Tentative Ruling: Keith Moore v. BMW North America, LLC, et al

Case Number

22CV03224

Case Type

Hearing Date / Time

Fri, 09/18/2026 - 10:00

Nature of Proceedings

Defendant’s Application to Consolidate Fees and Costs and For An Order for Plaintiff to Produce Documents Relevant To Plaintiff’s Motion for Attorney’s Fees and Costs

Tentative Ruling

For the reasons stated herein, the application of defendant BMW of North America, LLC, to consolidate fees and costs and for an order for plaintiff to produce documents relevant to plaintiff’s motion for attorney’s fees and costs is denied.

Background:

As alleged in the complaint of plaintiff Keith Moore (Moore):

On March 19, 2023, Moore purchased a new 2021 BMW M8 Gran Coupe (the vehicle) that was manufactured, distributed, and sold by BMW North America, LLC, (BMW). In connection with the purchase, Moore received an express written warranty (the warranty) under which BMW undertook to maintain the utility and performance of the vehicle or to provide compensation upon a failure in utility or performance for a specified period of time. The warranty further provides that in the event a defect developed with the vehicle during the warranty period, Moore could deliver the vehicle for repair to BMW’s representative and the vehicle would be repaired.

During the warranty period, safety defects developed in the vehicle’s braking system (the braking defects). Before the date Moore purchased the vehicle, BMW had knowledge of the braking defects, and that the vehicle and other 2021 model BMW vehicles experienced symptoms relating to the braking defects, but failed to disclose the defective nature of the vehicle to Moore at the time of sale. Moore delivered the vehicle to Santa Barbara Auto Group (the Auto Group), which is BMW’s authorized repair facility for warranty repairs, but BMW and the Auto Group failed to repair the vehicle in conformance with the warranty, to replace the vehicle, or to make restitution to Moore.

On August 19, 2022, Moore filed their complaint against defendants BMW and the Auto Group asserting nine causes of action: (1) breach of the implied warranty of merchantability (Civ. Code, § 1794) (against BMW only); (2) breach of the implied warranty of fitness (Civ. Code, § 1794) (against BMW only); (3) breach of express warranty (Civ. Code, § 1794) (against BMW only); (4) violation of the Magnuson-Moss Warranty Act (against BMW only); (5) failure to promptly repurchase product (Civ. Code, § 1793.2, subd. (d)) (against BMW only); (6) failure to commence repairs within a reasonable time and to complete them within 30 days (Civ. Code, § 1794) (against BMW only); (7) violation of Civil Code section 1793.2, subdivision (a)(3), (against BMW only); (8) negligent repair (against the Auto Group only); and (9) concealment (against BMW only).

On September 26, 2022, BMW filed its answer to the complaint, generally denying its allegations and asserting twenty-three affirmative defenses.

On December 1, 2023, Moore filed a request for dismissal of the complaint, without prejudice, as to the Auto Group only.

This case proceeded to a seven day jury trial commencing on July 29, 2025, and concluding on August 7, 2025, with the jury returning a verdict in favor of Moore.

On October 14, 2025, the court entered a judgment on the jury verdict in favor of Moore and against BMW in the amount of $327,277.30. That judgment provides that Moore shall recover attorney fees, costs, expenses, and pre-judgment interest in an amount to be determined by noticed motion.

On June 15, 2026, Moore filed an ex parte application (the Moore Application) for an order permitting Moore to late file a motion for attorney fees and memorandum of costs pursuant to California Rules of Court, rule 3.1702(d), and subdivision (b) of Code of Civil Procedure section 473. BMW opposed the Moore Application.

On June 16, after a hearing, the court entered a minute order granting the Moore Application.

On June 17, Moore filed a memorandum of costs and separately filed a motion for an order requiring BMW to reimburse attorney’s fees, costs, and expenses incurred in this action by Moore, and for a fee multiplier (the Fee Motion). The Fee Motion is calendared for hearing on October 23, 2026.

On June 30, the court signed and entered an order deeming timely and ordering the Fee Motion and memorandum of costs to be filed within two days of the hearing on the Moore Application.

On July 27, BMW filed an ex parte application (the BMW Application) for an order affirming that the Fee Motion will be consolidated with Moore’s memorandum of costs, and requiring Moore to produce documents relevant to the Fee Motion. Moore opposes the BMW Application.

On July 29, the court entered a minute order declining to rule on the BMW Application; continuing that application to September 18; ordering any opposition to the BMW Application to be filed no later than September 4; and ordering any reply to be filed no later than September 14.

On September 14, BMW filed a reply to the opposition of Moore to the BMW Application.

Analysis:

The court will, for all reasons stated herein, deny the BMW Application.

As to the request for an order affirming that the Fee Motion will be “consolidated” with the separately filed memorandum of costs filed by Moore, and the contention of BMW that there exist confusing or conflicting deadlines for BMW to challenge the costs claimed in the memorandum of costs, the BMW Application appears to conflate the requirements for filing and serving opposition to a noticed motion for attorney fees, and for challenging costs claimed in a memorandum of costs.

For example, the BMW Application does not dispute, and appears to concede, that a buyer who prevails in an action under Civil Code section 1794 “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.” (Civ. Code, § 1794, subd. (d); BMW Application at p. 4, ll. 7-10 & p. 5, ll. 4-9.) For purposes of the Song-Beverly Consumer Warranty Act (the Song-Beverly Act), codified as Civil Code section 1790 et seq., “expenses encompasses out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5 [citation].” (Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 457.)

“After judgment is entered, the prevailing party has a certain period of time to serve and file a memorandum of costs and separate motion for attorney fees.” (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1285 (612 South).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a)(1).)

“In turn, the losing party may file a motion to strike or tax costs.” (612 South, supra, 184 Cal.App.4th at p. 1285.) Subject to extension, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700(b)(1).) “Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” (Cal. Rules of Court, rule 3.1700(b)(2).)

At the hearing on any motion for attorney fees and a motion to strike or tax costs claimed in a memorandum of costs filed by the prevailing buyer under the Song-Beverly Act, “the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. [Citation.] This procedure provides an orderly and efficient way of placing disputed costs at issue on a line item basis.” (612 South, supra, 184 Cal.App.4th at p. 1285.)

Noted above, the court has deemed the memorandum of costs and the Fee Motion timely filed. As to the Fee Motion, all papers opposing that motion must be filed and served by BMW “at least nine court days ... before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) As further discussed above, any notice of motion to strike or tax costs claimed in the memorandum of costs must be served and filed 15 days after service of that memorandum. For these and all further reasons discussed above, the BMW Application fails to show why there exists any confusion or conflicting deadlines for BMW to serve and file a motion to strike or tax costs claimed in the memorandum of costs filed by Moore, or to serve and file any opposition to the Fee Motion.  

Further, though court records reflect that Moore filed the memorandum of costs and Fee Motion on June 17, 2026, there is no notice of any motion by BMW to strike or tax costs on file with the court or appearing in the court’s docket for this case. Therefore, there is nothing for the court to “consolidate” or hear together with the Fee Motion. Instead, the court will address any claim for costs made by Moore pursuant to the procedures set forth in California Rules of Court, rule 3.1700.

The BMW Application also argues that because the Fee Motion represents that counsel for Moore was retained on a contingency basis such that counsel would not have been paid if he lost this case, and that Moore is entitled to a lodestar multiplier to reflect the contingent nature of this litigation, the court should order Moore to produce any engagement letters, retainer agreements, and any other invoices, bills, or time entry records related to this matter for the purpose of confirming the contingency fee arrangement, determining how the contingency fee is to be calculated, and avoiding any “double dipping” by Moore’s counsel. (BMW Application at p. 6.)

The BMW Application also contends that BMW has the right to obtain information necessary for BMW to effectively oppose the Fee Motion, and that without such information, BMW will be severely prejudiced in its ability to demonstrate what constitutes a reasonable and necessary fee, whether Moore actually incurred any of the attorney fees requested in the Fee Motion, the appropriateness of the hourly rates proposed by Moore’s counsel, and whether a multiplier is suitable based on the contingent risk that Moore’s counsel alleges to have taken in this matter.

“Determining a reasonable attorney fee award in Song-Beverly Act cases ‘ “ordinarily begins with the ‘lodestar,’ [which is] the number of hours reasonably expended multiplied by the reasonable hourly rate.” ’ [Citation.] The lodestar may ‘then be adjusted based on factors specific to the case, in order to fix the fee at the fair market value of the legal services provided.’ [Citation.] The lodestar method ‘anchors the trial court’s analysis to an objective determination of the value of the attorney’s services,’ and thus ensures the amount awarded is not arbitrary. [Citation.]” (Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147, 1157–1158.)

“[I]t is inappropriate and an abuse of a trial court’s discretion to tie an attorney fee award to the amount of the prevailing buyer/plaintiff’s damages or recovery in a Song-Beverly Act action, or pursuant to another consumer protection statute with a mandatory fee-shifting provision.” (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 37.) Pursuant to the Song-Beverly Act, attorney fees may not be awarded “based entirely on the law firm’s percentage share of civil penalties or other “excess” monetary recovery[.]” (Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 510.) “While the trial court has broad discretion to increase or reduce the proposed lodestar amount based on the various factors identified in case law, including the complexity of the case and the results achieved, the court’s analysis must begin with the ‘actual time expended, determined by the court to have been reasonably incurred.’ [Citation.]” (Ibid.)

For all reasons discussed above, the BMW Application fails to show why documents reflecting any contingency fee arrangement between Moore and his counsel are relevant to the Fee Motion or any request by Moore for a fee multiplier under the Song-Beverly Act. (See also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138–1139 (Ketchum) [discussing factors apart from contingent risk which may be considered whether to include a fee multiplier]; Reynolds v. Ford Motor Co. (2020) 47 Cal.App.5th 1105, 1114 (Reynolds) [noting that the trial court applied an appropriate multiplier without “consider[ing] the contingency nature of the case”].)

Moreover, though the court “must carefully review attorney documentation of hours expended” (Ketchum, supra, 24 Cal.4th at p. 1132), Moore bears the burden to show that any attorney fees requested in the Fee Motion are allowable, reasonable in amount, and were reasonably expended (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816). To the extent the Fee Motion relies solely on a contingency fee agreement or the contingent nature of Moore’s retention of counsel to support any request for a lodestar multiplier, or BMW intends to rely on those same matters or materials to request a negative multiplier, the court is not obligated to consider those requests. (Reynolds, supra, 47 Cal.App.5th at pp. 1113–1115.)

Furthermore, BMW may raise the issue of whether Moore has failed to meet their burden to show that the attorney fees requested in the Fee Motion were incurred or are reasonable at an appropriate time including in any opposition to the Fee Motion that may be filed by BMW. (See, e.g., Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104–105 & fns. 3-6 [the Song-Beverly Act “allows only for the recovery of attorney fees which have been “’reasonably incurred by the buyer.’”].)

The BMW Application also presents no evidence, information, or argument showing whether BMW has or is authorized to conduct discovery in connection with the judgment entered in this case, such as by demanding from Moore the production of the documents or other records described in the BMW Application; the manner in which BMW conducted any such discovery; or whether Moore was required to but failed to comply with any such demand. (See, e.g., Code Civ. Proc., § 680.010 et seq. [the Enforcement of Judgments Law] & § 708.030 [governing demand for production or inspection of documents]; Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1223 [discussing statutory framework for discovery in connection with a judgment]; Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 743 [general discussion].) For these and all further reasons discussed above, the court will deny the BMW Application.