Superior Court of California

County of Los Angeles

Department 26

james frey,

Plaintiff,

bmw of north america, et al.,

Defendants.

Case No.: 21STCV35473

Hearing Date: December 12, 2023

[TENTATIVE] order RE:

Plaintiff’s motion for attorneys’ fees and costs

Procedural Background

On September 27, 2021, Plaintiff James Frey (“Plaintiff”) filed the instant action against Defendant BMW of North America, LLC (“Defendant”). The Complaint asserted a single cause of action for breach of express warranty under the Song-Beverly Act, Civil Code § 1790 et seq.

On January 4, 2023, Plaintiff filed a notice of settlement as to the entire action.

On June 28, 2023, Plaintiff filed the instant motion for attorneys’ fees and costs. On November 21, 2023, Defendant filed an opposition. On November 28, 2023, the Court continued the instant motion to December 12, 2023. On November 29, 2023, Plaintiff filed a reply.

Legal Standard

Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney fees when authorized by contract or statute are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5).

In determining what fees are reasonable, California courts apply the “lodestar” approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry “begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the “[t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” (Ibid.) Relevant factors include: “(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, 1132.)

Discussion

Right to Recover

A prevailing buyer in an action under the Song-Beverly Act “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.” (Civ. Code, § 1794(d).) “[W]hen ‘prevailing party’ is undefined by the statute, ‘a court may base its attorney fees decision on a pragmatic definition of the extent to which each party has realized its litigation objectives, whether by judgment, settlement or otherwise. [Citations.] In assessing litigation success, Hsu v. Abbara (1995) 9 Cal.4th 863, 877, ... instructs: ‘[C]ourts should respect substance rather than form, and to this extent should be guided by “equitable considerations.”’” (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048.)

On December 29, 2022, the parties settled the instant action. (Sannipoli Decl. ¶ 39.) As part of this settlement, Plaintiff was established as the prevailing party for purposes of attorneys’ fees and costs under Civil Code section 1794(d). (Sannipoli Decl. ¶ 40, H.).) Moreover, no party disputes that Plaintiff is entitled to attorney’s fees and expenses as the prevailing party.

Reasonableness of Attorneys’ Fees

Plaintiff seeks attorney’s fees and costs totaling $40,088.84 consisting of $39,042.00 in attorneys’ fees and $1,046.84 in costs.

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The party bears the burden of proof as to “reasonableness” of any fee claim. (Code Civ. Proc., § 1033.5, subd. (c)(5).) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.)

An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records or billing statements, and there is no requirement that such records or statements be offered in evidence. (Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) Ascertaining the fee amount is left to the trial court’s sound discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Moreover, “[t]here is ‘no mathematical rule requiring proportionality between compensatory damages and attorney's fees awards’, [Citation], and courts have awarded attorney's fees where plaintiffs recovered only nominal or minimal damages.” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 421.)

The court has broad discretion in determining the amount of a reasonable attorney’s fee award, which will not be overturned absent a “manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394.) The court need not explain its calculation of the amount of attorney’s fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Indus. Inc. (2012) 212 Cal.App.4th 258, 274-275.)

Here, Plaintiff asserts that a total of four attorneys, and five paralegals/legal assistant worked on the instant action on behalf of Plaintiffs.

Attorney Brian J. Bickel has been an attorney since 1999 and is the founder of Plaintiff’s Counsel firm with significant experience with Song-Beverly claims. (Sannipoli Decl. ¶ 54.) Bickel bills at an hourly rate of $685 in 2022 and $695 in 2023 and states that he spent 0.4 hours on the instant action. (Sannipoli Decl. ¶ 54, Exh. B.) Attorney Jordan K. Sannipoli is a named partner at Plaintiff’s Counsel and has litigated Song-Beverly claims since 2015. (Sannipoli Decl. ¶ 54.) Sannipoli billed at $605 per hour in and claims to have spent 33.3 hours on the instant action. (Sannipoli Decl. ¶ 54, Exh. B.) Attorney Stephanie S. Pengilley is senior counsel at Plaintiff’s Counsel and has been licensed to practice since 2015. (Sannipoli Decl. ¶ 54.) In 2021, Pengilley billed at an hourly rate of $515 which in 2022 was increased to $545 in 2022 and claims that she spent 21.5 hours on the instant action. (Sannipoli Decl. ¶ 54, Exh. B.) Attorney John P. Myers has been an attorney since 2017. (Sannipoli Decl. ¶ 54.) Myers billed at an hourly rate of $475 and claims that he spent 8.5 hours on the instant action. (Sannipoli Decl. ¶ 115, Exh. B.) In addition, Paralegals and legal assistants spent a total of 13.3 hours on the instant action with hourly rates between $195 and $265. (Sannipoli Decl. ¶ 54, Exh. B.)

Plaintiff also points to other attorneys who work on similar hourly rates in 2022. (Sannipoli Decl. ¶ 56.) Further, Plaintiff points to numerous other actions in which Plaintiff’s Counsel’s hourly rates were approved. (Sannipoli Decl. ¶¶ 58-59.) Based on the stated experience of each respective attorney, prevailing rates of similar experienced attorneys, and the Court’s own experience, the Court finds the hourly rates are reasonable.

However, the number of attorney’s working on the instant action is slightly excessive, resulting in some inefficiencies. “Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 39.) Here, the instant action did not involve any complicated issues. Rather, the instant action was simple and routine and involved little to no litigation and no motion practice other than the instant motion.

In opposition, Defendant claims that the hours should be significantly reduced due to improper block billing. “Block billing occurs when ‘a block of time [is assigned] to multiple tasks rather than itemizing the time spent on each task.’ [Citation.]” (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 279.) The instant billing is ripe with block billing. Nearly every entry includes multiple tasks claimed. (See e.g., Sannipoli Decl., Exh. A, [“Email to Attorney Stephanie Pengilley regarding 2/28 Case Management Conference. Draft Case Management Statement and proof of service. Scan and submit Plaintiff's Case Management Statement and Joint Case Management Conference Statement Addendum through One Legal for filing with court. Serve same on opposing counsel via email. Email to Attorney Stephanie Pengilley and note to file regarding same.”].) When block billing occurs, the “[t]rial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.) Accordingly, the fact that block billing occurred is itself not enough to warrant a reduction. However, as noted above, the instant action was slightly overstaffed with many hours claimed on interoffice communications that would have been unnecessary had fewer attorneys been working on the action. Further, there are many administrative tasks that are included in the block billing, such as sending notes to the client file etc. Thus, some reduction in time is warranted due to the block billing as the block billing prevents the time from being properly divided from unnecessary and unreasonable time spent in interoffice communications due to overstaffing and reasonable time spent working on the instant action.

Moreover, the time claimed on the instant motion is clearly excessive. Plaintiff Counsel claims 30.4 hours on just the instant motion. Given the claimed experience of Counsel and, Plaintiff Counsel’s past experience in drafting these motions, and the fact that little to no litigation occurred in the instant action, the instant motion should have been a simple matter and should not take nearly half of the total claimed time on the instant action. Accordingly, based on the totality of the circumstances the Court finds that $22,675.00 reasonably represents the attorneys’ fees incurred with the instant action.

Costs

As to costs, the claimed costs of $1,046.84 are uncontested and do appear to be reasonably incurred with the instant action. (CCP § 1033.5.) Moreover, “the Legislature amended section 1794 to provide for the recovery of “costs and expenses.” The legislative history indicates the Legislature exercised its power to permit the recovery of expert witness fees by prevailing buyers under the Act[.]” (Ibid.) “[T]he Legislature intended the phrase ‘costs and expenses’ to cover items not included in ‘the detailed statutory definition of “costs” ’ set forth in Code of Civil Procedure section 1033.5.” (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42.) Therefore, a prevailing buyer is entitled to “costs and expenses” that have been “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).)

Accordingly, the requested costs are granted in full.

CONCLUSIONS AND ORDER

Based on the forgoing, Plaintiff James Frey’s motion for attorneys’ fees and costs is granted in the total amount of $23,721.84 consisting of $22,675.00 in Attorneys’ Fees and $1046.84 in Costs.

Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: December ___, 2023 ___________________________

Elaine Lu

Judge of the Superior Court