Jurosky v. BMW of North America, LLC

Opinion

1 2 3 4 5 6 9 10 FREDERICK J. JUROSKY, Case No.: 19cv706 JM (BGS)

11 Plaintiff,

12 v. ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY FEES RE: MOTIONS TO RETAX COSTS 14 Defendant. 15 16 17 Plaintiff Frederick Jurosky moves the court, pursuant to the Song-Beverly Consumer 18 Warranty Act (“the Song-Beverly Act”), CAL. CIV. CODE § 1794(d), to award him an 19 additional $5,773 in attorneys’ fees. (Doc. No. 71-1.) The court previously awarded 20 Plaintiff $148,414.95 in attorneys’ fees, costs, and expenses. (Doc. No. 70.) The motion 21 has been briefed and the court finds it suitable for submission without oral argument in 22 accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the motion is 25 On May 7, 2020, Plaintiff filed a bill of costs with the Clerk (Doc. No. 53) as well 26 as Plaintiff’s first motion for attorneys’ fees, costs, and expenses, (Doc. No. 56). On May 27 22, 2020, BMW filed its opposition to Plaintiff’s first motion for attorneys’ fees. (Doc. 28 No. 61.) On May 29, 2020, the Clerk awarded some, but not all, of the costs Plaintiff 1 sought to be taxed. (Doc. No. 62.) On June 1, 2020, Plaintiff replied to BMW’s opposition 2 to the motion for attorneys’ fees. (Doc. No. 63.) On June 5, 2020, both parties challenged 3 the Clerk’s decision on taxing costs by filing motions to retax costs. (Doc. Nos. 65, 66.) 4 On June 22, 2020, Plaintiff filed an opposition to BMW’s motion to retax costs. (Doc. No. 5 67.) BMW did not file an opposition to Plaintiff’s motion to retax costs. (Doc. No. 65.) 6 On August 25, 2020, the court issued an order granting in part Plaintiff’s May 7, 2020 7 motion for attorneys’ fees and the parties’ June 5, 2020 cross motions to retax costs. (Doc. 8 No. 70.) On September 8, 2020, Plaintiff filed the instant motion for additional attorneys’ 9 fees generated by litigating the parties’ June 5, 2020 cross motions to retax costs. (Doc. 10 No. 71.) 12 Under the Song-Beverly Act, a prevailing buyer “shall be allowed by the court to 13 recover . . . . attorney’s fees based on actual time expended, determined by the court to 14 have been reasonably incurred by the buyer in connection with the commencement and 15 prosecution of such action.” CAL. CIV. CODE § 1794(d). The court must determine “whether 16 under all the circumstances of the case the amount of actual time expended and the 17 monetary charge being made for the time expended are reasonable.” Nightingale v. 18 Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994). “In a diversity case, the law of the 19 state in which the district court sits determines whether a party is entitled to attorney fees, 20 and the procedure for requesting an award of attorney fees is governed by federal law.” 21 Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007). The lodestar method is the 22 prevailing method for calculating attorneys’ fees. Robertson v. Fleetwood Travel Trailers 23 of Cal., Inc., 144 Cal. App. 4th 785, 818-19 (2006); Ketchum v. Moses, 24 Cal. 4th 1122, 24 1135 (2001). In calculating the lodestar, the court must “‘make an initial determination of 25 the actual time expended; and then . . . . ascertain whether under all the circumstances of 26 the case the amount of the actual time expended and the monetary charge being made for 27 the time expended are reasonable.’” Robertson, 144 Cal. App. 4th at 817 (quoting 28 Nightingale, 31 Cal. App. 4th at 104). 2 Plaintiff seeks $5,773 in attorneys’ fees for two attorneys at Strategic Legal 3 Practices, APC (SLP). (Doc. No. 74). The supporting documentation attached to the 4 motion shows that Plaintiff seeks $4,773.00 for: (1) 6.2 hours of work at $460 per hour for 5 preparing Plaintiff’s motion to retax costs; (2) 1.8 hours at $460 per hour for drafting 6 Plaintiff’s opposition to BMW’s motion to retax costs; 1 and (3) 2.6 hours at $385 per hour 7 for preparing the instant motion.2 (Doc. No. 71-3 at 2.) Plaintiffs also seek $1,000 for 2.8 8 hours at $435 per hour for drafting the reply to BMW’s opposition to the instant motion, 9 which represents a discount of $218. (Doc. No. 74-1 at 2.) These hours and hourly rates 10 are reasonable and consistent with the court’s previous order granting $106,703 in fees to 11 attorneys at SLP. 12 As BMW observes, in Plaintiff’s previous motion for attorneys’ fees, Plaintiff 13 sought “an additional $6,000 as reasonably anticipated to review BMW's Opposition, draft 14 the Reply, review BMW’s objection to Plaintiff’s Application for Costs, draft the Reply, 15 and attend the hearing on [the] Motion.” (Doc. No. 56-1 at 8.) Because no hearing on th 16 motion was held, the court reduced the amount by $2,275 for a total of $3,725. (Doc. No. 17 70 at 10.) This does not, as BMW argues, show that Plaintiff requested, or that the court 18 awarded, Plaintiff’s anticipated attorneys’ fees related to the parties’ subsequently filed 19 cross motions to retax costs. At the time Plaintiff filed his first motion for attorneys’ fees, 20 Plaintiff had filed a motion to tax costs, but neither party had challenged the Clerk’s 21 decision by filing their motions to retax costs. In other words, Plaintiff did not seek, and 22 the court did not award, attorneys’ fees based on the anticipation that the Clerk’s 23

24 25 1 BMW’s argument that the timing of Plaintiff’s opposition to BMW’s motion to retax costs should be “scrutinized” is not persuasive because this argument was not previously 26 made and does not necessarily go to whether the fees incurred in opposing BMW’s motion 27 were reasonably incurred.

28 2 1 forthcoming decision would be unsatisfactory to both parties. As stated by Plaintiff, 2 || “[t]hose tasks were not foreseeable, [as] the clerk had yet to disallow some of Plaintiffs 3 ||requested expenses based on Local Rule 54.” (Doc. No. 74 at 3.) Perhaps Plaintiff could 4 ||have raised the instant request earlier, or perhaps Plaintiff could have waited to file his 5 initial motion for attorneys’ fees until after his request to tax costs was decided by the 6 ||Clerk. Regardless, filing a second motion for attorneys’ fees is not inappropriate under the 7 ||circumstances. See Forouzan v. BMW of N. Am., LLC, Case No. CV 17-3875-DMG 8 ||(GJSx), 2019 WL 4667998, at *1 (C.D. Cal. Sept. 18, 2019) (awarding the plaintiff, in 9 || plaintiff's second motion for attorneys’ fees, $22,542.50 in fees incurred in preparing a 10 || motion to retax costs and $1,000 for drafting the reply); Doppes v. Bentley Motors, Inc., 11 |} 174 Cal. App. 4th 967, 1002 (2009) (“[T]here is no rule prohibiting a party from bringing 12 ||}a second motion to recover attorney fees incurred since an initial motion was filed.”’). 14 Based on the forgoing, Plaintiffs Motion for Attorney Fees Re: Motions to Retax 15 || Costs (Doc. No. 71) is GRANTED. The court awards $5,773 in attorneys’ fees for work 16 || performed by Plaintiff's attorneys at SLP in litigating the parties’ cross motions to retax 17 ||costs. This amount is in addition to the court’s previous award of $148,414.95 in 18 || attorneys’ fees, costs, and expenses, which included $106,703 in attorneys’ fees to SLP. 19 ||(See Doc. No. 70.) For the same reasons stated in the court’s previous order, BMW’s 20 || boilerplate objections to the declarations attached to Plaintiff's motion are OVERRULED. 21 || Finally, Plaintiff states, and BMW does not dispute, that BMW has yet to pay the fees, 22 ||costs and expenses that were the subject of the court’s previous order. (See Doc. No. 7] at 23 ||2.) Accordingly, BMW shall pay the award in the instant order, as well as the award in the 24 || court’s previous order (Doc. No. 70), no later than December 31, 2020. 25 IT IS SO ORDERED. . 26 || DATED: November 24, 2020 7. 7 J He T. if ted States District Judge 28