Cox v. FCA US LLC

Opinion

DAVID COX, Case No. 3:20-cv-03808-WHO

Plaintiff, ORDER ON MOTION FOR v. ATTORNEY'S FEES AND COSTS

FCA US LLC, Re: Dkt. No. 49 Defendant.

Plaintiff David Cox moves for attorney’s fees and costs after his Song-Beverly Consumer Warranty Act case settled. Defendant FCA US LLC (“FCA”) argues that Cox should be awarded less than the full amount he seeks. For the reasons that follow, the motion is granted and Cox is awarded the full amount he seeks with one minor deduction. Cox filed this suit in California state court and FCA removed it to this Court in June 2020. See Dkt. No. 1. As relevant here, Cox alleged that FCA violated the Song-Beverly Act by knowingly selling him a vehicle with defects that violated its warranties. See generally Dkt. No. 1-2 (complaint). Cox moved to remand the case and I denied the motion in August 2020. Dkt. No. 21. The parties entered discovery. Soon before the pretrial conference, after two mediations, the parties settled for $19,000. See Dkt. No. 52 (sworn declaration). Cox now seeks an award of attorney’s fees and costs under the Song-Beverly Act. See Motion for Attorney’s Fees (“Mot.”) [Dkt. No. 49]. “In a diversity case, the law of the state in which the district court sits determines whether Under the Song-Beverly Act, a buyer that “prevails . . . 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 parties agree that the settlement in this action likewise provided that Cox could recover reasonable fees and costs under the statute. See Mot 5; Opposition to the Mot. (“Oppo.”) [Dkt. No. 51] 3. Consequently, they agree that Cox is entitled to Song-Beverly fees and costs; they disagree only about how much. Mot. 5; Oppo. 3. Here, state law also controls the method of calculating fees. Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995). Under the Song-Beverly Act, Cox has the burden of showing that the fees “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) (internal quotation marks and citation omitted). Though the California Supreme Court has not spoken to the method for Song-Beverly attorney’s fees specifically, it has indicated that the “lodestar adjustment method” is the presumptive way to calculate statutory attorney’s fees and the California Court of Appeal and federal district courts have employed that method in Song-Beverly cases. See Robertson v. Fleetwood Travel Trailers of California, Inc., 144 Cal. App. 4th 785, 818 (2006); Arias v. Ford Motor Co., No. EDCV181928PSGSPX, 2020 WL 1940843, at *2 (C.D. Cal. Jan. 27, 2020) (collecting citations). To calculate fees, the court first determines the lodestar: a “careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case.” Ketchum v. Moses, 24 Cal. 4th 1122, 1131–32 (2001) (internal quotation marks, citation, and alteration omitted). Then, the court “may” adjust the lodestar based on factors like “(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.” Id. at 1132. Cox argues that he is entitled to the full $47,155 billed during this case in fees and FCA responds that Cox’s attorneys’ hourly rates were too high and that he is entitled to, at the most, $35,177.50 in fees. Oppo. 1–2. Cox does not dispute that the costs are correct. Four attorneys billed time. David Barry had an hourly rate of $525, Elizabeth Quinn had an hourly rate of $450, and Carrie Shumake and Logan Pascal had hourly rates of $250.1 Barry, a partner, has practiced law for 21 years, specializing in consumer protection law for most of them, and represents that he has extensive experience in “lemon law cases.” Dkt. No. 49-2 ¶ 12. Quinn, a senior associate, has also practiced law for roughly 20 years and has handled hundreds of cases. Dkt. No. 49-10 ¶¶ 8–11. Shumake, an associate, has practiced law since 2018 and worked as a paralegal before that; she has managed dozens of cases. Dkt. No. 49-8 ¶¶ 3–6. Pascal, an associate, has practiced law since 2019 and does not discuss past cases managed. Dkt. No. 49-9 ¶¶ 3–4. Each of these billing rates are reasonable given the prevailing rates in this district for attorneys of similar experience. Courts in this district have found rates in this range reasonable for similarly situated attorneys in Song-Beverly cases See, e.g., Base v. FCA US LLC, No. 17-CV- 01532-JCS, 2020 WL 363006, at *3 (N.D. Cal. Jan. 22, 2020) (collecting cases and finding rates of $490 for partners and $250 to $385 for associates reasonable). These rates are also within the range identified in the Consumer Law Fee Survey Report. See Dkt. No. 49-5 at 79 (approximately $500 for attorneys with 16 to 20 years and ranges from $225 to $273 for attorneys with one to five years). Courts have found comparable rates from these attorneys reasonable. See, e.g., Dkt. Nos. 49-2 ¶¶ 20–99 (Barry), 49-10 ¶¶ 12–45 (Quinn), 49-8 ¶¶ 7–17 (Shumake), 49-9 ¶¶ 6–23 (Pascal). FCA points out that some other courts have found these rates (though not for these attorneys) unreasonable in cases brought under the Song-Beverly Act. Oppo. 4. But the reasonableness of a fee is a range and nothing in these decisions compels the conclusion that all of the other cases cited erred or that the empirical study cited is inaccurate. FCA’s cases, too, are from other judicial districts, but the relevant market is usually considered to be the district in which the court sits.

1 Cox at one point references an attorney named Troy Candiotti but the motion does not provide Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). I turn to the hours worked. Cox’s counsel provided their billing records. See Dkt. No. 49- 5. Barry worked 41.2 hours, Quinn worked 37 hours, Shumake worked 0.5 hours, and Pascal worked 10.8 hours. Mot. 12. Each billing entry reflects that it is either for (1) pre-suit work such as contacting the opposing party and corresponding with the client, (2) drafting the initial pleadings, (3) briefing and argument on the motion to remand, (4) correspondence with opposing counsel, (5) discovery, (6) preparation for mediation, (7) case management conferences, (8) mediation, (9) work surrounding the settlement, and (10) this motion. Id. Discovery appears to have taken the lion’s share of the work, which Cox blames largely on FCA’s decision to remove the case to federal court. See Mot. 3. This litigation also lasted nearly two years. FCA has produced no evidence or argument that any of the billing entries are duplicative, unnecessary, or “padding,” so I see no basis to discount any of them. Cf. Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn., 163 Cal. App. 4th 550, 562 (2008) (“Appellants have presented no evidence to refute the declarations by counsel for respondents” and “absent evidence that fee award was based on unnecessary or duplicative work, the award will be affirmed.”) (citations omitted). FCA only makes specific objections to two billing entry types. First, it argues in two sentences that 12.5 hours spent on the motion to remand is excessive. Oppo. 7. I disagree. All of the individual entries are standard and that project included drafting a motion to remand, reading the opposition, drafting a reply brief, and drafting a motion to reconsider, which means that only several hours were spent on each on average. Next, FCA argues that five hours spent on reading an opposition, drafting a reply, and preparing for a hearing by a senior partner is unreasonable. Oppo. 7. I again disagree, all are within a range of reasonableness for a standard attorney fee motion. I will, however, remove one hour from the lodestar. Barry billed one hour for attending the hearing on this motion. But I vacated that hearing before it occurred, so it was not actually expended. That hour was billed at $525, so a lodestar of $46,630 is appropriate. 1 of hours worked is reasonable given that this case lingered for two years and settled only on the 2 eve of trial. As noted, FCA makes no attempt to parse the hours to show why any particular entry 3 is inflated, other than the two examples above. And as explained, I have reviewed the billing 4 entries and nothing appears to be obvious padding. I recognize that this case presented no novel or 5 complex legal issues and the only motions practice required was a straightforward motion to 6 remand. See Ketchum, 24 Cal. 4th at 1132 (discussing these factors, among others). But that the 7 case took as much effort as it did is due in significant part to FCA’s litigation strategy. FCA 8 removed the case from state court, as is its right. But while that removal may have come with 9 tactical advantages for FCA, the natural result was a federal process relatively more intensive and 10 drawn out than its state-court counterpart. The largest time entries on the billing records were for 11 the motion to remand, the FRCP 26 conference, the initial disclosures, sending and receiving 12 discovery responses, depositions, and mediations. See Dkt. No. 49-5. Even though FCA 13 ultimately agreed to accept liability and name Cox as the prevailing party, it did not replace or 14 repurchase the vehicle during two years of litigation. See Cal. Civ. Code § 1793.2(d). Finally, 3 15 Cox’s counsel accepted the case on a contingency basis, further indicating that the lodestar should 16 not be varied downward. See Ketchum, 24 Cal. 4th at 1132. 3 17 In short, Cox has adequately shown that the actual rates and hours of his attorneys were 18 reasonable (except the one hour) and FCA has not produced countervailing evidence. 20 The motion for attorney’s fees and costs is GRANTED. Cox is AWARDED $46,630 in 21 fees and $3,171.66 in costs, for a total of $49,801.66. 23 Dated: February 2, 2022 : VM.Qe 25 . 6 Wiliam H. Orrick United States District Judge 27 28