This case was last updated from Los Angeles County Superior Courts on 10/18/2020 at 05:45:37 (UTC).

DANIEL SWEISS VS BMW OF NORTH AMERICA LLC ET AL

Case Summary

On 04/23/2018 DANIEL SWEISS filed a Contract - Other Contract lawsuit against BMW OF NORTH AMERICA LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DAVID S. CUNNINGHAM III. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3199

  • Filing Date:

    04/23/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DAVID S. CUNNINGHAM III

 

Party Details

Plaintiff and Petitioner

SWEISS DANIEL

Defendants and Respondents

DOES 1-10

BMW OF NORTH AMERICA LLC

BMW OF RIVERSIDE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CUTLER JACOB

ROSENSTEIN MICHAEL HARRIS

CUTLER JACOB W. ESQ.

ROSENSTEIN MICHAEL H.

CUTLER JACOB W.

Defendant and Respondent Attorneys

LEHRMAN KATE S. ESQ.

LEHRMAN KATE S.

 

Court Documents

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 25, 2020 ORDER

9/25/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 25, 2020 ORDER

Reply - REPLY PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST

3/16/2020: Reply - REPLY PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR PREJUDGMENT INTEREST

Objection - OBJECTION DEFENDANTS' OBJECTIONS TO PLAINTIFF'S PROPOSED JUDGMENT ON SPECIAL VERDICT

11/12/2019: Objection - OBJECTION DEFENDANTS' OBJECTIONS TO PLAINTIFF'S PROPOSED JUDGMENT ON SPECIAL VERDICT

Stipulation, Receipt and Order re: Release of Civil Exhibits

10/30/2019: Stipulation, Receipt and Order re: Release of Civil Exhibits

Declaration - DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S RECOVERY OF PREJUDGMENT INTEREST

11/4/2019: Declaration - DECLARATION OF JACOB CUTLER IN SUPPORT OF PLAINTIFF'S RECOVERY OF PREJUDGMENT INTEREST

Judgment - JUDGMENT PROPOSED JUDGMENT ON JURY VERDICT

11/8/2019: Judgment - JUDGMENT PROPOSED JUDGMENT ON JURY VERDICT

Minute Order - MINUTE ORDER (JURY TRIAL)

10/29/2019: Minute Order - MINUTE ORDER (JURY TRIAL)

Motion in Limine - MOTION IN LIMINE NO. 13 OF DEFENDANT BMW OF NORTH AMERICA, LLC: FOR ORDER EXCLUDING EVIDENCE OR ARGUMENT CONCERNING ADVERTISING AND MARKETING MATERIALS AND SLOGANS; MEMORANDUM OF PO

10/11/2019: Motion in Limine - MOTION IN LIMINE NO. 13 OF DEFENDANT BMW OF NORTH AMERICA, LLC: FOR ORDER EXCLUDING EVIDENCE OR ARGUMENT CONCERNING ADVERTISING AND MARKETING MATERIALS AND SLOGANS; MEMORANDUM OF PO

Request for Judicial Notice

10/4/2019: Request for Judicial Notice

Opposition - MEMORANDUM OF POINTS & AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 14 TO EXCLUDE EVIDENCE OR ARGUMENT RELATING TO A MONETARY OF'F

10/8/2019: Opposition - MEMORANDUM OF POINTS & AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE NO. 14 TO EXCLUDE EVIDENCE OR ARGUMENT RELATING TO A MONETARY OF'F

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND SP...)

7/24/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND SP...)

Proof of Service by Mail

9/18/2019: Proof of Service by Mail

Motion in Limine - MOTION IN LIMINE NO. 10 TO PROHIBIT TESTIMONY OR ARGUMENT THAT DEFENDANT CONFORMED THE VEHICLE TO WARRANTY WITHIN A REASONABLE NUMBER OF REPAIR ATTEMPTS BECAUSE DEFENDANT REPAIRED A

9/18/2019: Motion in Limine - MOTION IN LIMINE NO. 10 TO PROHIBIT TESTIMONY OR ARGUMENT THAT DEFENDANT CONFORMED THE VEHICLE TO WARRANTY WITHIN A REASONABLE NUMBER OF REPAIR ATTEMPTS BECAUSE DEFENDANT REPAIRED A

Motion in Limine - MOTION IN LIMINE NO. 9 OF DEFENDANT BMW OF NORTH AMERICA, LLC

9/26/2019: Motion in Limine - MOTION IN LIMINE NO. 9 OF DEFENDANT BMW OF NORTH AMERICA, LLC

Motion in Limine - MOTION IN LIMINE NO. 11 OF DEFENDANT BMW OF NORTH AMERICA, LLC

9/26/2019: Motion in Limine - MOTION IN LIMINE NO. 11 OF DEFENDANT BMW OF NORTH AMERICA, LLC

Memorandum - MEMORANDUM MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 8 TO EXCLUDE LEGAL OPINIONS AS TO THE APPLICABILIT

9/27/2019: Memorandum - MEMORANDUM MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 8 TO EXCLUDE LEGAL OPINIONS AS TO THE APPLICABILIT

Memorandum - MEMORANDUM MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY, ARGUMENT OR IMPLICATION TH

9/27/2019: Memorandum - MEMORANDUM MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT BMW OF NORTH AMERICA, LLC IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY, ARGUMENT OR IMPLICATION TH

CASE MANAGEMENT STATEMENT -

8/15/2018: CASE MANAGEMENT STATEMENT -

166 More Documents Available

 

Docket Entries

  • 10/08/2020
  • Docketat 10:00 AM in Department 37; Hearing on Motion for Reconsideration - Held

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  • 10/08/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Reconsideration - Not Held - Advanced and Continued - by Court

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  • 10/08/2020
  • DocketMinute Order ( (Hearing on Motion for Reconsideration)); Filed by Clerk

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  • 10/08/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Daniel Sweiss (Plaintiff)

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  • 10/01/2020
  • DocketReply (ISO Defendants' Motion for Reconsideration); Filed by BMW Of North America, LLC (Defendant); BMW Of Riverside (Defendant)

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  • 09/25/2020
  • DocketOpposition (to Defendants' Motion for Reconsideration of the Court's August 25, 2020 Order); Filed by Daniel Sweiss (Plaintiff)

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  • 09/25/2020
  • DocketDeclaration (of Anh Nguyen in Support of Plaintiff's Opposition to Defendants' Motion for Reconsideration of the Court's August 25, 2020 Order); Filed by Daniel Sweiss (Plaintiff)

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  • 09/18/2020
  • Docketat 08:30 AM in Department 37; Hearing on Ex Parte Application ( to Strike Defendants' Motion for Reconsideration of the Court's August 25, 2020 Order) - Held

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  • 09/18/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application to Strike Defendants' Motion...)); Filed by Clerk

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  • 09/17/2020
  • DocketEx Parte Application (to Strike Defendants' Motion for Reconsideration of the Court's August 25, 2020 Order); Filed by Daniel Sweiss (Plaintiff)

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224 More Docket Entries
  • 06/20/2018
  • DocketAnswer; Filed by BMW Of Riverside (Defendant)

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  • 06/08/2018
  • DocketBMW OF NORTH AMERICA, LLC'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

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  • 06/08/2018
  • DocketAnswer; Filed by BMW Of North America, LLC (Defendant)

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  • 04/26/2018
  • DocketProof-Service/Summons; Filed by Daniel Sweiss (Plaintiff)

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  • 04/26/2018
  • DocketProof-Service/Summons; Filed by Daniel Sweiss (Plaintiff)

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  • 04/26/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/26/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/23/2018
  • DocketComplaint; Filed by Daniel Sweiss (Plaintiff)

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  • 04/23/2018
  • DocketCOMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS

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  • 04/23/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC703199    Hearing Date: October 08, 2020    Dept: 37

HEARING DATE: October 8, 2020

CASE NUMBER: BC703199

CASE NAME: Daniel Sweiss v. BMW of North America LLC, et al.

MOVING PARTIES: Defendants, BMW of North America, LLC, BMW of Riverside

OPPOSING PARTY: Plaintiff Daniel Sweiss

TRIAL DATE: None

MOTION: Defendants’ Motion for Reconsideration

PROOF OF SERVICE: OK

OPPOSITION: September 25, 2020

REPLY: October 1, 2020

TENTATIVE: Defendants’ motion for reconsideration is denied. Plaintiff is to give notice.

Background

This is a lemon law action arising out of Plaintiff, Daniel Sweiss (“Sweiss”)’s purchase of a 2012 BMW 740i (the “Vehicle”) from Defendant, BMW of Riverside (“BMW Riverside”) and manufactured by Defendant, BMW of North America, LLC (“BMW NA”) (“Defendants”). Plaintiff alleges that he received various warranties in connection with the Vehicle in which Defendants undertook to preserve or maintain the performance of the Vehicle and to repair the Vehicle in the event of any defects during the warranty period. Plaintiff alleges that the Vehicle developed numerous defects during the warranty period, including but not limited to oil consumption defects, oil leaks, defects regarding the O2 sensor, and defects to the Vehicle’s drive train. Further, Plaintiff alleges that the Defendants failed to repair defects to the Vehicle when it was presented.

Plaintiff’s operative Complaint alleges causes of action as follows: (1) violation of Civil Code section 1793.2(d), (2) violation of Civil Code section 1793.2(b), (3) violation of Civil Code section 1793.2(a)(3), (4) breach of express written warranty (Civil Code § 1791.2(a), (5) breach of the implied warranty of merchantability against, (6) fraud.

Following a jury trial, the court entered judgment on November 8, 2019 in favor of Plaintiff and against Defendants for the total amount of $60,212.82, with interest at the rate of ten percent (10%) per annum. The jury found that Defendants did not willfully fail to repurchase the Vehicle and did not award any amount for penalties.

On August 25, 2020, Plaintiff’s motion for prejudgment interest and attorney’s fees and Defendants’ motion to tax costs came on for hearing. The court denied Plaintiff’s motion for prejudgment interest but granted Plaintiff attorney’s fees in the total amount of $160,054.50. In coming to its ruling on Plaintiff’s motion for attorney’s fees, the court in part relied on the fact that Defendants’ Code of Civil Procedure section 998 Offer to Compromise (“998 Offer”) was incapable of acceptance because it specifically stated that it was for “repurchase” of the Vehicle and Plaintiff had demonstrated that the Vehicle was totaled and incapable of being returned. Further, the court taxed Plaintiff’s memorandum of costs in the amount of $4,409.50.

Defendants now move for reconsideration of the court’s August 25, 2020 order. Plaintiff opposes the motion.

Discussion

  1. Timeliness

Code of Civil Procedure, section 1008 allows a party to move for reconsideration of an order within 10 days after service upon the party of written notice of entry of the order, based on new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).)

On August 31, 2020, Plaintiff filed Notice of Entry of Judgment notifying all parties of the court’s August 25, 2020 ruling. Defendants filed the instant motion on September 1, 2020. Thus, Defendants’ motion is timely.

  1. Analysis

Code of Civil Procedure section 1008 requires the party moving for reconsideration to “state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” However, a party moving for reconsideration under Code of Civil Procedure section 1008 must demonstrate that “new or different facts” in support of the motion could not have been discovered or produced with “reasonable diligence” at the time of the original hearing. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13 (“the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the [original hearing]”).

Defendants argue that the court should reconsider its August 25, 2020 ruling because “the court erred in concluding the 998 Offer was incapable of acceptance.” (Motion, 4-6.) Specifically, Defendants argue that it was incorrect to interpret the 998 Offer as requiring actual return of the Vehicle. (Id.)

In opposition, Plaintiff argues that Defendants’ motion should be denied because Defendants’ argument does not constitute a “new or different fact, circumstance or law” for purpose of Code of Civil Procedure section 1008. (Motion, 4-6.) Specifically, Plaintiff argues that Defendants’ argument about the correct interpretation of the 998 Offer could and should have been raised in Defendants’ briefing or at the August 25, 2020 hearing and, thus, does not constitute new facts, circumstances, or law. (Id.)

Plaintiff submits a copy of the transcript on the August 25, 2020 hearing in support of this argument. Specifically, defense counsel stated as follows at the hearing about the 998 Offer:

“First, about the 998, you know, they are claiming that it was – they were unable to accept it based on the car being totaled. You know, about a month after we served the 998, on August 22, they sent a meet-and-confer letter about the 998. They didn’t bring up this aspect of the car being totaled at all. Had they done that, we would have sent a new 998 with different language to address this concern.”

(Declaration of Anh Nguyen in Support of Opposition, Exhibit 1 at 6:24-7:3.)

The court agrees with Plaintiff. Defendants’ motion cites Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187 (Martinez) for the argument that a consumer does not have to return his or her vehicle to have his or her vehicle “repurchased” for purposes of the Song-Beverly act. (Motion, 4.) However, Martinez was published in 2011 prior to the August 25, 2020 ruling and was not cited in Defendants’ opposition to Plaintiff’s motion for attorney’s fees. Thus, Defendants do not demonstrate how the court’s interpretation of the 998 Offer constitutes new facts, circumstances, or law for purposes of a motion for reconsideration.

For these reasons, the court does not reconsider its August 25, 2020 ruling. Defendants’ motion for reconsideration is denied.

Conclusion

Defendants’ motion for reconsideration is denied. Plaintiff is to give notice.

Case Number: BC703199    Hearing Date: August 25, 2020    Dept: 37

HEARING DATE: August 25, 2020

CASE NUMBER: BC703199

CASE NAME: Daniel Sweiss v. BMW of North America, LLC, et al.

MOVING PARTY: Plaintiff Daniel Sweiss

RESPONDING PARTY: Defendants, BMW of North America, LLC, BMW of Riverside

TRIAL DATE: None. Verdict Entered November 8, 2019

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion for Prejudgment Interest

OPPOSITION: March 10, 2020

REPLY: March 16, 2020

TENTATIVE: Plaintiff’s motion for prejudgment interest DENIED. BMW Defendants are to provide notice.

MOTION: Plaintiff’s Motion for Attorney Fees

OPPOSITION: August 12, 2020

REPLY: August 18, 2020

TENTATIVE: Plaintiff’s motion for attorney fees is GRANTED in part. Plaintiff is awarded $154,054.50 in total attorney’s fees. Plaintiff is to give notice.

MOTION: Defendant’s Motion to Tax Costs

OPPOSITION: August 12, 2020

REPLY: August 18, 2020

TENTATIVE: BMW Defendants’ motion to tax costs is GRANTED in part. Plaintiff’s memorandum of costs is taxed in the total amount of $4,409.50.

Background

This is a lemon law action arising out of Plaintiff, Daniel Sweiss’s (“Sweiss”) purchase of a 2012 BMW 740i (the “Vehicle”) from Defendant, BMW of Riverside (“BMW Riverside”) and manufactured by Defendant, BMW of North America, LLC (“BMW NA”) (“BMW Defendants”). Plaintiff alleges that he received various warranties in connection with the Vehicle in which BMW Defendants undertook to preserve or maintain the performance of the Vehicle and to repair the Vehicle in the event of any defects during the warranty period. Plaintiff alleges that the Vehicle developed numerous defects during the warranty period, including but not limited to oil consumption defects, oil leaks, defects regarding the O2 sensor, and defects to the Vehicle’s drive train. Further, Plaintiff alleges that the BMW Defendants failed to repair defects to the Vehicle when it was presented.

Plaintiff’s operative Complaint alleges causes of action as follows: (1) violation of Civil Code section 1793.2(d), (2) violation of Civil Code section 1793.2(b), (3) violation of Civil Code section 1793.2(a)(3), (4) breach of express written warranty (Civil Code § 1791.2(a), (5) breach of the implied warranty of merchantability against, (6) fraud.

Following a jury trial, the court entered judgment on November 8, 2019 in favor of Plaintiff and against BMW Defendants for the total amount of $60,212.82, with post judgment interest at the rate of ten percent (10%) per annum. The jury found that BMW Defendants did not willfully fail to repurchase the Vehicle and did not award any amount for penalties.

Plaintiff now moves for an award of prejudgment interest as well as attorney fees. The BMW Defendants oppose the motions. The BMW Defendants also move to tax Plaintiff’s memorandum of costs. Plaintiff opposes the motion.

MOTION FOR PREJUDGMENT INTEREST

Plaintiff moves for prejudgment interest from the date of injury in the amount of $47,553 under Civil Code section 3287, subdivision (a) or in the alternative, prejudgment interest from the date of the complaint in the amount of $9,157.50 under Civil Code section 3287, subdivision (b). BMW Defendants opposes the motion.

Discussion

Civil Code section 3287 allows a party to recover prejudgment interest in either of the following situations:

  1. “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.

  2. Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.”

Plaintiff contends that he is entitled to prejudgment interest under either subdivision of this section. BMW Defendants contend that Plaintiff is not entitled to prejudgment interest because Plaintiff’s damages are not certain or capable of being made certain within the meaning of Civil Code section 3287 and, additionally, because Plaintiff has failed to prove the amount of prejudgment interest to which he would be allowed.

  1. Prejudgment Interest under Civil Code section 3287(a)

“[P]rejudgment interest is allowable where the amount due plaintiff is fixed by the terms of a contract or is readily ascertainable by reference to well-established market values.” (Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371, 375.) “A dispute concerning liability does not preclude prejudgment interest in a civil action.” (Boehm & Assocs v. Workers’ Comp. Appeals Bd. (1999) 76 Cal.App.4th 513, 517.) “Nothing in the Song-Beverly Consumer Warranty Act bars recovery of prejudgment interest.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1010 (“Doppes II”).)

Plaintiff contends that he is entitled to prejudgment interest from the “date of injury” through the date the jury rendered its verdict (December 9, 2011 through October 30, 2019) (Motion, 1-6.) However, as BMW Defendants contend, Plaintiff does not submit any evidence to demonstrate that he actually purchased the Vehicle on December 9, 2011. Plaintiff also cites to and discusses various cases for the general proposition that prejudgment interest is permitted in actions alleging violation of the Song-Beverly Consumer Warranty Act and for the proposition that a disagreement about liability or the exact amount of damages does not preclude an award of prejudgment interest.

First, Plaintiff cites to Doppes II for the proposition that an award of prejudgment interest is generally permissible for “lemon law” cases alleging violation of the Song-Beverly Consumer Warranty Act. (Motion, 3.) In Doppes II, the Court of Appeal found that, as a general principle, the trial court had jurisdiction to award Plaintiff prejudgment interest under Civil Code section 3287 in a lemon law action. (Doppes II, 174 Cal.App.4th at 1010-1011.) As with Doppes II, the Court in Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041 found that the trial court did not abuse its discretion in awarding prejudgment interest in a Song-Beverly automobile warranty case. (Id. at p. 1053.)

Second, both Plaintiff and BMW Defendants cite to Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal.App.4th 718 (Duale). Plaintiff’s motion discusses Duale but alleges that it can be distinguished by the specific defects alleged. (Motion, 4-6.) In opposition, BMW Defendants cites to Duale for the proposition that Plaintiff should not be awarded prejudgment interest because the amount of damages could not be determined except by verdict (Opposition, 3-5.)

The Duale Court stated, in relevant part:

Determination of the award required the jury to determine (1) whether any of the many defects alleged in the complaint represented a nonconformity, (2) whether any such nonconformity “substantially impaired [the] use, value, or safety” of the vehicle, and (3) then to determine—for any such nonconformity—the mileage at which plaintiffs first presented the car to defendant for repair. (See Civ. Code, §§ 1793.2, subd. (d)(2)(C), 1794, subd. (b).) The trial court found that “[a]ll of these issues were contested at the trial” and, further, even as to the single nonconformity found by the jury, whether it substantially impaired the car's use, value or safety and the mileage at which it was first presented to defendant for repair were both in dispute at trial. Thus, the amount of damages could not be resolved except by verdict, and prejudgment interest was not appropriate.

(Id. at p. 729.)

As such, there is authority for not awarding pre-judgment interest under Civil Code section 3287 subdivision (a) if the amount of Plaintiff’s damages could not be resolved until verdict. This is also a case in which “the jury had to determine ‘(1) whether any of the many defects alleged in the complaint represented a nonconformity, (2) whether any such nonconformity substantially impaired [the] use, value, or safety of the vehicle, and (3) then to determine—for any such nonconformity—the mileage at which [Plaintiff] first presented the car to [BMW] for repair.’” (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 44.)

The general rule about whether damages are certain or capable of being made certain was explained as follows:

“There are two lines of authority which instruct us in the proper award of prejudgment interest under section 3287(a). First, interest traditionally has been denied on unliquidated claims because of the general equitable principle that a person who does not know what sum is owed cannot be in default for failure to pay. Thus no prejudgment penalty is assessed against a litigant for failing to pay a sum which is unascertainable prior to judgment. . . .

“The second line of authority advances the countervailing policy that injured parties should be compensated for the loss of the use of their money during the period between the assertion of a claim and the rendition of judgment.

“These competing policy considerations have led the courts to focus on the defendant's knowledge about the amount of the plaintiff's claim. The fact the plaintiff or some omniscient third party knew or could calculate the amount is not sufficient. The test we glean from prior decisions is: did the defendant actually know the amount owed or from reasonably available information could the defendant have computed that amount. Only if one of those two conditions is met should the court award prejudgment interest.”

(Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 906-907 (citations omitted.) In that case, Chesapeake breached a lease and Togova relet the premises. The parties disputed whether Chesapeake should get repaid because of excess revenue Togova got or whether Togova was owed more for the rent it did not recover. The court performed an accounting based on known facts and awarded damages to Togova. In deciding prejudgment interest was not allowed, the court concluded it was not a case where the debtor kept records from which it could calculate the indebtedness. (Id. at 911; see also Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 293 –"From the defendant's perspective, the certainty requirement promotes equity because liability for prejudgment interest occurs only when the defendant knows or can calculate the amount owed and does not pay.”)

In reply, Plaintiff points to Leff v. Gunter (1983) 33 Cal.3d 508 (Leff) for the proposition that prejudgment interest should be awarded if the amount of prejudgment interest award can be calculated “mechanically.” However, Plaintiff’s reliance is misplaced. Leff is a case discussing breach of fiduciary duty in a real estate development partnership. As such, Leff is factually not applicable to the instant action. In general, Plaintiff’s reply contends that prejudgment interest is warranted because the method of calculating prejudgment interest is certain or capable of being made certain. (see Reply, 1-5.)

Given the above, the facts in this action fall squarely within the Warren and Duale facts because Plaintiff has submitted no evidence that his damages were certain or capable of being made certain for purposes of an award of prejudgment interest. Plaintiff’s arguments appear to center on the proposition that the court can calculate the amount of prejudgment interest to award by starting with the November 8, 2019 judgment and working backwards to December 9, 2011. However, as discussed above, Plaintiff has not submitted evidence or authority which supports the proposition that December 9, 2011 is the proper date of injury. Further, as with Duale, the court is not inclined to award prejudgment interest because the amount of damages could not be determined until verdict as this the parties contested all facets of this action, including BMW

Defendants’ liability for any damages. Thus, this case is squarely within the Warren and Duale decisions, which this court is compelled to follow.

For the above reasons, the court denies Plaintiff’s motion for prejudgment interest under Civil Code section 3287(a).

  1. Prejudgment Interest under Civil Code section 3287(b)

Plaintiff alternatively moves for an award of prejudgment interest under Civil Code section 3287(b). However, because this was not an action on a contract, Plaintiff’s alternative request for prejudgment interest under Civil Code, section 3287, subdivision (b) is denied.

Conclusion

Plaintiff’s motion for prejudgment interest is DENIED. BMW Defendants to give notice.

MOTION FOR ATTORNEY FEES

Plaintiff requests a total award of $244,557.46, broken down as follows:

(1) $48,717.00 in attorney fees for Strategic Legal Practices, APC ("SLP");

(2) $105,317.50 in attorney fees for the Law Office of Michael Rosenstein ("LOMR")

(3) $30,610.88 in recoverable costs and expenses for SLP ;

(4) a 1.35 multiplier enhancement on the attorney fees (or $53,912.08); and

(5) an additional $6,000

BMW Defendants oppose the motion. Additionally, BMW Defendants have filed a motion to tax Plaintiff’s costs. As such, Plaintiff’s costs will be discussed below in connection with the motion to tax costs.

Discussion

  1. Plaintiff’s Entitlement to Attorney’s Fees

Plaintiffs request attorney’s fees as the prevailing party under the Song-Beverly Act, which allows a prevailing buyer to recover “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, subd. (d).) 

  1. Reasonable Amount of Attorney Fees Award

“A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.”  (Christian Research Inst. v. Alnor Barrenechea

  1. Billing Rates Requested

Plaintiff submits declarations from Michael H. Rosenstein (“Rosenstein”), and Payam Shahian (“Shahian”) in support of the billing rates requested by each of LOMR and SLP attorneys.

First, Shahihan attests that he is the managing partner of SLP, which has a primary focus on consumer warranty and fraud cases. (Shahihan Decl. ¶ 3.) Shahihan is not submitting his own time on this matter. (Shahihan Decl. ¶ 7.) Shahihan attests that as the most senior attorney at SLP, he supervises other attorneys on this matter and is familiar with the experience and background of each attorney. (Shahihan Decl. ¶ 20.) Shahihan attests to the following rates for SLP attorneys who billed on this matter:

              1. Gregory Yu: $525/hour in 2019, $550/hour in 2020 (in practice since 2004, 16 years)

              2. Jacob Cutler: $435/hour in 2019, $460/hour in 2020 (in practice since 2009, 11 years)

              3. Gregory Sogoyan: $350/hour (in practice since 2017, 3 years)

              4. Carey Wood: $375/hour in 2018, $395/hour in 2019 (in practice since 2013, 7 years)

              5. Johnny Ogata: 4425/hour (in practice since 2008, 12 years)

              6. Julian Moore: $525/hour (in practice since 2003, 17 years)

              7. Tionna Dolin: $375/hour (in practice since 2014, 9 years)

              8. Christine Haw: $375/hour in 2018, $410/hour in 2019 (in practice since 2013, 7 years)

              9. Hayk Proshyan: $360/hour (in practice since 2016, 4 years)

              10. Yoel Hanohov: $350/hour (in practice since 2017, 3 years)

              11. Sean Crandall: $350/hour (in practice since 2015, 5 years)

              12. Vanessa Oliva: $335/hour in 2019, $355/hour in 2019 (in practice since 2016, 4 years)

              13. Daniel Tai: $385/hour (in practice since 2015, 5 years)

(Shahian Decl. ¶¶ 21-46.) Further, Shahian attests that some of his associate attorneys specialize in lemon law or have had extensive lemon law trial experience. (see, e.g., Shahian Decl. ¶¶ 25, 31, 35.)

Second, Rosenstein attests that he is the sole proprietor of the LOMR and was lead trial counsel for Plaintiff in association with SLP. (Rosenstein Decl. ¶ 2.) Rosenstein attests that his billing rate is currently $600 per hour and that he has been practicing for “25+ years,” litigating hundreds of lemon law matters and taking several to verdict. (Rosenstein Decl. ¶ 3.) Further, Rosenstein attests to the following billing rates for his associate attorneys:

              1. Brian T. Shippen-Murray: $400/hour (in practice since 2012, 8 years)

              2. James P. Martinez: $275/hour (in practice since 2016, 4 years)

              3. Matthew Evans: $400/hour (in practice since 2008, 12 years).

(Rosenstein Decl. ¶¶ 4-6.)

In opposition, the BMW Defendants contend that Plaintiffs’ requested rates are not reasonable because they charge “whatever they can get away with because there is little accountability.” (Opposition, 4-5.) BMW Defendants argue that Plaintiffs should have presented some evidence, such as a retention agreement, that these rates were actually billed to the client. (Id.)

The court finds that Plaintiffs’ requested rates are reasonable given each attorney’s experience and the prevailing market.

  1. Hours Requested

Plaintiff’s fee request is based on a total of 341 hours billed by all of his attorneys during the course of this litigation. (Motion, 8-10; Shahian Decl. ¶ 47, Exhibit 13.) Plaintiff argues that the total amount requested is reasonable because SLP and LOMR litigated the matter economically without duplication, and because such efforts were necessary due to BMW contesting liability throughout litigation. (Motion, 8-10.) Additionally, Plaintiff submits the declaration of Jacob Cutler (“Cutler”) to demonstrate that the total amount of hours requested was reasonable.

Cutler attests that Plaintiff propounded his first set of written discovery on June 4, 2018 and noticed a deposition of BMW’s Person Most Qualified. (Cutler Decl. ¶ 21.) Thereafter, Plaintiff was allegedly required to engage in extensive meet and confer and file motions to compel due to Defendant’s noncompliance with Plaintiff’s discovery requests, resulting in an Informal Discovery Conference (Cutler Decl. ¶¶ 22-23.) The parties exchanged an additional set of written discovery in December 2018, and then Plaintiff was deposed on March 27, 2019. (Cutler Decl. ¶¶ 27-28.) Thereafter, Defendant applied ex parte to continue trial. (Cutler Decl. ¶ 29.) Finally, Plaintiff filed thirteen motions in limine, opposed 9 motions in limine, deposed 2 expert witnesses, and attended trial, which lasted a total of 22 days. (Cutler Decl. ¶¶ 30-35.)

In opposition, BMW Defendants first contend that Plaintiff was served with a valid Code of Civil Procedure section 998 Offer to Compromise (“998 Offer”) on July 19, 2019 for $65,658.00 and that this offer serves to cut off Plaintiff’s requested fees and costs because Plaintiff failed to obtain a more favorable judgment. (Opposition, 2; Declaration of Andrew K. Stefatos (“Stefatos”), ¶3, Exhibit A.)

California courts have commonly held that a 998 Offer must be unconditional. (Barella v. Exchange Bank (2000) 84 Cal.App.4th 793, 799.) “Thus, for example, an offer to two or more parties, which is contingent upon all parties’ acceptance, is not a valid offer.” (Id.) “[F]rom the perspective of the offeree, the offer must be sufficiently specific to permit the recipient meaningfully to evaluate it and make a reasoned decision whether to accept it, or reject it and bear the risk he may have to shoulder his opponent’s litigation costs and expenses.” (Berg v. Darden (2004) 120 Cal.App.4th 721, 727.) These principles also apply in the lemon law context. (see, eg. MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1050 [holding that a 998 Offer which required the vehicle to be “undamaged” was undefined as to the term “undamaged’ and was thus invalid.])

Here, the 998 Offer provides that BMW offered to

“repurchase the 2012 BMW 740i vehicle, VIN: 2 WBAKA4C55CDS991 13 at issue in this action (Subject Vehicle), in accordance with California 1 3 Civil Code section 1793.2(d)(2), for the sum of $65,658.”

(Stefatos Decl. ¶ 3, Exhibit A.)

Further, BMW Defendants contend that Plaintiff’s fee request represents egregious overstaffing and overbilling. (Opposition, 5-11.) BMW Defendants cite Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24 (Morris) for the proposition that a court may deduct attorney’s fees requested in a lemon law action if they are overinflated due to overstaffing.

In Morris, Plaintiff and Defendant in a lemon law action settled the matter for $85,000 prior to trial (Morris, supra, 41 Cal.App.5th at 28.) Plaintiff then moved for attorney’s fees in the total amount of $127,792.50 plus a multiplier but was awarded $73,864. (Id.) The Court of Appeal ruled that the trial court did not abuse its discretion in reducing the requested attorney’s fees and found that it was reasonable for the trial court to reduce the requested fees as considering that the action did not go to trial, did not have complex discovery motions, and did not present complex issues. (Id. at 37.) Additionally, the Court of Appeal noted that the trial court did not abuse its “broad discretion” to determine a reasonable amount of attorney’s fees by cutting the billing entries for 6 attorneys in their entirety, given that the trial court could have also reduced the total fees requested by all attorneys by thirty percent to achieve the same result. (Id. at 40.)

In reply, Plaintiff contends that BMW Defendants’ 998 Offer was incapable of acceptance at the time it was made because the Subject Vehicle had been deemed a loss after an accident, leading to a $17,909.50 insurance payout to Plaintiff. (Reply, 1; Declaration of Anh Nguyen in Support of Reply, Exhibit 2.) Exhibit 2 to the Nguyen Declaration in support of reply is a “Total Loss Calculation Summary” from Ameriprise Auto & Home Insurance showing that the Subject Vehicle was claimed as a total loss on June 24, 2018.

First, the court agrees with Plaintiff that BMW Defendants’ 998 Offer was incapable of acceptance. It is clear from the face of the 998 Offer that BMW Defendants intended to offer $65,658 for repurchase of the Subject Vehicle, not just as a payment to settle the action absent repurchase. Plaintiff has shown that the Subject Vehicle could not have been repurchased as of July 2019 because it was declared a total loss as of June 24, 2018. As such, the court does not consider the 998 Offer as cutting off Plaintiff’s right to recover attorney’s fees and costs.

Second, the court has reviewed LOMR and SLP’s billing records, as well as the Declaration of Andrew Stefatos regarding BMW Defendants’ specific arguments about Plaintiff’s alleged overbilling. The court is concerned about the number of lawyers SLP used for this matter. Neither their presentation or the billing records explain the shifting responsibilities of the various lawyers. In such cases, there is likely some “catching up” that each new lawyer has to do. However, the way the fee request is presented it is not possible to accurately assess these issues. The court finds that, based on these records, Plaintiff’s requested hours are reasonable and BMW Defendants’ arguments regarding how Plaintiff’s hours represent overstaffing are unavailing. For example, BMW Defendants contend that 6 entries for preparing a repair chronology was unreasonable. (Stefatos Decl. ¶8.) However, only two of the six entries are exactly the same, by attorney HP on May 30, 2018 and May 31, 2018 for “drafted repair history.” Thereafter, it was reasonable for attorney VO to update the chronology on March 25, 2019, as more than a year had passed since it was initially drafted and more information would have come to light. Further, it is reasonable for attorney BM to draft a summary of the repair chronology as part of Plaintiff’s preparation for trial. As another example Michael Rosenstein did not charge for reviewing the file after he was retained to try the case.

  1. Multiplier

The court’s objective is to award a fee at the fair market value for the particular action.  (Ketchumsupra, 24 Cal.4th at p. 1132.)  The analysis generally begins with the lodestar figure—i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.  (Id. at pp. 1131-1132.)  The lodestar is the basic fee for comparable legal services in the community.  (Id. at p. 1132.)  The court may then adjust the lodestar to arrive at the fair market value of the legal services provided.  In adjusting the lodestar, the court considers factors including: (1) the contingent nature of the fee award, (2) the novelty and difficulty of the questions involved, (3) the skill displayed in presenting them, and (4) the extent to which the nature of the litigation precluded other employment by the attorneys.  (Ibid.)

Plaintiff requests a lodestar enhancement of 1.35 in this matter. Plaintiff contends that the 1.35 lodestar enhancement is warranted because Plaintiff obtained an excellent outcome while BMW denied all liability and obstructed discovery. (Motion, 10-12). Further, Plaintiff contends that a lodestar is warranted because the risk of losing the entire action was substantial given Plaintiff’s counsel’s litigation history against BMW in other actions. (Id.)

While the court recognizes that Plaintiff’s counsel were each retained under a contingency agreement, the court does not find that this was and unusual or complicated lemon law litigation warranting a fee enhancement under the second, third, or fourth Ketchum factors.  Accordingly, the court DENIES Plaintiff’s request for a fee enhancement.

  1. Attorney’s Fees Regarding Defendant’s Motion to Tax Costs

Plaintiff requests $6,000 in connection with anticipated time spent on opposing Defendant’s motion to tax costs and responding to Defendant’s opposition to Plaintiff’s motion to tax costs. (see Notice of Motion, i.) Shahian attests that Plaintiff’s counsel anticipates incurring “well over $6,000” in costs in connection with the motions to tax costs. (Shahian Decl. ¶ 47.) Specifically, Shahian attests that this will consist of time spent on opposing Defendant’s motion to tax costs, reviewing Defendant’s opposition to Plaintiff’s motion, preparing the reply, and attending the hearings. (Id.)

However, Shahian does not provide a further explanation on the amount of hours he anticipates spending in connection with the motions to tax costs, as described above. Instead, $6,000 appears to be a rough estimate of the total fees Plaintiff’s counsel believes he will incur. As such, the court will not award Plaintiff’s counsel fees in connection with Defendant’s motion to tax costs at this time as the court is unable to determine whether Plaintiff’s counsel’s request is reasonable.

Conclusion

Plaintiff’s motion for attorney fees is GRANTED in part. Plaintiff is awarded $154,054.50 in total attorney’s fees. Plaintiff is to give notice.

MOTION TO TAX COSTS

Timeliness of Motion 

Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service.  (Cal. Rules of Court, rule 3.1700(b)(1); Code Civ. Proc., § 1013, subd. (a).) 

Here, Plaintiff filed his memorandum of costs on January 3, 2020 and BMW Defendants filed their motion to tax costs on January 13, 2020, 10 days later. As such, BMW Defendants’ motion to tax costs was timely.

Discussion 

  1. Legal Standard

     

    Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right.  (Code Civ. Proc., § 1032.)  “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Id. § 1032, subd. (a)(4).)  Pursuant to section 1033.5, subdivision (c), “(1) Costs are allowable if incurred, whether or not paid.  (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.  (3) Allowable costs shall be reasonable in amount.”  (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3).)  Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion.  (Id. § 1033.5, subd. (c)(4).)  

    “[I]tems Krepel

  1. Analysis

Plaintiff seeks a total of $30,610.88 in costs. Plaintiff’s memorandum of costs does not attach any receipts substantiating the requested costs, and the vast majority of Plaintiff’s costs are not dated.

First, BMW Defendants argue that Plaintiff’s memorandum of costs must be stricken in its entirety because Plaintiff is not the prevailing party. (Motion, 2.) According to BMW Defendants, Plaintiff is not the prevailing party because he did not achieve his litigation objective of obtaining “refund of the amounts paid under their lease, the balance of amounts of prior debt they brought to the transaction, plus a two-time civil penalty.” (Id.) The court disagrees. As discussed above, the court finds that BMW Defendants’ 998 Offer was not capable of acceptance because it required repurchase of the Subject Vehicle, which was deemed a total loss. Further, Plaintiff did obtain a monetary recovery in this action, even if it was a lesser monetary recovery than Plaintiff’s alleged objective. As such, the court does not grant BMW Defendants’ motion on this basis.

Second, BMW Defendants argue that Plaintiff’s memorandum of costs must be stricken in its entirety because it is unsupported by any receipts or other showing that the costs were reasonably incurred. (Motion, 3.) In opposition, Plaintiff belatedly submits copies of various receipts that he argues pertain to each of his costs requested. (Declaration of Anh Nguyen in Support of Opposition, ¶¶ 6-8.) The court is disappointed that Plaintiff did not submit these receipts until BMW Defendants’ motion to tax costs. However, because Plaintiff has now submitted evidence in support of his expenses the court will not grant BMW Defendants’ motion on this basis.

Third, BMW Defendants contend that Plaintiff’s memorandum of costs must be reduced in the following manner:

              1. $1,009.50 must be deducted for service of subpoenas to dealership personnel, because Code of Civil Procedure section 1033.5, subdivision (a)(4) only permits recovery of service of process costs;

              2. All amounts related to depositions of dealership personnel must be deducted, because such costs were not reasonably necessary as dealership personnel were not called at trial;

              3. $3,400 must be deducted as they relate to document delivery fees, because such costs are specifically disallowed by Code of Civil Procedure, section 1033.5, subdivision (b)(3);

(Motion, 5-6.) The court agrees with BMW Defendants as to items one and 3. Code of Civil Procedure, section 1033.5 specifically disallows these costs. As such, Plaintiff’s memorandum of costs is taxed in the total amount of $4,409.50 in connection with both items.

In opposition and as to the remaining item, Plaintiff contends that the costs relating to depositions are all reasonably necessary because his verified cost bill is prima facie evidence that the costs were reasonably incurred. (Opposition, 11-12.) Further, Plaintiff contends that it was BMW Defendants’ burden to specifically demonstrate why each deposition was unnecessary and that because BMW Defendants did not do so, Plaintiff should be entitled to recover his deposition costs. (Id.) The court agrees. BMW Defendants have not specified which costs they contend are related to unnecessary depositions. As such, the court is unable to determine whether to tax these costs without a further showing from BMW Defendants. BMW Defendants’ motion is denied as to the request to tax deposition costs.

Conclusion

BMW Defendants’ motion to tax costs is GRANTED in part. Plaintiff’s memorandum of costs is taxed in the total amount of $4,409.50.