept a reasonable offer from the other party.” (Westamerica Bank v. MBG Indus., Inc. (2007) 158 Cal. App. 4th 109, 129.) Here, “section 998's policy of encouraging settlements is better served by not applying the general contract principle that a subsequent offer entirely extinguishes a prior offer.” Plaintiffs were presented with a § 998 offer in August 2016, four months after initiation of the action, which offered double actual damages, or a total sum of $41,986.76, both alternatives in addition to attorney’s fees, expenses and costs to be determined by motion to the court.

Plaintiffs rejected this offer and instead litigated the case for an additional four years. Eighteen (18) different attorneys and three (3) paralegals from three (3) separate law firms are included in plaintiffs’ motion seeking fees and costs exceeding three-hundred thousand dollars. They have sought this award despite ultimately accepting a subsequent and inferior § 998 offer for $25,000 plus fees and costs.

“Section 998 is a cost-shifting statute that encourages settlement by providing a strong financial disincentive to a party who refuses a reasonable settlement offer. Under section 998, a plaintiff who refuses a reasonable settlement offer and then fails to obtain a more favorable judgment is penalized by the loss of post offer costs and an award of costs in the defendant's favor.” (Greene v. Dillingham Constr., N.A., Inc. (2002) 101 Cal. App. 4th 418, 425.) Here, there are no grounds to find that the ultimate recovery was more favorable than what was offered in the August 2016 § 998 offer. The May 2020 offer is numerically inferior, even considering a deduction to account for return of the vehicle.

Therefore, holding Defendant responsible for three and one-half years of attorney’s fees, when it provided Plaintiff with a reasonable settlement offer at the outset of the case would frustrate the policy behind § 998 and discourage settlement in favor of accumulating attorney’s fees. Settling for an amount less than the original Code Civ. Proc. § 998 offer prevents Plaintiffs’ recovery of post offer fees and costs. Plaintiffs’ recovery shall be limited to fees incurred prior to the August 30, 2016 § 998 offer.

Plaintiffs assert that “[b]ecause of [counsel’s] experience, knowledge and expertise, Plaintiffs went from a ZERO offer to a $25,000.00 settlement.” (Motion 12:4-6; emphasis in original.) As properly pointed out in defendant’s opposition, it is troubling that plaintiffs deliberately ignored addressing the August 30, 2016 sec. 998 offer when it is the disagreement of the applicability of same that stood in the way of resolution of this case for many years. Additionally, Plaintiffs contend that “HMA dragged this case out for about four (4) years before resolving this case through a CCP 998 which Plaintiffs promptly accepted.” (Id. 14:25-27.) Plaintiffs contention that Defendant “dragged this case out” while not mentioning the August 2016 § 998 offer for double actual damages plus a recovery of attorney’s fees is misleading. Nevertheless, the court addresses the reasonableness of the remaining fees sought below.

Reasonableness of Fees

Pursuant to § 998(c)(1), “the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” In this case, the “time of the offer” was August 30, 2016, and Plaintiffs’ recovery shall be limited to fees incurred prior to such date. Pursuant to the timesheets submitted with the declaration of Steve Mikhov, such recovery includes the fees incurred by attorneys “SBM,” “ALM,” “KSC,”” RH,” “MO,” and “DD.” (Mikhov Decl. Exh. A.)

“SBM,” or Steve Mikhov, seeks $550 an hour. (Id. ¶ 22.) “AM,” or Amy Morse, seeks $350 an hour. (Id. ¶ 23.) “KSC,” or Kristina Stephenson-Cheang seeks $375 an hour. (Id. ¶ 24.) “RH,” or Russell Higgins, seeks $450 an hour. (Id. ¶ 25.) “MO,” or Michael Ouziel seeks $250 an hour. (Id. ¶ 26.) “DD,” or Deepak Devabose seeks $275 an hour. (Id. ¶ 27.) The court has reviewed Mikhov’s declaration and finds the requested rates reasonable.

The total request for fees incurred between the beginning of counsel’s billing records and August 30, 2016 amounts to $6,222.50. Defendant contends that these billing records do not suffice to carry Plaintiffs’ burden and appears to suggest that each should be required to submit individual declarations. (Opp. 7:12-16.) However, Defendant submits no authority to support this argument. Here, Plaintiffs have submitted detailed billing records of the time expended by each attorney, as exhibits to the declaration of Steve Mikhov, counsel of record for Plaintiffs.

Finally, Defendant’s argument as to overstaffing and duplication of fees between firms no longer applies considering that recovery of fees shall be limited to the timeframe preceding any participation by the other counsel in this action. Defendant’s additional argument that Plaintiffs should recover nothing under the facts of this case is rejected.

Plaintiffs have set forth evidence of time reasonably incurred in this matter from initiation of representation until service of the August 30, 2016 § 998 Offer. Plaintiffs shall recover $6225.50 for attorney fees incurred in litigating this matter prior to service of the August 30, 2016 § 998 offer.

Fees Incurred in Bringing the Present Motion and Entry of Judgment

Pursuant to the submitted billing record, Plaintiffs request $5,430 for fees incurred in preparation of this motion, and in anticipation of drafting a reply and appearing at the hearing. Considering that no reply brief has been filed with the court, two hours at the $425 hourly rate shall be discounted, to reduce the total request to $4,580. Plaintiffs shall recover $4,580 for fees incurred in bringing this motion.

Plaintiffs shall also recover fees incurred for time spent on litigating the entry of judgment. Pursuant to the time records submitted by counsel Mikhov, 1.3 hours (or $552.50) at Jacob Cutler’s $425 hourly rate were incurred in reviewing Defendant’s proposed judgment, communicating with client, and drafting an amended judgment and later notice of withdrawal of proposed judgment. Plaintiffs shall recover a total of $5,132.50 for fees incurred in obtaining entry of judgment and bringing the present motion.

In an ancillary matter, after a conference call with this court, the plaintiffs submitted a revised amended judgment which was signed and entered on August 26, 2020. The Notice of Withdrawal was filed on September 1, 2020. The parties should meet and confer and advise the court whether the entered judgment should be vacated with a dismissal to follow in its place.

Lodestar Multiplier

Plaintiffs’ request that the ‘lodestar’ amount be multiplied by .5 is denied because the relevant factors (novelty and difficulty of questions involved, extent to which nature of litigation precluded other employment, contingent nature of the fee award, whether attorneys received charitable funding, etc.) do not militate in favor of applying a multiplier. (See Serrano v. Priest (1977) 20 Cal.3d 25, 48-49.) Plaintiffs’ argument that this matter presents novel or complex legal issues relies solely on the amount of time it took for the parties to agree to settle. There is no showing that this lemon law action required exceptional skill to warrant a multiplier. Additionally, Plaintiffs’ counsel sets forth no evidence as to how litigating this matter precluded them from accepting other matters. The request borders on the frivolous under these circumstances.

Costs and Expenses

Defendant filed a motion to tax costs on December 14, 2020, which is set for hearing on September 23, 2021. The court will advance the presently scheduled hearing date at the parties request if the issue cannot be settled but it is not before the court today.

Conclusion

Plaintiffs’ motion is granted in the reduced amount of $11,358, exclusive of costs yet to be determined.

Plaintiffs are ordered to give notice of this ruling.

Date: February 2, 2021

Honorable Stuart M. Rice

Judge of the Superior Court

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