Baiocchi v. Ford Motor Co. CA4/3 ( 2022 )

Filed 8/11/22 Baiocchi v. Ford Motor Co. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRIAN BAIOCCHI,
Plaintiff and Appellant, G059143
v. (Super. Ct. No. 30-2018-00989431)
FORD MOTOR COMPANY, OPINION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Deborah C.
Servino, Judge. Affirmed. Motion to augment record granted in part.
Law Offices of Jim O. Whitworth and Jim O. Whitworth for Plaintiff and
Appellant.
Horvitz & Levy, Lisa Perrochet, Jason R. Litt, Shane H. McKenzie;
Sanders Roberts, Justin H. Sanders and Sabrina C. Narain for Defendant and Respondent.
* * *
Brian Baiocchi appeals from an order denying his motion for an award of
attorney fees against Ford Motor Company. The trial court denied the motion because
(1) Baiocchi failed to give sufficient statutory notice of the hearing, and (2) he had
previously accepted the $10,000 fee award offered as part of Ford’s statutory offer to
compromise.
We find no error in the court’s ruling. Baiocchi fails to acknowledge the
lack of sufficient notice for his motion, which operates as a concession of the point. The
court’s determination that Baiocchi accepted the $10,000 fee amount offered by Ford is
supported by substantial evidence.1 We therefore affirm.
FACTS
Baiocchi filed a complaint against Ford alleging a claim under the
Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et. seq., the Song-Beverly
Act)).
In April 2019, Ford served Baiocchi with an offer to compromise pursuant
to Code of Civil Procedure section 998 (the 998 offer), which was promptly accepted by
Baiocchi’s counsel, Jim Whitworth.
The pertinent terms of the 998 offer were:
“1. Ford will pay [Baiocchi] $27,000.00 which constitutes a statutory
buyback on the basis of calculation provided by counsel for Plaintiff . . . .
“2. Ford will additionally pay Plaintiff’s attorney’s fees, expenses and
costs in the amount of $10,000.00 or, should the $10,000.00 be refused, Ford is willing to
allow the Court to determine, based on a noticed motion filed pursuant to Civil Code
section 1794(d), the amount of attorney’s fees, expenses and costs reasonably incurred by
1
Baiocchi has also moved to augment the clerk’s transcript he designated in
support of this appeal. His motion is granted as to exhibits 1 and 6-12, but denied as to
exhibits 2-5, which are not relevant to any issue argued in his opening brief.
2
Plaintiff’s counsel in the commencement and prosecution of this action, as provided by
Civil Code section 1794(d). In 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 this action under section 1794(d) as of the date of
this is 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 attorney’s fees and cost
amounts determined by the Court within 30 days of notice of the Court’s ruling on same.
[¶] . . . [¶]
“5. Plaintiff will surrender the subject vehicle with clear title, free and clear
of all liens and encumbrances . . . . Plaintiff will deliver the subject vehicle to Ford on a
date, time and place mutually agreeable no later than 45 calendar days after the parties’
counsel has accepted the Statutory Offer. Within seven days of the delivery and
surrender of the subject vehicle, Ford will send the settlement check payable to Plaintiff
as discussed in paragraph 1, by overnight mail to Plaintiff’s counsel.
“6. Plaintiff will file a Request for Dismissal, with prejudice, when the
subject vehicle is surrendered, the Plaintiff’s attorney’s fees discussed in paragraph 2
have been resolved and the settlement check to Plaintiff’s counsel, if any, is tendered and
cleared the normal banking cycle.” (Italics added.)
On May 28, 2019, the scheduled trial date, the court issued a minute order
which indicated the case appeared to be settled so the trial date was vacated. The court
set an Order to Show Cause re: Dismissal on Settled Case (OSC) for June 7, 2019.
On May 31, 2019, Ford delivered to Whitworth a check in the amount of
$24,003, which represented the total settlement amount of $37,000—including the
$10,000 in attorney fees—minus the $12,997 that Ford had paid directly to Baiocchi’s
lender to pay off the balance of his car loan. Whitworth deposited the check which was
made out jointly to his law firm and Baiocchi.
3
The completion of the settlement was nonetheless delayed because the
parties could not agree on a procedure for Baiocchi to sign the vehicle surrender
documents. Ford’s counsel appeared at the OSC hearing and explained to the court “that
the settlement check, including fees, had been delivered to Plaintiff’s office and Ford was
merely waiting for Plaintiff to surrender the subject vehicle.” Whitmore did not appear at
the hearing, instead sending a special appearance attorney who had no knowledge of the
status of the vehicle.
The Court continued the OSC hearing to July 19, 2019, and ordered
“counsel from the Law Offices of Jim O. Whitworth to appear in person or telephonically
at the . . . hearing” and to “provide status of surrendering the vehicle pursuant to the
settlement agreement.”
At the July 19 continued hearing, a special appearance attorney again
appeared on Baiocchi’s behalf. The attorney informed the court that Whitworth was
engaged in trial and had not provided him with information about the status of
surrendering the vehicle. The court again continued the OSC to September 20, 2019,
adding an order to show cause regarding monetary sanctions against Whitworth; the court
once again ordered Whitworth to appear in person or telephonically at the hearing.
On September 18, 2019, Whitworth submitted a declaration in which he
apologized for his nonappearance on July 19, 2019. Whitworth’s declaration also stated
he intended to file a fee motion pursuant to the 998 offer—despite having cashed the
settlement check that included the $10,000 for fees and costs. Whitworth appeared
telephonically at the September 20 hearing; the court ordered sanctions in the amount of
$300 against the law offices of Jim O. Whitworth for counsel’s noncompliance regarding
its prior orders. The OSC re dismissal was again continued to November 22, 2019.
When the parties appeared at the OSC hearing on November 22, Whitworth
informed the court that surrender of the vehicle had been completed. He also informed
the court he still intended to file a motion for attorney fees. The court continued the OSC
4
again to January 10, 2020, and ordered Baiocchi to “pay the continuance fee and give
notice.”
At the January 10 hearing, the court noted Whitmore had stated in
November that he intended to file a motion for attorney fees, but he had not done so.
Whitworth responded by requesting another continuance of the OSC, stating he “intends
to file a Motion for Attorney Fees by this Friday.” Both the court and Ford wanted the
motion to be heard before the next OSC hearing, which was scheduled for February 21,
2020.
Whitworth did not file his motion by the end of that week. Instead, he filed
it on January 24, designating a reserved hearing date of February 14. The period between
January 24 and February 14 is fewer than the 16 court days mandated in Code of Civil
Procedure section 1005, subdivision (b). Whitworth served the motion on Ford via
e-mail that same date, which was also short of the required notice period (16 court days
plus two calendar days for e-mail service). (Code Civ. Proc., §§ 1005, subd. (b), 1010.6,
subd. (a)(4).)
When Whitworth served his motion, he asked Ford to stipulate to shorten
time for the hearing. Ford declined to do so. A week later, on February 1, 2020,
Whitworth offered to stipulate to a continuance of the hearing; Ford again refused to
stipulate.
Baiocchi’s motion sought an award of $119,654 in fees and costs based on
“actual time expended,” and a “multiplier of no less than 1.50 or $59,827.00” for a “total
award of $179,481.00.”
Ford’s opposition argued the motion should be denied as moot because
Ford had already paid the $10,000 fee specified in the 998 offer, and because service of
the motion was untimely. Ford also claimed Baiocchi failed to meet his burden of proof
to demonstrate an entitlement to the requested fees.
5
According to Ford, Baiocchi’s counsel indicated in correspondence leading
up to the 998 offer he would accept the $10,000 in fees and he never communicated any
rejection of it. Ford argued Whitworth accepted the payment, including the $10,000
attorney fee amount, when he deposited the check sent by Ford.
In Baiocchi’s reply in support of the motion, Whitworth denied he had ever
been willing to accept the $10,000 sum certain for attorney fees and claimed instead the
court had been told “[a]t every OSC” that a fee motion would be filed. Whitworth
similarly disputed the court’s minute order from the most recent OSC, reflecting he had
promised to file the fee motion by the end of that same week. He asserted he represented
only that he would try to do so, while warning the court he had a scheduled trial date in
another case that “was in the way.”
Whitworth also claimed he filed the fee motion “at the soonest possible
time” given the press of work in his other case and stated he chose the hearing date to
accommodate the court’s and Ford’s desire that the motion be set before the next OSC.
Counsel did acknowledge his notice period for the motion was “short 2 court days,” but
suggested Ford had been given the option to solve that problem by stipulating either to
shorten time or continue the hearing date.2
Baiocchi’s ex parte application for an order shortening time to hear the fee
motion, or in the alternative, to continue the hearing date was filed on February 11 and
set for hearing on February 13. Ford opposed the ex parte, arguing the effort was
untimely. Ford explained Baiocchi’s counsel initially stated he would be seeking ex parte
2
None of these contentions was supported by evidence. The only evidence
supporting the reply is a declaration by Whitworth that “[t]he facts I refer to in the reply
brief are accurate. Nothing stated in the opposition is completely accurate. Certainly,
sending a check for PLAINTIFF does not equate to accepting fees rejected numerous
times.” Whitworth did not deny depositing the check that included the $10,000 fee
payment.
6
relief before Ford’s opposition was due—which would have benefitted both parties—but
he failed to do so.
The court denied the ex parte application, noting Baiocchi failed to
demonstrate diligence in seeking ex parte relief.
The next day the court denied the attorney fee motion for two reasons.
First because the motion was made on insufficient notice, and second because under the
terms of the 998 offer, Baiocchi had accepted, rather than refused, the $10,000 fixed sum
for his fees.
With no other issues remaining, the court also held the hearing on the OSC
re dismissal and ordered the entire action dismissed.
DISCUSSION
1. Standards on Appeal
Baiocchi claims his opening brief presents seven issues. However, he
develops only one—i.e., whether the court erred in denying his attorney fee motion—into
an appellate argument.
As set forth in California Rules of Court, rule 8.204(a)(1)(B), a party’s brief
must “[s]tate each point under a separate heading or subheading . . . , and support each
point by argument and, if possible, by citation of authority.” As stated in Pizarro v.
Reynoso (2017) 10 Cal.App.5th 172, 179, the “[f]ailure to provide proper headings
forfeits issues that may be discussed in the brief but are not clearly identified by a
heading.” (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1830-1831, fn. 4 [litigants must “‘present their cause systematically and so arranged that
those upon whom the duty devolves of ascertaining the rule of law to apply may be
advised, as they read, of the exact question under consideration, instead of being
compelled to extricate it from the mass’”].)
7
Thus, “[i]n order to demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal analysis and citation to
the record.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.)
Because the appellate court is not required to search the record on its own seeking error,
‘“if a party fails to support an argument with the necessary citations to the record, . . . the
argument [will be] deemed to have been waived.”’ (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246.)
In this case, Baiocchi’s opening brief includes complaints about events that
occurred during the course of the trial court proceedings, including the court’s imposition
of sanctions against him on a couple of occasions; none of these complaints are further
developed. They are therefore waived.
2. The Denial of Baiocchi’s Attorney Fee Motion
Baiocchi’s contention that the trial court erred in denying his fee motion
appears to be grounded primarily on two assertions: first, that a plaintiff who prevails
under the Song-Beverly Act is entitled to an award of reasonable fees; and second, that
there is no evidence he received any such award.
Baiocchi ignores the court’s first ground for denying his attorney fee
motion, i.e., that he filed the motion with insufficient notice. Because the court’s ruling
is presumed to be correct on appeal, the appellant has the affirmative burden to
demonstrate that denial of his motion on that ground was error. (Jameson v. Desta
(2018) 5 Cal.5th 594, 608-609.) Baiocchi’s failure to argue that point operates as a
concession. 3
But even if Baiocchi had challenged that aspect of the court’s ruling, Ford
correctly points out that the decision to shorten time was within the court’s discretion.
3
Baiocchi acknowledges in his brief that the court “may fix the amount of
statutory attorneys’ fees ‘upon noticed motion.’”
8
(Code Civ. Proc., § 1005, subd. (b).) It was not obligated to shorten time in the absence
of a showing of good cause. We find no evidence of any such showing in our record.
Indeed, although the record demonstrates Whitworth was aware the fee
motion was late by the time he filed and served it, he nonetheless proceeded. While he
asked Ford to stipulate to an order shortening time, he took no action when Ford refused.
Instead, the ex parte was scheduled the day before the hearing on the fee motion, more
than a week after Ford filed its opposition. The court’s finding that Baiocchi failed to act
with diligence was correct.
Counsel’s only justification for his failure to file and serve the motion with
sufficient notice before the reserved hearing date—the culmination of a months-long
course of delay—was that he had been too busy with other matters. As he explained in
appellant’s opening brief: “Plaintiff’s counsel is buried with work. Adding fee motions
makes things worse. Some offices may be staffed to add motion work. Plaintiff’s
counsel’s office is not. When a case settles, the focus is the next trial and the other cases.
Not fee motions! It is very hard to find the time to deal with fee motions.”
This is essentially the same justification Whitworth offered to the trial court
for his failure to comply with an explicit court order that he, or someone from his office
with knowledge of the case status, appear at the continued OSC hearing. According to
counsel, he had another obligation on the date of the continued hearing, and the court had
no right to censure him for that. Counsel is wrong. If a litigant ignores a court order, or a
required statutory notice period, he or she is assuming a significant risk of adverse
consequences. We find no abuse of the court’s discretion in finally imposing such
consequences here.
Baiocchi’s other arguments fare no better. While he is correct that the
prevailing plaintiff in a Song-Beverly Act case is entitled to an award of reasonable fees
(Civ. Code, § 1794, subd. (d)), we reject his assertion that counsel received no fee award
in this case. As the court made clear in its ruling, its second ground for denying the fee
9
motion was that Baiocchi had already accepted the $10,000 in attorney fees included in
Ford’s 998 offer.
Baiocchi claims there is “no evidence” to support Ford’s argument that he
accepted the full $37,000, including attorney fees, stated in its 998 offer. We cannot
agree. Ford demonstrated, in opposition to Baiocchi’s motion, that it paid $24,003 to
Baiocchi and Whitworth jointly, and paid $12,997 directly to the lender on Baiocchi’s
vehicle, in settlement of the case. That adds up to $37,000. During oral argument, all
counsel agreed to these numbers.
Baiocchi nonetheless argues “[t]here is no evidence of emails, letters, or
words of any kind where Plaintiff’s counsel said we accepted $10,000.00” and no
evidence that he “even knew there were fees paid for $10,000.00 until [Ford’s counsel]
tried to argue it to oppose the fee motion.”
Baiocchi’s acceptance of the $10,000 attorney fee offer can be inferred
from his negotiation of the check which, when combined with the amount paid to his
vehicle lender, clearly included that additional sum. Baiocchi does not deny awareness
of Ford’s direct payment to the lender. In any event, a reasonably attentive attorney
would be aware of the amount(s) paid in settlement, and whether the overall payment was
proper.
Because the evidence was sufficient to support the trial court’s conclusion
that Baiocchi had accepted payments that included the $10,000 in attorney fees offered as
an option under Ford’s 998 offer, we find no error in its denial of his attorney fee
motion.4
4
Baiocchi also asserts that the trial court erred because it “refused to award
‘reasonable’ attorney fees and instead reached for [a] number out of the sky.” Given that
the $10,000 fee amount was taken directly from Ford’s 998 offer, and the court’s
rationale was that Baiocchi had accepted the compromise amount as his fee award, the
assertion appears misplaced.
10
DISPOSITION
The order is affirmed. Ford is to recover its costs on appeal.
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
SANCHEZ, J.
11