Base v. FCA US LLC

• Court: District Court, N.D. California
• Decided: September 25, 2019
• Docket: 3:17-cv-01532
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 GLEN R. BASE, 7 Case No. 17-cv-01532-JCS Plaintiff, 8 v. ORDER GRANTING IN PART AND 9 DENYING IN PART MOTION FOR FCA US LLC, ATTORNEYS’ FEES, COSTS AND 10 EXPENSES Defendant. 11 Re: Dkt. No. 99

12 13 I. INTRODUCTION 14 Plaintiff Galen Base filed this action in Sonoma County Superior Court, asserting claims 15 against Defendant FCA U.S. LLC (“FCA”) under the Song-Beverly Consumer Warranty Act 16 (“Song-Beverly Act”), Cal. Civ. Code section 1790, et seq. FCA removed the action to this Court 17 on the basis of diversity jurisdiction and the parties eventually entered into a settlement agreement. 18 Plaintiff now brings a Motion for Attorneys’ Fees, Costs and Expenses (“Motion”) as the 19 prevailing party under California Civil Code section 1794(d). A hearing on the Motion was 20 conducted on Friday, August 30, 2019 at 9:30 a.m. For the reasons stated below, the Motion is 21 GRANTED in part and DENIED in part.1 22 II. BACKGROUND 23 Plaintiff purchased a 2012 Dodge Ram 2500 on December 16, 2012. Complaint ¶ 9. 24 According to Plaintiff’s attorney, Steve Mikhov, the vehicle began exhibiting “serious 25 transmission, engine, and electrical issues” within the applicable express warranty period. Mikhov 26 Decl. ¶ 4. Although Plaintiff took the vehicle to an FCA repair facility many times, FCA was 27 1 never able to fix the problem. Id. ¶ 5. 2 On October 21, 2016, Plaintiff filed this action, retaining Knight Law Group (“Knight 3 Law”) to represent him on a contingent basis. Id. ¶¶ 8-9. On November 16, 2016, FCA offered to 4 repurchase the vehicle for $82,500. Tudzin Decl. ¶ 5 & Ex. A. Plaintiff rejected that offer. 5 Mikhov Decl. ¶ 10. The parties then engaged in discovery. Id. ¶ 11. They attended a mediation 6 on February 19, 2017, but it was unsuccessful. Id. ¶ 12. 7 On January 29, 2018, the law firm of Hackler Daghighian Marino & Novack P.C. 8 (“HDMN”) associated in to the case to assist Knight Law with trial preparation; attorney Sepehr 9 Daghighian was to act as lead trial counsel in the case. Id. ¶ 15. 10 On October 23, 2018, FCA made Plaintiff a “reasonable settlement offer that accounted for 11 FCA’s egregious actions under the Song-Beverly Act.” Mikhov Decl. ¶ 16 & Ex. E (“Rule 68 12 Offer”). Under the Rule 68 Offer, FCA offered to pay Plaintiff $133,000 plus reasonable 13 attorneys’ fees and costs. Id. Plaintiff rejected the offer, but at a settlement conference on April 5, 14 2019 agreed to settle the case for $135,000 plus attorneys’ fees and costs. Id. ¶ 16. According to 15 Mikhov, this amount amounted to a “full statutory ‘buy-back’ of Plaintiff’s defective vehicle, 16 incidental and consequential damages, and a civil penalty.” Id. 17 In the Motion, Plaintiff asks the Court to award attorneys’ fees in the amount of 18 $124,215.00, that is, a lodestar amount of $82,810.00 plus a .5 multiplier enhancement of 19 $41,405.00. Plaintiff also seeks an award of costs in the amount of $14,797.93. The lodestar 20 amount consists of fees incurred by Knight Law in the amount of $44,392.50 and fees incurred by 21 HDMN in the amount of $38,417.50. Mikhov Decl. ¶ 2 & Ex. A (Knight Law time sheets); 22 Daghighian Decl. ¶ 8 & Ex. A (HDMN time sheets). Plaintiff’s costs are set forth in his Bill of 23 Costs. Mikhov Decl., Ex. B. 24 FCA challenges the amounts Plaintiff requests in the Motion. FCA contends the rates 25 requested are unreasonable, the time billed is excessive, and that no multiplier should be awarded. 26 FCA asks the Court to reduce the hourly rates requested by Plaintiff, reduce fees for “duplicative 27 billing, travel, unnecessary ‘review,’ purely clerical tasks, and unsupported or anticipated time,” 1 has resulted in excessive fees. 2 III. ANALYSIS 3 A. Legal Standards 4 In diversity actions, federal courts look to state law in determining whether a party has a 5 right to attorneys’ fees and how to calculate those fees. Mangold v. Cal. Pub. Util. Comm’n, 67 6 F.3d 1470, 1478 (9th Cir. 1995). Under California law, buyers who prevail in an action under the 7 Song-Beverly Act are entitled to “the aggregate amount of costs and expenses, including 8 attorney’s fees based on actual time expended, determined by the court to have been reasonably 9 incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. 10 Civ. Code section 1794(d). A party is a prevailing party if the court, guided by equitable 11 principles, decides that the party has achieved its “main litigation objective.” Graciano v. 12 Robinson Ford Sales, Inc., 144 Cal.App.4th 140, 150–51 (2006); see also Wohlgemuth v. 13 Caterpillar Inc., 207 Cal. App. 4th 1252, 1262 (2012) (holding that “consumers who successfully 14 achieve the goals of their litigation through a compromise agreement” may recover attorneys’ fees 15 and costs as prevailing parties under the Song-Beverly Act). 16 California courts have found that in awarding fees under the Song-Beverly Act, the trial 17 court must “make an initial determination of the actual time expended; and then [must] ascertain 18 whether under all the circumstances of the case the amount of actual time expended and the 19 monetary charge being made for the time expended are reasonable.” Nightingale v. Hyundai 20 Motor Am., 31 Cal. App. 4th 99, 104 (1994). In evaluating the reasonableness of counsel’s 21 charges, the court may consider “factors such as the complexity of the case and procedural 22 demands, the skill exhibited and the results achieved.” Id. The prevailing party has the burden of 23 showing that the attorneys’ fees it requests are reasonable. Id. 24 California courts have further held that the Song-Beverly Act permits the trial court to 25 award a multiplier where it deems appropriate under the lodestar adjustment method. Robertson v. 26 Fleetwood Travel Trailers of California, Inc., 144 Cal. App. 4th 785, 819 (2006) (citing Ketchum 27 v. Moses, 24 Cal. 4th 1122, 1132 (2001)). In Ketchum, the California Supreme Court explained: community; it may be adjusted by the court based on factors 1 including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the 2 extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee 3 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, 4 retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the 5 unadorned lodestar in order to approximate the fair market rate for such services. 6 7 24 Cal. 4th at 1132 (citing Serrano v. Priest, 20 Cal. 3d 25, 49 (1977)). A court may also, “for 8 an appropriate reason,” make a downward adjustment under the lodestar adjustment method, for 9 example where the court finds that time billed was excessive or that the tasks performed were in 10 connection with unrelated claims upon which the party did not prevail. Graciano v. Robinson 11 Ford Sales, Inc., 144 Cal. App. 4th 140, 161 (2006). It is improper, however, to limit a fee award 12 under the Song-Beverly Act to a percentage of the prevailing party’s recovery. Id. at 164. The 13 “[l]odestar analysis is generally the same under California law and Federal law.” Rodriguez v. 14 Cnty. of Los Angeles, 2014 WL 8390755, *2 (C.D. Cal. Dec. 29, 2014). 15 B. Lodestar Amount 16 Plaintiff has provided time sheets reflecting the time his counsel spent on this litigation, 17 broken down by specific task. Mikhov Decl. ¶ 2 & Ex. A; Daghighian Decl. ¶ 8 & Ex. A. The 18 timesheets reflect the following time billed and requested rates for the attorneys who worked on 19 the case: 20 Knight Law 21 • Alastair Hamblin: 2.2 hours at $325/hour 22 • Amy Morse: 11.5 hours at $350/hour 23 • Christopher Swanson: 12.2 hours at $375/hour 24 • Deepak Devabose: 14.6 hours at $275/hour 25 • Diane Hernandez: 25.8 hours and $375/hour 26 • Kristina Stephenson‐Cheang: 11.1 hours at $375/hour 27 • Maite Colon: 6.2 hours at $275/hour 1 • Russell Higgins: 4.6 hours at $450/hour 2 • Steve Mikhov: 12.4 hours at $550/hour 3 HDMN 4 • Sepehr Daghighian: 5 hours at $490/hour 5 • Larry S. Castruita: 62.125 hours at $350/hour; 23 hours at $385/hour 6 • Erik K. Schmidt: 18.25 hours at $275/hour 7 • Lauren C. Martin: .25 hours at $250/hour; .75 hours at $275/hour 8 • Andrea Plata (paralegal): 2 hours at $75/hour 9 The Court has reviewed the time sheets supplied by Plaintiff and finds the time billed to be 10 reasonable, with the exception of 12.5 hours of “anticipated” time billed for Castruita’s work on 11 the instant motion. See Daghighian Decl., Ex. A (HDMN timesheets). Although FCA challenged 12 these time entries in its Opposition brief on the basis that the work was not adequately 13 documented, Plaintiff did not supply a declaration with his Reply brief documenting the time 14 Castruita spent on the briefing of the Motion and Reply. Therefore, the Court does not award fees 15 for that time. 16 On the other hand, the Court declines to reduce the time billed by Plaintiff’s counsel for 17 travel on the basis that Plaintiff could have retained local counsel. FCA has not demonstrated that 18 Plaintiff could have retained local counsel with similar qualifications and experience in lemon law 19 and the Court declines to speculate on that question. The Court also declines to reduce the time 20 billed on the basis that two law firms and multiple attorneys worked on this case; a review of the 21 billing records reflects that the vast majority of the work on this case was performed by the 22 associate attorneys whose billing rates were lower than the rates charged by the more experienced 23 attorneys who worked on the case. The time sheets also do not reflect any significant amount of 24 time billed for meetings and conferences between Plaintiff’s attorneys, which is one of the 25 potential inefficiencies of using a large number of attorneys to staff a case. The Court concludes 26 based on its review of the time sheets that the staffing choices of Plaintiff’s counsel did not result 27 in excessive attorneys’ fees. 1 excessive fees. In Hall v. FCA, the court reduced HDMN’s fees on the basis of this billing 2 practice where it found that the time sheets included numerous entries for tasks that should have 3 taken less than 15 minutes but were billed for .25 hours. No. 16-cv-0684 JLT, Docket No. 73 at p. 4 8 (E.D. Cal. May 21, 2018). In contrast, HDMN’s time sheets for work on this case do not include 5 entries for small tasks that would be expected to consume less than 15 minutes, which is consistent 6 with the statement by Sepehr Daghighian in his Reply declaration that the firm did not bill for 7 smaller tasks (i.e., tasks that take less than fifteen minutes). Daghighian Reply Decl. ¶¶ 4-5. 8 Therefore, without deciding whether HDMN’s practice of billing in 15-minute increments is 9 advisable, the Court concludes that it did not result in excessive time in this case and therefore 10 does not warrant a reduction in Plaintiff’s lodestar. 11 Next, the Court addresses the reasonableness of the rates requested by Plaintiff’s counsel. 12 The fee applicant has the burden of producing satisfactory evidence that the requested rates are in 13 line with those prevailing in the community for similar services of lawyers of reasonably 14 comparable skill and reputation. Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987). 15 As a general rule, the forum district represents the relevant legal community. Gates v. 16 Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). Fee applicants may provide affidavits of 17 practitioners from the same forum with similar experience to establish the reasonableness of the 18 hourly rate sought. See, e.g., Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 471 (9th Cir. 19 2000); Jones v. Metro. Life Ins. Co., 845 F. Supp. 2d 1016, 1024–25 (N.D. Cal. 2012). Decisions 20 by other courts regarding the reasonableness of the rate sought may also provide evidence to support a 21 finding of reasonableness. See Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998) (holding that a 22 rate set by the district court based, in part, on the rate awarded to same attorney in another case, was 23 reasonable). Finally, the Court may draw on its own experience in determining what constitutes a 24 reasonable rate. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (holding that “judges are 25 justified in relying on their own knowledge of customary rates and their experience concerning 26 reasonable and proper fees”). 27 As to some of the attorneys who worked on this case the Court already determined their 1 billed was performed in approximately the same time period as this case. The Court will apply 2 those rates here. In particular, the Court finds that the following rates are reasonable: 1) Amy 3 Morse - $350/hour; 2) Deepak Devabose - $250/hour; 3) Alastair Hamblin - $325.00/hour; 4) 4 Steve Mikhov - $500/hour; 5) Russell Higgins - $400/hour. The Court addresses the 5 reasonableness of the rates sought for each of Plaintiff’s remaining attorneys below. 6 Knight Law 7 Christopher Swanson: According to Mikhov’s declaration, Christopher Swanson graduated 8 from UCLA School of Law in 2011 and has been an Associate at Knight Law since 2014. Mikhov 9 Decl. ¶ 24. Prior to working at Knight Law, Swanson had experience in individual and class 10 action consumer protection law. Id. Plaintiffs request fees for Swanson at a billing rate of 11 $375/hour. The Court finds this rate to be somewhat high based on its own experience and 12 therefore reduces the rate to $350/hour. 13 Diane Hernandez: Diane Hernandez is of counsel and frequently works with Knight Law 14 on lemon law cases. Mikhov Decl. ¶ 28. She was admitted to practice in California in 1997. Id. 15 Hernandez appeared at the vehicle inspection in February 2019. Id. Hernandez’s 16 hourly rate in this case was $375/hour. Id. The Court finds this rate to be reasonable based on its 17 own experience. 18 Kristina Stephenson‐Cheang: Kristina Stephenson-Cheang graduated from Western State 19 University College of Law and was admitted to practice in 2008. Mikhov Decl. ¶ 26. 20 Stephenson-Cheang has been employed with Knight Law since 2013. Prior to her employment at 21 Knight Law, she worked for a different lemon law firm. Stephenson-Cheang’s hourly rate in this 22 case is $375/hour. The Court finds this rate to be somewhat high. See Mikhov Decl., Ex. J 23 (Sonoma Superior Court proposed order requesting $350/hour for Stephenson-Cheang); Tudzin 24 Decl., Ex. D (Sacramento Superior Court order awarding $350/hour for Stephenson-Cheang), id., 25 Ex. E (Hayward Superior Court order awarding $350/hour for Stephenson-Cheang). The Court 26 finds that a rate of $350/hour is reasonable. 27 Maite Colon: According to Mikhov, Maite Colon graduated from University of Puerto 1 She was admitted to practice law in California in 2018 and has worked at Knight Law since 2017. 2 Her hourly billing rate is $275/hour. The Court finds this rate to be reasonable based on its own 3 experience. 4 Mitchell Rosensweig: Mitchell Rosensweig was an associate at Knight Law when he 5 worked on this case. Mikhov Decl. ¶ 29. He graduated cum laude from the University of 6 Baltimore School of Law and was admitted to practice law in the state of Maryland in 2012. Id. 7 He was also admitted to practice law in Washington, D.C. in 2014. Id. Prior to his employment 8 with Knight Law, Rosensweig practiced primarily in the area of medical malpractice. Id. He was 9 admitted to the California Bar in 2018. His hourly rate in this matter was $325/hour. Based on its 10 own experience, the Court finds this rate to be reasonable. 11 HDMN 12 Sepehr Daghighian: Daghighian states in his declaration that his current rate is $550/hour 13 and that before January 1, 2019 his rate was $490/hour. Daghighian Declaration ¶ 3. The time 14 sheet attached to his declaration reflects three time entries by Daghighian that are included in the 15 requested lodestar amount, for 5 hours billed at the end of January 2018 at a rate of $490/hour. 16 Daghighian Decl., Ex. A. Therefore, the Court considers only whether that rate is reasonable 17 based on Daghighian’s education and experience. Daghighian states that he was admitted to 18 practice law in 2005 and that he is a managing partner at his firm. Daghighian Decl. ¶ 2. He says 19 that he has handled dozens of lemon law cases. Id. The Court finds the rate billed by Daghighian 20 in this case of $490/hour to be reasonable. 21 Larry S. Castruita: According to Daghighian, Larry Castruita is an associate attorney with 22 HDMN. Daghighian Decl. ¶ 4. Castruita graduated from Southwestern Law School and was 23 admitted to practice in California in 2011. Plaintiffs seek to recover fees for Castruita at the 24 following rates: $350/hour as of January 1, 2018; and $385/hour after January 1, 2019. 25 Daghighian Decl. ¶ 4. Based on its own experience, the Court finds the rate sought for work 26 performed through December 31, 2018 of $350/hour to be reasonable. The Court finds that a rate 27 of $350/hour is reasonable for the work performed in 2019, rather than the requested rate of 1 Erik K. Schmidt: According to Daghighian, Erik Schmitt is an associate attorney with 2 HDMN and was admitted to practice in California in 2017. Daghighian Decl. ¶ 5. Schmidt 3 graduated magna cum laude from Southwestern Law School and served as a judicial intern for 4 Honorable Stephen A. Marcus of the Los Angeles Superior Court and the Honorable Phillip S. 5 Gutierrez of the United States District Court for the Central District of California. Id. His hourly 6 rate in this case is $275/hour as of January 1, 2019. Based on its experience, the Court finds this 7 rate to be reasonable. 8 Lauren C. Martin: Daghighian states in his declaration that Lauren Martin’s hourly rate 9 was $250/hour through December 31, 2017 and $275/hour after January 1, 2018. Daghighian 10 Decl. ¶ 6. He does not state when she graduated from law school, when or where she was 11 admitted to practice law or what other experience she has. Plaintiff has not established that 12 Martin’s rates are reasonable and the Court is unable to determine a reasonable rate based on the 13 current record. Therefore, the Court does not award fees for Martin’s work. 14 Andrea Plata (paralegal): Andrea Plata is a paralegal who has been employed by HDMN 15 for over two years. Daghighian Decl. ¶ 7. Her hourly rate is $75/hour. Based on its experience, 16 the Court finds that rate to be reasonable. 17 Based on these adjusted rates and hours, the Court finds that Plaintiff’s lodestar amount is 18 $67,582.50. 19 C. Whether a Multiplier is Warranted 20 Plaintiff asks the Court to adjust the lodestar amount by applying a positive multiplier of 21 .5. FCA argues that a positive multiplier is not justified here. The Court agrees with FCA. 22 While counsel obtained a good result for Plaintiff, this case did not involve any issues that 23 were particularly novel or complex. Further, although Plaintiff points to the risk associated with 24 counsel representing him on a fully contingent basis, as well as the delay in obtaining 25 compensation because of the contingent representation arrangement, the risk that Plaintiff would 26 not recover attorneys’ fees was relatively low in this case. Attorneys’ fees are guaranteed to 27 prevailing parties under the Song-Beverly Act and Plaintiff had a strong enough case (based on his 1 As to the delay in receiving compensation, the Court concludes that the rates that it has awarded 2 are sufficient to compensate counsel for the cost of any delay in receiving their attorney fees 3 arising from the contingent fee arrangement. Therefore, the Court awards the adjusted lodestar 4 amount without a multiplier, which it finds to be a reasonable amount in light of all the 5 circumstances. 6 D. Costs 7 Plaintiff requests $14,796.93 in costs. See Mikhov Decl., Ex. B (Bill of Costs). These 8 costs fall into the following categories: 1) Court filing fee ($435); 2) fees for service of summons 9 and subpoena ($75.90); 3) jury fees ($150); 4) deposition costs ($3,898.19); 5) expert witnesses 10 ($8,774.17); 6) attorney services and messenger court filings and service ($454.46); 7) overnight 11 courier service ($47.34); 8) appearance attorneys ($65); 9) travel ($896.87). 12 FCA does not challenge the adequacy of the documentation supplied in support of 13 Plaintiff’s costs but argues as to many of them that they should not be awarded because they are 14 not allowable under Rule 54 of the Federal Rules of Civil Procedure, Civil Local Rule 54-3 or 28 15 U.S.C. § 1920. See FCA US LLC’s Objections to Plaintiffs’ Bill of Costs (“Objections”), Docket 16 No. 101 at 5. It also argues that fees for Dr. Luna and Mr. Lepper should be excluded, in their 17 entirety, because the Court excluded both witnesses. Finally, FCA challenges the cost of travel to 18 attend depositions sought by Plaintiff’s counsel, who are based in Southern California, arguing 19 that Plaintiff could have retained local counsel. 20 As a preliminary matter, the Court addresses FCA’s argument that Plaintiff’s costs are 21 limited to those that are available under federal law, that is, under Rule 54 and 28 U.S.C. § 1920, 22 despite California law holding that by including “expenses” in the Song-Beverly Act’s cost 23 provision, the Legislature intended that the provision would not be limited to the costs that are 24 available under the general rules governing the costs awards. See Jensen v. BMW of N. Am., Inc., 25 35 Cal. App. 4th 112, 137 (1995), as modified on denial of reh’g (June 22, 1995). FCA relies on a 26 handful of cases in which courts in the Eastern District of California have concluded that under the 27 Erie doctrine, the award of costs under the Song-Beverly Act is governed by federal law and 1 Robinson v. Kia Motors Am., Inc., No. 10-cv-3187, 2016 WL 4474505 at *1 (E.D. Cal. Aug. 25, 2 2016); Hall v. FCA US LLC, No. 16-cv-0684, 2018 WL 2298431 at *8 (E.D. Cal. May 21, 2018); 3 Self v. FCA US LLC, No. 17-cv-01107, 2019 WL 1994459 at *12 (E.D. Cal. May 6, 2019). At 4 least one court that reached this conclusion acknowledged that there is an exception to the general 5 rule “where ‘a state law provision allows for the awarding of costs as part of a substantive, 6 compensatory damages scheme.’” Self v. FCA US LLC, 2019 WL 1994459, at *12 (quoting Kelly 7 v. Echols, No. CIV-05118-AWI-SMS, 2005 WL 2105309, at *16 n. 8 (E.D. Cal. Aug. 30, 2005) 8 (citing Clausen v. M/V New Carissa, 339 F.3d 1049, 1064–65 (9th Cir. 2003)). It concluded, 9 however, that the exception did not apply because “the Song-Beverly Act does not make costs an 10 element of damages as in Clausen.” Id. 11 On the other hand, a court in the Central District of California recently reached the 12 opposite conclusion, finding that the Clausen exception does apply to Song-Beverly Act claims 13 and therefore, that state law applies to cost awards under the Song-Beverly Act even in federal 14 court. See Forouzan v. BMW of N. Am., LLC, No. CV173875DMGGJSX, 2019 WL 3422607, at 15 *2 (C.D. Cal. July 26, 2019). In Forouzan, the court first looked to the Ninth Circuit’s decision in 16 Clausen, in which the court addressed whether the cost provision in Oregon’s Oil Spill Act calling 17 for the award of “costs of any kind” was governed by federal or state law. Id. at *2 (citing 18 Clausen, 339 F.3d at 1064-1066). The court in Clausen concluded that state law applied to the 19 determination of costs available to a prevailing party under that Oil Spill Act, reasoning “that the 20 Oregon Legislature’s decision to craft a statute that included costs and expenses as a part of a 21 prevailing plaintiff’s damages was an ‘express indication’ of the Legislature’s ‘special interest in 22 providing litigants’ with full compensation for reasonable sums expended in pursuit of an Oil Spill 23 Act claim.” Id. (citing Clausen, 339 F.3d at 1065 (internal quotation and citation omitted)). 24 Citing to the California Supreme Court’s discussion in Jensen of the California Legislature’s 25 intent in enacting the Song-Beverly Act, the Forouzan court concluded that “[t]he California 26 Legislature has demonstrated a similar ‘special interest’ [to the one in Clausen] in permitting 27 prevailing Song-Beverly plaintiffs to recover costs and expenses under section 1794.” Therefore, 1 Act. 2 The undersigned finds the reasoning of Forouzan to be persuasive and likewise finds that 3 under the Clausen exception, state law governs Plaintiff’s request for costs. Therefore, the Court 4 || rejects FCA’s challenges to the extent they are based on its position that Plaintiff is limited to the 5 costs available under 28 U.S.C. § 1920. 6 The Court also rejects FCA’s specific challenges to Plaintiff's costs, which the Court finds 7 to be reasonable. In particular, the Court finds that Plaintiff’s request for the cost of reserving a 8 || jury is reasonable and recoverable. The Court also declines to exclude the costs associated with 9 Plaintiff's expert witnesses. In contrast to the O’Brien case, where the exclusion of Mr. Lepper as 10 || an expert was the result of counsel’s failure to produce an expert report by Mr. Lepper, in this case 11 an expert report was produced. While the Court ultimately concluded the opinions of Mr. Lepper 12 || did not satisfy Daubert and Rule 702, Plaintiff had a colorable basis for offering Mr. Lepper’s 5 13 opinions. Finally, the Court does not find that a reduction of costs with respect to travel expenses 14 || is warranted. The travel expenses Plaintiff seeks are relatively low and FCA has not presented any 3 15 || evidence establishing that Plaintiff could have retained local lemon law attorneys with comparable 16 || experience. 3 17 Accordingly, the Court awards in full the costs requested by Plaintiff. 18 |l Iv. CONCLUSION 19 For the reasons stated above, the Court awards $67,582.50 in attorneys’ fees and 20 || $14,796.93 in costs. 21 IT IS SO ORDERED. 22 || Dated: September 25, 2019 23 5 Z2 CZ J PH C. SPERO 24 ief Magistrate Judge 25 26 27 28