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