1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON POWELL, No. 2:16-cv-02781-DAD-JLT 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND MOTION 14 FCA US LLC, FOR COSTS AND EXPENSES, IN PART 15 Defendant. (Doc. No. 110, 111) 16 17 This matter is before the court on the motion for attorneys’ fees and motion for costs and 18 expenses filed by plaintiff on May 26, 2020. (Doc. Nos. 110, 111.) Pursuant to General Order 19 No. 617 addressing the public health emergency posed by the coronavirus pandemic, on May 27, 20 2020, the court took this matter under submission to be decided on the papers. (Doc. No. 112.) 21 For the reasons explained below, the court will grant plaintiff’s motions, in part. 22 BACKGROUND 23 On October 21, 2016, plaintiff commenced this action against defendant FCA US LLC 24 (“FCA”) by filing suit in the San Joaquin County Superior Court. (Doc. No. 1-1 at 3.) In his 25 complaint, plaintiff alleged that a new 2011 Dodge Durango that he purchased on August 4, 2011 26 was delivered to him with serious defects and nonconformities to warranty. (Doc. No. 1-1 at 5, 27 25.) Plaintiff asserted claims for breaches of express and implied warranties in violation of the 28 Song-Beverly Act, California Civil Code § 1790 et seq., and a claim for fraudulent inducement by 1 concealment. (Id. at 25–30.) On November 23, 2016, defendant removed this action to this 2 federal court. (Doc. No. 1.) Thereafter, the court set a trial date of January 15, 2019. (Doc. No. 3 11.) Following a stipulation to continue the trial date and a subsequent continuance due to the 4 court’s unavailability, the trial date was ultimately continued to March 31, 2020. (Doc. No. 94.) 5 On December 2, 2019, counsel for plaintiff filed a statement notifying the court of 6 plaintiff Larry Powell’s death. (Doc. No. 97.) Thereafter, counsel filed a motion to substitute 7 Aaron Powell, special administrator for decedent plaintiff Larry Powell, as named plaintiff in this 8 action, which the court granted on January 6, 2020. (Doc. Nos. 99, 103.) 9 During this time and in light of this development, FCA had agreed to keep open an offer 10 of judgment under Federal Rule of Civil Procedure 68 that it had served on July 19, 2019 to settle 11 this action for $110,000.00. (Doc. No. 110-1 at 13.) On February 4, 2020, plaintiff served FCA 12 with a settlement offer in the amount of $110,000.00, updated to reflect Aaron Powell as the 13 named plaintiff. (Id. at 14.) FCA accepted this settlement offer. (Id.) The settlement amount 14 was “inclusive of a full statutory ‘buyback’ of plaintiff’s defective vehicle, incidental and 15 consequential damages, and civil penalties.” (Id.; Doc. No. 110-2 at 34.) The settlement also 16 provided that FCA “shall pay attorneys fees, costs, and expenses reasonably incurred in the 17 commencement and prosecution of this action, . . . , pursuant to Civil Code section 1794 18 subdivision (d) as agreed to by the parties, or upon properly noticed motion to the Court if the 19 parties cannot agree.” (Doc. No. 110-2 at 34.) 20 On February 5, 2020, the parties notified the court that they had reached a settlement of 21 this action. (Doc. No. 104.) Apparently unable to agree on the appropriate amount of attorneys’ 22 fees, costs, and expenses to be paid to his counsel,1 however, on May 26, 2020, plaintiff filed the 23
24 1 The parties dispute whether plaintiff’s counsel made any attempt to resolve the amount of attorneys’ fees, costs, and expenses informally, without involving the court by filing the pending 25 motions. (See Doc. Nos. 114 at 2, n.1; 116 at 8.) FCA’s counsel, attorney Scott Shepardson, has submitted a declaration in which he asserts that plaintiff’s counsel did not contact him regarding 26 attorneys’ fees in this matter prior to filing the pending motions. (Doc. Nos. 114 at 2; 114-1 at ¶ 27 3.) In response, plaintiff’s counsel Steve Mikhov submitted a declaration in which he states that plaintiff’s counsel sent FCA’s counsel an email on May 15, 2020 regarding that issue, but FCA’s 28 counsel did not respond. (Doc. Nos. 116 at 8; 116-1 at ¶ 4.) 1 pending motion for attorneys’ fees and motion for costs and expenses. (Doc. Nos. 110, 111.) On 2 June 23, 2020, FCA filed its oppositions to the pending motions. (Doc. Nos. 113, 114). On June 3 30, 2020, plaintiff filed his replies thereto. (Doc. Nos. 115, 116.) 4 LEGAL STANDARD 5 Under California’s Song-Beverly Act, “if [a] buyer prevails in an action . . ., the buyer 6 shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate 7 amount of costs and expenses, including attorney’s fees based on actual time expended, 8 determined by the court to have been reasonably incurred by the buyer in connection with the 9 commencement and prosecution of such action.” Cal. Civ. Code. § 1794(d). “The plain wording 10 of the statute requires the trial court to base the fee award upon actual time expended on the case, 11 as long as such fees are reasonably incurred—both from the standpoint of time spent and the 12 amount charged.” Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 13 817 (2006). 14 It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the 15 circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are 16 reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural 17 demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended 18 are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A 19 prevailing buyer has the burden of showing that the fees incurred were allowable, were reasonably necessary to the conduct of the 20 litigation, and were reasonable in amount. 21 Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994) (citation and internal 22 quotation marks omitted); see also Goglin v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 470 23 (2016). Under a contingent fee arrangement, “a prevailing buyer represented by counsel is 24 entitled to an award of reasonable attorney fees for time reasonably expended by his or her 25 attorney.” Nightingale, 31 Cal. App. 4th at 105 n.6. 26 “The determination of what constitutes a reasonable fee generally begins with the 27 ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 28 rate.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM 1 Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000)). The court will apply the lodestar method 2 to the Song-Beverly Act because “the statutory language of section 1794, subdivision (d), is 3 reasonably compatible with a lodestar adjustment method of calculating attorney fees, including 4 use of fee multipliers.” Robertson, 144 Cal. App. 4th at 818; see also Warren v. Kia Motors Am., 5 Inc., 30 Cal. App. 5th 24, 35 (2018). Moreover, because “[the California] Supreme Court has 6 held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to 7 be applied in the absence of clear legislative intent to the contrary, [the lodestar adjustment 8 method] . . . is applicable to attorney fee awards under section 1794, subdivision (d).” Robertson, 9 144 Cal. App. 4th at 818–19 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–36 (2001)). As 10 the California Supreme Court has explained: 11 [T]he lodestar is the basic fee for comparable legal services in the 12 community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the 13 questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other 14 employment by the attorneys, (4) the contingent nature of the fee award. The purpose of such adjustment is to fix a fee at the fair 15 market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a 16 contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the 17 fair market rate for such services. 18 Ketchum, 24 Cal. 4th at 1132 (internal citation omitted). In addition, “[a] contingent fee contract, 19 since it involves a gamble on the result, may properly provide for a larger compensation than 20 would otherwise be reasonable.” Id. “Decisions by other courts regarding the reasonableness of 21 the rate sought may also provide evidence to support a finding of reasonableness.” Hellenberg v. 22 Ford Motor Co., No. 18-cv-2202-JM-KSC, 2020 WL 1820126, at *1 (S.D. Cal. Apr. 10, 2020). 23 In opposing a request for attorneys’ fees, “[g]eneral arguments that fees claimed are 24 excessive, duplicative, or unrelated do not suffice.” Etcheson v. FCA US LLC, 30 Cal. App. 5th 25 831, 848 (2018) (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guar. Assoc., 163 Cal. App. 4th 26 550, 564 (2008)). Instead, the opposing party must demonstrate that the hours claimed are 27 duplicative or excessive. Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; Gorman v. 28 Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party opposing the fee award can 1 be expected to identify the particular charges it considers objectionable.”). “To challenge 2 attorneys’ fees as excessive, the challenging party must ‘point to the specific items challenged, 3 with a sufficient argument and citations to the evidence.’” Nai Hung Li v. FCA US LLC, No. 4 2:17-cv-06290-R-JEM, 2019 WL 6317769, at *1 (C.D. Cal. July 1, 2019) (quoting Premier Med. 5 Mgmt. Sys., 163 Cal. App. 4th at 564). 6 With this guidance in mind, the court turns to consider plaintiff’s pending motions. 7 ANALYSIS 8 As the buyer who prevailed in this lawsuit, plaintiff is entitled to an award of reasonably 9 incurred attorneys’ fees, costs, and expenses. See Cal. Civ. Code § 1794(d). Here, plaintiff 10 seeks: (1) an award of attorneys’ fees in the amount of $56,610.00; (2) a lodestar multiplier of 11 0.5, in the amount of $28,305.00; and (3) an award of actual costs and expenses incurred in the 12 amount of $15,342.94. (Doc. Nos. 110-1 at 25; 111 at 2.) Plaintiff seeks a total award of 13 $100,257.94. (Id.) FCA contends that the lodestar requested by plaintiff is unreasonable and that 14 a positive multiplier is not warranted in this case. (Doc. No. 114 at 2–3.) FCA also objects to the 15 costs and expenses related to plaintiff’s expert for which plaintiff seeks reimbursement. (Doc. 16 No. 113 at 1.) 17 A. Attorneys’ Fees Request 18 Plaintiff was represented by three law firms in this matter: (1) the Knight Law Group 19 (“Knight Law”), which commenced this action on plaintiff’s behalf and provided legal services 20 leading up to trial; (2) Wirtz Law APC (“Wirtz Law”), which associated into this action as lead 21 trial counsel to provide services relating to and in anticipation of the trial in this action; and (3) 22 LA Law Center, PC (“LA Law”), which served as plaintiff’s probate counsel in probate court.2 23 (Doc. Nos. 110-2 at ¶ 2; 110-3 at ¶ 11; 110-1 at 13). Knight Law billed a total of $31,535.00. 24 (Doc. No. 110-2 at ¶ 2). Wirtz Law billed a total of $21,575.00. (Id.) LA Law billed a flat rate 25
2 Knight Law also hired attorneys from two other firms, Hackler Daghighian Martino & Novak, 26 P.C. (“HDMN”) and Altman Law Group, to specially appear and handle tasks related to certain 27 expert depositions. (Doc. No. 116 at 11–12.) The billing entries for those attorneys are included in the records provided by Knight Law in support of the pending motions. (Doc. No. 110-2 at 28 22–28.) 1 of $3,500.00 for attorney Joseph McHugh’s legal services provided in connection with the 2 proceedings in probate court. (Doc. No. 110-4 at ¶ 4.) 3 To assess the reasonableness of plaintiff’s requested amount for attorneys’ fees, the court 4 will first consider the reasonableness of the number of hours expended by his attorneys, then 5 address the reasonableness of their hourly rates, and finally consider whether a lodestar multiplier 6 is warranted here. 7 1. Reasonableness of Number of Hours Expended 8 Knight Law’s billing records indicate that fourteen attorneys expended (or anticipated 9 expending) a total of 99.8 billable hours on this action, billing a total of $31,535.00 for its efforts 10 in prosecuting this case. (Doc. No. 110-2 at 28.) Wirtz Law’s billing records indicate that four 11 attorneys and two paralegals expended a total of 62.4 billable hours,3 billing a total of $21,575.00 12 for its efforts on this matter. (Doc. No. 110-3 at 18.) FCA contends that the number of hours 13 billed by plaintiff’s attorneys is unreasonable for several reasons. The court will address each of 14 FCA’s arguments in turn. 15 First, FCA argues that none of the time spent (or anticipated to be spent) related to the 16 pending motions should be included in any award of attorneys’ fees because plaintiff’s counsel 17 did not attempt to resolve the amount of fees, expenses, and costs with FCA prior to filing the 18 motions. (Doc. No. 114 at 6–7.) As noted above, the parties dispute whether any such attempt 19 was made. Attorney Steve Mikhov declares that Knight Law emailed FCA’s counsel on May 15, 20 2020 regarding its demand for attorneys’ fees and costs, and he attached a copy of that email as 21 an exhibit to his declaration, but reports that FCA’s counsel did not respond. (Doc. No. 116-3 at 22 ¶ 4, Ex. B.) Moreover, after learning in FCA’s opposition that FCA’s counsel claims to have not 23 received Knight Law’s email, Knight Law again emailed FCA’s counsel before filing plaintiff’s 24 reply to attempt to resolve the matter of attorneys’ fees and costs informally. (Id.) According to 25 attorney Mikhov, FCA’s counsel again did not respond. (Id.) Given this factual dispute, the 26 3 Although the summary provided by Wirtz Law states that a total of 62.6 hours were expended 27 on this case, the court has adjusted the total to 62.4 hours to reflect the 0.2 hours of time expended by a paralegal on September 18, 2018 that were not charged. (See Doc. No. 110-3 at 28 10, 18.) 1 court is not persuaded by FCA’s argument that all of the time plaintiff’s counsel spent related to 2 the pending motions should be excluded. 3 Although FCA does not explicitly challenge Knight Law’s anticipated billing entries, the 4 court has reviewed the entries for anticipated time to review FCA’s oppositions to the pending 5 motions and prepare plaintiff’s replies thereto, as well as time for preparation and attendance at a 6 hearing on the pending motions. Because the court took the pending motions under submission 7 shortly after plaintiff filed them and notified the parties that no hearing would be held—and 8 indeed no hearing was held—the court will not award the one hour of time that attorney 9 Devabose anticipated expending related to a hearing. As to the other entries, attorney Devabose 10 anticipated spending 2.0 hours reviewing FCA’s opposition to the motion for attorneys’ fees, 4.0 11 hours drafting plaintiff’s reply thereto, 0.5 hours reviewing FCA’s opposition to plaintiff’s 12 motion for costs and expenses, and 1.0 hours drafting plaintiff’s reply thereto. (Doc. No. 110-2 at 13 28.) The court notes that plaintiff did not provide the court with an update to reflect the actual 14 attorney hours spent on these tasks. The court declines to award attorney Devabose the full 7.5 15 hours that he anticipatorily billed to review and analyze FCA’s opposition to the pending motions 16 and to draft replies thereto. No evidence of the time actually spent on these tasks was presented 17 to the court. Nevertheless, the court finds that an award of four hours for the performance of 18 those tasks is reasonable given how brief the oppositions were and the fact that it is readily 19 apparent from the face of the replies that attorney Devabose relied upon filings from other actions 20 as templates. Thus, the court will reduce attorney Devabose’s requested total time by 4.5 hours to 21 account for the hearing that was not actually held and the unsubstantiated, anticipated billing 22 entries. 23 Second, FCA argues that certain post-settlement expenditures were unnecessary and 24 should not be recoverable. (Doc. No. 114 at 7–8.) In particular, FCA contends that plaintiff 25 should not be able to recover for any of the fees incurred for the purposes of his Rule 25 motion 26 to substitute as named plaintiff following the death of the original plaintiff, Larry Powell, because 27 FCA had no intention of opposing that motion, and the parties had already agreed to settle this 28 action for the amount FCA had previously offered. (Id.) The court is not persuaded that because 1 FCA had no intention of opposing the Rule 25 motion, plaintiff’s counsel’s expenditure of time to 2 research (4.5 hours) and prepare the motion (5.5) were rendered unreasonable. In addition, FCA 3 points to the court to no authority to support its argument that because the parties had already 4 reached an agreement to settle, the hours spent on the Rule 25 motion—a necessary step in order 5 to proceed in settling this action in light of the original plaintiff’s death—were somehow rendered 6 unreasonable. The court finds that the hours spent by plaintiff’s counsel on the Rule 25 motion 7 were reasonably incurred in connection with the prosecution of this action and will thus not 8 exclude them from an award of attorneys’ fees. 9 FCA also urges the court to disallow any reimbursement for the time spent by plaintiff’s 10 probate counsel, attorney McHugh. (Doc. No. 114 at 7–8.) Attorney McHugh declared that he 11 “was engaged to assist in appointing a special administrator of the Estate of Larry Powell” and 12 that he charged a flat rate of $3,500.00 to “perform all necessary tasks to achieve that 13 appointment.” (Doc. No. 110-4 at ¶ 4.) Attorney McHugh estimated that he spent 12 hours 14 working on this matter, and that his normal hourly rate is $400 per hour. (Id.) FCA points to a 15 lack of clarity in attorney McHugh’s declaration, particularly with respect to who exactly retained 16 him, whether he has already been paid, and whether the services he provided to plaintiff went 17 “beyond the needs applicable to this case.” (Doc. No. 114 at 7–8.) In reply, plaintiff contends 18 that FCA’s arguments are not relevant, and that what matters instead, is that without attorney 19 McHugh’s assistance obtaining plaintiff’s appointment as special administrator for purposes of 20 this action, plaintiff’s claims would have been dismissed for lack of prosecution. (Doc. No. 116 21 at 9.) According to plaintiff, attorney McHugh’s work on this matter was necessary to the 22 prosecution of this case and his flat attorneys’ fee of $3,500 should be recoverable. (Id.) 23 The court notes that neither party has provided any authority in support of their arguments 24 on this point. Absent authority to the contrary—which plaintiff has not provided—the court is 25 not persuaded that when a plaintiff passes away during litigation and the putative substitute 26 plaintiff incurs fees for probate services, that the defendant in the pending litigation should bear 27 the expense of reimbursing those fees. It is not clear to the court that those probate fees are not 28 more appropriately borne by the estate of the decedent plaintiff—and perhaps here, Larry 1 Powell’s estate has already paid or is obligated to pay for attorney McHugh’s services. FCA’s 2 arguments are well-taken and, in any event, ultimately the burden rests with plaintiff to support 3 his request for an award of attorneys’ fees. The court finds that with regard to the fees incurred 4 by attorney McHugh, plaintiff has not met that burden. Accordingly, the court will not award LA 5 Law the $3,500 flat fee charged by attorney McHugh for his probate services. 6 Third, FCA challenges Wirtz Law attorney Jessica Underwood’s entry dated January 2, 7 2019 for travel time of 6.0 hours to attend the mandatory settlement conference. (Doc. No. 114 at 8 8.) Specifically, FCA contends that this charge is inflated and unreasonable because the billing 9 description states: “Travel (from Fresno) to Bakersfield the night before the Mandatory 10 Settlement Conference,” even though Bakersfield is 110 miles from Fresno—not 6 hours away. 11 (Doc. No. 114 at 8.) In reply, plaintiff contends that FCA made unwarranted assumptions 12 regarding attorney Underwood’s entry and clarifies that she “flew into Fresno then drove to 13 Bakersfield” and “six hours was her total travel time, including the flight.” (Doc. No. 116 at 10.) 14 The court does not agree with plaintiff’s characterization of FCA’s assumptions as unwarranted. 15 The billing entry description states what it states; it says nothing about a flight or travel from San 16 Diego to Fresno. Nevertheless, with the clarification plaintiff now provides, the court finds that 17 six hours is not an unreasonable amount of time for attorney Underwood to travel from San Diego 18 to Bakersfield to attend the mandatory settlement conference. Thus, the court will not reduce the 19 number of hours awarded to attorney Underwood for this entry. 20 Fourth, FCA contends that plaintiff should not be able to recover any attorneys’ fees for 21 the time spent by attorneys from HDMN and Altman Law Group, who specially appeared in this 22 matter and whose time has been included in the billing records submitted by Knight Law. (Doc. 23 No. 114 at 9.) FCA points to a lack of evidence that any such special appearances were entered 24 for these three attorneys: Christopher Urner (Altman Law), Lauren Martin (HDMN), and Larry 25 Castruita (HDMN). (Id. at 9.) In reply, plaintiff lists several attorneys who worked for FCA on 26 this matter but for whom an appearance was not entered. (Doc. No. 116 at 11.) Moreover, the 27 court finds that FCA’s argument rings hollow in part because attorney Lauren Martin did in fact 28 enter a notice of appearance in this case on July 2, 2018. (Doc. No. 30.) Without citing any 1 authority, FCA contends that “it should not be made to pay Knight Law Group for the work of 2 attorneys that it does not employ.” (Doc. No. 114 at 9.) But whereas here, those attorneys 3 specially appeared to handle tasks associated with certain expert depositions, and the performance 4 of that work was reasonably necessary to the prosecution of this action, plaintiff is entitled to 5 recover those attorneys’ fees. Notably, FCA does not contest the amount of time that these 6 attorneys spent performing their tasks on this matter. Accordingly, the court will not exclude, in 7 whole or in part, the hours expended by attorney Urner, attorney Martin, and attorney Castruita. 8 Finally, FCA asserts that plaintiff’s attorneys overstaffed this case by using eighteen 9 different attorneys and two paralegals, and thus a significant reduction across the board is 10 warranted because overstaffing creates inefficiency. (Doc. No. 114 at 2.) While under some 11 circumstances a reduction in an award of attorneys’ fees due to the number of attorneys who 12 billed time to a case has been found to be within the trial court’s discretion, see Morris v. 13 Hyundai Motor America, 41 Cal. App. 5th 24, 36–40 (2019), those circumstances are not present 14 here. Notably, FCA has not pointed to any specific instances of padding or stacking attorneys, or 15 any other inefficiencies, that would warrant a reduction here. See Donahue v. Donahue, 182 Cal. 16 App. 4th 259, 271 (2010) (noting that “[r]easonable compensation does not include compensation 17 for ‘padding’ in the form of inefficient or duplicative efforts”) (citing Ketchum v. Moses, 24 Cal. 18 4th 1122, 1131–1132 (2001)). FCA fails to provide any authority in support of its position that 19 solely because multiple attorneys work on a case, this court should reduce the number of attorney 20 hours when considering an application for an award of attorneys’ fees. To the contrary, it has 21 been “recognized that ‘the participation of more than one attorney does not necessarily constitute 22 an unnecessary duplication of effort.’” McGrath v. County of Nevada, 67 F.3d 248, 255 (9th Cir. 23 1995) (quoting Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989)). Thus, the court will 24 not reduce the amount of hours awarded merely because several attorneys worked on this matter. 25 ///// 26 ///// 27 ///// 28 ///// 1 The court has reviewed the billing records submitted by Knight Law and Wirtz Law and 2 concludes that, for the most part, the time billed was reasonably incurred in the commencement 3 and prosecution of this action. Thus, the court will include in the lodestar calculation of an 4 attorneys’ fee award the following hours: 5 Knight Law Attorney Hours Hours 6 Requested Awarded Attorney Alastair Hamblin 8.9 8.9 7 Attorney Amy Morse 5.9 5.9 Attorney Christopher Urner 4.0 4.0 8 Attorney Christopher Swanson 1.6 1.6 9 Attorney Deepak Devabose 16.9 12.4 Attorney Daniel Kalinowski 17.7 17.7 10 Attorney Diane Hernandez 13.1 13.1 Attorney George Semaan 7.2 7.2 11 Attorney Heidi Alexander 4.5 4.5 12 Attorney Kristina Stephenson-Cheang 2.0 2.0 Attorney Lauren Martin 6.3 6.3 13 Attorney Larry Castruita 4.8 4.8 Attorney Russell Higgins 1.9 1.9 14 Attorney Steve Mikhov 5.0 5.0 15 Total Hours 99.8 95.3
16 Wirtz Law Attorney/Staff Hours Hours Requested Awarded 17 Attorney Richard M. Wirtz 1.6 1.6 Attorney Jessica Underwood 27.0 27.0 18 Paralegal Andrea Munoz 3.9 3.9 19 Paralegal Rebecca Evans 18.0 18.0 Attorney Amy Rotman 10.9 10.9 20 Attorney Erin K. Barns 1 1 Total Hours 62.4 62.4 21 22 2. Reasonableness of the Hourly Rates to be Applied 23 Next, the court must determine whether the hourly rates requested by plaintiff’s attorneys 24 are reasonable. Under California law, when awarding attorneys’ fees under Civil Code § 1794(d), 25 the relevant inquiry is whether “the monetary charge being made for the time expended [is] 26 reasonable” under all the circumstances including “factors such as the complexity of the case and 27 procedural demands, the skill exhibited and the results achieved.” Goglin v. BMW of N. Am., 28 LLC, 4 Cal. App. 5th 462, 470 (2016) (quoting Nightingale, 31 Cal. App. 4th at 104). California 1 courts therefore focus on the reasonable hourly rate for the work performed by the counsel who 2 did that work, regardless of the forum in which that work was performed and without regard to 3 typical hourly rates in the forum in which the matter was litigated.4 See Goglin, 4 Cal. App. 5th 4 at 470 (affirming a fee award applying a hourly rate of $575 per hour in a Song-Beverly Act case 5 on the grounds that the trial court had considered the evidence that the client agreed to 6 compensate counsel at the rate of $575 an hour (later increased to $625), other state and federal 7 courts had awarded the attorney comparable rates in similar cases, and the trial court had 8 observed the attorney’s skills first hand, while not even mentioning the prevailing rates in the trial 9 court’s area); see also Filiberto Negrete v. Ford Motor Co. et al., No. 18-cv-1972-DOC-KKx, 10
11 4 In awarding attorneys’ fees under the Song-Beverly Act, other district courts have required “[t]he fee applicant . . . [to] produc[e] satisfactory evidence that the requested rates are in line 12 with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” Base v. FCA US LLC, No. 17-cv-01532-JCS, 2019 WL 4674368, at *4 13 (N.D. Cal. Sept. 25, 2019) (citing Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)); see also Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *4–5 (E.D. 14 Cal. May 6, 2019); Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 WL 2298431, at *5–6 15 (E.D. Cal. May 21, 2018). Citing to Ninth Circuit and Supreme Court precedent, these courts have stated that the “relevant community” in determining a prevailing market rate is the forum in 16 which the district court sits and have then analyzed whether the rates requested by counsel are reasonable in light of rates paid to attorneys of similar skill and experience in the forum district. 17 See, e.g., Self, 2019 WL 1994459, at *4–6. This, however, is the framework that federal courts apply to motions seeking attorneys’ fees pursuant to a federal statute. The undersigned is aware 18 of no authority holding that a federal court must apply that same framework when awarding 19 attorneys’ fees pursuant to a state statute. Indeed, the California Court of Appeal in Goglin did not engage in that forum-based rate analysis and, as evidenced by the many state court fee orders 20 that the parties have pointed this court to, state courts generally do not engage in that analysis. The undersigned, therefore, considers the pending motion under the standard articulated by the 21 California Court of Appeal in Goglin and will determine “whether the monetary charge being made for the time expended [is] reasonable” in light of “the complexity of the case and 22 procedural demands, the skill exhibited and the results achieved.” 4 Cal. App. 5th at 470 (internal 23 quotation marks and citation omitted). This approach will appropriately result in plaintiff’s counsel being compensated at the same hourly rates they would have received in state court rather 24 than a lower rate based solely on the removal of the action to federal court. Even if the rate determination framework utilized in motions seeking attorneys’ fees pursuant to federal statutes 25 were to apply in this case, the court notes that the hourly rates found to be reasonable by this order would be the same under that framework too. For under the “relevant community” analysis, 26 this court would look to the orders of state courts within the Eastern District of California and 27 conclude that those rates are consistent with those prevailing in the community for similar services. See Tenorio v. Gallardo, No. 1:16-cv-00283-DAD-JLT, 2019 WL 3842892, at *2 n.1 28 (E.D. Cal. Aug. 15, 2019). 1 2019 WL 4221397, at *3 (C.D. Cal. June 5, 2019) (“Plaintiff has demonstrated that counsel has 2 been awarded attorneys’ fees at similar rates under the Song-Beverly Act. Such evidence is 3 generally sufficient to show that an attorney’s hourly rates are reasonable.”) (internal citation 4 omitted). The fee applicant bears the burden of producing satisfactory evidence that the fees 5 incurred were “reasonable in amount.” Goglin, 4 Cal. App. 5th at 470 (quoting Nightingale, 31 6 Cal. App. 4th at 104); see also Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). 7 Plaintiff requests an attorneys’ fee award based on the following hourly rates for its 8 attorneys who worked on this matter: 9 Knight Law Attorney Requested Years of Hourly Rate Practice 10 Attorney Alastair Hamblin $325.00 8 years5 11 Attorney Amy Morse $350.00 7 years Attorney Christopher Urner $400.00 4 years 12 Attorney Christopher Swanson $375.00 9 years6 Attorney Deepak Devabose $275.00 6 years 13 Attorney Daniel Kalinowski $250.00 5 years 14 Attorney Diane Hernandez $375.00 23 years Attorney George Semaan $225.00 4 years 15 Attorney Heidi Alexander $325.00 10 years Attorney Kristina Stephenson-Cheang $350.00 12 years 16 Attorney Lauren Martin $250.00 3 years 17 Attorney Larry Castruita $350.00 9 years Attorney Russell Higgins $450.00 17 years 18 Attorney Steve Mikhov $500.00 17 years 19 (Doc. No. 110-2 at 28.) 20 ///// 21 /////
22 5 Plaintiff did not provide any specific information regarding when Alastair Hamblin began 23 practicing law, but rather reported only that he “graduated from Southwestern Law School in 2007” and began working at Knight Law Group in 2016. (Doc. 110-2 at 9.) However, the court 24 “may take judicial notice of the State Bar of California’s website regarding attorneys’ dates of admission to the Bar.” Davis v. Hollins Law, 25 F. Supp. 3d 1292, 1298 n. 5 (E.D. Cal. 2014). 25 Thus, the court takes judicial notice of the admission date of Alastair Hamblin as February 2012, as represented on the website of the State Bar of California. See id.; Fed. R. Evid. 201(b). 26
27 6 As with attorney Hamblin, plaintiff did not provide any specific information regarding when attorney Christopher Swanson began practicing law, but the court takes judicial notice of his 28 admission date of December 2011, as represented on the website of the State Bar of California. 1 Wirtz Law Attorney/Staff Requested Years of Hourly Rate Practice 2 Attorney Richard M. Wirtz $650.00 32 years 3 Attorney Jessica Underwood $400.00 5 years Paralegal Andrea Munoz $200.00 2 years 4 Paralegal Rebecca Evans $200.00 5 years Attorney Amy Rotman $450.00 8 years 5 Attorney Erin K. Barns $450.00 8 years 6 (Doc. No. 110-3 at 18.) 7 8 In support of these requested rates, plaintiff has submitted the declaration of Knight Law 9 attorney Steve Mikhov and Wirtz Law attorney Richard M. Wirtz. (Doc. Nos. 110-2; 110-3) In 10 their declarations, attorneys Mikhov and Wirtz describe the experience level and educational 11 background of each of the attorneys that worked on this matter, and they assert that their hourly 12 rates are reasonable and consistent not only with the rates that courts have approved for these 13 specific attorneys—including this court—but also with the rates that courts have approved for 14 attorneys of comparable levels of experience in other consumer cases. (Id.) Attached to their 15 declarations are several hourly rate determinations by state courts in Song-Beverly Act actions 16 with respect to some of the attorneys who worked on this case, showing that courts have awarded 17 the same hourly rates that are being requested in this action. (Doc. Nos. 110-2 at 13–19, Exs. D– 18 S; 110-3 at 6–8, Exs. D–H.) Moreover, after reviewing rates awarded by various superior courts 19 in California, the undersigned recently issued orders awarding the following hourly rates to the 20 following attorneys who have appeared in this action: $350.00 for attorney Morse; $250.00 for 21 attorney Devabose; $350.00 for attorney Stephenson-Cheang; $500.00 for attorney Mikhov; 22 $325.00 for attorney Hamblin; $250.00 for attorney Swanson; $250.00 for attorney Kalinowski; 23 $350 for attorney Hernandez; $225.00 for attorney Semaan; $250.00 for attorney Martin; $500.00 24 for attorney Wirtz; $300.00 for attorney Castruita; $400.00 for attorney Higgins; and $250.00 for 25 attorney Underwood. See Sekula v. FCA US LLC, No. 1:17-cv-00460-DAD-JLT, 2019 WL 26 5290903, at *7 (E.D. Cal. Oct. 18, 2019); Rueda v. FCA US LLC, No. 1:17-cv-00968-DAD-JLT, 27 2020 WL 469333, at *7 (E.D. Cal. Jan. 29, 2020); Figures v. FCA US LLC, No. 1:17-cv-00618- 28 DAD-JLT, 2020 WL 820164, at *8 (E.D. Cal. Feb. 19, 2020); Aviles v. Subaru of Am., Inc., No. 1 1:18-cv-01544-DAD-SKO, 2020 WL 868842, at *6 (E.D. Cal. Feb. 21, 2020). 2 FCA does not specifically challenge the hourly rates sought by Knight Law. FCA does, 3 however, challenge the reasonableness of the hourly rates sought by Wirtz Law because the 4 lawyers of that firm purportedly made no effort “to reduce their rates to comport with rates 5 awarded in prior decisions by this Court . . ..” (Doc. No. 114 at 8.) In particular, FCA points to 6 this court’s reduction of attorney Wirtz’s hourly rate to $500 per hour and attorney Underwood’s 7 rate to $250 per hour in Rueda v. FCA US LLC, No. 1:17-cv-00968-DAD-JLT, 2020 WL 469333, 8 at *7 (E.D. Cal. Jan. 29, 2020). (Id. at 9). FCA suggests that the court should similarly reduce 9 the rates for Wirtz Law attorneys and paralegals in this case as well. (Id.) 10 Because “the reasonable value of attorney services is variously defined as the hourly 11 amount to which attorneys of like skill in the area would typically be entitled,” Ketchum, 24 Cal. 12 4th at 1133, the court finds that evidence of what some of the attorneys have previously been 13 awarded when litigating other Song-Beverly actions does assist this court in determining what the 14 reasonable hourly rates should be in this case. See also Goglin, 4 Cal. App. 5th at 470; Filiberto 15 Negrete, 2019 WL 4221397, at *3. 16 Having considered the various state court orders submitted by plaintiff as well as other 17 evidence, the court concludes that the following hourly rates as to each of plaintiff’s attorneys are 18 reasonable: 19 Knight Law Attorney Hourly Rate to Years of be Awarded Practice 20 Attorney Alastair Hamblin $325.00 8 years 21 Attorney Amy Morse $350.00 7 years Attorney Christopher Urner $225.00 4 years 22 Attorney Christopher Swanson $350.00 9 years Attorney Deepak Devabose $275.00 6 years 23 Attorney Daniel Kalinowski $250.00 5 years 24 Attorney Diane Hernandez $375.00 23 years Attorney George Semaan $225.00 4 years 25 Attorney Heidi Alexander $325.00 10 years Attorney Kristina Stephenson-Cheang $350.00 12 years 26 Attorney Lauren Martin $250.00 3 years Attorney Larry Castruita $350.00 9 years 27 Attorney Russell Higgins $400.00 17 years 28 Attorney Steve Mikhov $500.00 17 years 1 Wirtz Law Attorney/Staff Hourly Rate to Years of be Awarded Practice 2 Attorney Richard M. Wirtz $500.00 32 years 3 Attorney Jessica Underwood $250.00 5 years Paralegal Andrea Munoz $75.00 2 years 4 Paralegal Rebecca Evans $100.00 5 years Attorney Amy Rotman $350.00 8 years 5 Attorney Erin K. Barns $350.00 8 years 6 7 3. Lodestar Calculation 8 Based on the hours and hourly rates that the court has determined are reasonable in this 9 matter, the lodestar here is $29,462.50 for Knight Law and $13,807.50 for Wirtz Law, for a total 10 of $43,270.00. The court’s calculations are reflected below: 11 Knight Law Attorney Hours Hourly Rate Lodestar 12 Awarded Awarded Attorney Alastair Hamblin 8.9 $325.00 $2,892.50 13 Attorney Amy Morse 5.9 $350.00 $2,065.00 14 Attorney Christopher Urner 4.0 $225.00 $900.00 Attorney Christopher Swanson 1.6 $350.00 $560.00 15 Attorney Deepak Devabose 12.4 $275.00 $3,410.00 Attorney Daniel Kalinowski 17.7 $250.00 $4,425.00 16 Attorney Diane Hernandez 13.1 $375.00 $4,912.50 Attorney George Semaan 7.2 $225.00 $1,620.00 17 Attorney Heidi Alexander 4.5 $325.00 $1,462.50 18 Attorney Kristina Stephenson-Cheang 2.0 $350.00 $700.00 Attorney Lauren Martin 6.3 $250.00 $1,575.00 19 Attorney Larry Castruita 4.8 $350.00 $1,680.00 Attorney Russell Higgins 1.9 $400.00 $760.00 20 Attorney Steve Mikhov 5.0 $500.00 $2,500.00 21 Total: $29,462.50 22 Wirtz Law Attorney Hours Hourly Rate Lodestar 23 Awarded Awarded Attorney Richard M. Wirtz 1.6 $500.00 $800.00 24 Attorney Jessica Underwood 27.0 $250.00 $6,750.00 25 Paralegal Andrea Munoz 3.9 $75.00 $292.50 Paralegal Rebecca Evans 18.0 $100.00 $1,800.00 26 Attorney Amy Rotman 10.9 $350.00 $3,815.00 Attorney Erin K. Barns 1 $350.00 $350.00 27 Total: $13,807.50 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. 110-1 at 22–24.) Specifically, plaintiff argues that the contingent nature of this 4 litigation warrants a 0.2 multiplier and that the delay in payment warrants a 0.3 multiplier. (Id. at 5 24.) According to plaintiff, “there always existed the possibility Plaintiff would not prevail,” and 6 that “[t]he risk was compounded by the fact that Plaintiff’s attorneys advanced all litigation costs 7 and expenses without reimbursement.” (Id. at 23.) FCA argues that an upward multiplier is not 8 warranted here because plaintiff’s attorneys’ “high billing rates already reflect [their] purported 9 expertise” in consumer protection cases like this one and there was no novelty or difficulty in this 10 case. (Doc. No. 114 at 10.) FCA also argues that because plaintiff’s attorneys were not 11 precluded from taking on other cases and the contingent nature of this case was minimal, the 12 lodestar figure already represents the fair market value of their legal services such that the award 13 of a multiplier is not necessary. (Id. at 11.) 14 The lodestar may be “augmented . . . by taking various relevant factors into account, 15 including (1) the novelty and difficulty of the questions involved and the skill displayed in 16 presenting them; (2) the extent to which the nature of the litigation precluded other employment 17 by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of 18 prevailing on the merits and of establishing eligibility for the award.” Robertson, 144 Cal. App. 19 4th at 819; see also Warren v. Kia Motors Am., Inc., 30 Cal. App. 5th 24, 35 (2018). 20 Here, plaintiff responds to FCA’s argument with a passing comment that “[s]urely, if 21 Plaintiff’s counsel did not take this case on, it would have spent the hours incurred in this matter 22 on another matter.” (Doc. No. 116 at 13.) But, plaintiff does not explicitly contend that his 23 attorneys were precluded from seeking other employment or provide evidence in that regard. 24 Instead, plaintiff argues that “[t]his case required a range of specialized knowledge including: 25 (1) an understanding of the full scope of consumer protection laws, . . .; (2) knowledge of the 26 intricacies of automobiles . . .; and (3) knowledge of auto manufactures’ and dealers’ policies and 27 protocols for repairing vehicles and complying with their legal obligations.” (Doc. No. 110-1 at 28 18.) However, the fact that plaintiff’s attorneys had to become familiar with a case is not the type 1 of novelty or difficulty that ordinarily justifies an upward multiplier. Moreover, as plaintiff 2 admits, his “attorneys have acquired knowledge and insight about these issues over the course of 3 many years of litigation” (id. at 18), and they do not “spend unreasonable time preparing 4 pleadings because they are able to use documents from other cases that need only be edited, rather 5 than written from scratch,” (id. at 20). Indeed, the issues presented by this case have recently 6 been addressed in several cases before this court, many of which involved the same attorneys who 7 appeared in this action. See, e.g., Sekula, 2019 WL 5290903; Self, 2019 WL 1994459; Hall, 2018 8 WL 2298431; Garcia v. FCA US LLC, 1:16-cv-00730-JLT (E.D. Cal. March 7, 2018). Finally, 9 with respect to counsel’s performance, the court has reviewed the pleadings filed in this action 10 and finds that the skills displayed by counsel were, on balance, average at best, given that it is 11 readily apparent from the face of the pleadings filed by plaintiff’s counsel that they relied upon 12 pleadings from other actions as templates. The court therefore finds that the first two factors that 13 could justify the application of a multiplier are not present here because this was a Song-Beverly 14 action of ordinary complexity and difficulty. 15 Moreover, the court concludes that the contingent nature of this action does not weigh in 16 favor of an upward multiplier. “The purpose of a fee enhancement, or so-called multiplier, for 17 contingent risk is to bring the financial incentives for attorneys enforcing important . . . rights . . . 18 into line with incentives they have to undertake claims for which they are paid on a fee-for- 19 services basis.” Ketchum, 24 Cal. 4th at 1132. 20 A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee 21 compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such 22 a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher 23 than that of conventional loans. 24 Id. (citation and internal quotation marks omitted). The court concludes that an upward multiplier 25 based on the contingent risk is not warranted here because that factor is outweighed by the other 26 factors the court has considered, namely that this case was not novel, complex, or difficult, 27 especially because the disputed facts and issues to be resolved were minimal. 28 ///// 1 Similarly, the court finds that an upward multiplier due to any delay in payment of fees to 2 plaintiff’s counsel is not warranted here. Plaintiff contends that “FCA dragged this case out for 3 years before finally making a reasonable settlement offer.” (Doc. No. 110-1 at 24.) Be that as it 4 may, the court is not convinced that FCA is solely to blame for the delay in resolving this action 5 and even if it was, it does not appear to the court that any delay was so egregious so as 6 to justify an upward multiplier. 7 Accordingly, the court declines to apply a multiplier to the lodestar amount under the 8 circumstances of this case. 9 B. Motion for Costs and Expenses 10 Pursuant to California Civil Code § 1794(d), plaintiff seeks an award of $15,342.94 as 11 reimbursement for costs and expenses incurred by plaintiff’s counsel in litigating this matter. 12 (Doc. No. 111; 111-1 at 2.) Plaintiff did not file a bill of costs, but instead filed a motion for costs 13 and expenses under Federal Rule of Civil Procedure 54(d), and attached as an exhibit to the 14 declaration of attorney Mikhov in support thereof a bill of costs “for the purposes of assisting the 15 court’s review of plaintiff’s costs and expenses.” (Doc. Nos. 111-1 at 10, n.1; 111-2 at 2, Ex. A.) 16 Rule 54(d) provides that “costs—other than attorney’s fees—should be allowed to the 17 prevailing party.” Fed. R. Civ. P. 54(d). Moreover, 28 U.S.C § 1920 enumerates those costs that 18 may be taxed by the judge or the Clerk of the Court. For example, “[f]ees of the clerk and 19 marshal” are taxable, but fees for expert witnesses that were not appointed by the court are not 20 listed as a taxable cost. See 28 U.S.C § 1920; Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 21 U.S. 437 (1987) (holding that “absent explicit statutory or contractual authorization for the 22 taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations 23 set out in 28 U.S.C. § 1821 and § 1920”). In contrast, any “claim for attorney’s fees and related 24 nontaxable expenses must be made by motion . . ..” Fed. R. Civ. P. 54(d)(2)(A) (emphasis 25 added). 26 California law, however, permits plaintiffs who prevail in Song-Beverly Act cases to 27 recover costs and expenses, including expert witness fees. See Cal. Civ. Code § 1794(d); Jensen 28 v. BMW of N. Am., Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 1 22, 1995) (noting that with regards to § 1794, “the addition of awards of ‘costs and expenses’ by 2 the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, 3 marshal[]’s fees, etc., should open the litigation process to everyone”). Applying § 1794(d), the 4 court determines that expert witness fees and other costs that are nontaxable under federal 5 procedural rules are recoverable here. Clausen v. M/V New Carissa, 339 F.3d 1049, 1064–66 6 (9th Cir. 2003), as amended on denial of reh’g (Sept. 25, 2003) (applying Oregon statute 7 approving expert witness fees because the law was “an ‘express indication’ of a state legislature’s 8 ‘special interest in providing litigants’ with full compensation for reasonable sums” in pursuit of a 9 statutory claim). However, § 1794(d) only answers the question of whether plaintiff may recoup 10 such costs and expenses—it does not answer the question of how plaintiff must seek 11 reimbursement.7 12 Because the recovery of “costs in federal district court is normally governed by Federal 13 Rule of Civil Procedure 54(d) even in diversity cases,” Champion Produce, Inc. v. Ruby Robinson 14 Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003), the appropriate vehicle for plaintiff to recoup 15 expert witness fees and other expenses is by motion brought pursuant to Rule 54(d)(2)(A), not by 16 taxation through a Bill of Costs. The language of § 1794(d) is consistent with this approach: 17 If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum 18 equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the 19 court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. 20 21 Cal. Civ. Code § 1794(d) (emphasis added). Whereas taxable costs are awarded as a matter of 22 course, and a court must justify its refusal to award such costs, Champion Produce, 342 F.3d at 23
24 7 The court recognizes that district courts in this circuit are divided as to whether expert witness fees and other costs and expenses are recoverable in federal court pursuant to § 1794(d), and if so, 25 whether such costs and expenses are taxable in a Bill of Costs or must be sought via motion. Compare Base v. FCA US LLC, No. 17-cv-01532-JCS, 2020 WL 363006, at *6–7 (N.D. Cal. Jan. 26 22, 2020) (listing and comparing cases), and Zomorodian v. BMW of N. Am., LLC, 332 F.R.D. 27 303, 307 (C.D. Cal. 2019), with Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *15 (E.D. Cal. May 6, 2019), and Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 28 WL 2298431, at *10 (E.D. Cal. May 21, 2018). 1 1022 (holding that a “district court must ‘specify reasons’ for its refusal to award costs” because 2 “Federal Rule of Civil Procedure 54(d)(1) establishes that costs are to be awarded as a matter of 3 course in the ordinary course”) (citation omitted), the party claiming nontaxable costs like expert 4 witness fees must demonstrate to the court, by motion, that its request is reasonable. See Fed. R. 5 Civ. P. 54(d)(2)(A); Cal. Civ. Code § 1794(d). This logic is precisely why plaintiff was required 6 to and is seeking attorneys’ fees, costs, and expenses by motion and not via a Bill of Costs. 7 FCA only objects to plaintiff’s request for $7,453.75 as reimbursement for the expert 8 witness fees charged by plaintiff’s expert Dr. Barbara Luna. (Doc. No. 113.) FCA does not 9 oppose any of the other costs and expenses for which plaintiff now seeks reimbursement, 10 including the expert witness fees charged by plaintiff’s other expert. (Id.) 11 First, FCA argues that plaintiff retained Dr. Luna to provide testimony in support of his 12 fraudulent concealment claim, for which fees are not recoverable. (Id. at 3–4.) In reply, plaintiff 13 contends that Dr. Luna’s testimony would also have been relevant to his Song-Beverly Act claim, 14 particular as to the willfulness of FCA’s conduct and whether civil penalties should be awarded. 15 (Doc. No. 115 at 2–3.) FCA does not address the fact that Dr. Luna’s testimony was relevant to 16 plaintiff’s Song-Beverly Act claim. Moreover, attorneys’ fees and expenses do not need to be 17 apportioned where there is “an issue common to both a cause of action for which fees are 18 permitted and one for which they are not,” and “all expenses incurred on common issues qualify 19 for an award.” Akins v. Enter. Rent-A-Car Co. of S.F., 79 Cal. App. 4th 1127, 1133 (2000); see 20 also Blasco Real Estate, Inc. v. FCA US LLC, No. CIVDS1609641, 2019 WL 5965149, at *1 21 (Cal. Super. Ct. June 05, 2019) (declining to apportion attorneys’ fees where “the claims of fraud 22 and warranty and civil penalties overlapped”). Thus, the court will not reduce recovery of Dr. 23 Luna’s expert witness fees based on this argument. 24 Second, FCA points to the fact that it filed a motion in limine to exclude Dr. Luna’s 25 testimony because, according to FCA, she lacked “the requisite mechanical expertise to render 26 reliable opinions” in this case. FCA argues that as a result, it should not have to pay her expert 27 witness fees. (Id. at 4.) However, as plaintiff points out, FCA’s motion in limine was never ruled 28 upon. (Doc. No. 115 at 3.) In addition, plaintiff argues that FCA’s belief that Dr. Luna was not 1 qualified to testify at trial does not render her expert witness fees unreasonable. (Id.) The court 2 agrees and will not reduce recovery of Dr. Luna’s expert witness fees based on this argument 3 either. 4 Third, FCA argues that Dr. Luna “personally performed relatively little work on this 5 case,” and the amount Dr. Luna charged in this case is unreasonable because her work is 6 repetitive in nature. (Id. at 4.) Plaintiff counters that there is nothing unreasonable about Dr. 7 Luna utilizing her staff who bill at a lower rate to perform certain tasks, like document review and 8 clerical tasks. (Doc. No. 115 at 3–4.) According to plaintiff, Dr. Luna’s utilization of her staff in 9 this manner is fiscally efficient and more reasonable than if she had performed all of the work 10 herself. (Id. at 4.) Having reviewed Dr. Luna’s invoices in this matter (Doc. No. 111-2 at 45– 11 47), the court is persuaded by plaintiff’s argument that Dr. Luna’s utilization of her staff with 12 lower billing rates for certain tasks actually rendered her fees more reasonable than they would 13 have been had she performed all of the tasks herself. 14 Fourth, and relatedly, FCA contests the reasonability of Dr. Luna’s fees because her work 15 is repetitive; “[h]er office prepares the same lengthy exhibits and schedules” in each of the cases 16 that she provides her expert services. (Doc. No. 113 at 4.) But notably, FCA does not argue that 17 the work reflected on Dr. Luna’s invoices was not performed in this case—i.e., that the fees were 18 not actually incurred. Moreover, plaintiff explains in his reply that although his counsel 19 frequently retains Dr. Luna as an expert in their other lemon law cases, “Dr. Luna prepares expert 20 reports and prepares for her depositions on a case by case basis.” (Doc. No. 115 at 4.) Having 21 reviewed Dr. Luna’s invoices and the tasks reflected therein, the court concludes that Dr. Luna’s 22 expert witness fees for those tasks—regardless of whether those tasks are repetitive in nature with 23 the work that her office performed in other cases—were actually and reasonably incurred in 24 connection with the prosecution of this action. Accordingly, the court will award plaintiff 25 reimbursement for all of Dr. Luna’s expert witness fees. 26 The court has also reviewed plaintiff’s itemized bill of costs and the attached receipts and 27 documentation in support of the other costs and expenses for which plaintiff seeks 28 reimbursement. (See Doc. No. 111-2 at 4–65.) The court declines to award the $9.10 for 1 “copies” because plaintiff’s counsel has not provided any explanation or documentation to 2 substantiate that amount. (Id. at 7.) The court also declines to award $73.92 for “Westlaw legal 3 research” because plaintiff has similarly not provided any documentation to substantiate those 4 charges. (Id.) In addition, a close review of plaintiff’s counsel’s billing entries on the dates that 5 those research charges were incurred indicates that no attorney performed research on those dates. 6 Finally, the court declines to award the $0.80 for the unexplained and unsubstantiated Pacer 7 charge incurred in May 2019. (Id. at 8.) The court has reviewed the records for the remaining 8 costs and expenses sought by plaintiff and finds them to be reasonably incurred. 9 Accordingly, after applying the reductions noted above, the court will award costs and 10 expenses as follows: 11 Cost and Expense Amount Amount Requested Awarded 12 Fees of the Clerk $438.64 $438.64 13 Fees for Service of Summons and Subpoena $430.95 $430.95 Deposition Costs $2,505.78 $2,505.78 14 Expert Witness Fees $10,743.11 $10,743.11 Messenger and Court Filing Services $654.21 $654.21 15 Copies $9.10 $0.00 16 Legal Research $73.92 $0.00 Travel $486.43 $486.43 17 Pacer Charges $0.80 $0.00 Total: $15,342.94 $15,259.12 18 19 The court concludes that plaintiff is entitled to a total of $15,259.12 in reimbursements for 20 costs and expenses. 21 CONCLUSION 22 For the reasons explained above: 23 1. Plaintiff’s motion for attorneys’ fees and costs (Doc. No. 110) is granted in part; 24 2. The court declines to award $3,500.00 to LA Law as attorneys’ fees for the legal 25 services performed by plaintiff’s probate counsel, Joseph McHugh; 26 ///// 27 ///// 28 ///// wOAOe 2. AU VV MAAR VRP MVVUPOCTID tat POC VOTE THEN TP □□ Ot VE et
1 3. The court awards $29,462.50 for Knight Law and $13,807.50 for Wirtz Law in 2 attorneys’ fees based on the lodestar analysis set forth above; and 3 4. The court awards costs and expenses in the amount of $15,259.12. 4 | IT IS SO ORDERED. a " 5 /}/ fP A; Dated: _ August 22, 2020 wea rE 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24