Gerber v. FCA US LLC

• Court: District Court, S.D. California
• Decided: October 26, 2020
• Docket: 3:17-cv-00518
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GERBER, Case No.: 17-cv-00518-AJB-BGS Plaintiff, 12 ORDER GRANTING IN PART AND v. 13 DENYING IN PART: FCA US LLC, 14 Defendant. (1) PLAINTIFF’S MOTION FOR 15 ATTORNEYS’ FEES, COSTS, AND EXPENSES, (Doc. No. 80); AND 16

17 (2) PLAINTIFF’S MOTION TO RE- TAX COSTS, (Doc. No. 95) 18 19 Before the Court is Plaintiff Michael Gerber’s (“Plaintiff”) (1) motion for attorneys’ 20 fees, costs, and expenses, (Doc. No. 80), and (2) motion to re-tax costs, (Doc. No. 95). 21 Defendant FCA US LLC (“FCA”) opposed both motions. (Doc. Nos. 88, 97.) For the 22 reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART both 23 motions, with the appropriate reduction of fees and costs as set forth below. 24 I. BACKGROUND 25 This case arose out of the purchase of a new 2012 Jeep Grand Cherokee (“the 26 Vehicle”) for a total price of $49,000.00. The Vehicle was manufactured and distributed 27 by Defendant FCA US LLC. FCA provided a written warranty with the Vehicle. Within 28 the applicable warranty period, the Vehicle exhibited issues relating to transmission 1 function, engine no-starts, vehicle stalls, steering malfunctions, recalls, and other defects. 2 Plaintiff first presented the Vehicle to an FCA-authorized repair facility on August 1, 2013 3 when the transmission was shifting. Thereafter, Plaintiff returned to FCA’s repair facility 4 on seven separate occasions for various other issues. Plaintiff filed his Complaint in this 5 action in San Diego Superior Court on June 30, 2016, alleging violations of the Song- 6 Beverly Act and fraudulent concealment. The action was removed to this Court on March 7 16, 2017. On May 8, 2019, the parties filed a notice of settlement. (Doc. No. 73.) Plaintiff 8 filed his motion for attorneys’ fees, costs, and expenses, (Doc. No. 80), and to re-tax costs, 9 (Doc. No. 95). FCA opposed both motions. (Doc. Nos. 88, 97.) This order follows. 10 II. LEGAL STANDARD 11 “In a diversity case, the law of the state in which the district court sits determines 12 whether a party is entitled to attorney fees, and the procedure for requesting an award of 13 attorney fees is governed by federal law.” Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 14 2007); see also Mangold v. Cal. Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 15 1995) (noting that in a diversity action, the Ninth Circuit “applied state law in determining 16 not only the right to fees, but also in the method of calculating the fees”). 17 As explained by the Supreme Court, “[u]nder the American Rule, ‘the prevailing 18 litigant ordinarily is not entitled to collect a reasonable attorneys’ fee from the loser.’” 19 Travelers Casualty & Surety Co. of Am. v. Pacific Gas & Electric Co., 549 U.S. 443, 448 20 (2007) (quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 21 (1975)). However, a statute allocating fees to a prevailing party can overcome this general 22 rule. Id. (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 23 (1967)). Under California’s Song-Beverly Act, a prevailing buyer is entitled “to recover as 24 part of the judgment a sum equal to the aggregate amount of costs and expenses, including 25 attorney’s fees based on actual time expended, determined by the court to have been 26 reasonably incurred by the buyer in connection with the commencement and prosecution 27 of such action.” Cal. Civ. Code § 1794(d). 28 The Song-Beverly Act “requires the trial court to make an initial determination of 1 the actual time expended; and then to ascertain whether under all the circumstances of the 2 case the amount of actual time expended, and the monetary charge being made for the time 3 expended are reasonable.” Nightingale v. Hyundai Motor America, 31 Cal. App. 4th 99, 4 104 (1994). The court may consider “factors such as the complexity of the case and 5 procedural demands, the skill exhibited, and the results achieved.” Id. If the court finds the 6 time expended or fee request “is not reasonable under all the circumstances, then the court 7 must take this into account and award attorney fees in a lesser amount.” Id. “A prevailing 8 buyer has the burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably 9 necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” Id. (quoting 10 Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App. 4th 807, 816 (1992)); see also Goglin 11 v. BMW of North America, LLC, 4 Cal. App. 5th 462, 470 (2016) (same). If a fee request 12 is opposed, “[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated 13 do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 4th 14 550, 564 (2008). Rather, the opposing party has the burden to demonstrate the hours spent 15 are duplicative or excessive. Id. at 562, 564; see also Gorman v. Tassajara Dev. Corp., 178 16 Cal. App. 4th 44, 101 (2009) (“[t]he party opposing the fee award can be expected to 17 identify the particular charges it considers objectionable”). 18 III. DISCUSSION 19 As a prevailing buyer, Plaintiff is entitled to an award of fees and costs under the 20 Song-Beverly Act. See Cal. Civ. Code § 1794(d); see also Goglin, 4 Cal. App. 5th at 470. 21 Here, Plaintiff seeks: (1) for an award of attorneys’ fees pursuant to Civil Code section 22 1794(d) under the “lodestar” method in the amount of $39,766.25, (2) for a “lodestar” 23 modifier of 0.5 under California law, in the amount of $19,883.13, and (3) to award actual 24 costs and expenses incurred in the amount of $20,483.81. (Doc. No. 80-1 at 8.) Plaintiff 25 requests a total of $80,133.19 in attorney’s fees, costs, and expenses. (Id.) FCA 26 acknowledges Plaintiff is entitled to recover attorney’s fees, costs, and expenses, but argues 27 the amount requested is unreasonable and should be reduced. (Doc. No. 88 at 6.) 28 // 1 A. Plaintiff’s Attorneys’ Fee Request 2 First, Plaintiff seeks $25,442.50 for work completed by Knight Law Group (“KLG”) 3 and $14,323.75 for work completed by co-counsel, Hackler Daghighian Martino & Novak, 4 P.C. (“HDMN”). (Doc. No. 80-1 at 14.) KLG associated with HDMN to have HDMN serve 5 as trial specialists. For both law firms, the attorneys’ fees requested totals $39,766.25. 6 1. Hours Worked By Counsel 7 A fee applicant must provide time records documenting the tasks completed and the 8 amount of time spent. See Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. 9 Metropolitan Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir. 2007). Under California law, a 10 court “must carefully review attorney documentation of hours expended” to determine 11 whether the time reported was reasonable. Ketchum v. Moses, 24 Cal. 4th 1122, 1132 12 (2001) (quoting Serrano v. Priest, 20 Cal.3d 25, 48 (1977)). Thus, evidence provided by 13 the fee applicant “should allow the court to consider whether the case was overstaffed, how 14 much time the attorneys spent on particular claims, and whether the hours were reasonably 15 expended.” Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008). The 16 court must exclude “duplicative or excessive” time from its fee award. Graciano v. 17 Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 161 (2006); see also Ketchum, 24 Cal. 18 4th at 1132 (stating “inefficient or duplicative efforts [are] not subject to compensation”). 19 The billing records submitted by the KLG indicate that its attorneys expended 66.4 20 billable hours on this case while HDMN billed 46.75 hours. (Doc. No. 80-2 at 38.) FCA 21 objects to the reported hours, arguing there was duplication by HDMN, as well as other 22 excessive rates or time billed. (Doc. No. 88 at 8.) FCA lists 13 examples and objections 23 where billing entries were either excessive, duplicative, or included clerical work. The 24 Court will address each objection below. 25 First, FCA objects to the $562.50 and $37.50 billed by HDMN relating to “file 26 review” and “getting up to speed.” (Doc. No. 88 at 8.) Essentially, FCA argues KLG’s 27 decision to pull in HDMN for trial resulted in duplication of efforts. Reviewing the bill, 28 the Court finds the $562.50 billed by attorney LCM reasonable as this time was billed for 1 the review of document production, repair orders, and preparation of exhibits for trial. 2 (Doc. No. 80-3 at 8.) However, the Court finds the $37.50 amount for “[r]eceiv[ing] and 3 review[ing] trial countdown from co-counsel” and for “[c]alendaring important deadlines 4 and court hearings” as unrecoverable clerical tasks. As such, the Court reduces HDMN’s 5 fees by $37.50. 6 Next, Plaintiff seeks to recover $1,155.00 billed by KLG for the following three 7 entries: (1) “[i]nitial communication with Client and evaluation of Client’s claims,” (2) 8 analyze vehicle documentation, (3) communication with client. (Doc. No. 80-3 at 31.) 9 Plaintiff argues these entries are a customary practice, (Doc. No. 90 at 6), while FCA 10 maintains that these entries are undated, and there no evidence that a fee agreement was 11 even in place when these tasks occurred. (Doc. No. 88 at 8.) Furthermore, FCA points out 12 these charges appear to be part of the “free consultation” that was offered to the public. 13 (Id.) The Court agrees with FCA and in its discretion, will exclude $500.00 from KLG’s 14 recoverable fees. 15 Next, FCA objects to the $1,820.00 billed by attorney ALM of KLG for the 5.2 hours 16 spent drafting written discovery and the $877.50 billed by AH of KLG for drafting 17 additional written discovery. FCA contends Plaintiff’s counsel propounds the same 18 discovery requests in every lemon law action KLG brings against FCA on behalf of 19 different plaintiffs. (Doc. No. 88 at 8.) While Plaintiff argues that these amounts are 20 reasonable, the Court agrees with FCA that these amounts are slightly excessive 21 particularly given that ALM is a partner at KLG, and this level of work should primarily 22 consist of adapting templates. Thus, the Court, in its discretion, will reduce KLG’s 23 recoverable fees by $500.00. 24 In FCA’s next objection, FCA opposes the $1,755.00 billed by attorney AH of KLG 25 for drafting Plaintiff’s motion to remand, which was ultimately denied. (Doc. No. 88 at 8– 26 9.) Plaintiff responds by stating that the time spent on the motion was necessary after FCA 27 decided to remove the case to federal court. (Doc. No. 90 at 6.) Because the Court denied 28 the motion, the Court will reduce KLG’s fees by $1,755.00. See Ferrigno v. Philips Elecs. 1 N. Am. Corp., No. C-09-03085 RMW, 2009 WL 10692955, at *5 (N.D. Cal. Nov. 5, 2009) 2 (“Plaintiff seeks to recover reasonable attorneys’ fees incurred as a result of litigating 3 against defendants’ removal. [] Plaintiff’s motion is denied. Because the court has denied 4 the motion to remand, there is no basis upon which to award attorneys’ fees.”). 5 Moving on, FCA objects to the $3,300.00 billed by attorney CM of KLG for 6 attending Plaintiff’s deposition, which FCA argues lasted less than two hours. (Doc. No. 7 88 at 9.) Plaintiff responds that the amount includes travel to and from the deposition, and 8 time spent preparing for the deposition, and drafting the memorandum regarding the 9 deposition. (Doc. No. 90 at 6.) Because of this block bill, the Court is unable to determine 10 how many hours were spent traveling versus drafting the memorandum or preparing for 11 the deposition. Thus, the Court, in its discretion, reduces KLG’s fees by $1,000. 12 FCA next challenges the $440.00 billed by attorney SM from KLG for spending 0.8 13 hours on “review and audit billing.” (Doc. No. 88 at 9.) Plaintiff retorts that review by a 14 partner is customary practice. (Doc. No. 90 at 8.) But here, because the billing description 15 is so vague, the Court cannot determine what exactly was reviewed. Additionally, tasks 16 such as auditing bill are clerical and administrative and cannot be recovered. As such, the 17 Court strikes this item, and reduces KLG’s fees by $440.00. 18 Next, FCA seeks to exclude the $112.50 billed by paralegal AP of KLG for clerical 19 tasks such as printing and saving documents, opening and preparing files, receiving a trial 20 countdown, and calendaring dates. (Doc. No. 88 at 9.) The Court agrees that Plaintiff’s 21 counsel may not be compensated for purely clerical tasks. See Castillo-Antionio v. Iqbal, 22 2017 WL 1113300, at *7 (N.D. Cal. Mar. 24, 2017). Thus, this amount will be excluded 23 from KLG’s fees. 24 FCA protests the $1,856.25 billed by HDMN for preparing the instant motion for 25 attorneys’ fees because the motion is similar to other motions for attorneys’ fees filed in 26 cases against FCA by KLG and HDMN. (Doc. No. 88 at 10.) Finding FCA’s position 27 persuasive, the Court will reduce HDMN’s fees by $300.00 for the work completed on the 28 motion for attorneys’ fees. FCA also seeks for the Court to exclude the $4,537.50 billed by 1 HDMN in “anticipated” costs for preparing both the reply brief and attending the hearing 2 on the motion for attorneys’ fees. (Id.) Plaintiff responds the $1,512.50 billed for the 3 “Reply Brief is absolutely necessary and not templated work. Responding to every 4 improper deduction that Defendant’s attempt to make requires case-specific facts, attention 5 to detail, as well as a review of the case files.” (Doc. No. 90 at 7.) As to the reply, because 6 HDMN does not supplement its bills with actual time spent, the Court will reduce the 7 amount recoverable for the reply brief by $300.00. Finally, HDMN may not be 8 compensated for the “$2,750.00 for ‘anticipated’ time for traveling to and appearing for 9 the hearing on instant fee motion.” The hearing on this motion for attorneys’ fees was 10 vacated by the Court in its determination that the matter was suitable for determination on 11 the papers. (Doc. No. 99.) 12 Finally, FCA takes issue with HDMN’s practice of billing in quarterly hour 13 increments. (Doc. No. 88 at 10.) According to the Ninth Circuit, the “practice of billing by 14 the quarter-hour” may result in a request for excessive hours because counsel may bill “a 15 minimum of 15 minutes for numerous phone calls and emails that likely took a fraction of 16 the time.” Welsh v. Metro Life Ins. Co., 480 F.3d 942, 948–49 (9th Cir. 2007). FCA argues 17 that here, many email/communication and review of basic court filings is billed at .25 or .5 18 such that there is a real risk of overbilling. Consequently, FCA advocates for a 20% 19 reduction, in accordance with the Ninth Circuit’s decision in Welsh. See Welch, 480 F.3d 20 at 949 (9th Cir. 2007) (affirming a 20% reduction after finding the billing practice inflated 21 the time recorded); Prudential Ins. Co. v. Am. v. Remington, No. 2:12–cv–02821–GEB– 22 CMK, 2014 WL 294989, at *4 (E.D. Cal. Jan. 24, 2014) (also applying a 20% reduction 23 where counsel billed in 15 minute-increments). In response, Plaintiff states that the Court 24 should only entertain a minimal 5% reduction because there is no evidence of actual 25 overbilling by Plaintiff’s counsel. (Doc. No. 90 at 7.) While not excessively widespread, 26 the Court does find that HDMN billed in increments of .25 for several items including 27 email correspondence, and review of basic court documents such as .25 for review of 28 1 “Court Docket regarding vacated Mandatory Settlement Conference.” (Doc. No. 80-3 at 2 9.) Accordingly, in its discretion, will adjust HDMN’s fees downward by 15%. 3 In summation, KLG’s total recoverable fee amount is reduced by $4,307.50. This 4 brings KLG’s recoverable fees down to a total of $21,135.00. 5 HDMN’s fees are reduced by $3,387.50. This places HDMN’s fees to a total of 6 $10,936.25. After applying the 15% reduction ($1,640.43) to account for HDMN’s 7 quarterly hour billing practices, HDMN’s total fees comes out to $9,295.82. 8 2. Hourly Rates 9 FCA next argues that under all of the circumstances of this case, from the value of 10 the vehicle in issue, to the basic nature of the litigation tasks involved, the hourly rates are 11 unreasonable. (Doc. No. 88 at 12.) However, the Court is satisfied with the bases for 12 Plaintiff’s counsels’ hourly rates. Particularly, Plaintiff has provided ample evidence, 13 including surveys of the hourly rates of similar attorneys with similar experience and 14 qualifications. Thus, the Court finds the rates cited for all attorneys supported by evidence 15 and reasonable. 16 3. Lodestar Calculation 17 The lodestar method calculates attorneys’ fees by “by multiplying the number of 18 hours reasonably expended by counsel on the particular matter times a reasonable hourly 19 rate.” State of Fla. v. Dunne, 915 F.2d 542, 545 n.3 (9th Cir. 1990) (citing Hensley, 461 20 U.S. at 433); see also Laffitte v. Robert Half Int’l Inc., 1 Cal. 5th 480, 489 (2016). 21 22 LAW FIRM LEGAL HOURS RATE LODESTAR 23 PROFRESSIONAL 24 Knight Law Group Alastair Hamblin 18.9 $325 $6,142.50 Amy Morse 11 $350 $3,850.00 25 Constance Morrison 8.8 $375 $3,300.00 26 Christopher Swanson 6.2 $375 $2,325.00 27 Kristina Stephenson- 7.2 $375 $2,700.00 28 1 Cheang 2 Lauren B. Veggian 3.7 $350 $1,295.00 Steve Mikhov 10.6 $550 $5,830.00 3 Knight Law Group $25,442.50 4 Total 5

6 HDMN Andrea Plata 1.50 $75 $112.50 7 Kevin Jacobson 1.25 $275 $343.75 8 Lauren C. Martin 36.50 $250/$275 $9,900.00 9 Larry S. Castruita 0.50 $ 385.00 $192.50 Sepehr Daghighian 7.0 $490.00/$550.00 $3,775.00 10 HDMN Total $14,323.75 11 TOTAL $39,766.25 12 13 Here, with no adjustments, the total amount of fees for both KLG and HDMN is 14 $39,766.25. Taking into account the aforementioned reductions, the total lodestar amount 15 is $21,135.00 for KLG’s fees and $9,295.82 for HDMN’s fees. Therefore, Plaintiff’s 16 counsels’ total lodestar amounts is $30,430.82. 17 4. Application of a Multiplier 18 Once a court has calculated the lodestar, “it may increase or decrease that amount 19 by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, 20 including the quality of the representation, the novelty and complexity of the issues, the 21 results obtained, and the contingent risk presented.” Laffitte, 1 Cal. 5th at 504 (citation 22 omitted); see also Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (indicating the court 23 may adjust the fee award considering “the following factors: (1) the novelty and difficulty 24 of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which 25 the nature of the litigation precluded other employment by the attorneys, (4) the contingent 26 nature of the fee award.” 27 Here, Plaintiff seeks a 0.5 multiplier “based on the risk of taking this case on a 28 contingent fee basis, the substantial costs advanced, the exceptional result achieved and the 1 delay in payment.” (Doc. No. 82-1 at 21.) Significantly, however, this case did not present 2 particularly novel or difficult questions of law or fact. Indeed, the issues related to the 3 complained of defect addressed in Velasco, et al. v. Chrysler Group LLC, Case No. 2:13– 4 cv–08080–DDP–VBK and Hall v. FCA US LLC, Case No. 1:16-cv-0684-JLT. Thus, the 5 issues presented in this action were not uniquely complex or difficult. See Steel v. 6 GMC, 912 F. Supp. 724, 746 (N.J. Dist. 1995) (“the issues in lemon law litigation are not 7 complex and do not require a significant amount of legal analysis or novel pleading”). 8 Additionally, it is highly unlikely that the litigation of this specific case precluded counsel, 9 as lemon law attorneys, from taking on other matters. Finally, the Court finds the 10 contingent nature of the fee award is outweighed by the other factors, especially in this 11 action where the disputed facts and issues to be resolved were minimal. Indeed, there was 12 nothing unusual about this case that would put counsel at great risk for accepting the matter 13 on a contingent basis. Accordingly, the Court declines to award a multiplier and finds the 14 lodestar amount of $30,430.82 as reasonable. 15 B. Motion to Re-Tax Costs 16 Turning to Plaintiff’s motion to re-tax costs, Plaintiff additionally seeks to re-tax the 17 $17,825.18 portion of Plaintiff’s cost bill. (Doc. No. 95.) Plaintiff originally filed a Bill of 18 Costs seeking to recover $20,483.81 but the Clerk of Court issued an Order Taxing Costs 19 in the amount of $2,658.63 in favor of Plaintiff. (See Doc. No. 92.) Plaintiff then submitted 20 a motion seeking to re-tax the remaining $17,825.18 in costs. (See Doc. No. 95.) FCA 21 argues these remaining costs include numerous items that are not recoverable by statute or 22 local rule, and are also excessive, unreasonable, and unnecessary. (Doc. No. 97.) 23 “In general, an award of costs in federal district court is governed by Federal Rule 24 of Civil Procedure 54(d) and not applicable state law, even in diversity cases.” Self v. FCA 25 US LLC, No. 1:17-CV-01107-SKO, 2019 WL 1994459, at *12 (E.D. Cal. May 6, 2019) 26 (citing Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 27 2003)). An exception exists under Clausen v. M/V NEW CARISSA, 339 F.3d 1049 (9th Cir. 28 2003), as amended on denial of reh’g (Sept. 25, 2003), which held that the measure of 1 damages is a matter of state substantive law where “a state law provision allows for the 2 awarding of costs as part of a substantive, compensatory damages scheme[,]” Kelly v. 3 Echols, No. CIVF05118AWISMS, 2005 WL 2105309, at *16 (E.D. Cal. Aug. 30, 2005). 4 In Clausen, the Ninth Circuit found that the measure of damages under Oregon’s Oil Spill 5 Act “‘is inseparably connected with the right of action[.]’” Clausen, 339 F.3d at 1065 6 (quoting Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 491 (1916)). The Ninth Circuit 7 added that the Oregon Oil Spill Act presented the court “with an ‘express indication’ of a 8 state legislature’s ‘special interest in providing litigants’ with full compensation for 9 reasonable sums expended in pursuit of [their] Oil Spill Act claim.” Clausen, 339 F.3d at 10 1065 (citation omitted). 11 Here, section 1794(d) of the California Civil Code provides that buyers prevailing 12 in an action under the Song-Beverly Act “shall be allowed by the court to recover as part 13 of the judgment a sum equal to the aggregate amount of costs and expenses, including 14 attorney’s fees based on actual time expended, determined by the court to have been 15 reasonably incurred by the buyer in connection with the commencement and prosecution 16 of such action.” Cal. Civ. Code § 1794 (emphasis added). Plaintiff states that because the 17 Song-Beverly does make “costs” an element recoverable under this section, state 18 substantive law should govern the award of costs. 19 Citing Self, FCA counters that the Clausen exception does not apply here because 20 “the Song-Beverly Act does not make costs an element of damages as in Clausen,” Self, 21 2019 WL 1994459, at *12 n.8. But district courts within the Ninth Circuit are split as to 22 whether the Clausen exception applies to the Song-Beverly Act. Compare, e.g., Self, 2019 23 WL 1994459, at *12 n.8 (“[T]he Song-Beverly Act does not make costs an element of 24 damages as in Clausen[.]”); Celestine v. FCA US LLC, No. 2:17-CV-0597 - JLT, 2019 WL 25 4274092, at *14 (E.D. Cal. Sept. 10, 2019) (same); Flores v. FCA US LLC, No. 1:17-CV- 26 0427-JLT, 2019 WL 6211367, at *14 (E.D. Cal. Nov. 21, 2019) (same), with, e.g., 27 Petropoulos v. FCA US LLC, No. 17-CV-0398 W (KSC), 2019 WL 2289399, at *4 (S.D. 28 Cal. May 29, 2019); Arias v. FCA US LLC, No. 2:18-CV-00392-JAM-AC, 2019 WL 1 6211353, at *3 (E.D. Cal. Nov. 21, 2019). 2 Having reviewed both sides of this split amongst the district courts, the Court finds 3 that state substantive law applies to Plaintiff’s request for costs. Of note, the California 4 Legislature has demonstrated a “special interest” in permitting prevailing Song-Beverly 5 plaintiffs to recover costs and expenses under section 1794. As the California Court of 6 Appeal has noted “[a]n analysis by the Assembly Committee on Labor, Employment, and 7 Consumer Affairs states: ‘Indigent consumers are often discouraged from seeking legal 8 redress due to court costs. The addition of awards of ‘costs and expenses’ by the court to 9 the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, 10 marshal’s fees, etc., should open the litigation process to everyone.’” Jensen v. BMW of N. 11 Am., Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 22, 1995). 12 While state substantive law may apply, this does not obviate the Court’s obligation 13 to ensure that the costs were “reasonably incurred.” Many of the items Plaintiff seeks to 14 re-tax have already been awarded by the Clerk. Additionally, FCA argues the charges of 15 $14,061.50 related to Dr. Luna were not “reasonably incurred in connection with the 16 commencement and prosecution of this case. According to the invoices attached to the Bill 17 of Costs, Dr. Luna’s firm spent over 48 hours on a case where her testimony was nearly 18 identical to that given in a hundred or more other cases against Defendant.” (Doc. No. 97 19 at 7.) Moreover, FCA argues “Plaintiff recovered nothing on his fraud claim, the reason 20 Plaintiff’s counsel gave for hiring Dr. Luna . . . . Finally, while there may be statutory basis 21 under California law for recovery of costs under the Song-Beverly Act, there is no such 22 statutory authority for Plaintiff to recover costs based on the fraud claim, much less a losing 23 fraud claim.” (Id.) The Court largely agrees with FCA, and so, in its discretion, will re-tax 24 costs in the amount of $10,000.00. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d 25 1236, 1249 (9th Cir. 2014) (district courts are afforded significant “flexibility in evaluating 26 the suitability of awarding costs in a particular case.”). This $10,000.00 will be in addition 27 to the $2,658.63 already awarded by the Clerk. 28 // 1 ||IV. CONCLUSION 2 Based upon the foregoing, the Court ORDERS as follows: 3 1. Plaintiff's motion for attorneys’ fees is GRANTED IN PART AND 4 DENIED IN PART in the modified amount of $30,430.82; and 5 2. Plaintiffs motion to re-tax costs is GRANTED IN PART AND DENIED 6 IN PART in the modified amount of $10,000.00. 7 8 IT IS SO ORDERED. 9 Dated: October 26, 2020 10 Hon, Anthony J Heatia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13