Wu v. BMW of North America, LLC

Background

Shangwei Wu filed this action against BMW of North America, LLC under California’s Song-Beverly Consumer Warranty Act. He alleged that a used 2017 BMW X5 he purchased for $46,771.80 developed engine-related defects within sixteen hours, including recurring warning lights and a fuel smell. Wu brought the vehicle to BMW twice for repairs, but the opinion states that BMW was unable to fix the defects.

Wu alleged breach of express warranty, breach of implied warranty, and willful failure to comply with duties under the Act. BMW removed the case from state court based on diversity jurisdiction. Before significant litigation occurred, the parties settled all issues except attorneys’ fees. Their settlement provided for repurchase of the vehicle at $20,751.62. BMW acknowledged that Wu was the prevailing party and agreed to pay reasonable attorneys’ fees and costs in an amount set by court order.

Fee request and legal standard

Wu sought $13,638 in fees for 27.7 hours of work by attorneys at Kaufman and Kavicky, a multiplier of 1.2 to 1.5, and $725.80 in costs. Under California Civil Code section 1794(d), a prevailing buyer may recover reasonable attorneys’ fees and costs incurred in bringing and pursuing a Song-Beverly action, including when the buyer achieves the goals of the litigation through a settlement.

The court used the lodestar method, which generally calculates fees by multiplying the reasonable hours worked by a reasonable hourly rate. The party requesting fees must provide sufficient documentation of the work performed, time spent, and reasonable rates. The court may adjust the lodestar upward or downward when appropriate.

Hourly rates

Wu requested a 2021 hourly rate of $495 for associate Isaac Agyeman and $650 for partner Scott R. Kaufman. The court awarded Agyeman a $450 hourly rate. It found that Wu had not provided sufficient evidence supporting the requested $495 rate, while a recent fee award and a consumer-attorney fee survey supported the $450 rate.

The court awarded Kaufman a $600 hourly rate. It found that $500 was low for a Bay Area partner with 24 years of experience in lemon-law cases, but also found that Wu had not provided enough support for the requested $650 rate.

Wu also sought $270 for two non-lawyers at hourly rates of $195 and $150. The court declined to award those amounts because Wu provided no information about their roles, backgrounds, or qualifications.

Hours billed

The court reviewed the 27.7 hours shown in counsel’s itemized records. It rejected BMW’s objection to 0.6 hours that Agyeman spent communicating with a third-party surrender service because Wu provided a satisfactory explanation for that work. The court also found that Wu had already excluded 2.5 hours spent drafting discovery requests that were not served.

Wu did not respond to BMW’s objections to two billing entries from Agyeman totaling 0.2 hours and a 0.4-hour entry from Kaufman. The court treated those objections as conceded and reduced the award by 0.1 hours for Agyeman and 0.4 hours for Kaufman.

Multiplier

Wu requested a multiplier between 1.2 and 1.5, arguing that the delay in payment, counsel’s skill and results, the effect of the case on other work, and the contingent nature of the fee supported an increase. The court awarded a 1.1 multiplier. It did not grant a greater increase because the case did not involve novel or complex issues and the contingency risk was low and brief.

Costs and disposition

BMW did not oppose Wu’s request for $725.80 in filing and service-related costs. The court found those costs reasonable and awarded them.

Judge Donna M. Ryu granted in part and denied in part Wu’s motion for attorneys’ fees and costs. The court awarded $13,084.50 in fees, calculated as an $11,895 lodestar multiplied by 1.1, plus $725.80 in costs. Because the parties had settled all claims, the court directed the Clerk to close the case and enter judgment in accordance with the order.