1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RIADON JOHNSON, MARK Case No.: 3:17-cv-0536-AJB-BGS JOHNSON, 12 ORDER GRANTING IN PART Plaintiffs, PLAINTIFF’S MOTION FOR 13 v. ATTORNEY’S FEES 14 (Doc. No. 53) FCA US LLC, 15 Defendant. 16 17 Before the Court is Plaintiffs’ motion for attorney’s fees. (Doc. No. 53.) For the 18 reasons stated herein, the Court GRANTS IN PART the motion with a reduction of fees 19 and costs as stated below. 20 I. BACKGROUND 21 This case arose out of the purchase of a 2012 Dodge Durango by the Plaintiffs 22 Riadon and David Johnson. The Subject vehicle was manufactured by Defendant FCA US 23 LLC. The Dodge Durango was sold with FCA US’s basic limited warranty which covered 24 the cost of all parts and labor needed to repair any item on the vehicle that was defective 25 in material, workmanship or factory preparation for 3 years or 36,000 miles. 26 Mr. and Mrs. Johnson contended that the Durango was delivered to them containing 27 defects covered by the warranty that substantially impaired the vehicle’s use, value and 28 safety. Plaintiffs claimed that despite numerous repair presentations to FCA US’s 1 authorized repair facility FCA US and its authorized repair facilities were unable to repair 2 the Durango to conform to warranty after a reasonable number of opportunities to do so. 3 Further, FCA US failed to promptly replace or buy back the Durango in violation of the 4 Song-Beverly Consumer Warranty Act. Plaintiffs sought a repurchase of the Dodge 5 Durango along with statutory civil penalties based on FCA US’s willful failure to promptly 6 repurchase or replace the defective Dodge Durango. Additionally, Plaintiffs claimed that 7 FCA US knew about alleged defects in the totally integrated power module in the 2012 8 Dodge Durango yet concealed this information from the Johnsons and through this 9 concealment, committed fraudulent concealment. 10 Defendant contended that its dealerships repaired each mechanical complaint that 11 the Plaintiffs brought to the attention of the dealership within a reasonable number of repair 12 attempts. FCA US contended that it promptly offered to repurchase Plaintiffs’ Dodge 13 Durango and no civil penalty was warranted. FCA US contended that there was no known 14 defect in the TIPM in Plaintiffs’ Dodge Durango and that when FCA US discovered that 15 the fuel pump relays in TIPMs were prematurely wearing, the company conducted an 16 investigation and then conducted a nationwide recall to replace the fuel pump relays. All 17 owners of the potentially affected vehicles were notified of that recall. 18 The parties filed a notice of joint settlement on August 20, 2018. (Doc. No. 47.) 19 Plaintiffs filed their motion for attorneys’ fees and bill of costs in January 2019. 20 (Docs. No. 52, 53.) 21 II. LEGAL STANDARDS 22 “In a diversity case, the law of the state in which the district court sits determines 23 whether a party is entitled to attorney fees, and the procedure for requesting an award of 24 attorney fees is governed by federal law. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 25 2007); see also Mangold v. Cal. Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 26 1995) (noting that in a diversity action, the Ninth Circuit “applied state law in determining 27 not only the right to fees, but also in the method of calculating the fees”). 28 As explained by the Supreme Court, “[u]nder the American Rule, ‘the prevailing 1 litigant ordinarily is not entitled to collect a reasonable attorneys’ fee from the loser.’ 2 Travelers Casualty & Surety Co. of Am. v. Pacific Gas & Electric Co., 549 U.S. 443, 448 3 (2007) (quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 4 (1975)). However, a statute allocating fees to a prevailing party can overcome this general 5 rule. Id. (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 6 (1967)). Under California’s Song-Beverly Act, a prevailing buyer is entitled “to recover as 7 part of the judgment a sum equal 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 9 reasonably incurred by the buyer in connection with the commencement and prosecution 10 of such action.” Cal. Civ. Code § 794(d). 11 The Song-Beverly Act “requires the trial court to make an initial determination of 12 the actual time expended; and then to ascertain whether under all the circumstances of the 13 case the amount of actual time expended, and the monetary charge being made for the time 14 expended are reasonable.” Nightingale v. Hyundai Motor America, 31 Cal. App. 4th 99, 15 104 (1994). The court may consider “factors such as the complexity of the case and 16 procedural demands, the skill exhibited, and the results achieved.” Id. If the court finds the 17 time expended or fee request “is not reasonable under all the circumstances, then the court 18 must take this into account and award attorney fees in a lesser amount.” Id. “A prevailing 19 buyer has the burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably 20 necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” Id. (quoting 21 Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App. 4th 807, 816 (1992)); see also Goglin 22 v. BMW of North America, LLC, 4 Cal. App. 5th 462, 470 (2016) (same). 23 If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, 24 duplicative, or unrelated do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee 25 Assoc., 163 Cal. App. 4th at 550, 564 (2008). Rather, the opposing party has the burden to 26 demonstrate the hours spent are duplicative or excessive. Id. at 562, 564; see also Gorman 27 v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“[t]he party opposing the fee 28 award can be expected to identify the particular charges it considers objectionable”). 1 III. DISCUSSION 2 As prevailing buyers, Plaintiffs are entitled to an award of fees and costs under the 3 Song-Beverly Act. See Cal. Civ. Code § 1794(d); see also Goglin, 4 Cal. App. 5th at 470. 4 Here, Plaintiffs seek: (1) an award of attorneys’ fees under Cal. Civ. Code § 1794(d) under 5 the lodestar method for $46,382.50; (2) for a lodestar modifier of .5 under California law 6 for $23,191.25; and (3) actual costs and expenses for $21,489.12. (Doc. No. 53-1 at 8–10.) 7 Thus, Plaintiffs seek a total award of $91,062.87. (Id. at 9.) Defendant acknowledges, 8 “Plaintiffs are entitled to recover attorney’s fees, costs” but argues the amount requested is 9 unreasonable. (Doc. No. 59 at 7.) 10 A. Fee Request 11 Plaintiffs seek $29,370.00 for work completed by Knight Law Group and 12 $17,012.50 for work completed by Hackler Daghighian Martino & Novak, P.C. 13 (“HDMN”). (Doc. No. 53-1 at 14.) This totals $46,382.50. 14 1.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RIADON JOHNSON, MARK Case No.: 3:17-cv-0536-AJB-BGS JOHNSON, 12 ORDER GRANTING IN PART Plaintiffs, PLAINTIFF’S MOTION FOR 13 v. ATTORNEY’S FEES 14 (Doc. No. 53) FCA US LLC, 15 Defendant. 16 17 Before the Court is Plaintiffs’ motion for attorney’s fees. (Doc. No. 53.) For the 18 reasons stated herein, the Court GRANTS IN PART the motion with a reduction of fees 19 and costs as stated below. 20 I. BACKGROUND 21 This case arose out of the purchase of a 2012 Dodge Durango by the Plaintiffs 22 Riadon and David Johnson. The Subject vehicle was manufactured by Defendant FCA US 23 LLC. The Dodge Durango was sold with FCA US’s basic limited warranty which covered 24 the cost of all parts and labor needed to repair any item on the vehicle that was defective 25 in material, workmanship or factory preparation for 3 years or 36,000 miles. 26 Mr. and Mrs. Johnson contended that the Durango was delivered to them containing 27 defects covered by the warranty that substantially impaired the vehicle’s use, value and 28 safety. Plaintiffs claimed that despite numerous repair presentations to FCA US’s 1 authorized repair facility FCA US and its authorized repair facilities were unable to repair 2 the Durango to conform to warranty after a reasonable number of opportunities to do so. 3 Further, FCA US failed to promptly replace or buy back the Durango in violation of the 4 Song-Beverly Consumer Warranty Act. Plaintiffs sought a repurchase of the Dodge 5 Durango along with statutory civil penalties based on FCA US’s willful failure to promptly 6 repurchase or replace the defective Dodge Durango. Additionally, Plaintiffs claimed that 7 FCA US knew about alleged defects in the totally integrated power module in the 2012 8 Dodge Durango yet concealed this information from the Johnsons and through this 9 concealment, committed fraudulent concealment. 10 Defendant contended that its dealerships repaired each mechanical complaint that 11 the Plaintiffs brought to the attention of the dealership within a reasonable number of repair 12 attempts. FCA US contended that it promptly offered to repurchase Plaintiffs’ Dodge 13 Durango and no civil penalty was warranted. FCA US contended that there was no known 14 defect in the TIPM in Plaintiffs’ Dodge Durango and that when FCA US discovered that 15 the fuel pump relays in TIPMs were prematurely wearing, the company conducted an 16 investigation and then conducted a nationwide recall to replace the fuel pump relays. All 17 owners of the potentially affected vehicles were notified of that recall. 18 The parties filed a notice of joint settlement on August 20, 2018. (Doc. No. 47.) 19 Plaintiffs filed their motion for attorneys’ fees and bill of costs in January 2019. 20 (Docs. No. 52, 53.) 21 II. LEGAL STANDARDS 22 “In a diversity case, the law of the state in which the district court sits determines 23 whether a party is entitled to attorney fees, and the procedure for requesting an award of 24 attorney fees is governed by federal law. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 25 2007); see also Mangold v. Cal. Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 26 1995) (noting that in a diversity action, the Ninth Circuit “applied state law in determining 27 not only the right to fees, but also in the method of calculating the fees”). 28 As explained by the Supreme Court, “[u]nder the American Rule, ‘the prevailing 1 litigant ordinarily is not entitled to collect a reasonable attorneys’ fee from the loser.’ 2 Travelers Casualty & Surety Co. of Am. v. Pacific Gas & Electric Co., 549 U.S. 443, 448 3 (2007) (quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 4 (1975)). However, a statute allocating fees to a prevailing party can overcome this general 5 rule. Id. (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 6 (1967)). Under California’s Song-Beverly Act, a prevailing buyer is entitled “to recover as 7 part of the judgment a sum equal 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 9 reasonably incurred by the buyer in connection with the commencement and prosecution 10 of such action.” Cal. Civ. Code § 794(d). 11 The Song-Beverly Act “requires the trial court to make an initial determination of 12 the actual time expended; and then to ascertain whether under all the circumstances of the 13 case the amount of actual time expended, and the monetary charge being made for the time 14 expended are reasonable.” Nightingale v. Hyundai Motor America, 31 Cal. App. 4th 99, 15 104 (1994). The court may consider “factors such as the complexity of the case and 16 procedural demands, the skill exhibited, and the results achieved.” Id. If the court finds the 17 time expended or fee request “is not reasonable under all the circumstances, then the court 18 must take this into account and award attorney fees in a lesser amount.” Id. “A prevailing 19 buyer has the burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably 20 necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” Id. (quoting 21 Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App. 4th 807, 816 (1992)); see also Goglin 22 v. BMW of North America, LLC, 4 Cal. App. 5th 462, 470 (2016) (same). 23 If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, 24 duplicative, or unrelated do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee 25 Assoc., 163 Cal. App. 4th at 550, 564 (2008). Rather, the opposing party has the burden to 26 demonstrate the hours spent are duplicative or excessive. Id. at 562, 564; see also Gorman 27 v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“[t]he party opposing the fee 28 award can be expected to identify the particular charges it considers objectionable”). 1 III. DISCUSSION 2 As prevailing buyers, Plaintiffs are entitled to an award of fees and costs under the 3 Song-Beverly Act. See Cal. Civ. Code § 1794(d); see also Goglin, 4 Cal. App. 5th at 470. 4 Here, Plaintiffs seek: (1) an award of attorneys’ fees under Cal. Civ. Code § 1794(d) under 5 the lodestar method for $46,382.50; (2) for a lodestar modifier of .5 under California law 6 for $23,191.25; and (3) actual costs and expenses for $21,489.12. (Doc. No. 53-1 at 8–10.) 7 Thus, Plaintiffs seek a total award of $91,062.87. (Id. at 9.) Defendant acknowledges, 8 “Plaintiffs are entitled to recover attorney’s fees, costs” but argues the amount requested is 9 unreasonable. (Doc. No. 59 at 7.) 10 A. Fee Request 11 Plaintiffs seek $29,370.00 for work completed by Knight Law Group and 12 $17,012.50 for work completed by Hackler Daghighian Martino & Novak, P.C. 13 (“HDMN”). (Doc. No. 53-1 at 14.) This totals $46,382.50. 14 1. Hours Worked by Counsel 15 A fee applicant must provide time records documenting the tasks completed and the 16 amount of time spent. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. 17 Metropolitan Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir. 2007). Under California law, a 18 court “must carefully review attorney documentation of hours expended” to determine 19 whether the time reported was reasonable. Ketchum v. Moses, 24 Cal. 4th 1122, 1132 20 (2001) (quoting Serrano v. Priest, 20 Cal.3d 25, 48 (1977)). Thus, evidence provided by 21 the fee applicant “should allow the court to consider whether the case was overstaffed, how 22 much time the attorneys spent on particular claims, and whether the hours were reasonably 23 expended.” Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008). The 24 court must exclude “duplicative or excessive” time from its fee award. Graciano v. 25 Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 161 (2006); see also Ketchum, 24 Cal. 26 4th at 1132 (“inefficient or duplicative efforts [are] not subject to compensation”). 27 The billing records Knight Law Group submitted indicate the attorneys expended 28 82.9 billable hours through the settlement. (Doc. No. 53-2 at 33.) Defendant objects to the 1 reported hours arguing there was duplication by HDMN, as well as other excessive rates 2 or time billed. (Doc. No. 59 at 8–9.) Defendant lists 15 examples where billing entries were 3 excessive or included clerical work. 4 These include billing: (1) $1,750 for 5 hours drafting the same discovery requests 5 they do in every lemon law case; (2) $825 for 2.2 hours attending a telephonic CMC and 6 drafting the results; (3) $55 to review a notice of change of address; (4) $3,450 for 11.5 7 hours traveling and defendant taking Plaintiff’s depositions, which Defendant claims took 8 less than five hours to complete; (5) $3,000 for 10 hours to travel and attend a vehicle 9 inspection and drafting a summary, which normally take less than four hours to complete; 10 (6) $725 for a paralegal to do 1.5 hours of clerical tasks, which was billed at the partner 11 rate; (7) $37.50 for 30 minutes spent on calendaring; (8) $112.50 to arrange trial exhibits 12 in a folder and number them; (9) $225 for one hour extracting and organizing documents; 13 (10) $112.5 for 30 minutes adding repair invoices to a file; (11) $56.25 to revise exhibit 14 numbers; (12) $56.25 to draft proofs of service; (13) $56.25 to review a notice of hearing; 15 (14) $6,252.50 for bringing a motion for attorney’s fees, which is a template-driven motion. 16 (Doc. No. 59 at 9–11.) 17 The Court agrees with Defendant. Clerical tasks cannot be recovered. See Castillo- 18 Antionio v. Iqbal, 2017 WL 1113300, at *7 (N.D. Cal. Mar. 24, 2017). Thus, the Court 19 strikes contested entries 3, 6, 7, 8, 9, 10, 11, 12, and 13 for a total of $1,436.25. In its 20 discretion, the Court also reduces the other amounts as follows: $500 for discovery 21 requests, $400 for CMC attendance, $1,000 for depositions, $1,000 for vehicle inspection, 22 and $2,000 for this motion. This reduces the entries by $4,900. 23 Additionally, the Court reduced Daghighian’s hours by 6.00 because the Court 24 vacated the hearing. 25 2. Hourly Rates 26 Defendant argues the hourly rates of Alastair Hamblin, Amy Morse, Kristina 27 Stephenson-Cheang, Michelle Lumasag, Raymond Areshenko, Russell Higgins, Larry 28 Castruita, Asa Eaton, Kevin Yaghoubzadeh, Matthew Evans, and paralegal Andrea Plata 1 are unsupported by competent evidence. (Doc. No. 59 at 11.) However, in Steve Mikhov’s 2 declaration, he provides a basis for Hamblin, Morse, Stephenson-Cheang, Lumasag, 3 Areshenko, and Higgins. (Doc. No. 53-2 at 6–7.) Sepehr Daghighian’s declaration provides 4 support for the rest. (Doc. No. 53-3 at 35.) The Court finds the rates cited for all attorneys 5 are supported and reasonable for the area. 6 3. Lodestar Calculation 7 The lodestar method calculates attorney fees by “by multiplying the number of hours 8 reasonably expended by counsel on the particular matter times a reasonable hourly 9 rate.” Florida, 915 F.2d at 545 n.3 (citing Hensley, 461 U.S. at 433); see also Laffitte v. 10 Robert Half Int’l Inc., 1 Cal. 5th 480, 489 (2016). 11 LAW FIRM LEGAL PROFRESSIONAL HOURS RATE LODESTAR 12 Knight Law Group Steve Mikhov 11.40 $550 $6,270.00 Alastair Hamblin 20.50 $325 $6,597.50 13 Amy Morse 9.20 $350 $3,220.00 14 Kristina Stephenson-Cheang, 10.10 $375 $3,787.50 15 Michelle Lumasag 4.50 $200 $ 900.00 16 Raymond Areshenko 24.90 $300 $7,470.00 Russell Higgins 2.50 $450 $1,125.00 17
18 HDMN Sepehr Daghighian 5.00 $490 $2,450.00 19 Larry Castruita 12.00 $350 $4,200.00 20 Asa Eaton 14.50 $225 $3,262.50 Kevin Yaghoubzadeh 13.25 $250 $3,312.50 21 Andrea Plata 2.00 $75 $ 150.00 22 Erik Schmitt 1.00 $250 $ 250.00 23 Lauren C. Martin 0.50 $250 $ 125.00 24 TOTAL $43,120 25
26 Here, with no adjustments to rates, that amount is: $43,120.00. Minus the previous 27 reductions, $1,436.25 and $4,900 for clerical tasks and excessive billing, brings Plaintiffs’ 28 1 attorney fees total to: $36,783.75. 2 4. Application of a Multiplier 3 Once a court has calculated the lodestar, “it may increase or decrease that amount 4 by applying a positive or negative ‘multiplier’ to take into account a variety of other factors, 5 including the quality of the representation, the novelty and complexity of the issues, the 6 results obtained, and the contingent risk presented.” Laffitte, 1 Cal. 5th at 504 (citation 7 omitted); see also Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (indicating the court 8 may adjust the fee award considering “the following factors: (1) the novelty and difficulty 9 of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which 10 the nature of the litigation precluded other employment by the attorneys, (4) the contingent 11 nature of the fee award”). 12 Significantly, however, this case did not present novel or difficult questions of law 13 or fact. Indeed, the issues related to the TIPM were addressed in Velasco, et al. v. Chrysler 14 Group LLC, Case No. 2:13–cv–08080–DDP–VBK and Hall v. FCA US LLC, Case No. 15 1:16-cv-0684-JLT. Thus, the issues presented in this action were not complex. See Steel v. 16 GMC, 912 F. Supp. 724, 746 (N.J. Dist. 1995) (“the issues in lemon law litigation are not 17 complex and do not require a significant amount of legal analysis or novel pleading”). 18 Defendant observes that the case was not novel, not difficult, and that no special skill was 19 required to handle the case. (Doc. No. 59 at 15–16.) Plaintiffs contend to the contrary, 20 arguing that 13 attorneys expended around 130 hours of work that was necessary. Finally, 21 the Court finds the contingent nature of the fee award is outweighed by the other factors, 22 particularly in this action where the disputed facts and issues to be resolved were minimal. 23 Accordingly, the Court finds the lodestar amount of $36,783.75 is reasonable and declines 24 to award a multiplier. 25 B. Costs to be Awarded 26 Plaintiffs request costs in the amount of $21,489.12. (Doc. No. 52 at 1.) In general, 27 an award of costs in federal district court is governed by Federal Rule of Civil Procedure 28 54(d) and not applicable state law, even in diversity cases. See Champion Produce, Inc. v. 1 Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing In re Merrill Lynch 2 Relocation Mgmt., Inc., 812 F.2d 1116, 1120 n. 2 (9th Cir. 1987)). This is because “federal 3 courts sitting in diversity apply state substantive law and federal procedural law.” Feldman 4 v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing Erie R.R. v. Tompkins, 304 5 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). Thus, federal procedural law governs a 6 request for an award of costs. 7 Rule 54 of the Federal Rules of Civil Procedure provides that costs “should be 8 allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). This “creates a presumption in 9 favor of awarding costs to the prevailing party, but the district court may refuse to award 10 costs within its discretion.” Champion Produce, 342 F.3d at 1022. “[A] district court need 11 not give affirmative reasons for awarding costs; instead, it need only find that the reasons 12 for denying costs are not sufficiently persuasive to overcome the presumption in favor of 13 an award.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). For 14 example, costs may be declined in light of “a losing party’s limited financial resources” or 15 where there has been “misconduct by the prevailing party.” Champion Produce, 342 F.3d 16 at 1022. 17 The Supreme Court explained that 28 U.S.C. § 1920 “defines the term ‘costs’ as 18 used in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). 19 Costs that may be taxed under 28 U.S.C. § 1920 include: 20 (1) Fees of the clerk and marshal; 21 (2) Fees for printed or electronically recorded transcripts necessarily obtained for 22 use in the case; 23 (3) Fees and disbursements for printing and witnesses; 24 (4) Fees for exemplification and the costs of making copies of any materials where 25 the copies are necessarily obtained for use in the case; 26 (5) Docket fees under section 1923 of this title; 27 (6) Compensation of court appointed experts, compensation of interpreters, and 28 salaries, fees, expenses, and costs of special interpretation services under section 1828 of 1 this title. 2 Generally, the court may not award costs under Rule 54(d) that are not authorized 3 by statute or court rule. Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 4 301 (2006). Thus, “costs almost always amount to less than the successful litigant’s total 5 expenses in connection with a lawsuit.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 6 573 (2012) (citing 10 Wright & Miller § 2666, at 203). 7 1. Personal Service 8 Under Local Rule 54.1(b), a party may recover “fees for service of process.” 9 Requests for costs that exceed these amounts may be reduced to align with the amount 10 authorized by Section 0.114(a). See Yeager v. Bowlin, 2010 WL 716389 at *2 (E.D. Cal. 11 Feb. 26, 2010). 12 As to Plaintiffs’ fees for service of summons, Plaintiffs charge $907.85. (Doc. No. 13 52 at 3.) This includes eight $110 invoices for service on Chrysler. (Id.) Defendant argues 14 this is excessive as the “personal service of the deposition subpoenas all occurred at the 15 same location and therefore should not be billed separately for each one.” (Doc. No. 57 at 16 4.) The Court agrees this practice was unnecessary and unreasonable. Accordingly, the 17 Court reduces personal service fees by $780.00. 18 2. Deposition Costs 19 Defendant argues the requested $2,613.00 should be reduced by $68.73 for failure 20 to attach receipts of parking or meals. (Doc. No. 57 at 5.) Local Rule 54.1(a) requires 21 “copies of invoices for requested costs.” As such, the Court agrees and reduces 22 accordingly. 23 3. Expert Witness Fees 24 Plaintiffs seek $17,115.61 in expert witness fees. (Doc. No. 52 at 4.) Plaintiffs assert 25 such costs are appropriate under state law, noting: “Under the Song–Beverly Act, a 26 prevailing buyer shall be allowed to recover as part of the judgment a sum equal to the 27 aggregate amount of costs and expenses.” (Doc. No. 53-1 at 23 (emphasis in original).) 28 Significantly, the Ninth Circuit determined a court must apply federal law to a 1 ||request for costs in a diversity action. See Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th 2 1995). The Court in Aceves awarded the prevailing party costs, including expert 3 || witness fees, under section 998(c) of the California Code of Civil Procedure. Id., 68 F.3d 4 1167. The Ninth Circuit determined the district court erred in applying California law 5 || because “reimbursement of witness fees is an issue of trial procedure” and in a diversity 6 ||action, “federal law controls the procedure by which the district court oversaw the 7 || litigation.” /d., citing Hanna v. Plumer, 380 U.S. 460, 463 (1965). Accordingly, here, the 8 ||Court must apply federal law to determine whether Plaintiffs are entitled to recover expert 9 || fees as costs. 10 Under Section 1920, only compensation for “court appointed experts” and witness 11 || fees are permitted. See 28 U.S.C. § 1920. Neither of Plaintiffs’ witnesses were appointed 12 || by the Court. As such, Plaintiffs are not entitled to recover the expert fees under Section 13 || 1920. On the other hand, 28 U.S.C. § 1821 provides that “[a] witness shall be paid an 14 |/attendance fee of $40 per day for each day’s attendance,” including testimony at a 15 || deposition. Thus, a prevailing party may be awarded the witness fee under Section 1821 16 an expert who testifies at a deposition. See Ruff v. County of Kings, 700 F. Supp. 2d 17 || 1245, 1247-48 (E.D. Cal. 2010). Consequently, Plaintiffs are entitled to $40 in costs for 18 || Micale’s deposition. The Court finds no issue with the rest of Plaintiffs’ costs. After 19 reductions, the total Costs awarded is: $3,564.78 in costs under federal law, as provided 20 under 28 U.S.C. §§ 1821 and 1920. 21 IV. CONCLUSION 22 Based upon the foregoing, the Court ORDERS: 23 || 1. Plaintiffs’ motion for fees is GRANTED in the modified amount of $36,783.75; and 24 ||2. Plaintiffs’ motion for costs is GRANTED in the amount of $3,564.78. 25 IT IS SO ORDERED. 26 |!Dated: August 16, 2019 © er : 27 Hon. Anthony J.@Battaglia 28 United States District Judge 10
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