Jurosky v. BMW of N. Am., LLC
| Decision Date | 25 August 2020 |
| Docket Number | Case No.: 19cv706 JM (BGS) |
| Court | U.S. District Court — Southern District of California |
| Parties | FREDERICK J. JUROSKY, Plaintiff, v. BMW OF NORTH AMERICA, LLC, Defendant. |
Plaintiff Frederick Jurosky moves the court, pursuant to California's Song-Beverly Consumer Warranty Act ("the Song-Beverly Act"), CAL. CIV. CODE § 1794(d), to award him $198,716.38 in attorneys' fees, costs, and expenses. (Doc. No. 23-1.) Also before the court are the parties' cross motions to retax costs. (Doc. Nos. 65, 66.) The motions have been briefed and the court finds them suitable for submission without oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the motions are GRANTED IN PART and DENIED IN PART.
On March 5, 2013, Plaintiff purchased a used 2010 BMW 750Li for $61,298.40. As a result of alleged engine, oil consumption, and electrical defects, Plaintiff took the vehicle to the dealership multiple times for repairs. BMW was unable to repair the vehicle and did not offer to buy back the vehicle.
On July 17, 2018, Plaintiff filed his Complaint against BMW, as well as the dealership,1 in California Superior Court for the County of Sacramento. Plaintiff alleged violations of the Song-Beverly Act, CAL. CIV. CODE § 1790-1795.8. BMW filed a motion for change of venue on September 6, 2018. On October 10, 2018, the motion for change of venue was granted and the case was transferred to San Diego County. BMW filed a Notice of Removal to this court on April 17, 2019. On April 20, 2020, Plaintiff accepted BMW's offer of judgment pursuant to Federal Rule of Civil Procedure 68. (Doc. No. 50.) Specifically, Plaintiff accepted judgment in his favor for $122,596.92, exclusive of recoverable attorneys' fees and costs, for BMW to repurchase the subject vehicle. On April 23, 2020, judgment was entered in favor of Plaintiff. (Doc. Nos. 51, 52.) On May 7, 2020, Plaintiff filed the instant motion. On June 5, 2020, the parties filed their cross motions to retax costs. (Doc. Nos. 65, 66.)
Under the Song-Beverly Act, a prevailing buyer "shall be allowed by the court to recover . . . . 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." CAL. CIV. CODE § 1794(d). The court must determine "whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable." Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994). "In a diversity case, the law of the state in which the district court sits determines whether a party is entitled to attorney fees, and the procedure for requesting an award of attorney fees is governed by federal law." Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007).
The lodestar method is the prevailing method for calculating attorneys' fees. Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 818-19 (2006); Ketchum v. Moses, 24 Cal. 4th 1122, 1135 (2001). In calculating the lodestar, the court must "'make an initial determination of the actual time expended; and then . . . . ascertain whether under all the circumstances of the case the amount of the actual time expended and the monetary charge being made for the time expended are reasonable.'" Robertson, 144 Cal. App. 4th at 817 (quoting Nightingale, 31 Cal. App. 4th at 104). In determining the reasonableness of the lodestar, courts can consider the complexity of the case, procedural demands, the skill exhibited, and the results achieved. Id.
The plaintiff bears the burden of demonstrating that the fees sought were allowable, reasonably necessary to the conduct of the litigation, and reasonable in amount. Karapetian v. Kia Motors Am., Inc., 970 F. Supp. 2d 1032, 1036 (C.D. Cal. 2013). If the reasonableness of fees is challenged, "[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice." Premier Med. Mgmt. Sys. v. Cal. Ins. Guar. Assoc., 163 Cal. App. 4th at 550, 564 (2008). In such cases, the opposing party has the burden to demonstrate the hours spent are duplicative or excessive. Id. at 562, 564; see also Gorman v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (). Decisions by other courts regarding the reasonableness of the rate sought may also provide evidence to support a finding of reasonableness. See Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998).
As the prevailing party, Plaintiff is entitled to an award of attorneys' fees, costs, and expenses. Billing records provided by Plaintiff show the $198,716.38 he requests consists of the following: (1) $106,703 in attorneys' fees for Strategic Legal Practices ("SLP"); (2) $5,390 in attorneys' fees for The Law Offices of Michael Rosenstein ("Rosenstein"); (3) $24,797.50 in attorneys' fees for EcoTech Law Group ("EcoTech"); (4) $7,914.20 in costs and expenses for SLP; (5) a 1.35 multiplier enhancement (or $47,911.68) on theattorneys' fees; and (6) an additional $6,000 for Plaintiff's counsel to reply to Defendant's opposition to the instant motion. (Doc. No. 56 at 2.)
Plaintiff seeks fees for attorneys at three different law firms. Plaintiff requests $106,703 for work performed by 13 attorneys at SLP at rates between $350 and $550 per hour. (Doc No. 56 at 2.) The rates for each attorney at SLP are as follows:
SLP ATTORNEY HOURLY RATES Attorney Name Position 2019 Rate 2020 Rate Experience Gregory Yu Of counsel $525 $550 graduated 2003 Jacob Cutler Associate $460 admitted 2009 Kyle Tracy Associate $445 admitted 2010 Johnny Ogata Associate $425 admitted 2008 Christine Haw Associate $410 admitted 2013 Anh Nguyen Not provided $385 admitted 2012 Natasha Bhushan Associate $385 admitted 2012 Tionna Dolin Not provided $375 admitted 2014 Carey Wood Associate $375 $395 admitted 2013 Caitlin Scott Associate $365 admitted 2016 Daniel Tai Associate $350 admitted 2015 Gregory Sogoyan Not provided $350 $385 admitted 2017 Yoel Hanohav Associate $350 admitted 2017
Plaintiff also requests $24,797.50 for 46 hours of work performed by Dana Tabish, of EcoTech, and $5,390 for 10.5 hours of work performed by two attorneys at Rosenstein. The rates for each attorney are as follows:
OTHER ATTORNEY HOURLY RATES Name Firm Position Rate Hours Total Experience Tabesh EcoTech Not provided $545 46* $24,798 admitted 2002
Rosenstein Rosenstein Not provided $600 7.7 $4,620 25+ yrs. litigation Martinez Rosenstein Associate $275 2.8 $770 admitted 2015
*Based on the court's calculation.
In determining a reasonable hourly rate, the district court should consider: (1) the experience, reputation, and ability of the attorney; (2) the outcome of the proceedings; (3) customary fees; and (4) the novelty or difficulty of the question presented. Hiken v.Dep't of Defense, 836 F. 3d 1037, 1044 (9th Cir. 2016) (citing Chalmers v. City of L.A., 796 F.2d 1205, 1211 (9th Cir. 1986)). Additionally, district courts may "rely[ ] on their own knowledge of customary rates and their experience concerning reasonable and proper fees." Ingram v. Oroudjian, 647 F. 3d 925, 928 (9th Cir. 2011). Plaintiff bears the burden of showing that "the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (citation omitted). "Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). As a general rule, the forum district represents the relevant legal community. See Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).
Here, Plaintiff cites multiple cases in this forum where the court approved hourly rates within the $350 and $550 range for attorneys with comparable years of experience. See, e.g., Holcomb v. BMW of N. Am., LLC, Case No.: 18cv475 JM (BGS), 2020 WL 759285, at *4 (S.D. Cal. Feb. 14, 2020) (listing cases). One court from the Central District recently approved the same or similar rates for almost all of the same attorneys Plaintiff used here. See Zargarian v. BMW of N. Am., LLC, 442 F. Supp. 3d 1216, 1227 (C.D. Cal. 2020). Plaintiff also submits declarations regarding the extensive experience of his attorneys handling Song-Beverly Act cases.2 (See, e.g., Doc. No. 56-12 ¶ 4 ().) This is sufficient to show the reasonableness of the SLP attorneys' hourly rates.
BMW argues that rates should be reduced based on the Wolters Kluwer "2018 Real Rate Report: The Industry's Leading Analysis of Law Firm Rates, Trends, and Practices" ("the Real Rate Report"). (Doc. No. 61 at 12-13.) Based on this report, BMW argues that the rates should be $263 for partners and $200 for associates because those are the median rates for "general liability" attorneys, which includes attorneys handling "consumer related claims," in Los Angeles at firms with 50 attorneys or less. (Id. at 13.) Certainly, some district courts, including one in this forum, have lowered plaintiffs'...
To continue reading
Request your trial