1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY USSERY, et al., No. 2:23-cv-00952-DAD-SCR 12 Plaintiffs, 13 v. ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND 14 MERCEDES-BENZ USA LLC, MOTION FOR COSTS AND EXPENSES 15 Defendant. (Doc. No. 69) 16 17 18 This matter is before the court on the motion for attorneys’ fees, costs, and expenses filed 19 by plaintiffs on March 26, 2025. (Doc. No. 69.) The court took this matter under submission 20 pursuant to Local Rule 230(g). (Doc. No. 75.) For the reasons explained below, the court will 21 grant plaintiffs’ motion, in part. 22 BACKGROUND 23 On May 22, 2023, plaintiffs Anthony Ussery and Alpha Zeta Logistix initiated this action 24 against defendant Mercedes-Benz USA LLC. (Doc. No. 1.) On June 13, 2023, defendant filed its 25 motion to dismiss plaintiffs’ complaint. (Doc. No. 9.) On August 29, 2023, plaintiffs filed their 26 first amended complaint (“FAC”). (Doc. No. 24.) On September 26, 2023, defendant filed its 27 motion to dismiss plaintiffs’ FAC, which the court granted on May 2, 2024. (Doc. Nos. 27, 35.) 28 On May 23, 2024, plaintiffs filed their second amended complaint (“SAC”). (Doc. No. 38.) On 1 June 20, 2024, defendant filed its motion to dismiss plaintiffs’ SAC, which the court granted in 2 part and denied in part on November 25, 2024. (Doc. Nos. 41, 47.) On December 10, 2024, 3 plaintiffs filed their operative third amended complaint (“TAC”). (Doc. No. 48.) 4 In their TAC, plaintiffs alleged that a new 2022 Mercedes-Benz G63 AMG that plaintiff 5 Alpha Zeta Logistix purchased and leased for use by its Chief Executive, plaintiff Anthony 6 Ussery, was delivered to plaintiffs with serious defects and nonconformities to warranty including 7 engine electronics system and electrical defects. (Doc. No. 48 at ¶¶ 22–23, 32.) Plaintiffs 8 asserted claims for breaches of express and implied warranties in violation of the Song-Beverly 9 Act, California Civil Code § 1790 et seq., and violation of the Song-Beverly Act, California Civil 10 Code § 1793.2(b). (Id. at ¶¶ 48–91.) 11 On February 25, 2025, 21 days before trial was set to begin, the parties attended a 12 settlement conference before U.S. Magistrate Judge Sean C. Riordan and settled the case, with the 13 terms and conditions of the settlement being stated on the record by the court and agreed to by the 14 parties. (Doc. No. 65.) As part of that settlement, defendant agreed to pay plaintiffs $255,000 15 exclusive of fees and costs. (Doc. No. 69 at 18.) 16 Apparently unable to agree on the appropriate amount of attorneys’ fees, costs, and 17 expenses to be paid to plaintiffs’ counsel, on March 26, 2025, plaintiffs filed the pending motion 18 for attorneys’ fees, costs, and expenses. (Doc. No. 69.) On April 9, 2025, defendant filed its 19 opposition to the pending motion, and on April 10, 2025, defendant filed a declaration in support 20 of its opposition. (Doc. Nos. 72, 73.) On April 15, 2025, plaintiffs filed their reply thereto. 21 (Doc. No. 74.) 22 LEGAL STANDARD 23 Under California’s Song-Beverly Act, “if [a] buyer prevails in an action . . . , the buyer 24 shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate 25 amount of costs and expenses, including attorney’s fees based on actual time expended, 26 determined by the court to have been reasonably incurred by the buyer in connection with the 27 commencement and prosecution of such action.” Cal. Civ. Code. § 1794(d). “The plain wording 28 of the statute requires the trial court to base the fee award upon actual time expended on the case, 1 as long as such fees are reasonably incurred—both from the standpoint of time spent and the 2 amount charged.” Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 3 817 (2006). The Song Beverly Act: 4 It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the 5 circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are 6 reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, 7 the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not 8 reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing 9 buyer has the burden of showing that the fees incurred were allowable, were reasonably necessary to the conduct of the litigation, 10 and were reasonable in amount. 11 Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994) (citation and internal 12 quotation marks omitted); see also Goglin v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 470 13 (2016). Under a contingent fee arrangement, “a prevailing buyer represented by counsel is 14 entitled to an award of reasonable attorney fees for time reasonably expended by his or her 15 attorney.” Nightingale, 31 Cal. App. 4th at 105 n.6. 16 “The determination of what constitutes a reasonable fee generally begins with the 17 ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 18 rate.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM 19 Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000)). The court will apply the lodestar method 20 to the Song-Beverly Act because “the statutory language of section 1794, subdivision (d), is 21 reasonably compatible with a lodestar adjustment method of calculating attorney fees, including 22 use of fee multipliers.” Robertson, 144 Cal. App. 4th at 818; see also Warren v. Kia Motors Am., 23 Inc., 30 Cal. App. 5th 24, 35 (2018). Moreover, because “[the California] Supreme Court has 24 held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to 25 be applied in the absence of clear legislative intent to the contrary, [the lodestar adjustment 26 method] . . . is applicable to attorney fee awards under section 1794, subdivision (d).” Robertson, 27 144 Cal. App. 4th at 818–19 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–36 (2001)). As 28 the California Supreme Court has explained: 1 [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors 2 including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the 3 extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee 4 award. The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, 5 retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the 6 unadorned lodestar in order to approximate the fair market rate for such services. 7
8 Ketchum, 24 Cal. 4th at 1132 (internal citation omitted). In addition, “[a] contingent fee contract, 9 since it involves a gamble on the result, may properly provide for a larger compensation than 10 would otherwise be reasonable.” Id. “Decisions by other courts regarding the reasonableness of 11 the rate sought may also provide evidence to support a finding of reasonableness.” Hellenberg v. 12 Ford Motor Co., No. 18-cv-2202-JM-KSC, 2020 WL 1820126, at *1 (S.D. Cal. Apr. 10, 2020). 13 In opposing a request for attorneys’ fees, “[g]eneral arguments that fees claimed are 14 excessive, duplicative, or unrelated do not suffice.” Etcheson v. FCA US LLC, 30 Cal. App. 5th 15 831, 848 (2018) (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guar. Assoc., 163 Cal. App. 4th 16 550, 564 (2008)). Instead, the opposing party must demonstrate that the hours claimed are 17 duplicative or excessive. Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; Gorman v. 18 Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party opposing the fee award can 19 be expected to identify the particular charges it considers objectionable.”). “To challenge 20 attorneys’ fees as excessive, the challenging party must ‘point to the specific items challenged, 21 with a sufficient argument and citations to the evidence.’” Nai Hung Li v. FCA US LLC, No. 22 2:17-cv-06290-R-JEM, 2019 WL 6317769, at *1 (C.D. Cal. July 1, 2019) (quoting Premier Med. 23 Mgmt. Sys., 163 Cal. App. 4th at 564). 24 ANALYSIS 25 As the buyers who prevailed in this lawsuit, plaintiffs are entitled to an award of 26 reasonably incurred attorneys’ fees, costs, and expenses. See Cal. Civ. Code § 1794(d). Here, 27 plaintiffs seek: (1) an award of attorneys’ fees in the amount of $107,597.50; (2) a lodestar 28 multiplier of 1.0, in the amount of $107,597.50; and (3) an award of actual costs and expenses 1 incurred in the amount of $10,989.64. (Doc. No. 69 at 2.) Thus, plaintiffs seek a total award of 2 attorneys’ fees and costs in the amount of $226,184.64. (Id.) Defendant contends that the 3 lodestar requested by plaintiffs is unreasonable for a number of reasons and that a positive 4 multiplier is not warranted in this case. (Doc. No. 72 at 2, 6–11.) Defendant also objects to 5 plaintiffs’ request for costs and expenses, arguing that plaintiffs must file a bill of costs to obtain 6 them. (Id. at 11.) 7 A. Attorneys’ Fees Request 8 To assess the reasonableness of plaintiffs’ requested amount for attorneys’ fees, the court 9 will first consider the reasonableness of the number of hours expended by plaintiffs’ counsel, then 10 address the reasonableness of plaintiffs’ counsel’s hourly rates, and finally consider whether a 11 lodestar multiplier is warranted here. 12 1. Reasonableness of Number of Hours Expended 13 Plaintiffs’ counsel’s billing records indicate that six attorneys expended (or anticipate 14 expending for purposes of the pending motion for attorneys’ fees) a total of 226.9 billable hours 15 on this action, billing a total of $107,597.50 for its efforts in prosecuting this case. (Doc. No. 69- 16 2 at 20.) Defendant contends that the number of hours billed by plaintiffs’ attorneys is 17 unreasonable for several reasons. The court will address each of defendant’s arguments in turn. 18 a. Block Billing 19 First, defendant identifies1 many time entries as block billed, arguing that these hours 20 should be reduced by 30%. (Doc. Nos. 72 at 7; 69-2.) In their reply, plaintiffs argue that their 21 1 In an attachment to its opposition, defendant identifies all time entries to which it objects. 22 (Doc. No. 73-26.) Plaintiffs argue that the court should disregard this attachment as improper. 23 (Doc. No. 74 at 4.) The court is unpersuaded by plaintiffs’ argument in this regard, particularly because plaintiffs attached extensive attorney billing records to their motion, and defendant is 24 required to meet such evidence by “identify[ing] the particular charges it considers objectionable.” Gorman, 178 Cal. App. 4th at 101. Indeed, the attachment to defendant’s 25 opposition does just that, identifying the time entries defendant considers objectionable along with a short statement of the basis for the objection. Cf. Nadarajah, 569 F.3d at 920 (“In a chart, 26 attached as Exhibit A to the government’s opposition, the government objects to specific hours 27 billed by the others for the district court proceedings, but does not state the reasons for the objections. . . . Nevertheless, the rationales for some of the objections are apparent, and some of 28 the objections have merit.”). 1 time entries are not block billed, instead providing detailed descriptions of the tasks and sub-tasks 2 performed. (Doc. No. 74 at 9–10.) Plaintiffs further argue that any reduction on this basis should 3 be limited to no more than 10%. (Id.) 4 Reducing block billed hours by a certain percentage is warranted because “block billing 5 makes it more difficult to determine how much time was spent on particular activities.” Welch v. 6 Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). “Block billing is the time-keeping 7 method by which each lawyer and legal assistant enters the total daily time spent working on a 8 case, rather than itemizing the time expended on specific tasks.” Mendez v. Cnty. of San 9 Bernardino, 540 F.3d 1109, 1128 (9th Cir. 2008), overruled on other grounds by Arizona v. 10 ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014). One district court has held that, based on this 11 definition, time entries that contain multiple tasks separated by semi-colons do not qualify as 12 block billed where they are sufficiently detailed. Campbell v. Nat’l Passenger R.R. Corp., 718 F. 13 Supp. 2d 1093, 1103 (N.D. Cal. 2010). However, this court is persuaded that block billing 14 includes “the practice of listing several unrelated tasks under one time period, without specifying 15 the time spent on each task.” Balboa Cap. Corp. v. JAAM Transp. LLC, No. 8:22-cv-01857-JVS- 16 DFM, 2024 WL 3466476, at *5 (C.D. Cal. June 3, 2024); see also Welch, 480 F.3d at 948 17 (referring to block billing as “lump[ing] together multiple tasks, making it impossible to evaluate 18 their reasonableness”) (citation omitted); Secalt S.A. v. Wuxi Shenxi Const. Mach. Co., 668 F.3d 19 677, 690 (9th Cir. 2012) (referring to block billing as “list[ing] numerous tasks performed over 20 multi-hour spans” but holding that it was not abuse of discretion to award the associated fees 21 because counsel was not required to record in great detail how each minute of his time was 22 expended), abrogated on other grounds by SunEarth, Inc. v. Sun Earth Solar Power Co., 839 23 F.3d 1179 (9th Cir. 2016); Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 765–66 (9th Cir. 2015) 24 (referring to block billing as a “format”). According to this understanding of block billing, many 25 of plaintiffs’ time entries submitted in support of their pending motion are block billed. (Doc. 26 No. 73-26.) 27 The court will reduce such time entries by 10%. Moreno v. City of Sacramento, 534 F.3d 28 1106, 1112 (9th Cir. 2008) (holding that for a reduction of more than 10%—a “haircut”—the 1 court must give a “specific explanation”); Welch, 480 F.3d at 948 (“Nonetheless, the district court 2 clearly erred in applying a 20 percent reduction to all of Welch’s requested hours. . . . Reducing 3 the total hours by 20 percent [] effectively served as a 40 percent penalty on those hours actually 4 block billed[.]”). If the court finds that certain tasks listed in these block billed time entries are 5 not recoverable, the court may reduce such entries further. Cf. Ryan, 786 F.3d at 765 (“But, the 6 district court provided no explanation for the determination that twenty percent was the 7 appropriate amount to deduct” for block billing.). 8 b. Exaggerations 9 Defendant identifies many time entries as exaggerated, sometimes specifying that 10 plaintiffs’ counsel was working off of templates or made limited changes to previously filed 11 documents. (Doc. No. 73-26.) 12 “[T]he district court may exclude from the fee request any hours that are ‘excessive, 13 redundant, or otherwise unnecessary.’” Welch, 480 F.3d at 946. Further, “the use of templates 14 may be a basis for a reduction in attorneys’ fees awards.” Balboa Cap. Corp., 2024 WL 3466476, 15 at *5. 16 However, the court finds that the time entries identified by defendant in this objection are 17 reasonable and not excessive. (Doc. No. 73-26.) For instance, plaintiffs billed 1.8 hours to 18 review and revise the initial draft complaint and to finalize the same for filing. Even assuming 19 that plaintiffs’ counsel used a template to draft the complaint, 1.8 hours to adapt the template for 20 use in the instant case is reasonable. Walters v. FCA US, LLC, No. 2:20-cv-00644-AB-JC, 2021 21 WL 926103, at *2 (C.D. Cal. Jan. 6, 2021) (“Defendant alleges that Plaintiff used a template for 22 the complaint[.] . . . [E]ven accepting Defendant’s assertion as true, Plaintiff’s requested 1.5 23 hours to modify a complaint, including the factual basis, review it thoroughly, and prepare it for 24 filing is reasonable.”); see also Nadarajah v. Holder, 569 F.3d 906, 922 (9th Cir. 2009) (“By and 25 large, the court should defer to the winning lawyer’s professional judgment as to how much time 26 he was required to spend on the case; after all, he won, and might not have, had he been more of a 27 slacker.”) (quoting Moreno, 534 F.3d at 1112). Similarly, plaintiffs’ counsel billed 10.1 hours for 28 reading and analyzing defendant’s motion to dismiss plaintiffs’ second amended complaint and 1 request for judicial notice, reading plaintiffs’ second amended complaint, and preparing plaintiffs’ 2 opposition to defendant’s motion to dismiss and request for judicial notice. (Doc. No. 73-26 at 3 37.) Although this time entry will be reduced as block billed, it need not be reduced further, as it 4 is reasonable in the court’s view that these tasks, collectively, would take plaintiffs’ counsel 10.1 5 hours to complete. See Nadarajah, 569 F.3d at 922. 6 c. Internal Communications 7 Next, defendant identifies several time entries as reflecting internal communications 8 among plaintiffs’ counsel and argues in its opposition that internal communications are not 9 recoverable. (Doc. Nos. 72 at 8; 73-26.) 10 As the undersigned has previously held, internal communications are, in fact, recoverable. 11 Aviles v. Subaru of Am., Inc., No. 1:18-cv-01544-DAD-SKO, 2020 WL 868842, at *4 (E.D. Cal. 12 Feb. 21, 2020) (“Meetings between attorneys are a routine and necessary part of providing legal 13 representation to the client.”). “Generally, two attorneys cannot bill for attending the same 14 meeting or communicating with each other.” Bd. of Trs. of IBEW Loc. Union No. 100 Pension 15 Tr. Fund v. Porges, No. 1:11-cv-02048-LJO, 2013 WL 6596943, at *6 (E.D. Cal. Dec. 16, 2013). 16 However, this pertains to the duplicative nature of such time entries rather than the fact that they 17 are internal communications. 18 d. Duplicative Entries 19 Defendant identifies several of plaintiffs’ time entries as duplicative. (Doc. No. 73-26.) 20 “Courts have discretion to eliminate hours attributable to ‘duplication of effort[.]’” 21 Mendez, 540 F.3d at 1129. “Even duplicative work, however, is not a justification for cutting a 22 fee, unless ‘the lawyer does unnecessarily duplicative work.’” Id. “Courts must exercise 23 judgment and discretion, considering the circumstances of the individual case, to decide whether 24 there was unnecessary duplication.” Democratic Party of Washington State v. Reed, 388 F.3d 25 1281, 1286–87 (9th Cir. 2004). For example, if lawyers merely watch [a hearing] so that they can 26 learn and use their knowledge in subsequent cases, their time should not be billed. But if, for example, they are there because their 27 assistance is or may be needed by the lawyer arguing the case, as when a judge asks “where is that in the record,” and one lawyer must 28 frantically flip through pages and find the reference to hand to the 1 lawyer arguing, then the assistance is most definitely necessary. Also, for example, a lawyer who has worked on the case and will be 2 working on it subsequently may need to observe argument to judge how to proceed later. 3 4 Id. at 1287. Having examined the time entries, the court finds that, given the circumstances, they 5 are not unnecessarily duplicative. 6 e. Clerical Work 7 Defendant identifies many time entries of plaintiffs’ counsel as reflecting clerical work 8 rather than attorney work. (Doc. No. 73-26.) 9 “[T]asks for clerical or ministerial work are generally ‘not recoverable as part of a 10 reasonable attorney’s fee award.’” Moofly Prods., LLC v. Favila, No. 13-cv-05866-SJO-PJW, 11 2015 WL 6681164, at *3 (C.D. Cal. Nov. 2, 2015), aff’d, 682 F. App’x 584 (9th Cir. 2017). 12 “Such tasks should be subsumed in a law firm’s overhead.” Id. “Tasks such as reviewing Court- 13 generated notices, notifying clients of court hearings, filing documents with the Court, 14 communication with court staff, scheduling, and corresponding regarding deadlines, are clerical 15 and not compensable.” Nolan v. City of Los Angeles, No. 03-cv-02190-GAF-AJW, 2014 WL 16 12564127, at *6 (C.D. Cal. Feb. 10, 2014). Tasks such as “finalizing motions, assigning quick 17 paralegal tasks, drafting memos, or emailing” are not clerical and are compensable. Johnson v. 18 Ends In E. Inc., No. 5:20-cv-06946-EJD, 2021 WL 5565842, at *4 (N.D. Cal. Nov. 29, 2021). 19 In certain limited cases, block billed entries contain non-compensable clerical tasks, such 20 as calendaring events. (Doc. No. 73-26 at 13, 40, 44) (in total, 0.4 hours charged by Bill 21 Oppenheim). The remaining time entries that defendant flagged as clerical are in fact 22 compensable. (Doc. No. 73-26.) Therefore, the court will reduce by 20%, rather than 10%, those 23 block billed time entries containing clerical tasks. 24 f. Case Review 25 Next, defendant identifies certain time entries by plaintiffs’ counsel as reflecting case 26 review. (Doc. No. 73-26.) 27 Courts have reduced hours attributed to case review as unnecessary when case review is 28 conducted repeatedly and the plaintiff fails to specify “what counsel’s purpose was for reviewing 1 the file and what counsel’s client gained by the review.” Lowe v. Unum Life Ins. Co. of Am., No. 2 05-cv-00368-WBS-GGH, 2007 WL 4374020, at *4 (E.D. Cal. Dec. 14, 2007); see also Uriarte- 3 Limon v. Smith, No. 16-cv-00713-FMO-PLA, 2018 WL 6265098, at *4 (C.D. Cal. Jan. 3, 2018) 4 (“[T]he court agrees with defendant's contention that repeatedly reviewing the case file was 5 unnecessary”). As the undersigned has found previously, under certain circumstances, review of 6 the case file is necessary and therefore compensable. See Figures v. FCA US LLC, No. 1:17-cv- 7 00618-DAD-JLT, 2020 WL 820164, at *4 (E.D. Cal. Feb. 19, 2020) (“[T]he fact that HDMN 8 attorneys had to become familiar with the facts of this case, review files, and get up to speed in 9 preparation for the trial of this action does not constitute a duplication of effort. HDMN was 10 brought in to try the case and necessarily had to review files and pre-existing work-product to do 11 so.”). Here, plaintiffs’ counsel’s review of the case file involved review of specified documents 12 in preparation for obviously related appropriate attorney tasks. (Doc. No. 73-26.) Such review 13 was therefore necessary and compensable. 14 g. Defense Counsel Billed Less 15 Defendant identifies certain time entries as excessive in light of the fact that defendant’s 16 counsel billed less for comparable tasks. (Id.) However, the time entries at issue were block 17 billed, including not only the comparator task but additional tasks as well. (Id.) Therefore, the 18 time defendant’s counsel spent on one of the listed tasks, such as attending a hearing, does not 19 provide the court with a useful point of comparison for the entire block billed entry. 20 h. Pre-Litigation Work 21 Finally, defendant identifies one time entry as concerning “prelitigation work.” (Doc. No. 22 73-26 at 2.) However, “[r]easonable pre-litigation fees are compensable under both Ninth Circuit 23 and California law.” Signatures Network, Inc. v. Estefan, No. 03-cv-04796-SBA-BZ, 2005 WL 24 151928, at *2 (N.D. Cal. Jan. 24, 2005). 25 i. Hours 26 The court has reviewed plaintiffs’ counsel’s billing records at issue here and concludes 27 that, for the most part, the time billed was reasonably incurred. Thus, the court will include in the 28 lodestar calculation of an attorneys’ fee award the following hours: 1 Attorney Hours Hours 2 Requested Awarded 3 Attorney Michael Rosenstein 5.7 5.6 Attorney Sepehr Daghighian 79.3 77.2 4 Attorney Alastair Hamblin 17.4 17.4 Attorney Brian Murray 2.4 2.4 5 Attorney Miguel Ortiz 2.4 2.2 6 Attorney Bill Oppenheim 119.7 114.4 Total Hours 226.9 219.2 7 8 2. Reasonableness of the Hourly Rates to be Applied 9 Next, the court must determine whether the hourly rates requested by plaintiffs’ attorneys 10 are reasonable. Under California law, when awarding attorneys’ fees under Civil Code § 1794(d), 11 the relevant inquiry is whether “the monetary charge being made for the time expended [is] 12 reasonable” under all the circumstances including “factors such as the complexity of the case and 13 procedural demands, the skill exhibited and the results achieved.” Goglin, 4 Cal. App. 5th at 470 14 (quoting Nightingale, 31 Cal. App. 4th at 104). California courts therefore focus on the 15 reasonable hourly rate for the work performed by the counsel who did that work, regardless of the 16 forum in which that work was performed and without regard to typical hourly rates in the forum 17 in which the matter was litigated. See Goglin, 4 Cal. App. 5th at 470 (affirming a fee award 18 applying a hourly rate of $575 per hour in a Song-Beverly Act case on the grounds that the trial 19 court had considered the evidence that the client agreed to compensate counsel at the rate of $575 20 an hour (later increased to $625), other state and federal courts had awarded the attorney 21 comparable rates in similar cases, and the trial court had observed the attorney’s skills first hand, 22 while not even mentioning the prevailing rates in the trial court’s area); see also Filiberto Negrete 23 v. Ford Motor Co. et al., No. 18-cv-01972-DOC-KK, 2019 WL 4221397, at *3 (C.D. Cal. June 5, 24 2019) (“Plaintiff has demonstrated that counsel has been awarded attorneys’ fees at similar rates 25 under the Song-Beverly Act. Such evidence is generally sufficient to show that an attorney’s 26 hourly rates are reasonable.”) (internal citation omitted). The fee applicant bears the burden of 27 producing satisfactory evidence that the fees incurred were “reasonable in amount.” Goglin, 4 28 ///// 1 Cal. App. 5th at 470 (quoting Nightingale, 31 Cal. App. 4th at 104); see also Blum v. Stenson, 2 465 U.S. 886, 895 n.11 (1984). 3 Plaintiffs request an attorneys’ fee award based on the following hourly rates for its 4 attorneys who worked on this matter: Attorney Requested Years of 5 Hourly Rate Practice 6 Attorney Michael Rosenstein $700 30+ Attorney Sepehr Daghighian $625 19+ 7 Attorney Alastair Hamblin $550 18 Attorney Brian Murray $550 13 8 Attorney Miguel Ortiz $525 19 9 Attorney Bill Oppenheim $350 5 10 (Doc. No. 69-1 at 2–6.) 11 In support of these requested rates, plaintiffs have submitted the declaration of attorney 12 Sepehr Daghighian. (Doc. No. 69-1.) In his declaration, attorney Daghighian describes the 13 experience level and background of each of the attorneys that worked on this matter, and he 14 asserts that their hourly rates are reasonable and consistent with the rates that courts have 15 approved for these specific attorneys. (Id. at 2–10.) Attached to attorney Daghighian’s 16 declaration are several hourly rate determinations by state courts in Song-Beverly Act actions 17 with respect to some of the attorneys who worked on this case. (Doc. Nos. 69-5–69-16.) 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 In its opposition, defendant argues that the court should use the prevailing market rates in 2 the forum to set plaintiffs’ attorneys’ rates.2 (Doc. No. 72 at 6.) 3 Because “the reasonable value of attorney services is variously defined as the hourly 4 amount to which attorneys of like skill in the area would typically be entitled,” Ketchum, 24 Cal. 5 4th at 1133, the court finds that evidence of what some of the attorneys have previously been 6 awarded when litigating other Song-Beverly actions does assist this court in determining the 7 reasonable hourly rates to be awarded in this case. See also Goglin, 4 Cal. App. 5th at 470; 8 Filiberto Negrete, 2019 WL 4221397, at *3. In certain of plaintiffs’ attached orders, it is not 9 clear what rates counsel requested, or it is apparent that counsel requested lower rates than they 10 are requesting in the instant action. (Doc. Nos. 69-7–69-16.) In at least two of the attached 11 orders, however, attorneys Sepehr Daghighian, Michael Rosenstein, Alastair Hamblin, and Brian 12 Murray were awarded the same hourly rates that they are requesting here. (Doc. Nos. 69-5, 69-6.) 13 ///// 14
15 2 In awarding attorneys’ fees under the Song-Beverly Act, other district courts have required “[t]he fee applicant . . . [to] produc[e] satisfactory evidence that the requested rates are in line 16 with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” Base v. FCA US LLC, No. 17-cv-01532-JCS, 2019 WL 4674368, at *4 17 (N.D. Cal. Sept. 25, 2019) (citing Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)); see also Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *4–5 (E.D. 18 Cal. May 6, 2019); Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 WL 2298431, at *5–6 19 (E.D. Cal. May 21, 2018). Citing to Ninth Circuit and Supreme Court precedent, these courts have stated that the “relevant community” in determining a prevailing market rate is the forum in 20 which the district court sits and have then analyzed whether the rates requested by counsel are reasonable in light of rates paid to attorneys of similar skill and experience in the forum district. 21 See, e.g., Self, 2019 WL 1994459, at *4–6. This, however, is the framework that federal courts apply to motions seeking attorneys’ fees pursuant to a federal statute. The undersigned is aware 22 of no authority holding that a federal court must apply that same framework when awarding 23 attorneys’ fees pursuant to a state statute. Indeed, the California Court of Appeal in Goglin did not engage in that forum-based rate analysis and, as evidenced by the many state court fee orders 24 that the parties have pointed this court to, state courts generally do not engage in that analysis. The undersigned, therefore, considers the pending motion under the standard articulated by the 25 California Court of Appeal in Goglin and will determine “whether the monetary charge being made for the time expended [is] reasonable” in light of “the complexity of the case and 26 procedural demands, the skill exhibited and the results achieved.” 4 Cal. App. 5th at 470 (internal 27 quotation marks and citation omitted). This approach will appropriately result in plaintiffs’ counsel being compensated at the same hourly rates they would have received in state court rather 28 than a lower rate based solely on the removal of the action to federal court. 1 Additionally, the court observes that plaintiffs’ attorneys achieved an impressive settlement in 2 this case, including $70,000 in civil penalties. (Doc. No. 69 at 27.) 3 Attorney Daghighian’s declaration details the following regarding attorney Miguel Ortiz: 4 Miguel A. Ortiz is an associate attorney with my firm and has been admitted to practice in California since 2006. Mr. Ortiz has extensive 5 civil litigation he has already served as a “second chair” in two jury trials and prepared several dozen matters for trial. A graduate of 6 Loyola Law School, Los Angeles, Mr. Ortiz focused on public interest law. Mr. Ortiz worked at Bet Tzedek, a local legal services 7 non-profit. While at Loyola, Mr. Ortiz earned a certificate in Alternative Dispute Resolution and the Wiley M. Manuel Award for 8 Pro Bono Legal Services. His hourly rate in this matter is $525.00 per hour. Mr. Ortiz leads the discovery team at CCA and is well- 9 versed in all aspects of discovery practice in California State and Federal Courts. 10 11 (Doc. No. 69-1 at 5–6.) 12 Attorney Daghighian details the following regarding attorney Bill Oppenheim: 13 Michael William Oppenheim is an associate attorney at my office and was admitted to the California Bar in 2020. Mr. Oppenheim was 14 the associate attorney primarily in charge of this matter for CCA. Had the case proceeded to trial on March 18, 2025, Mr. Oppenheim 15 would have served as “second chair” trial counsel. Mr. Oppenheim is well-versed in consumer warranty litigation, has handled dozens 16 of lemon law cases, and has prepared numerous cases for trial. Mr. Oppenheim graduated from Hamilton College with a bachelor’s 17 degree in history. While attending Rutgers Law School – Newark, Mr. Oppenheim was selected as the C. Willard Heckel Scholar. Also, 18 during law school, Mr. Oppenheim served as the judicial extern for the Hon. Jodi Lee Alper in the Essex County Family Division and 19 the Hon. Deborah Gross-Quatrone in the Civil Division. Mr. Oppenheim won the Turnaround Management Association New 20 Jersey Chapter’s Gambardella Bankruptcy Competition and was a student-attorney at the Rutgers Civil Justice Clinic. Based on his 21 years of experience, CCA established Mr. Oppenheim’s hourly rate at $350.00 per hour. 22 23 (Id. at 4–5.) 24 Having considered the various state court orders submitted by plaintiffs as well as the 25 other evidence before it, the court concludes that the hourly rates requested by plaintiffs’ counsel 26 are reasonable: 27 ///// 28 ///// 1 Attorney Requested Years of Hourly Rate Practice 2 Attorney Michael Rosenstein $700 30+ 3 Attorney Sepehr Daghighian $625 19+ Attorney Alastair Hamblin $550 18 4 Attorney Brian Murray $550 13 Attorney Miguel Ortiz $525 19 5 Attorney Bill Oppenheim $350 5
6 7 3. Lodestar Calculation 8 Based on the hours and hourly rates that the court has determined are reasonable in this 9 matter, the lodestar here totals $104,255. The court’s calculations in this regard are reflected 10 below. Attorney Hours Hourly Rate Lodestar 11 Awarded Awarded Attorney Michael Rosenstein 5.6 $700 $3,920 12 Attorney Sepehr Daghighian 77.2 $625 $48,250 13 Attorney Alastair Hamblin 17.4 $550 $9,570 Attorney Brian Murray 2.4 $550 $1,320 14 Attorney Miguel Ortiz 2.2 $525 $1,155 Attorney Bill Oppenheim 114.4 $350 $40,040 15 Total: $104,255 16 17 4. Lodestar Multiplier 18 Next, plaintiffs urge this court to apply a multiplier of 1.0 to the lodestar in this case. 19 (Doc. No. 69 at 9.) 20 The lodestar may be “augmented . . . by taking various relevant factors into account, 21 including (1) the novelty and difficulty of the questions involved and the skill displayed in 22 presenting them; (2) the extent to which the nature of the litigation precluded other employment 23 by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of 24 prevailing on the merits and of establishing eligibility for the award.” Robertson, 144 Cal. App. 25 4th at 819; see also Warren, 30 Cal. App. 5th at 35. 26 In their motion, plaintiffs argue that the contingent nature of this litigation warrants a 0.2 27 multiplier and that the delay in payment warrants an additional multiplier (presumably 0.8), 28 amounting to a proposed final multiplier of 1.0. (Doc. No. 69 at 32–33.) Plaintiffs argue 1 elsewhere in their motion that defendant’s novel arguments in its motions to dismiss rendered this 2 case difficult, plaintiffs’ counsel were well-equipped to handle defendant’s aggressive litigation 3 tactics, and the nature of the litigation precluded other employment for plaintiffs’ counsel. (Id. at 4 24–25.) In its opposition, defendant argues that an upward multiplier is not warranted here and 5 suggests that a negative multiplier may be warranted instead because contingency alone does not 6 merit a multiplier, particularly in light of the availability of statutory fees, plaintiffs’ counsel was 7 not prevented from taking on additional clients, and this case was simple and the work was copy- 8 paste, making it neither complex, nor difficult. (Doc. No. 72 at 10–11.) 9 The court finds that this action was somewhat more novel and difficult than the typical 10 lemon law action due to certain arguments advanced by defendant in its motions to dismiss. 11 However, as defendant compellingly demonstrated by attaching plaintiffs’ filing alongside 12 templates, much of the work plaintiffs’ counsel completed was based on templates. (Doc. No. 73 13 at 2–3.) Further, the court notes that the arguments made in defendant’s successive motions to 14 dismiss largely mirrored the arguments made in its first motion to dismiss. (Doc. Nos. 9, 27, 41.) 15 The limited challenge presented by defendant’s first motion to dismiss cannot overcome the 16 otherwise routine nature of this action. As for the second factor, given the hours that plaintiffs’ 17 counsel billed over the course of two years of litigation, the court does not find plaintiffs’ 18 assertion that its attorneys were prevented from taking on additional clients to be credible. 19 Moreover, the court concludes that the contingent nature of this action also does not 20 warrant the application of an upward multiplier. “The purpose of a fee enhancement, or so-called 21 multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important 22 . . . rights . . . into line with incentives they have to undertake claims for which they are paid on a 23 fee-for-services basis.” Ketchum, 24 Cal. 4th at 1132. 24 A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the 25 lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher 26 because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of 27 conventional loans. 28 ///// 1 Id. (citation and internal quotation marks omitted). As the undersigned has concluded in similar 2 circumstances, “an upward multiplier based on the contingent risk is not warranted here because 3 that factor is outweighed by the other factors the court has considered, namely that this case was 4 not novel, complex, or difficult[.]” Heffington v. FCA US LLC, No. 2:17-cv-00317-DAD-JLT, 5 2020 WL 5017610, at *9 (E.D. Cal. Aug. 25, 2020). 6 Similarly, the court finds that an upward multiplier due to any delay in payment of fees to 7 plaintiffs’ counsel is not warranted here. Plaintiffs contend that defendant dragged this case out 8 for two years by refusing to settle once plaintiffs filed this action. (Doc. No. 69 at 33.) Be that as 9 it may, the court is “not convinced that any delay was so egregious so as to justify an upward 10 multiplier.” Heffington, 2020 WL 5017610, at *9 (denying upward multiplier even assuming the 11 defendant was solely responsible for the three-year delay in payment of fees). The court is also 12 unpersuaded that a negative multiplier, sought by defendant, is warranted. Id. (denying 13 downward multiplier on similar facts). 14 Accordingly, the court declines to apply an upward or downward multiplier to the lodestar 15 amount under the circumstances of this case, and will thus award $104,255 in attorneys’ fees. 16 B. Motion for Costs and Expenses 17 Pursuant to California Civil Code § 1794(d), plaintiffs seek an award of $10,989.64 as 18 reimbursement for costs and expenses incurred by plaintiffs’ counsel in litigating this matter. 19 (Doc. No. 69 at 2.) Plaintiffs did not file a Bill of Costs but instead included their request for 20 costs and expenses in their pending motion and attached as an exhibit an itemized list of such 21 costs and expenses. (Doc. No. 69-2 at 18–19.) In its opposition, defendant argues that it is 22 improper for plaintiffs to seek costs and expenses through a motion rather than a Bill of Costs. 23 (Doc. No. 72 at 11.) 24 California law permits plaintiffs who prevail in Song-Beverly Act cases to recover costs 25 and expenses, including expert witness fees. See Cal. Civ. Code § 1794(d); Jensen v. BMW of N. 26 Am., Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 22, 1995) 27 (noting that with regards to § 1794, “the addition of awards of ‘costs and expenses’ by the court 28 to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, 1 marshal[]’s fees, etc., should open the litigation process to everyone”). Applying § 1794(d), the 2 court determines that expert witness fees and other costs that are nontaxable under federal 3 procedural rules are recoverable here. Clausen v. M/V New Carissa, 339 F.3d 1049, 1064–66 4 (9th Cir. 2003), as amended on denial of reh’g (Sept. 25, 2003) (applying Oregon statute 5 approving expert witness fees because the law was “an ‘express indication’ of a state legislature’s 6 ‘special interest in providing litigants’ with full compensation for reasonable sums” in pursuit of a 7 statutory claim). However, § 1794(d) only answers the question of whether plaintiffs may recoup 8 such costs and expenses—it does not answer the question of how plaintiffs must seek 9 reimbursement.3 10 Because the recovery of “costs in federal district court is normally governed by Federal 11 Rule of Civil Procedure 54(d) even in diversity cases,” Champion Produce, Inc. v. Ruby Robinson 12 Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003), the appropriate vehicle for plaintiffs to recoup 13 expert witness fees and other expenses is by motion brought pursuant to Rule 54(d)(2)(A), not by 14 taxation through a Bill of Costs. The language of § 1794(d) is consistent with this approach: 15 If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum 16 equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the 17 court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. 18 19 Cal. Civ. Code § 1794(d) (emphasis added). Whereas taxable costs are awarded as a matter of 20 course, and a court must justify its refusal to award such costs, Champion Produce, 342 F.3d at 21 1022 (holding that a “district court must ‘specify reasons’ for its refusal to award costs” because 22 “Federal Rule of Civil Procedure 54(d)(1) establishes that costs are to be awarded as a matter of 23 course in the ordinary course”) (citation omitted), the party claiming nontaxable costs like expert 24 witness fees must demonstrate to the court, by motion, that its request is reasonable. See Fed. R.
25 3 The court recognizes that district courts in this circuit are divided as to whether expert witness fees and other costs and expenses are recoverable in federal court pursuant to § 1794(d), and if so, 26 whether such costs and expenses are taxable in a Bill of Costs or must be sought by way of 27 motion. Compare Base, 2020 WL 363006, at *6–7 (listing and comparing cases), and Zomorodian v. BMW of N. Am., LLC, 332 F.R.D. 303, 307 (C.D. Cal. 2019), with Self, 2019 WL 28 1994459, at *15, and Hall, 2018 WL 2298431, at *10. 1 | Civ. P. 54(d)(2)(A); Cal. Civ. Code § 1794(d). This logic is precisely why plaintiffs were 2 | required to and are seeking attorneys’ fees, costs, and expenses by motion and not by way of a 3 | Bill of Costs. 4 Because defendant does not contest the amount or kinds of fees plaintiffs seek and based 5 | upon the court’s review of plaintiffs’ listed costs and expenses, the court will award costs and 6 | expenses as follows: 7 Cost and Expense Amount Amount Requested Awarded g Court Filing Fees $804.00 $804.00 $410.59 $410.59 9 $6,750.05 $6,750.05 10 $3,025.00 $3,025.00 $10,989.64 $10,989.64 11 12 The court concludes that plaintiffs are entitled to a total of $10,989.64 in reimbursements 13 | for costs and expenses, in addition to an award of reasonably incurred attorneys’ fees. 14 CONCLUSION 15 For the reasons explained above: 16 1. Plaintiffs’ motion for attorneys’ fees and costs (Doc. No. 69) is GRANTED IN 17 PART; 18 2. The court awards $104,255 in attorneys’ fees based on the lodestar analysis set 19 forth above; and 20 3. The court awards costs and expenses in the amount of $10,989.64.° 21 IT IS SO ORDERED. 22 Dated: _ October 6, 2025 Dal A. 2, sryel 23 DALE A. DROZD UNITED STATES DISTRICT JUDGE
25 26 * «P]laintiffs who prevail under the Song-Beverly Act are entitled to compensation for fees paid to their retained expert witnesses.” Seebach v. BMW of N. Am., LLC, No. 2:18-cv-00109-KJM- 27 | AC, 2021 WL 516712, at *1 (E.D. Cal. Feb. 11, 2021). 28 | > The total awarded of attorneys’ fees and costs is therefore $115,244.64. 19