1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IDA L. FIGURES, No. 1:17-cv-00618-DAD-JLT 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS, AND 14 FCA US LLC, EXPENSES IN PART 15 Defendant. (Doc. No. 101) 16 17 18 Pending before the court is plaintiff Ida Figures’ motion for attorneys’ fees, costs, and 19 expenses. (Doc. No. 101.) Pursuant to Federal Rule of Civil Procedure 78(b) and Local Rule 20 230(g), the court deemed the motion suitable for decision without oral argument. The court has 21 considered the parties’ briefs, and for reasons set forth below, will grant plaintiff’s motion in part. 22 BACKGROUND 23 On April 4, 2017, plaintiff commenced this action against defendant FCA US LLC 24 (“FCA”) by filing suit in Kern County Superior Court. (See Doc. No. 1-1 at 3.) Plaintiff alleged 25 that a new 2013 Dodge Durango that she purchased in 2012 was delivered to her with serious 26 defects and nonconformities to warranty. (Id. at 5.) The complaint asserted causes of action for 27 breaches of express and implied warranties, in violation of the Song-Beverly Act, California Civil 28 Code § 1790 et seq. (Id. at 23–28.) On April 26, 2019, after a three-day trial, the jury returned a 1 verdict in favor of plaintiff and judgment was thereafter entered in favor of plaintiff and against 2 FCA. (Doc. Nos. 85, 86.) The jury awarded plaintiff $93,189.34, comprised of an award of 3 $43,189.34 in restitution and $50,000.00 in civil penalties. (Doc. No. 85 at 4.) 4 On May 24, 2019, plaintiff filed the pending motion for attorneys’ fees, costs, and 5 expenses.1 (Doc. No. 101.) On June 18, 2019, FCA filed its opposition to the pending motion, 6 and on June 25, 2019, plaintiff filed her reply thereto. (Doc. Nos. 102, 104.) 7 LEGAL STANDARD 8 Under California’s Song-Beverly Act, “if [a] buyer prevails in an action . . ., the buyer 9 shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate 10 amount of costs and expenses, including attorney’s fees based on actual time expended, 11 determined by the court to have been reasonably incurred by the buyer in connection with the 12 commencement and prosecution of such action.” Cal. Civ. Code. § 1794(d). “The plain wording 13 of the statute requires the trial court to base the fee award upon actual time expended on the case, 14 as long as such fees are reasonably incurred—both from the standpoint of time spent and the 15 amount charged.” Robertson v. Fleetwood Travel Trailers of CA, Inc., 144 Cal. App. 4th 785, 16 817 (2006). It requires the trial court to make an initial determination of the actual 17 time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and 18 the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, 19 factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or 20 the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this 21 into account and award attorney fees in a lesser amount. A prevailing buyer has the burden of showing that the fees incurred were 22 allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount. 23 24 Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994) (citation and internal 25
1 Plaintiff contends that she made reasonable efforts to resolve the payment of attorney’s fees 26 with FCA, even offering “a nearly 40% discount on the amount requested by this Motion” and 27 that the offer was rebuffed by FCA. (Doc. No. 101-1 at 12.) While the court has noted plaintiff’s contention in this regard, in the court’s view it has no relevance to the court’s resolution of the 28 pending motion. 1 quotation marks omitted); see also Goglin v. BMW of North Am., LLC, 4 Cal. App. 5th 462, 470 2 (2016). Under a contingent fee arrangement, “a prevailing buyer represented by counsel is 3 entitled to an award of reasonable attorney fees for time reasonably expended by his or her 4 attorney.” Nightingale, 31 Cal. App. 4th at 105 n.6. 5 “The determination of what constitutes a reasonable fee generally begins with the 6 ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 7 rate.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM 8 Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000)). The court will apply the lodestar method 9 to the Song-Beverly Act because “the statutory language of section 1794, subdivision (d), is 10 reasonably compatible with a lodestar adjustment method of calculating attorney fees, including 11 use of fee multipliers.” Robertson, 144 Cal. App. 4th at 818; see also Warren v. Kia Motors Am., 12 Inc., 30 Cal. App. 5th 24, 35 (2018). Moreover, because “[the California] Supreme Court has 13 held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to 14 be applied in the absence of clear legislative intent to the contrary, [the lodestar adjustment 15 method] . . . is applicable to attorney fee awards under section 1794, subdivision (d).” Robertson, 16 144 Cal. App. 4th at 818–19 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–36 (2001); see 17 also Warren, 30 Cal. App. 5th at 35–36.). 18 [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors 19 including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the 20 extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee 21 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, 22 retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the 23 unadorned lodestar in order to approximate the fair market rate for such services. 24 * * * 25 As we [have] explained . . .: “ ‘[a] contingent fee contract, since it 26 involves a gamble on the result, may properly provide for a larger compensation than would otherwise be reasonable.’ ” 27 28 Ketchum, 24 Cal. 4th at 1132 (internal citation omitted). 1 If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, 2 duplicative, or unrelated do not suffice.” Etcheson v. FCA US LLC, 30 Cal. App. 5th 831, 848 3 (2018) (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 4th 550, 4 564 (2008)). Instead, the opposing party must demonstrate that the hours claimed are duplicative 5 or excessive. Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; see also First Am. Title 6 Ins. Co. v. Spanish Inn, Inc., 239 Cal. App. 4th 598, 606 (2015) (“Although defendants argued to 7 the trial court that the ‘amount claimed for attorneys fees is not reasonable,’ defendants did not 8 respond to First American’s evidence with evidence of their own, as required.”); Gorman v. 9 Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party opposing the fee award can 10 be expected to identify the particular charges it considers objectionable.”). 11 With this guidance in mind, the court turns to consider plaintiff’s pending motion.2 12 ANALYSIS 13 Plaintiff, as the auto buyer who prevailed in this suit, is entitled to reasonably incurred 14 attorneys’ fees, costs, and expenses. See Cal. Civ. Code § 1794(d). Here, plaintiff seeks: 15 (1) an award of attorneys’ fees in the amount of $109,835.00; (2) a lodestar multiplier of 0.5, in 16 the amount of $54,917.50; and (3) an award of actual costs and expenses incurred in the amount 17 of $14,821.49. (Doc. No. 101-1 at 7.) Thus, plaintiff seeks a total award of fees and costs in the 18 amount of $179,573.99. (Id.) FCA contends that the lodestar requested by plaintiff is 19 unreasonable and that an upward multiplier is not warranted in this case. (Doc. No. 102.) FCA 20 also objects to various costs and expenses for which plaintiff seeks reimbursement. (Id.) 21 A. Attorneys’ Fees Request 22 Plaintiff was represented by two law firms in this matter: the Knight Law Group (“Knight 23 Law”), which commenced this action on plaintiff’s behalf and provided legal services leading up 24 to trial, and Hackler Daghighian Martino & Novak, P.C. (“HDMN”), which associated into this 25 ///// 26 2 Each party objects to evidence presented by the other in support of or in opposition to the 27 pending motion. The court has read and considered these boilerplate evidentiary objections and, to the extent that the court considers any such objected-to evidence, those objections are 28 overruled. 1 action to provide services relating to the trial of this action. (Doc. No. 101-1 at 9–10.) Knight 2 Law billed a total of $18,442.50 and HDMN billed a total of $91,392.50. (Id. at 13) 3 1. Reasonableness of Number of Hours Billed 4 The billing records indicate that Knight Law attorneys expended 51.3 billable hours on 5 this action and that HDMN attorneys expended 2503 billable hours. (Doc. Nos. 101-2 at 24; 101- 6 3 at 9–12.) A total of nine Knight Law attorneys and a total of four HDMN attorneys billed time 7 in the prosecution of this action. (Doc. Nos. 101-2 at 24; 101-3 at 10–18.) 8 FCA contends that the number of hours billed by both law firms is unreasonable. First, 9 FCA argues that it served plaintiff with a $55,000 Rule 68 offer on December 14, 2018 and that 10 plaintiff, instead of responding to that offer with a meaningful counteroffer, continued to litigate 11 and incur fees. (Doc. No. 102 at 4.) FCA contends that the jury’s award of $93,189.34 was only 12 $38,189.34 more than its Rule 68 offer, and that such an increase does not warrant the additional 13 $77,381.25 in attorneys’ fees that plaintiff incurred thereafter. (Id.) Second, FCA contends 14 plaintiff’s use of “[two] firms using 13 lawyers and one paralegal” resulted in a duplication of 15 efforts, the costs of which should not be borne by it. (Id. at 4, 9.) FCA therefore asks the court 16 “to exclude the entire invoice from either [Knight Law] totaling $18,442.50,[] or from [HDMN] 17 totaling $91,392.50.” (Id. at 9.) Third, FCA argues that both firms’ billing statements “evidence 18 numerous instances of inappropriate hours billed by senior lawyers . . . to review basic notices 19 and pleadings or to draft them, [as well as] . . . billing for purely clerical time that should be 20 3 Here, the court tabulated the total number of hours billed by HDMN based on attorney Sepehr 21 Daghighian’s declaration and his firm’s billing records attached thereto. (Doc. No. 101-3, Ex. A.) As in previous Song-Beverly Act actions in which HDMN has appeared before the undersigned, 22 HDMN’s billing statement does not tabulate for the court the total number of hours it and its 23 individual attorneys expended on the case. (See id.) Instead, attorney Daghighian has provided the court a list of singular billing entries in miniscule font spanning nine pages, leaving for the 24 court the task of calculating both the total number of hours HDMN expended as well as the total number of hours of each of its attorneys who billed. (See id.) The court admonishes HDMN that 25 this practice—saddling the court with a task that is HDMN’s responsibility—is entirely inappropriate and a waste of this court’s limited resources. In any future actions before this court, 26 HDMN is instructed to provide complete tabulations, both for the total hours expended by 27 the firm as well as for its attorneys who bill in the case, similar to the billing statements provided by Knight Law. This should not be difficult to accomplish, since most billing entry 28 software presumably feature the ability to globally and individually tabulate hours. 1 excluded from the lodestar calculation.” (Id.) Finally, FCA asks the court to reduce the total 2 number of hours attributed to HDMN lawyers due to the firm’s practice of billing in quarter-hour 3 increments. (Id. at 11.) The court addresses each of FCA’s arguments in turn. 4 FCA’s first argument—that the hours billed are unreasonable because plaintiff rejected the 5 $55,000 Rule 68 offer yet incurred an additional $77,381.25 in fees only to settle the matter for a 6 mere $38,189.34 more—is not persuasive. FCA points the court to no authority, and the court is 7 aware of none, that supports its position in this regard. Moreover, the court notes that plaintiff 8 ultimately recovered nearly 70% more than FCA’s Rule 68 offer pursuant to the jury’s verdict. In 9 other words, plaintiff incurred those additional fees in order to obtain a recovery that was 10 significantly higher than FCA’s Rule 68 offer. 11 Next, defendant argues that plaintiff’s employment of thirteen different lawyers from two 12 law firms to litigate this matter was unreasonable. (Doc. No. 102 at 9.) It has been “recognized 13 that ‘the participation of more than one attorney does not necessarily constitute an unnecessary 14 duplication of effort.’” McGrath v. County of Nevada, 67 F.3d 248, 255 (9th Cir. 1995) (citing 15 Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989)). Here, FCA has not identified in its 16 opposition any entries in Knight Law and HDMN’s billings that indicate a duplication of effort by 17 the lawyers who worked on plaintiff’s case during the two years it was pending before this court. 18 For example, FCA argues that attorney Higgins billed “to draft notices of change of counsel 19 (duplicate work),” but does not explain or analyze in what way this task was “duplicate work.” 20 (Doc. No. 102 at 10.) Moreover, the fact that HDMN attorneys had to become familiar with the 21 facts of this case, review files, and get up to speed in preparation for the trial of this action does 22 not constitute a duplication of effort. HDMN was brought in to try the case and necessarily had 23 to review files and pre-existing work-product to do so.4 24 ///// 25
4 While under some circumstances a reduction in an award of attorneys’ fees due to the number 26 of attorneys who billed time to a case has been found to be within the trial court’s discretion, see 27 Moore v. Hyundai Motor America, 41 Cal. App. 5th 24, 36–40 (2019), those circumstances are not present here. This case proceeded to trial, with two lawyers from the firm that tried the case 28 on behalf of plaintiff devoting by far the most hours to this matter. 1 Next, FCA contends that the billing statements at issue here “evidence numerous instances 2 of inappropriate hours billed by senior lawyers . . . to review basic notices and . . . for purely 3 clerical time” (id. at 9) but does not identify what those instances are. The burden is on FCA “to 4 identify the particular charges it considers objectionable.” Gorman, 178 Cal. App. 4th at 101. 5 Moreover, the court has conducted its own review of the billing statements and is satisfied that 6 senior attorneys did not excessively bill for tasks that a junior attorney could have handled or for 7 purely clerical tasks. 8 Finally, FCA contends that HDMN’s total hours should be reduced across-the-board 9 because the firm billed its time in quarter-hour increments. (Doc. No. 102 at 11.) A court may 10 impose an across-the-board reduction on hours that are billed by quarter-hour increments when 11 such billing results in an attorney’s fees award request reflecting an excessive number of hours. 12 See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (affirming district 13 court’s twenty percent, across-the-board reduction of hours where this billing practice resulted in 14 inflated time records). In Welch, the Ninth Circuit affirmed an across-the-board reduction in 15 hours after the district court had found that “the hours were inflated because counsel billed a 16 minimum of 15 minutes for numerous phone calls and e-mails that likely took a fraction of the 17 time.” Id. The Ninth Circuit’s review of the time records in Welch revealed that they were 18 “replete with quarter-hour or half-hour charges for the drafting of letters, telephone calls and 19 intra-office conferences.” Id. 20 Here, the court finds that HDMN’s practice of billing by quarter-hour increments resulted 21 in an inflated amount of attorney time being billed to this matter. For example, HDMN’s billing 22 statement indicates various email and telephonic correspondences between HDMN lawyers and 23 opposing counsel, inter-office meetings, and correspondences with the court, plaintiff, and expert 24 witnesses that were billed a minimum of fifteen or thirty minutes. (Doc. No. 101-3 at 10–18.) 25 The court finds that these time entries are almost certainly inflated “because counsel billed a 26 minimum of 15 minutes for numerous phone calls and e-mails that likely took a fraction of the 27 time.” Welch, 480 F.3d at 949. Moreover, this is not a lone example; rather a not insignificant 28 amount of the attorney time billed by HDMN to this case is attributable to various 1 communications billed in fifteen or thirty minute increments. The court will therefore exercise its 2 discretion and apply a twenty-percent, across-the-board reduction to the number of hours awarded 3 to HDMN attorneys in this case. See Welch, 480 F.3d at 949; Cimini v. White, 2020 WL 343766, 4 at *1 (D. Nev. Jan. 21, 2020) (imposing a 20% reduction in the recoverable hours based primarily 5 on the fact that counsel billed in quarter–hour increments, explaining that “[c]ourts generally look 6 with disfavor on such billing because it is a less reliable indicator of the time actually expended 7 than billing in tenth-hour increments.”); Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 WL 8 2298431, at *5 (E.D. Cal. May 21, 2018) (applying a twenty-percent, across-the-board reduction 9 to HDMN’s hours billed in quarter-hour increments for similar reasons). 10 The court has reviewed the Knight Law billing statements at issue here and concludes that 11 the time billed was reasonably incurred in the commencement and prosecution of this action. The 12 court finds the following hours of the Knight Law attorneys to have been reasonably expended in 13 the prosecution of this case: 14 Knight Law Attorney Hours Hours Requested Awarded 15 Attorney Alastair Hamblin 5.8 5.8 16 Attorney Amy Morse 2.7 2.7 Attorney Christopher Swanson 1.0 1.0 17 Attorney Deepak Devabose 5.8 5.8 Attorney James Martinez 2.9 2.9 18 Attorney Kristina Stephenson-Cheang 11.2 11.2 19 Attorney Raymond Areshenko 12.0 12.0 Attorney Russell Higgins 4.0 4.0 20 Attorney Steve Mikhov 5.9 5.9 Total Hours 51.3 51.3 21 22 The court has also reviewed the HDMN billing statements and concludes that, generally, 23 the attorney time billed was reasonably expended in the prosecution of this action. However, as 24 discussed above, the court will exercise its discretion and apply a twenty-percent across-the-board 25 reduction to HDMN’s billed hours due to the firm’s practice of billing in quarter-hour increments 26 even with respect to various emails and telephone conversations between HDMN lawyers and 27 opposing counsel, inter-office meetings, and correspondences with the court, plaintiff, and expert 28 1 witnesses when those tasks almost certainly consumed only a fraction of the time billed. In 2 addition, the court will not award fees to attorney Sepehr Daghighian for the four hours he 3 anticipatorily billed to prepare for and appear in-person at the hearing on the pending motion 4 (Doc. No. 101-3 at 12) because the motion was taken under submission without oral argument. 5 Moreover, the court declines to award fee for the full 5.25 hours that attorney Lauren Martin 6 billed to draft the pending motion, nor will it award her the full 5.50 hours attorney Martin 7 anticipatorily billed to draft a reply to FCA’s opposition to the pending motion. (Id.) The court 8 concludes in this regard that 5.25 hours to draft the pending motion is not reasonable. The court 9 finds that an award of 2.0 hours for that task is reasonable given how brief the motion was and the 10 fact that it is readily apparent from the face of that motion that attorney Martin relied upon 11 pleadings filed by her office in other actions as templates. Similarly, while no evidence of the 12 time actually spent on drafting plaintiff’s reply to FCA’s opposition was presented to the court, 13 the court finds that an expenditure of 1.5 hours in performing that task is reasonable given how 14 brief the reply was and the fact that it appears that attorney Martin again relied upon pleadings 15 filed in other actions as a template for the reply. Accordingly, the court finds the following hours 16 appropriately attributable to the efforts of HDMN attorneys:
17 HDMN Attorney/Paralegal Hours Hours 18 Requested Awarded Attorney Larry Castruita 9.0 7.2 19 Attorney Sepehr Daghighian 85 64.8 Attorney Lauren Martin 139.75 106.0 20 Attorney Eric Schmitt 7.75 6.2 21 Paralegal Andrea Plata 8.5 6.8 Total Hours 250 191 22 23 2. Hourly Rates to be Applied 24 Next, the court must determine whether the hourly rates requested by plaintiff’s attorneys 25 are reasonable. Under California law, when awarding attorney’s fees under § 1794(d), the 26 relevant inquiry is whether “the monetary charge being made for the time expended [is] 27 reasonable” under all the circumstances including “factors such as the complexity of the case and 28 procedural demands, the skill exhibited and the results achieved.” Goglin, 4 Cal. App. 5th at 470 1 (quoting Nightingale, 31 Cal. App. 4th at 104). California courts therefore focus on the 2 reasonable hourly rate for the work performed by the counsel who did that work, regardless of the 3 forum in which that work was performed and without regard to typical hourly rates in the forum 4 in which the matter was litigated.5 See Goglin, 4 Cal. App. 5th at 470 (affirming a fee award 5 applying a hourly rate of $575 per hour in a Song-Beverly Act case on the grounds that the trial 6 court had considered the evidence that the client agreed to compensate counsel at the rate of $575 7 an hour (later increased to $625), other state and federal courts had awarded the attorney 8 comparable rates in similar cases, and the trial court had observed the attorney’s skills first hand, 9 while not even mentioning the prevailing rates in the trial court’s area); see also Filiberto Negrete 10 v. Ford Motor Co. et al., No. 5:18-cv-019372-DOC (KKx), 2019 WL 4221397, at *3 (C.D. Cal. 11 5 In awarding attorneys’ fees under the Song-Beverly Act, other district courts have required 12 “[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 13 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 Cnty., 815 F.2d 1258, 1263 (9th Cir. 14 1987)); see also Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *4–5 (E.D. 15 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 16 have stated that the “relevant community” in determining a prevailing market rate is the forum in which the district court sits and then analyze whether the rates requested by counsel are 17 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 18 apply to motions seeking attorneys’ fees pursuant to a federal statute. The court is aware of no 19 authority holding that a federal court must apply that framework when awarding attorneys’ fees pursuant to a state statute. Indeed, the California Court of Appeal in Goglin did not engage in 20 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 such an analysis. The 21 undersigned, therefore, considers the pending motion under the standard articulated by California courts and will determine “whether the monetary charge being made for the time expended [is] 22 reasonable” in light of “the complexity of the case and procedural demands, the skill exhibited 23 and the results achieved.” Goglin, 4 Cal. App. 5th at 470 (internal quotation marks and citation omitted). This approach will appropriately result in plaintiff’s counsel being compensated at the 24 same hourly rates they would have received in state court rather than some lower rate based solely on the removal of this action to federal court. Even if the rate determination framework 25 utilized in motions seeking attorneys’ fees pursuant to federal statutes were to apply in this case, the undersigned notes that the hourly rates found to be reasonable by this order would be the same 26 under that framework. For, under the “relevant community” analysis, this court would look to the 27 orders of state courts within the Eastern District of California and conclude that those rates are consistent with those prevailing in the community for similar services. See Tenorio v. Gallardo, 28 No. 1:16-cv-00283-DAD-JLT, 2019 WL 3842892, at *2 n.1 (E.D. Cal. Aug. 15, 2019). 1 June 5, 2019) (“Plaintiff has demonstrated that counsel has been awarded attorneys’ fees at 2 similar rates under the Song-Beverly Act. [citation omitted.] Such evidence is generally 3 sufficient to show that an attorney’s hourly rates are reasonable.”). The fee applicant bears the 4 burden of producing satisfactory evidence that the fees incurred were “reasonable in amount.” 5 Goglin, 4 Cal. App. 5th at 470 (quoting Nightingale, 31 Cal. App. 4th at 104); see also Blum v. 6 Stenson, 465 U.S. 886, 895 n.11 (1984). 7 The Knight Law attorneys request the following hourly rates for its attorneys who worked 8 on this matter:
9 Knight Law Attorney Requested Years of 10 Hourly Rate Experience Attorney Alastair Hamblin $325.00 3 years 11 Attorney Amy Morse $350.00 6 years Attorney Christopher Swanson $375.00 5 years 12 Attorney Deepak Devabose $275.00 5 years 13 Attorney James Martinez $275.00 4 years Attorney Kristina Stephenson-Cheang $375.00 11 years 14 Attorney Raymond Areshenko $300.00 2 years Attorney Russell Higgins $450.00 16 years 15 Attorney Steve Mikhov $550.00 16 years 16 (Doc. No. 101-2 at 6–9.) 17 The HDMN attorneys request the following hourly rates for its attorneys who worked on 18 this matter:
19 HDMN Attorney or Paralegal Requested Years of 20 Hourly Rate Experience Attorney Larry Castruita $350.00, $385.00 8 years 21 Attorney Sepehr Daghighian $490.00, $550.00 14 years Attorney Lauren Martin $250.00, $275.00 2 years 22 Attorney Erik Schmitt $250.00, $275.00 2 years 23 Paralegal Andrea Plata $75.00 2 years 24 (Doc. No. 101-3 at 2–5.) 25 In support of the rates requested by her attorneys, plaintiff has submitted the declarations 26 of attorneys Daghighian and Mikhov and rate determinations by courts in other cases for some of 27 the attorneys at issue. (Doc. Nos. 101-2, 101-3.) These declarations provide the rates that the 28 attorneys and other lawyers from their respective firms charged in this matter and aver that the 1 requested rates are reasonable. (See Doc. No. 101-2 at 9–18; 101-3 at 2–5.) Attached to attorney 2 Mikhov’s declaration and supplemental declaration are several hourly rate determinations made 3 by state courts in Song-Beverly Act actions with respect to some of the attorneys who worked on 4 this case. (See Doc. Nos. 101-2, Exs. E–S; 104-2, Exs. N–BB.) These attachments demonstrate 5 that various superior courts in California have awarded the following rates in Song-Beverly Act 6 actions to the following attorneys at issue here: attorney Mikhov has been awarded hourly rates 7 between $400.00 and $500.00; attorney Morse has been awarded hourly rates between $250.00 8 and $350.00; attorney Devabose has been awarded hourly rates between $200.00 and $250.00; 9 attorney Stephenson-Cheang has been awarded hourly rates between $300.00 and $350.00; 10 attorney Swanson has been awarded hourly rates between $325.00 and $350.00; attorney 11 Hamblin has been awarded an hourly rate of $325.00; attorney Higgins has been awarded an 12 hourly rate of $400.00; attorney Martinez has been awarded an hourly rate of $275.00; and 13 attorney Areshenko has been awarded an hourly rate of $300.00. Moreover, after reviewing rates 14 awarded by various superior courts in California, the undersigned recently issued an order 15 awarding the following hourly rates to the following attorneys who also appeared in this action: 16 $325.00 for attorney Hamblin; $350.00 for attorney Morse; $250.00 for attorney Devabose; 17 $350.00 for attorney Stephenson-Cheang; $400.00 for attorney Higgins; $500.00 for attorney 18 Mikhov; $300.00 for attorney Castruita; $500.00 for attorney Daghighian; $250.00 for attorney 19 Schmitt; and $75.00 for paralegal Plata. Sekula v. FCA US LLC, No. 1:17-cv-00460-DAD-JLT, 20 2019 WL 5290903, at *7 (E.D. Cal. Oct. 18, 2019). 21 Because “the reasonable value of attorney services is variously defined as the hourly 22 amount to which attorneys of like skill in the area would typically be entitled,” Ketchum, 24 Cal. 23 4th at 1133, the court finds that evidence of what some of the attorneys have previously been 24 awarded when litigating other Song-Beverly actions assists this court in determining the 25 reasonable hourly rates in this case. See Goglin, 4 Cal. App. 5th at 470; Filiberto Negrete, 2019 26 WL 4221397, at *3. Having considered the various state court orders submitted by plaintiff, as 27 well as other evidence, the court concludes that the following hourly rates for each of plaintiff’s 28 attorneys are reasonable: 1 Knight Law Attorney Hourly Rate to Years of 2 be Awarded Experience Attorney Alastair Hamblin $325.00 3 years 3 Attorney Amy Morse $350.00 6 years 4 Attorney Christopher Swanson $250.00 5 years Attorney Deepak Devabose $250.00 5 years 5 Attorney James Martinez $250.00 4 years Attorney Kristina Stephenson-Cheang $350.00 11 years 6 Attorney Raymond Areshenko $200.00 2 years 7 Attorney Russell Higgins $400.00 16 years Attorney Steve Mikhov $500.00 16 years 8 HDMN Attorney or Paralegal Hourly Rate to Years of be Awarded Experience 9 Attorney Larry Castruita $300.00 8 years Attorney Sepehr Daghighian $500.00 14 years 10 Attorney Lauren Martin $250.00 2 years 11 Attorney Erik Schmitt $250.00 2 years Paralegal Andrea Plata $75.00 2 years 12 13 3. Lodestar Calculation 14 Based on the hours and hourly rates that the court has awarded plaintiff’s attorneys, the 15 lodestar here totals $79,245.00. The court’s calculations in this regard are reflected below:
16 Law Legal Professional Hours Hourly Rate Lodestar 17 Firm Awarded Awarded Knight Attorney Alastair Hamblin 5.8 $325.00 $1,885.00 18 Law Attorney Amy Morse 2.7 $350.00 $945.00 Attorney Christopher Swanson 1.0 $250.00 $250.00 19 Attorney Deepak Devabose 5.8 $250.00 $1,450.00 20 Attorney James Martinez 2.9 $250.00 $725.00 Attorney Kristina Stephenson- 11.2 $350.00 $3,920.00 21 Cheang Attorney Raymond Areshenko 12.0 $200.00 $2,400.00 22 Attorney Russell Higgins 4.0 $400.00 $1,600.00 Attorney Steve Mikhov 5.9 $500.00 $2,950.00 23
24 HDMN Attorney Larry Castruita 7.2 $300.00 $2,160.00 Attorney Sepehr Daghighian 64.8 $500.00 $32,400.00 25 Attorney Lauren Martin 106.0 $250.00 $26,500.00 Attorney Erik Schmitt 6.2 $250.00 $1,550.00 26 Paralegal Andrea Plata 6.8 $75.00 $510.00 27 Total: $79,245.00 28 1 4. Lodestar Multiplier 2 Next, plaintiff urges this court to apply a multiplier of 0.5 to the lodestar in this case. 3 (Doc. No. 101-1 at 19–24.) Plaintiff argues that the contingent nature of this litigation warrants a 4 0.2 multiplier, the delay in payment warrants a 0.2 multiplier, and the exceptional result achieved 5 warrants a 0.1 multiplier. (Id. at 21.) According to plaintiff, “there always existed the possibility 6 that Plaintiff would not prevail” and that “Plaintiff’s attorneys advanced all litigation costs and 7 expenses without reimbursement.” (Id.) FCA argues that an upward multiplier is not warranted 8 here. (Doc. No. 102 at 16–19.) For the reasons that follow, the court rejects plaintiff’s request 9 for application of an upward multiplier under the circumstances of this case. 10 Under California law the lodestar may be “augmented . . . by taking various relevant 11 factors into account, including (1) the novelty and difficulty of the questions involved and the 12 skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded 13 other employment by the attorneys; and (3) the contingent nature of the fee award, based on the 14 uncertainty of prevailing on the merits and of establishing eligibility for the award.” Robertson, 15 144 Cal. App. 4th at 819; see also Warren, 30 Cal. App. 5th at 35. 16 Here, plaintiff does not contend that her attorneys were precluded from seeking other 17 employment. The court finds that the questions involved in this action were not novel or difficult 18 and that, while certainly effective, plaintiff’s attorneys did not demonstrate exceptional skill in 19 their presentation of the issues. Plaintiff argues that “[t]his case required a range of specialized 20 knowledge including: (1) an understanding of the full scope of consumer protection laws, . . .; (2) 21 knowledge of the intricacies of automobiles . . .; and (3) knowledge of auto manufactures’ and 22 dealers’ policies and protocols for repairing vehicles and complying with their legal obligations.” 23 (Doc. No. 101-1 at 16.) However, the fact that plaintiff’s attorneys had to become familiar with 24 the case is not the type of novelty or difficulty that ordinarily justifies an upward multiplier. 25 Moreover, as plaintiff admits, “[p]laintiff’s attorneys have acquired knowledge and insight about 26 these [issues] over the course of many years of litigation,” and the attorneys do not “spend 27 unreasonable time preparing pleadings because they are able to use documents from other cases 28 that need only be edited.” (Id. at 16, 18.) Indeed, the issues presented by this case have recently 1 been addressed in several other actions prosecuted before this court, many of which involved the 2 same attorneys who appeared in this case. See, e.g., Sekula, 2019 WL 5290903; Self, 2019 WL 3 1994459; Hall, 2018 WL 2298431; Garcia v. FCA US LLC, 1:16-cv-00730-JLT (E.D. Cal. 4 March 7, 2018). Finally, with respect to counsel’s performance, the court has reviewed the 5 pleadings filed in this action and finds that the skills displayed by counsel were, on balance, 6 average at best. It is readily apparent from the face of the pleadings filed by plaintiff’s counsel in 7 this action that counsel relied upon pleadings filed in other similar cases as templates and that 8 some of their filings in this matter even contained references to vehicles, individuals, and issues 9 that had no relation to this action. The undersigned does note, however, that plaintiff’s trial 10 counsel (and defense counsel, for that matter) demonstrated notable skills during the trial, 11 including an excellent grasp of the evidence. Nevertheless, the undersigned declines to apply a 12 multiplier solely on the basis of plaintiff’s counsel’s trial performance since this was a Song- 13 Beverly action of ordinary complexity and difficulty. 14 The court also concludes that the contingent nature of this action does not weigh in favor 15 of an upward multiplier. “The purpose of a fee enhancement, or so-called multiplier, for 16 contingent risk is to bring the financial incentives for attorneys enforcing important . . . rights . . . 17 into line with incentives they have to undertake claims for which they are paid on a fee-for- 18 services basis.” Ketchum, 24 Cal. 4th at 1132. 19 A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the 20 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 21 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 22 conventional loans. 23 Id. (citation and internal quotation marks omitted). The court concludes that an upward multiplier 24 based on the contingent risk is not warranted here because that factor is outweighed by the other 25 factors the court has considered, namely that this case was not novel, complex, or difficult, 26 especially because the disputed facts and issues to be resolved were minimal. 27 Similarly, the court finds that an upward multiplier due to any delay in payment of fees to 28 plaintiff’s counsel is unwarranted. Plaintiff contends that “FCA dragged this case until a jury 1 verdict was rendered.” (Doc. No. 101-1 at 21.) However, the court is unconvinced that (1) FCA 2 was solely to blame for any delay in resolving this action and (2), even if it was, it does not 3 appear to the court that any delay was so egregious so as to justify an upward multiplier. 4 Accordingly, the court declines to apply an upward multiplier to the lodestar amount 5 under the circumstances of this case. 6 B. Costs and Expenses Request 7 Finally, plaintiff seeks an award for costs and expenses incurred by her counsel in 8 litigating this matter. Plaintiff initially sought $14,821.49 in costs and expenses. (Doc. No. 101 9 at 2.) This initial sum, however, included costs in the amount of $1,620.03 that were properly 10 pursued through a bill of costs, which is processed by the Clerk of the Court, as opposed to a 11 motion for attorneys’ fees and costs. See 28 U.S.C. § 1920; Fed. R. Civ. P. 54(d); Local Rule 12 242. Accordingly, on May 24, 2019, plaintiff filed a bill of costs that was approved by the Clerk 13 of Court in part on June 26, 2019, with costs being taxed. (See Doc. Nos. 100, 105.) Now before 14 the court is plaintiff’s motion for reimbursement of costs and expenses properly the subject of 15 such a motion in the total amount of $13,201.46. (Doc. No. 101 at 2.) FCA has raised no 16 objection to plaintiff’s motion for reimbursement of costs. 17 The court has reviewed the records for the costs and expenses sought by plaintiff, finds 18 them to be reasonably incurred in prosecuting this case, and finds them to be otherwise 19 recoverable costs. Cal. Civ. Code § 1794(d) (authorizing plaintiffs prevailing in actions brought 20 under the Song-Beverly Act to recover costs and expenses); see also Jensen v. BMW of N. Am., 21 Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 22, 1995); 22 Robertson, 144 Cal. App. 4th at 817 (“By permitting prevailing buyers to recover . . . costs and 23 expenses, our Legislature has provided injured consumers strong encouragement to seek legal 24 redress in a situation in which a lawsuit might not otherwise have been economically feasible.”); 25 Forouzan v. BMW of North America, LLC, 390 F. Supp. 3d 1184, 1186–89 (C.D. Cal. 2019). 26 Accordingly, the court concludes that plaintiff is also entitled to a total of $13,201.46 in 27 reimbursements for costs in addition to an award of reasonably incurred attorneys’ fees. 28 ///// 1 CONCLUSION 2 For the reasons set forth above: 3 1. Plaintiff’s motion for attorneys’ fees and costs (Doc. No. 101) is granted in part; 4 2. The court awards $79,245.00 in attorneys’ fees based on the lodestar analysis set 5 forth above; 6 3, The court awards costs, in addition to the amount of the separate bill of costs, in 7 the amount of $13,201.46; and 8 4. The Clerk of the Court is directed to close this case. 9 | IT IS SO ORDERED. a 8 Dated: _ February 19, 2020 Ya AL ae 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17