1/3 DCA Eschews The Idea Plaintiff’s Attorney Would Try A “Double Dip” On Fees, Believing They Would Do The Ethical Thing.
In Reynolds v. Ford Motor Co., Case No. A154811 (1st Dist., Div. 3 Apr. 21, 2020) (published), plaintiff purchased a diesel engine truck from Ford, having the truck repaired 15 times without success. Ford denied plaintiff’s request for a buyback/replacement under the Song-Beverly Act, which triggered plaintiff to “lawyer up.” Plaintiff filed suit and, after extensive litigation, the parties settled the case in entirety, with Ford paying $277,500 to plaintiff and agreeing that plaintiff’s attorney’s fees and costs would be resolved by agreement/motion before the trial judge.
Plaintiff moved for $308,696.25 in aggregate fees, comprised of a $205,797.50 lodestar plus a $102,898.75 positive multiplier of 1.5. Plaintiff submitted his attorneys’ declarations, verified billing statements, fee surveys, and 51 court orders/rulings in lemon law cases approving counsel’s requested hourly rates and fee requests. Plaintiff affirmed that the case was taken on a contingency basis. Ford opposed primarily on the ground that plaintiff’s counsel was not entitled to “double dip”—recover both a contingency fee and statutory fee. Plaintiff replied that the existence of a contingency fee agreement was not a relevant factor for purposes of awarding lemon law fees.
The lower court conducted a lodestar analysis, awarding plaintiff an aggregate $201,891 in fees, based upon compensation for 457.85 hours at hourly rates ranging from $225-500/hour plus a 1.2 positive multiplier. It also rebuffed Ford’s argument that a contingency fee agreement was relevant in establishing the lemon law fee lodestar.
The 1/3 DCA affirmed, agreeing with plaintiff’s analysis of the issue.
The lodestar methodology was the one mandated by the fee-shifting statute (Civil Code § 1794(d)), rendering the fee terms of the contingency agreement irrelevant to a calculation of fees when using the lodestar method. In response to Ford’s argument that lemon law plaintiff’s counsel might be tempted to take a “double dip” (both a contingency fee and statutory fee award), the appellate panel concluded it was not called for under the fee-shifting statute, there is no assurance that the contingency fee would be higher than the lodestar, a lodestar was a clear “bright line” test, and it assumed that the attorneys, as officers of the court, would abide by ethical obligations to not exact an unconscionable fee from their clients.