Judge John J. Kralik, Case Number: 21BBCV00158, Date: 2023-10-27 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Angie Ross (“Plaintiff”) commenced this action against Defendants BMW of North America, LLC (“BMWNA”) and Valencia B Imports, Inc., d/b/a Valencia BMW (“VBMW”) for violating the Song-Beverly Consumer Warranty Act (“Act”). Plaintiff alleges that she purchased a 2016 BMW i3 REX vehicle (VIN WBY1Z4C56GV506016) from Century West BMW. She alleges that BMWNA manufactures, assembles, or produces consumer goods.

Plaintiff alleges that the vehicle did not conform to warranties and had defects, including, but not limited to: “the vehicle’s battery dying frequently and abnormally, the vehicle driver restraint system malfunctioning, the vehicle being unable to start, the vehicle’s drivetrain malfunction light illuminating frequently and abnormally, and the vehicle’s battery warning light illuminating frequently and abnormally.” (Compl., ¶13.)

Plaintiff alleges that no less than 4 times, she delivered the vehicle for repair to BMWNA and/or VBMW, but the vehicle was returned without proper repairs.

The complaint, filed February 23, 2021, alleges causes of action for: (1) breach of express warranty under the Act against BMWNA; (2) breach of implied warranty obligations under the Act against BMWNA; and (3) negligence against VBMW.

On August 25, 2023, the Judgment on Jury Trial was entered in favor of Plaintiff. On September 5, 2023, Plaintiff filed a Notice of Entry of Judgment.

On October 27, 2023, the Court granted in part and denied in part BMWNA’s motion to strike/tax Plaintiff’s costs and awarded Plaintiff $44,719.16 in costs.

On October 16, 2023, Plaintiff filed a motion for attorney’s fees and reimbursement of costs and expenses.

Plaintiff moves for $322,705.04 in attorney’s fees ($269,988) and costs ($52,717.04), plus a 0.5 multiplier fee enhancement ($134,994) for a total of $457,699.04.

Civil Code, § 1794(d) states: “If the buyer prevails in an action under this section, the buyer 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.”

Plaintiff moves for attorney’s fees pursuant to Civil Code, § 1794 for this Song Beverly Act case. In opposition, BMWNA does not dispute that Plaintiff is entitled to recover attorney’s fees in this matter, but argues that the amount requested and the hourly rates are not reasonable. (See Opp. at p.2.)[1]
Plaintiff has established her entitled to attorney’s fees.

Plaintiff’s counsel, Gabrielle M. Diamse, states that Neale & Fhima APC law firm spent 579.2 hours on this action and anticipates spending 8 additional hours to review the opposition, prepare the reply, and attend the hearing, for a total of 587.2 hours. (Diamse Decl., ¶¶7-8.) Ms. Diamse details the work performed by counsel during this action. (Id., ¶¶11-63.) She provides the background of the law firm, as well as the hourly rates of the counsel and staff members involved in this matter (id., ¶¶64-65):

· Aaron Fhima (admitted 2014): $525/hour in 2021, $550/hour in 2022, and $565/ hour in 2023

· Ms. Diamse (admitted 2020): $425/hour in 2021 to 2022, and $450/ hour in 2023

In opposition, BWMNA argues that while Plaintiff may be able to recover attorney’s fees, it is unreasonable for Plaintiff to seek to recover all fees incurred. It argues that Plaintiff recovered $28,305.89 in damages and $56,609.78 in civil penalties, for a total of $84,915.67, such that an award of attorney’s fees in almost half a million dollars is unreasonable. BMWNA requests that Plaintiff’s counsel’s billing hours be reduced by 45.8 hours for 20.2 hours in deposition preparation and attendance for depositions that occurred but were never used, 4.9 hours in trial examination outline preparation for witnesses that were not called, 15.25 hours in motion in limine practice that BMWNA argues was essentially standard templates in all of Plaintiff’s counsel’s Song Beverly Act cases, and 5.45 hours in standard discovery (for block billing and routine discovery Plaintiff’s counsel serves in similar types of cases), such that 533.4 hours are still allowable. BMWNA also requests that the Court reduce the hourly rate to $350/hour.

The Court has reviewed Plaintiff’s billing records (attached as Exhibit A to the motion papers) and finds that a reduction of 75 to be modest and reasonable. As pointed out by BMWNA, some of the billing entries include block billing and some entries are duplicative (including the time it took for multiple attorneys to travel to and from the courthouse, for multiple attorneys to attend trial, etc.). As such, the total amount of hours that will be awarded on this motion is 507.2 hours (= 587.2 hours sought minus 80 hours).

The Court will not award further costs to Plaintiff and her counsel. On October 27, 2023, the Court granted in part and denied in part BMWNA’s motion to strike/tax Plaintiff’s costs and awarded Plaintiff $44,719.16 in costs. The Court declines to award additional costs, including costs for hotel stays, transportation costs, meal costs, etc.

With respect to the hourly rate, the Court has reviewed Ms. Diamse’s declaration and the experience of counsel. Based on the Court’s observations throughout the case, the Court finds that an hourly rate of $400 is reasonable for the lodestar method in this Song-Beverly Act matter.

As such, Plaintiff may recover attorney’s fees in the amount of $202,880 (= 507.2 hours x $400/hour). No additional costs will be awarded.

Finally, Plaintiff argues that the Court should award a reasonable multiplier of 0.5.

This is a matter of discretion. The Court declines to find that a multiplier is appropriate for this routine Song-Beverly Act case.

Plaintiff Angie Ross’s motion for attorney’s fees is granted in the total amount of $202,880.

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[1] The opposition brief does not include page numbers. The page numbers provided by the Court when referencing the opposition brief starts with page 1 as the captioned page and page 10 as the conclusion page.