Julian III Flores v. FCA US LLC ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JULIAN III FLORES and ALEJANDRA ) Case No.: 1:17-cv-0427 - JLT FLORES, ) 12 ) ORDER GRANTING IN PART PLAINTIFF’S Plaintiffs, ) MOTION FOR ATTORNEY FEES AND COSTS 13 ) 14 v. ) (Doc. 84) FCA US LLC, et al., ) 15 ) Defendants. ) 16 ) 17 Julian III Flores and Alejandra Flores asserted in their complaint that FCA US LLC violated of 18 the Song-Beverly act and committed fraudulent inducement under California law. The parties settled 19 the underlying claims, and Plaintiffs now seek an award of attorney fees and costs. (Doc. 84) For the 20 reasons set forth below, Plaintiffs’ motion is GRANTED in part, in the modified amount of 21 $23,220.55. 22 I. Background 23 Plaintiffs purchased a Dodge Ram 1500 on September 4, 2011. (Doc. 1-1 at 5, ¶ 9; see also id. 24 at 36) Plaintiffs assert this vehicle “was delivered to [them] with serious defects and nonconformities 25 to warranty and developed other serious defects and nonconformities to warranty including, but not 26 limited to[,] transmission, electrical, suspension, and engine defects.” (Id. at 27, ¶ 142) 27 Plaintiffs report their vehicle “was factory-equipped” by Defendant with a Totally Integrated 28 Power Module (“TIPM”), which “is the chief component in the … power distribution systems and 1 consists of a computer, relays, fuses, and controls.” (Doc. 1-1 at 5, ¶¶ 12-13) According to Plaintiffs, 2 “The TIPM provides the primary means of voltage distribution and protection for the entire vehicle...” 3 (Id., ¶ 13) Electrical systems receiving power from the TIPM included the vehicle’s “safety systems, 4 security system, ignition system, fuel system, electrical powertrain, and … comfort and convenience 5 systems.” (Id., ¶ 14) 6 Plaintiffs contend the TIPM installed in their vehicle was defective and failed “to reliably 7 control and distribute power to various vehicle electrical systems and component parts,” which caused 8 the check engine line to come on frequently, irregular engine noises, and leaks. (Doc. 1-1 at 6, ¶ 16) 9 In addition, Plaintiffs allege the TIPM “is likely to cause a variety of electrical issues[,] such as a loss 10 of headlight function, and unexpected distractions, such as the vehicle’s horn or alarm sounding while 11 on a roadway, which may increase the risk of injury for the driver, passengers, or others on the 12 roadway.” (Id., ¶ 17) 13 According to Plaintiffs, “FCA US LLC had superior and exclusive knowledge of the TIPM 14 defects, and knew or should have known that the defects were not known by or reasonably discovered 15 by Plaintiffs before [they] purchased or leased the Subject Vehicle.” (Doc. 1-1 at 6, ¶ 20) Plaintiffs 16 report: “FCA US LLC vehicles have been plagued with severe TIPM problems for the last decade. As 17 a result, FCA US LLC has initiated multiple TIPM-related recalls to address safety or emissions 18 concerns.” (Id. at 7, ¶ 21) Further, Plaintiffs assert the TIPM “defect is so widespread that … 19 replacement parts have often been on national backorder, with drivers reporting from 2011 to 2014 20 that they had to wait weeks or months of have their TIPMs replaced.” (Id., ¶ 23) They allege FCA 21 UC LLC dealers and auto-technicians were “advising many drivers to not drive their vehicles until the 22 TIPM [was] replaced, due to safety risks.” (Id.) However, Defendant did not disclose the defect to 23 Plaintiffs “prior to the sale of the vehicle (Id. at 21, ¶ 108) 24 In August 2015, Plaintiffs “became aware of a class action settlement involving the [TIPM].” 25 (Doc. 1-1 at 20, ¶ 108) Plaintiffs report they “researched the class action and its allegations that the 26 TIPM is defective and poses a safety hazard.” (Id.) According to Plaintiffs, they “gave timely notice 27 [their] claims against FCA US LLC in the present action as a putative class member in … Velasco, et 28 al v. Chrysler Group LLC, United States District Court, Central District of California, Case No. 2:13- 1 cv-08080-DDP-VBK, which was filed on November 1, 2013.” (Id. at 22, ¶ 113) 2 In the initial complaint filed in Velasco, the allegations were “based on the same subject matter 3 and similar evidence” as those presented in this action. (Doc. 1-1 at 24, ¶ 125) Plaintiffs were 4 putative class members in Velasco, but “were ultimately defined out of the final settlement class.” (Id. 5 at 25, ¶ 130) Plaintiffs explain the class definition identified in the complaint “included Plaintiffs’ 6 2012 Dodge Ram 1500.” (Id., ¶ 132) However, the final settlement class was defined as including: 7 “All persons who purchased or leased a model- year 2011, 2012, and/or 2013 Dodge Durango or Jeep 8 Grand Cherokee vehicle in the United States.” (Id. at 26, ¶ 134) Thus, Plaintiffs’ vehicle was “not 9 included in the final class definition.” (Id., ¶ 138) 10 On October 21, 2016, Plaintiffs filed their complaint in Tulare County Superior Court, Case No. 11 267317. (See Doc. 1-1 at 3) Plaintiffs identified the following causes of action in their complaint: (1) 12 breach of an express warranty pursuant to the Song-Beverly Act, (2) breach of an implied warranty 13 pursuant to the Song-Beverly Act, and (3) fraudulent inducement- concealment. (Id. at 3, 26-31) 14 Plaintiffs’ prayer for relief included, but was not limited to: general, special and actual damages; 15 “recession of the purchase contract and restitution of all monies expended;” diminution in value; civil 16 penalties totaling twice their actual damages; and reasonable attorney fees and costs. (Id. at 31-32) 17 Defendant filed its answer on November 17, 2016, asserting in part that “Plaintiffs’ entire Complaint is 18 moot based upon the fact that FCA US LLC offered to repurchase Plaintiffs’ vehicle,” which would 19 “provide[] Plaintiffs with full recompense for any alleged harm.” (Doc. 1-4 at 7, ¶ 22) 20 On March 23, 2017, Defendant filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 21 1441(a) and 1446(a), thereby initiating the matter with this court. (Doc. 1) Plaintiff filed a motion to 22 remand the action to the state court on June 5, 2017. (Doc. 11) The Court determined it had diversity 23 jurisdiction over the action and denied the motion to remand on August 30, 2017. (Doc. 17) 24 The trial in the action was set for August 12, 2019. (Doc. 42) The parties prepared for the trial, 25 and filed a joint pre-trial statement on June 12, 2019. (Doc. 46) Thereafter, the parties filed motions in 26 limine, which were addressed by the Court on July 18, 2019. (Doc. 73) On August 1, 2019, the parties 27 informed the Court that they “reached a settlement in principle,” and requested the trial date be vacated 28 “while settlement [was] pending.” (Doc. 76 at 2) Accordingly, the Court vacated the trial and ordered 1 the parties to file a stipulation to dismiss the action no later than September 13, 2019. (Doc. 77) After 2 the parties reported they had not come to an agreement on the amount of fees, Court granted the parties 3 an extension of time, and directed Plaintiffs to either file a motion for attorney fees or dismissal 4 documents no later than December 2, 2019. (Doc. 82) 5 Plaintiffs filed a bill of costs on October 23, 2019. (Doc. 83) The same date, Plaintiffs filed 6 their motion for attorney fees, costs, and expenses now pending before the Court. (Doc. 84) Defendant 7 filed its objections to the bill of costs on October 30, 2019 (Doc. 86) and its opposition to the motion 8 for fees on November 7, 2019 (Doc. 87) Plaintiffs filed their reply on November 14, 2019. (Doc. 88) 9 II. Legal Standard 10 “In a diversity case, the law of the state in which the district court sits determines whether a 11 party is entitled to attorney fees, and the procedure for requesting an award of attorney fees is governed 12 by federal law. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007); see also Mangold v. Cal. 13 Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995) (noting that in a diversity action, the Ninth 14 Circuit “applied state law in determining not only the right to fees, but also in the method of calculating 15 the fees”). 16 As explained by the Supreme Court, “[u]nder the American Rule, ‘the prevailing litigant 17 ordinarily is not entitled to collect a reasonable attorneys’ fee from the loser.’” Travelers Casualty & 18 Surety Co. of Am. v. Pacific Gas & Electric Co., 549 U.S. 443, 448 (2007) (quoting Alyeska Pipeline 19 Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975)). However, a statute allocating fees to a 20 prevailing party can overcome this general rule. Id. (citing Fleischmann Distilling Corp. v. Maier 21 Brewing Co., 386 U.S. 714, 717 (1967)). Under California’s Song-Beverly Act, a prevailing buyer is 22 entitled “to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, 23 including attorney’s fees based on actual time expended, determined by the court to have been 24 reasonably incurred by the buyer in connection with the commencement and prosecution of such 25 action.” Cal. Civ. Code § 1794(d). 26 The Song-Beverly Act “requires the trial court to make an initial determination of the actual 27 time expended; and then to ascertain whether under all the circumstances of the case the amount of 28 actual time expended and the monetary charge being made for the time expended are reasonable.” 1 Nightingale v. Hyundai Motor America, 31 Cal.App.4th 99, 104 (1994). The court may consider 2 “factors such as the complexity of the case and procedural demands, the skill exhibited and the results 3 achieved.” Id. If the court finds the time expended or fee request “is not reasonable under all the 4 circumstances, then the court must take this into account and award attorney fees in a lesser amount.” 5 Id. “A prevailing buyer has the burden of showing that the fees incurred were ‘allowable,’ were 6 ‘reasonably necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” Id. (quoting 7 Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App. 4th 807, 816 (1992)); see also Goglin v. BMW of 8 North America, LLC, 4 Cal. App. 5th 462, 470 (2016) (same). 9 If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, duplicative, 10 or unrelated do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 11 4th at 550, 564 (2008). Rather, the opposing party has the burden to demonstrate the hours spent are 12 duplicative or excessive. Id. at 562, 564; see also Gorman v. Tassajara Dev. Corp., 178 Cal. App. 4th 13 44, 101 (2009) (“[t]he party opposing the fee award can be expected to identify the particular charges 14 it considers objectionable”). 15 III. Evidentiary Objections 16 Both parties object to evidence presented in support of and in opposition to the motion for fees 17 and costs. (Doc. 87-3; Doc. 88-1) The Court has read and considered each objection made by 18 Defendant and Plaintiffs, and to the extent the Court considers any evidence to which there was an 19 objection in its analysis, the objection is overruled. 20 IV. Discussion and Analysis 21 As prevailing buyers, Plaintiffs are entitled to fees and costs under the Song-Beverly Act. See 22 Cal. Civ. Code § 1794(d); see also Goglin, 4 Cal.App.5th at 470. Plaintiffs seek: (1) an award of 23 attorneys’ fees pursuant to the Song-Beverly Act in the amount of $45,951.25; (2) a lodestar multiplier 24 of 0.5, in the amount of $22,975.63; and (3) actual costs and expenses of $13,182.90. (Doc. 83 at 1; 25 Doc. 84 at 2) Thus, Plaintiffs request a total award of $82,109.78. (Doc. 84 at 2) 26 Defendant acknowledges that “Plaintiffs are entitled to recover attorney’s fees, costs, and 27 expenses,” but argues the Song-Beverly Act “does not authorize a blank check” and the amount 28 requested is unreasonable. (See Doc. 87 at 6) Defendant proposes the fee award to Plaintiffs reflect the 1 following: (1) reduction of fees incurred for duplicative, unnecessary, and clerical tasks; (2) a deduction 2 of 20 percent due to the practice of quarter-hour billing practice of Hackler, Daghighian, Martino & 3 Novak; (3) and a reduction in the hourly rate to reflect rates reasonable in Fresno Division of the 4 Eastern District. (Id.at 6-13) In addition, Defendant contends a multiplier award is not appropriate in 5 this action. (Id. at 14-17) 6 A. Fee Request 7 Plaintiffs seek lodestars in the amount of $29,457.50 for the work completed by Knight Law 8 Group and $16,493.75 for work completed by Hackler Daghighian Martino & Novak, P.C., which 9 “work[ed] with Knight Law on this case to prepare the case for trial.” (Doc. 84-1 at 11, 13; Doc. 84-2, 10 Mikhov Decl. ¶ 2) 11 1. Hours worked by counsel 12 A fee applicant must provide time records documenting the tasks completed and the amount of 13 time spent. Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v. Metropolitan Life Ins. Co., 480 14 F.3d 942, 945-46 (9th Cir. 2007). Under California law, a court “must carefully review attorney 15 documentation of hours expended” to determine whether the time reported was reasonable. Ketchum 16 v. Moses, 24 Cal.4th 1122, 1132 (2001) (quoting Serrano v. Priest, 20 Cal.3d 25, 48 (1977)). Thus, 17 evidence provided by the fee applicant “should allow the court to consider whether the case was 18 overstaffed, how much time the attorneys spent on particular claims, and whether the hours were 19 reasonably expended.” Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008). The 20 court must exclude “duplicative or excessive” time from its fee award. Graciano v. Robinson Ford 21 Sales, Inc., 144 Cal.App.4th 140, 161 (2006); see also Ketchum, 24 Cal.4th at 1132 (“inefficient or 22 duplicative efforts [are] not subject to compensation”). 23 Defendant objects to the hours reported by Plaintiffs’ counsel, asserting “Plaintiffs fail to offer 24 any explanation ... for why it took two firms who claim to be experts in their field to handle this routine 25 case.” (Doc. 87 at 7) According to Defendant, “[t]here is inherent duplication of effort in [this] 26 management style.” (Id.) Defendant asserts the submitted the invoices include duplicative tasks 27 between the attorneys and firms; improper block billing; and attorneys billing for administrative or 28 clerical tasks, which should be omitted from the lodestar calculation. (Id. at 8-10) 1 a. Work completed by Knight Law Group 2 The billing records submitted by Knight Law Group indicate the attorneys expended 79.8 hours 3 on this action, through the preparation of the motion for fees and costs. (See Doc. 84-2 at 19-24) 4 Defendant objects to the hours reported contends “most of the work was formulaic.” (See Doc. 87 at 5 14) According to Defendant, the invoice from Knight Law Group includes excessive time and 6 unnecessary time related to document preparation and review, including duplicative efforts and clerical 7 tasks. (Id. at 7-9) 8 i. Work related to the motion to remand 9 According to Defendant, Plaintiffs should not recover fees related to the motion to remand, 10 which challenged this Court’s diversity jurisdiction on the grounds that the parties were not diverse 11 and the amount in controversy requirement of $75,000.00 was not satisfied. The Court rejected both 12 arguments and denied the motion on August 30, 2017. (Doc. 17) Defendant argues that “[b]ecause 13 this motion was denied, it is unreasonable to pass these fees onto Defendant.” (Doc. 87 at 7-8) 14 In reply, Plaintiffs argue that “contrary to FCA’s position, the standard is not whether a motion 15 was granted or denied, it is whether this work was reasonable.” (Doc. 88 at 8) Plaintiffs assert, 16 “Whether the lawsuit was heard in state or federal court could have serious implications for Plaintiffs, 17 such as the standard regarding a unanimous jury verdict in federal court to achieve a victory for 18 Plaintiffs.” (Id.) Therefore, Plaintiffs contend “attempting to remand the case was reasonably 19 necessary, despite the outcome of the motion.” (Id.) 20 Notably, however, Plaintiffs fail to address the reasonableness of the time expended by each of 21 the attorneys related to the motion for remand. Plaintiffs’ counsel reports Alastair Hamblin spent 3.0 22 hours reviewing the file, drafting the motion to remand and related documents, and Plaintiffs’ objection 23 to the declaration of Kris Grueger filed in support of the removal. (Doc. 84-2 at 20) Mr. Hamblin also 24 indicates he spent 0.5 hours to prepare for and attend the hearing on the motion to remand, and “[d]raft 25 results” on the hearing for multiple cases. (Id. at 21) Once Defendant filed its opposition, Mr. Hamblin 26 spent 1.3 hours reviewing the documents “in anticipation of drafting [a] Reply,” which was never filed. 27 (Id. at 21) Finally, Kristina Stephenson-Cheang billed for 0.1 hour for her review of the Court’s order 28 denying the motion to remand. (Id.) 1 Significantly, as the billing records acknowledge, Plaintiffs’ counsel filed motions to remand in 2 “multiple cases” before this Court. (See Doc. 84-2 at 21) Similar arguments were presented to the 3 Court in each motion challenging diversity jurisdiction.1 The Court is unable to find the time related to 4 drafting the motion, attending the hearing, or reviewing the opposition—particularly where no reply 5 was filed— was reasonably expended by counsel. In addition, it appears the time reported by counsel 6 was excessive, where Mr. Hamblin reports 0.2 hour to prepare a proposed order that less than half a 7 page of text and identical in form to proposed orders for remand in other cases before the Court. 8 Because Plaintiffs fail to establish the time was reasonably expended in this action, the Court will 9 award only 1.5 hours related to the motion work by Mr. Hamblin, and the lodestar calculation below 10 will be reduced by 3.3 hours for Mr. Hamblin. (See Doc. 84-2 at 20-21) 11 ii. Internal communications and review 12 As noted above, a fee applicant “should make a good-faith effort to exclude from a fee request 13 hours that are … redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The Ninth Circuit 14 has “recognized that ‘the participation of more than one attorney does not necessarily constitute an 15 unnecessary duplication of effort.’” McGrath v. County of Nevada, 67 F.3d 248, 256 (1995) (quoting 16 Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 1989)). However, in general, counsel should not 17 bill for internal communications and communicating with each other, as such time is unnecessary. See, 18 e.g., In re Mullins, 84 F.3d 459, 467 (D.C. Cir. 1996); Robinson v. Plourde, 717 F. Supp. 2d 1092, 19 1099 (D. Haw. 2010). 20 This Court previously observed, “many courts have ... reduced fee awards for time spent in 21 ‘interoffice conferences’ or other internal communications.” Gauchat-Hargis v. Forest River, Inc., 22 2013 WL 4828594 at *3 (E.D. Cal. Sept. 9, 2013) (citing, e.g., Mogck v. Unum Life Ins. Co. of Am., 23 289 F.Supp.2d 1181, 1194 (S.D. Cal. 2003) [reducing selected time entries because attorneys “billed an 24 inordinate amount of time for interoffice conferences”]; Coles v. City of Oakland, 2007 WL 39304, at 25 *10 (N.D. Cal. Jan. 4, 2007) [“communication between attorneys may indicate unreasonable 26 27 1 For example, the Court notes that a similar motion was filed by counsel two months before in the Celestine case (Celestine v. FCA, case number 2:17-cv-00597) and it was denied for the same reasons as here. It is simply not possible— 28 or reasonable— that the motion in this case could have necessitated the time reported given the significantly duplicative 1 overstaffing such that a reduction in hours is appropriate”]). Notably, as Defendant argues, a review of 2 the billing records from Knight Law Group reveals a significant amount of time spent on the 3 preparation of internal memorandums and summaries for co-counsel. 4 Alastair Hamblin attended the scheduling conference on May 17, 2017, and then drafted the 5 “results” of the conference, which were reviewed by Steve Mikhov. (Doc. 84-2 at 20) Mr. Mikhov 6 also bills for his review of the “results” of other Court conferences and hearings attended by co- 7 counsel, including the case management conference on February 9, 2017; the motion to remand on 8 August 2, 2017; and the pre-trial conference on June 18, 2019. (Id. at 19, 21, 23) 9 Attorneys also prepared and reviewed memorandums regarding the depositions of Plaintiffs, 10 Stanley Gozzi, Thomas Lepper, and Barbara Luna. (Doc. 84-2 at 22-23) For example, after defending 11 Plaintiffs’ depositions and attending the vehicle inspection, Diane Hernandez drafted memorandums 12 regarding the depositions and inspection. (Id. at 22) Amy Morse then billed 0.2 for her review of these 13 documents. (Id.) Further, summaries of depositions followed memorandums prepared by others. 14 Michael Morris-Nussbaum attended the depositions of Thomas Lepper and Barbara Luna and drafted 15 memorandums regarding the depositions, which were then reviewed by Ms. Morse, who billed 0.2 hour 16 for her review. (Id. at 23) Despite the prior memorandum regarding the depositions of Mr. Leeper and 17 Ms. Luna, Kristina Stephenson-Cheang then reviewed the transcripts and drafted her own summaries, 18 for which she reported 4.1 hours of work. (Id.) 19 Because the preparation and review of these documents were clearly internal communications 20 and duplicative in nature, the Court will reduce the lodestar by a total of 5.0 hours. See Gauchat- 21 Hargis, 2013 WL 4828594 at *3; In re Durosette, 2012 WL 9123382 at *3 (E.D. Cal. Aug. 23, 2012) 22 (finding a reduction of time appropriate in part due to the amount of time reported for “preparing 23 memos to the lead partner on the case”). This amount includes deductions of 0.5 hour for Mr. Mikhov, 24 0.4 for Ms. Morse, and 4.1 hours for Ms. Stephenson-Cheang. 25 iii. Clerical tasks 26 The Supreme Court determined that “purely clerical or secretarial tasks should not be billed at 27 a paralegal or [lawyer’s] rate, regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 28 288 n.10 (1989). As a result, courts have eliminated clerical tasks from fee awards. See, e.g., 1 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); see also Harris v. L & L Wings, Inc., 132 2 F.3d 978, 985 (4th Cir. 1997) (approving the court’s elimination of hours spent on secretarial tasks 3 from the lodestar calculation). 4 Mr. Mikhov indicates that he spent 0.5 hour on August 28, 2019 to “[r]eview and audit billing” 5 prior to the filing of this motion. (Doc. 84-2 at 24) Due to the clerical nature of the task, the Court 6 will reduce the 0.5 hour from the fee award for Mr. Mikhov. 7 iv. Travel 8 Defendant objects to the time reported by Diane Hernandez, noting that she billed 13.0 hours 9 for attending Plaintiffs’ deposition, which were brief and resulted in transcripts totaling 87 pages 10 (Doc. 87 at 8; see also Doc. 84-2 at 22) In addition, Defendant objects to the 11.5 hours reported for 11 Ms. Hernandez related to the vehicle inspection. (Id.) Ms. Hernandez indicated her reported time had 12 “travel included” for both the deposition and vehicle inspection. (Doc. 84-2 at 22) 13 Courts have frequently reduced travel time by half to create a reasonable rate. See, e.g., In re 14 Washington Public Power Supply Sys. Sec. Lit., 19 F.3d 1291, 1298-99 (9th Cir. 1994) (finding the 15 district court did not err in reducing attorney travel time by half where the “attorneys generally billed 16 the entire duration of the time spent in transit”); Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) 17 (affirming a reduction by half of the hourly rate for time billed for travel); S. Yuba River Citizens 18 League & Friends of the River v. Nat’l Marine Fisheries, 2012 WL 1038131, at *5 (E.D. Cal. Mar. 27, 19 2012) (finding the attorney travel time was “subject to a 50% reduction”); Wishtoyo Found. v. United 20 Water Conservation Dist., 2019 U.S. Dist. LEXIS 39927 (C.D. Cal. Mar. 5, 2019). Accordingly, the 21 Court finds the travel time for Ms. Hernandez is subject to a fifty-percent reduction. 22 Importantly, however, the billing records from counsel do not clearly identify the time 23 expended by Ms. Hernandez for travel due to the block-billing format of her entries, which include 24 time for preparation, travel to and from the depositions and vehicle inspection, and drafting 25 summaries. (See Doc. 84-2 at 22) Defendant estimates that Ms. Hernandez spent ten hours on travel 26 for the deposition and eight hours on travel for the vehicle inspection. (Doc. 87 at 8) Plaintiffs offer 27 no clarification of the actual travel time in their reply, arguing only that the travel “time was 28 reasonably necessary as FCA noticed both the depositions and the vehicle inspection.” (Doc. 88 at 9) 1 On the other hand, in the Bill of Costs, Ms. Hernandez indicated that she drove 337 miles for 2 the depositions of Plaintiffs and 370 miles for the vehicle inspection. (Doc. 83 at 3-4) In addition, the 3 evidence submitted related to the mileage indicates the travel time to the depositions was estimated 4 between 2 hours and 50 minutes and 4 hours. (Id. at 16) The travel time to the vehicle inspection site 5 was estimated to be 3 hours and 51 minutes. (Id. at 45) Thus, the Court finds it is reasonable to 6 conclude that the billing from Ms. Hernandez includes, at a minimum, 13.37 hours of travel. Because 7 this amount is subject to a fifty-percent reduction, the lodestar calculation below reflects a deduction 8 of 6.69 hours for Ms. Hernandez. 9 v. Excessive time and block billing 10 The Court has conducted an extensive review of the billing records in this action, due to 11 Plaintiffs’ burden to demonstrate the reasonableness of the hours reported. See Hensley, 461 U.S. at 12 424 (1983); see also Ketchum, 24 Cal.4th at 1132 (explaining the court has a burden to “carefully 13 review attorney documentation of hours expended” to determine whether the time reported was 14 reasonable). In doing so, the Court observed there are many instances in which the time billed appears 15 excessive for the tasks completed, even where counsel reported the minimum 0.1 hour. For example, 16 Ms. Stephenson-Cheang billed 0.1 hour for her review of the Court’s minute order on the motion to 17 remand on July 27, 2017; 0.1 for reviewing the minute order continuing the settlement conference on 18 January 4, 2018; 0.1 for reviewing minute orders granting requests for telephonic appearances in 19 March 2018; and 0.1 hour for reviewing the minute order setting a status conference on December 3, 20 2018; (Doc. 84-2 at 21-23) Each of these minute orders were only a few sentences long and would 21 take moments to review, not six minutes. 22 Further, there are many entries in which attorneys from Knight Law used a block billing format, 23 where the reported time “bundles tasks in a block of time.” See Aranda v. Astrue, 2011 U.S. Dist. 24 LEXIS 63667 at *13 (D. Ore. June 8, 2011). As the Ninth Circuit observed, “block billing makes it 25 more difficult to determine how much time was spent on particular activities.” Welch v. Metro. Life 26 Ins., 480 F.3d 942, 948 (9th Cir. 2007). This is particularly demonstrated here, where counsel included 27 preparation, and attendance at various conferences and depositions in one entry. For example, Alastair 28 Hamblin billed 1.2 hours on May 17, 2017, for his time to “[p]prepare for and attend [the] Initial 1 Scheduling Conference (telephonically)” and “[d]raft results.” (Doc. 84-2 at 20) However, what 2 preparation was required is unclear, as he previously billed for preparing the Rule 26 Joint Report. In 3 addition, the Court’s records indicate the Scheduling Conference began at 8:32 a.m. and ended at 9:02 4 a.m., during which time the Court discussed not only this action, but also addressed five related matters 5 with the same counsel. Thus, only five minutes of the Scheduling Conference should be attributed to 6 the action now pending before the Court, and it appears the billed time is excessive. However, due to 7 the block billing format, it is unclear how much time Mr. Hamblin is billing for his appearance. 8 Where, as here, attorneys presented time expended in blocks, the Court may “simply reduce[] 9 the fee to a reasonable amount.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000); see 10 also Welch, 480 F.3d at 948 (“We do not quarrel with the district court's authority to reduce hours that 11 are billed in block format”). Specifically, the Ninth Circuit determined a district court may “impose a 12 small reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of discretion” for block 13 billing. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Given the evidence that 14 reported time entries were excessive and the block billing format used by counsel at Knight Law, the 15 Court exercises its discretion to reduce the lodestar calculations below by 10 percent for each of the 16 attorneys at Knight Law Group. The Court finds the remaining hours are reasonable in light of the 17 tasks completed by Knight Law Group in this action. 18 b. Work completed by Hackler Daghighian Martino & Novak, P.C. 19 As noted above, Knight Law Group associated Hackler Daghighian Martino & Novak, P.C. 20 (“HDMN”) into action “to prepare the case for trial.” (Doc. 84-1 at 11) Defendant objects to the 21 hours billed by HDMN as unreasonable, asserting the firm included duplicative tasks, clerical tasks, 22 and overbilled with quarter-hour increments. (Doc. 87 at 9-11) 23 i. Duplicative entry 24 As an initial matter, the Court notes the billing records from HDMN include duplicative entries 25 from Kevin Jacobson related to his receipt and review of Defendant’s Rule 68 offer. (See Doc. 84-3 at 26 9) Mr. Jacobson has two identical entries for 0.25 hour related to his receipt and review on July 30, 27 2019. (Id.) Accordingly, the Court will deduct 0.25 hour from the lodestar calculation below for Mr. 28 Jacobson. 1 ii. Clerical tasks 2 Review of the time sheets from HDMN reveals tasks that were purely clerical and should be 3 excluded from the lodestar calculation. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989). 4 Specifically, Andrea Plata, a paralegal, recorded 2.75 hours for tasks including printing and saving 5 documents, calendaring deadlines, and reviewing the documents and discovery previously received by 6 Knight Law Group to prepare a trial folder. (See Doc. 84-3 at 8) 7 As noted above, courts have discounted billing entries for “clerical tasks,” which includes 8 “filing, transcript, and document organization time.” Nadarajah, 569 F.3d at 921; Harris, 132 F.3d at 9 985; Jones v. Metro. Life Ins. Co., 845 F. Supp. 2d 1016, 1027 (N.D. Cal. 2012) (discounting time for 10 “filing or retrieving electronic court documents or copying”); L.H. v. Schwarzenegger, 645 F. Supp. 2d 11 888, 899 (E.D. Cal. 2009) (finding organizing and updating files appeared clerical, and declining to 12 award fees where the applicant “tendered no evidence that these are tasks that required the skill of a 13 paralegal”). Thus, 2.75 hours expended by Ms. Plata on the clerical—and duplicative— tasks will be 14 deducted from the lodestar. 15 Defendant also observes that Ms. Plata reported 4.5 hours for preparation of a deposition 16 summary and argues the time should be discounted “[g]iven the vague description.” (Doc. 87 at 9) 17 However, the Court is unable to find this work is duplicative or redundant. Accordingly, the Court 18 declines to deduct this time from the lodestar. 19 iii. Unsupported and “anticipated” time 20 Defendant argues the Court should not award the 17.5 hours of anticipated time included in the 21 billing records for Erik Schmitt and Sepehr Daghighian related to reviewing the opposition, drafting the 22 reply brief, and attending the hearing on the motion for fees and costs. (Doc. 87 at 9-10) Plaintiff 23 contends the time should be awarded because “FCA provides no basis in fact or law as to why the fees 24 related to the work performed (or that will be performed), should be reduced.” (Doc. 88 at 9) 25 Significantly, Plaintiff failed to provide any evidence related to the time spent reviewing the 26 opposition and drafting the Reply brief, despite the numerous other exhibits attached to the declarations 27 of Mr. Mikhov in reply. (See Doc. 88-2) In addition, the motion was taken under submission without 28 oral arguments on November 29, 2019. The Court declines to speculate as to the actual time spent by 1 counsel in preparing the reply brief, as it is the fee applicant’s burden to present evidence to support a 2 motion. See Hensley, 461 U.S. at 424; Welch, 480 F.3d at 945-46. Accordingly, the lodestar 3 calculation below reflects a reduction of 7.5 hours for Mr. Schmitt and 10.0 hours for Mr. Daghighian. 4 iv. Quarter-hour billing 5 HDMN billed in quarter-hour increments, which Defendant argues warrants a deduction in the 6 fee award because “not every task takes 15 minutes to complete” and “Plaintiffs offer no evidence 7 whatsoever that such billing practices are accepted in the industry as standard.” (Doc. 87 at 10) In 8 addition, Defendant observes the practice of billing in quarter-hour increments “has been criticized 9 because it inflates time spent on the matter.” (Id.) 10 As Defendant argues, courts have repeatedly criticized quarter-hour billing because it inflates 11 time spent on the matter. See, e.g., v. Metro Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (affirming 12 a reduction after finding the billing practice inflated the time recorded); Robinson v. Plourde, 717 F. 13 Supp. 2d 1092, 1100-01 (D. Haw. 2010) (applying a 20% reduction for billing in quarter-hour 14 increments); Prudential Ins. Co. v. Am. v. Remington, 2014 WL 294989 at *4 (E.D. Cal. Jan. 24, 2014) 15 (also applying a 20% reduction where counsel billed in 15 minute-increments); Ekstrom v. Marquesa at 16 Monarch Beach Homeowners Assoc., 2008 WL 4768861 (Cal. App. 4th. Nov. 3, 2008) (finding the 17 trial court did not err in decreasing the fees requested by 40% where the attorneys billed in quarter-hour 18 increments). 19 In Welch, the district court “imposed a 20 percent across-the-board reduction on [the] requested 20 hours” because the law firm “billed in quarter-hour increments.” Id., 480 F.3d at 948. The district 21 concluded the “practice of billing by the quarter-hour resulted in a request for excessive hours . . . 22 because counsel billed a minimum of 15 minutes for numerous phone calls and e-mails that likely took 23 a fraction of the time.” Id. The Ninth Circuit also reviewed the time sheets and noted: “Our own review 24 of the time sheet confirms that it is replete with quarter-hour or half-hour charges for the drafting of 25 letters, telephone calls and intraoffice conferences.” Id. Therefore, the Court affirmed the reduction for 26 quarter-hour billing. Id. 27 HDMN billed for quarter-hour increments, but the Court’s review of the time records does not 28 reveal significant evidence that the billing records were inflated by the billing practice. On the other 1 hand, there are entries for 0.25 and 0.5 hour intraoffice conferences and email correspondence, which 2 were criticized by the Ninth Circuit in Welch as evidence the quarter-hour billing practice inflates time. 3 Further, several entries from counsel are in a block-billed format, which makes it difficult for the Court 4 to determine the reasonableness of the time expended on the tasks identified. As a result, the Court will 5 impose a 10 percent deduction for the remaining time reported by the attorneys HDMN. See Moreno, 6 534 F.3d at 1112; Welch, 480 F.3d at 948. This results in a compensable total of 0.23 hour for Sepher 7 Daghighian, 14.63 hours for Kevin Jacobson, 11.70 hours for Erik Schmitt, 0.68 hour for Larry 8 Castruita, and 4.05 hours for Andrea Plata. The Court finds this time reasonable for the tasks 9 undertaken by each of the HDMN attorneys and the paralegal assigned to the action. 10 2. Hourly rates 11 The Supreme Court determined attorney fees are to be calculated with “the prevailing market 12 rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see also PLCM 13 Group, Inc. v. Drexler, 22 Cal.4th 1084, 1096 (2000) (“[t]he reasonable hourly rate is that prevailing 14 in the community for similar work”). The fee applicant has the burden to establish the rates are 15 reasonable with the community, and meets this burden by “produc[ing] satisfactory evidence—in 16 addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing in 17 the community for similar services by lawyers of reasonably comparable skill, experience and 18 reputation.” Blum, 465 U.S. at 896 n.11. 19 In general, the “relevant community” for purposes of determining the prevailing market rate is 20 the “forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th 21 Cir. 2008). Thus, when a case is filed in this Court, “[t]he Eastern District of California, Fresno 22 Division, is the appropriate forum to establish the lodestar hourly rate.” See Jadwin v. County of Kern, 23 767 F.Supp.2d 1069, 1129 (E.D. Cal. 2011); see also Gordillo v. Ford Motor Co., 2014 WL 2801243 24 (E.D. Cal. June 19, 2014) (in a diversity action awarding fees under the Song-Beverly Act, the court 25 looked to hourly rates in the Fresno Division, and adjusted the lodestar accordingly). 26 The court may apply “rates from outside the forum… ‘if local counsel was unavailable, either 27 because they are unwilling or unable to perform because they lack the degree of experience, expertise, 28 or specialization required to handle properly the case.’” Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997) 1 (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)). Plaintiffs present no evidence 2 that local counsel was either unwilling or unable to prosecute their claims in this action. Thus, the 3 Court must determine whether the hourly rates requested by counsel are reasonable for the Fresno 4 Division of the Eastern District. See, e.g., Gordillo, 2014 WL 2801243 at *5-6. 5 a. Rates for non-attorney staff 6 Plaintiffs’ counsel calculated the lodestar using an hourly rate of $75 for Andrea Plata, a 7 paralegal. (See Doc. 84-3 at 4, Daghighian Decl. ¶ 7) According to Mr. Daghighian, Ms. Plata has 8 been a paralegal at HDMN “for over two years and is well-versed in litigations support.” (Id.) 9 Generally, paralegal rates within the Fresno Division of the Eastern District range between $75 10 to approximately $150.00. See Silvester v. Harris, 2014 WL 7239371 at *4 (E.D. Cal. Dec. 17, 2014) 11 (“[t]he current reasonable hourly rate for paralegal work in the Fresno Division ranges from $75 to 12 $150, depending on experience"); Trujillo v. Singh, 2017 WL 1831941 at *3 (E.D. Cal. May 8, 2017) 13 (finding requested hourly rates of $95-115 were reasonable in the Fresno Division). Based upon the 14 information provided by counsel and this Court’s prior review of hourly rates for paralegals in the 15 Fresno Division, the Court finds the hourly rate for Ms. Plata is appropriate and no adjustment will be 16 made to the requested rate of $75 per hour. 17 b. Rates for counsel 18 The attorneys at Knight Law Group seek hourly rates ranging from $275 to $550, while 19 attorneys at HDMN seek hourly rates ranging from $225 to $550. (Doc. 84-2 at 7-9, 24; Doc. 84-3 at 20 2-4) In support of counsel’s lodestar calculation and the fee request based upon these hourly rates, 21 Plaintiffs request the Court review: 22 (i) the hourly rates set forth of in the declarations filed concurrently herewith (SM Dec., ¶¶ 22-32; SD Dec., ¶¶ 3-7), (ii) a survey of rates charged by other well-known 23 consumer law attorneys (SM Dec., ¶ 35), (iii) nearly a dozen court orders confirming the reasonableness of Plaintiffs’ counsels’ hourly rates and time billed in other Song- 24 Beverly Act cases (SM Dec., ¶¶ 36-47, Exs. E-P), and (iv) a National Survey further supporting the reasonableness of the hourly rates. (SD Dec., ¶9, Ex. B, at pp. 42-45.) 25 26 (Doc. 84-1 at 15) However, much of this evidence does not address the local forum or assist the Court 27 in its analysis. For example, while Mr. Mikhov identifies “the hourly rates of other attorneys in 28 California who work in the area of lemon law and consumer law,” he does not identify attorneys 1 practicing in the Eastern District. (See Doc. 84-2 at 10, ¶ 35) 2 In addition, Plaintiffs suggest the hourly rates requested are supported by Defendant’s refusal 3 “to attach its own bill” to its opposition and the hourly rates it paid experts. (See Doc. 88 at 3) 4 However, the motion before the Court was filed by Plaintiffs, and FCA’s hourly rates are not in issue. 5 The hourly rate paid to experts has no bearing upon the propriety of the rates paid to counsel. 6 Moreover, there is no information regarding the location of FCA’s attorneys or whether their hourly 7 rates are in line with those awarded in the Fresno Division. Defendant was under no obligation to 8 produce its billing records in response to the motion, where the burden is upon Plaintiffs demonstrate 9 the requested rates are reasonable within the relevant community. See Blum, 465 U.S. at 896 n.11. 10 Finally, though Mr. Mikhov identifies cases in which the attorneys were awarded fees from 11 state courts within the Eastern District boundaries2—including Fresno County, Merced County, and 12 Tulare County—several of the courts’ orders do not identify the hourly rates awarded to counsel. (See, 13 e.g., Doc. 84-2 at 84-85 [Exh. E], 89-90 [Exh. F], 141 [Exh. O]) Moreover, a majority of the courts 14 offered no analysis regarding whether the hourly rates were reasonable for local counsel. (See Doc. 84- 15 2 at 84-85, 89-90, 94-95, 107-109, 113-115, 119-121, 130-32, 141, and 143-144) Without such 16 analysis, the Court is unable to determine whether the plaintiffs presented evidence that local counsel 17 was either unwilling to take their cases or unable to do so, such a higher hourly rate was warranted. 18 Given the lack of such evidence here, the hourly rates will be reduced for purposes of calculating the 19 lodestar. See, Gordillo, 2014 WL 2801243 at *5-6; Barjon v. Dalton, 132 F.3d 496, 500-02 (9th Cir. 20 1997) (affirming the district court’s decision to decline an award of out-of-district billing rates where 21 the fee applicants failed “to prove the unavailability of local counsel,” and reduced the award to the 22 hourly rates in the relevant community). Indeed, the requested hourly rates were from Knight Law 23 Group were rejected in Metzger vs. FCA US LLC (Fresno County Superior Court Case No. 24 16CECG02922), which is attached as Exhibit H to the motion, which found the “rates for plaintiff’s 25 counsel are higher than Central California’s going rates for comparable consumer litigators.” (Doc. 84- 26 27 2 Mr. Mikhov also attached documents from cases in Monterey County as Exhibits L and N to his declaration. (Doc. 94-2 at 124-28, 135-38). Notably, Exhibit L is a proposed order, and Plaintiffs have not provided a true and correct copy of the signed order. (See Doc. 94-2 at 125-26) Regardless, Monterey County falls within the borders of the Northern 28 District of California, and the hourly rates awarded do not assist the Court in its analysis of the reasonableness of the rates 1 2 at 101) Mr. Mikhov acknowledges the Metzger court only “awarded 85% of the requested lodestar 2 fees.” (Doc. 84-2 at 12, Mikhov Decl. ¶ 39) 3 Previously, this Court reviewed the billing rates for the Fresno Division and determined “the 4 current reasonable range of attorneys’ fees for cases litigated in the Eastern District of California’s 5 Fresno Division is between $250 and $400 per hour.” Roach v. Tate Publ’g & Enter., 2017 WL 6 5070264 at *9 (E.D. Cal. Nov. 3, 2017) (internal quotation marks, citation omitted); see also Silvester, 7 2014 WL 7239371 at *4 (“hourly rates generally accepted in the Fresno Division for competent 8 experienced attorneys [are] between $250 and $380, with the highest rates generally reserved for those 9 attorneys who are regarded as competent and reputable and who possess in excess of 20 years of 10 experience”). With this range, “attorneys with experience of twenty or more years of experience are 11 awarded $350 to 400 per hour.” Id., 2017 WL 5070264 at*9. For attorneys with “less than ten years of 12 experience . . . the accepted range is between $175 and $300 per hour.” Silvester, 2014 WL 7239371 at 13 *4 (citing Willis v. City of Fresno, 2014 WL 3563310 (E.D. Cal. July 17, 2014); Gordillo, 2014 WL 14 2801243. With these parameters in mind, the hourly rates for counsel must be adjusted to calculate the 15 lodestar. 16 The Court notes that Diane Hernandez, who seeks the hourly rate of $375, “was admitted to 17 practice in California in 1997.” (Doc. 84-2 at 9, Mikhov Decl. ¶ 31) In addition, Mr. Mikhov reports 18 that Ms. Hernandez “frequently works… in lemon law cases.” (Id.) Based upon her significant 19 experience, the Court finds the requested hourly rate is appropriate. See Roach, 2017 WL 5070264 at 20 *9; see also Silvester, 2014 WL 7239371 at *4. 21 The hourly rate for Mr. Mikhov and Russell Higgins, who were admitted to the bar in 2003, will 22 be reduced to $300. See Trujillo v. Singh, 2017 WL 1831941 (E.D. Cal. May 8, 2017) (awarding an 23 hourly rate of $300 per hour to counsel with 15 years of experience, finding this amount was 24 appropriate for the Fresno area); Gordillo, 2014 WL 2801243 (awarding an hourly rate of $300 to an 25 attorney who had “represented thousands of California consumers with Song–Beverly claims in the last 26 fourteen years”). The hourly rate for Sepehr Daghighian, who began practicing law in late 2005, is 27 adjusted to $275. The hourly rate for Kristina Stephenson-Cheang, who began practicing in 2008, is 28 1 adjusted to $250. Further, the rates for Alastair Hamblin3, Amy Morse, Christopher Swanson and 2 Larry Castruita—who began practicing law between 2011 and 2013—are adjusted to $225. Finally, the 3 hourly rates for attorneys who have practiced law for less than five years—including Deepak Devabose, 4 Erik Schmitt, Kevin Jacobson, and Michael Morris-Nussbaum4—are adjusted to $175. 5 Based upon the prior survey of the attorney fees in the Fresno Division and the Court’s own 6 knowledge, these hourly rates are reasonable. See Roach, 2017 WL 5070264 at *9; Silvester, 2014 WL 7 7239371 at *4; see also Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (concluding “the 8 district court did not abuse its discretion either by relying, in part, on its own knowledge and 9 experience” to determine reasonable hourly rates). 10 3. Lodestar calculation 11 The lodestar method calculates attorney fees by “by multiplying the number of hours reasonably 12 expended by counsel on the particular matter times a reasonable hourly rate.” Florida , 915 F.2d at 545 13 n. 3 (citing Hensley, 461 U.S. at 433); see also Laffitte v. Robert Half Int’l Inc., 1 Cal. 5th 480, 489 14 (2016). With the time and rate adjustments set forth above, the lodestar in this action is $20,766.75: 15 LAW FIRM LEGAL PROFESSSIONAL HOURS RATE LODESTAR Knight Law Group Alastair Hamblin 7.92 $225 $1,782.00 16 ($15,639.00) Amy Morse 3.06 $225 $688.50 Christopher Swanson 2.16 $225 $486.00 17 Deepak Devabose 4.23 $175 $740.25 18 Diane Hernandez 16.30 $375 $6,112.50 Kristina Stephenson-Cheang 9.36 $250 $2,340.00 19 Michael Morris-Nussbaum 8.37 $175 $1,464.75 Russell Higgins 2.88 $300 $864.00 20 Steve Mikhov 3.87 $300 $1,161.00 21 Hackler, Daghighian, Erik Schmitt 11.70 $175 $2,047.50 22 Martino & Novack Kevin Jacobson 14.63 $175 $2,560.25 ($5,127.75) Larry Castruita 0.68 $225 $153.00 23 Sepehr Daghighian 0.23 $275 $63.25 24 25 3 Plaintiffs did not provide information regarding when Alastair Hamblin began practicing law, but rather only reported that he “graduated from Southwestern Law School in 2007” and began working at Knight Law Group in 2016. 26 (Doc. 84-2 at 7-8, Mikhov Decl. ¶ 25) However the Court “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 (2014). Thus, the 27 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). 28 4 For the reasons set forth in Footnote 3, the Court takes judicial notice of the admission date of Michael Morris- 1 Andrea Plata 4.05 $75 $303.75 2 TOTAL $20,766.75 3 4. Application of a multiplier 4 Once a court has calculated the lodestar, “it may increase or decrease that amount by applying 5 a positive or negative ‘multiplier’ to take into account a variety of other factors, including the quality 6 of the representation, the novelty and complexity of the issues, the results obtained, and the contingent 7 risk presented.” Laffitte, 1 Cal.5th at 504 (citation omitted); see also Ketchum v. Moses, 24 Cal.4th 8 1122, 1132 (2001) (indicating the court may adjust the fee award considering “the following factors: 9 (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) 10 the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the 11 contingent nature of the fee award”). 12 Significantly, however, this case did not present novel or difficult questions of law or fact. 13 Indeed, the issues related to the TIPM were addressed in Velasco, et al. v. Chrysler Group LLC, Case 14 No. 2:13-cv-08080-DDP-VBK. In addition, the issues presented in this action were not complex. See 15 Steel v. GMC, 912 F. Supp. 724, 746 (N.J. Dist. 1995) (“the issues in lemon law litigation are not 16 complex and do not require a significant amount of legal analysis or novel pleading”). As Defendant 17 observes, the facts were not significantly disputed and little discovery was required. It does not appear 18 that significant skill was needed to pursue Plaintiffs’ claims. Furthermore, there is no evidence that 19 “the nature of the litigation precluded other employment by the attorneys.” To the contrary, Plaintiffs’ 20 counsel—13 attorneys in total—expended less than 90 hours of compensable work on this action over 21 the course of three years. Finally, the Court finds the contingent nature of the fee award is outweighed 22 by the other factors, particularly in this action where the disputed facts and issues to be resolved were 23 minimal. Accordingly, the Court finds the lodestar amount of $20,766.75 is reasonable and declines to 24 award a multiplier. 25 B. Costs to be Awarded 26 Plaintiffs seek costs in the amount of $13,182.90. (Doc. 84 at 2; see also Doc. 83) According 27 to Plaintiffs, all costs should be awarded because “[u]nder the Song-Beverly Act, a prevailing buyer 28 shall be allowed to recover as part of the judgment a sum equal to the aggregate amount costs and 1 expenses.” (Doc. 84-1 at 23, emphasis in original) Thus, Plaintiffs suggest that the Court should 2 award costs and expenses under California law rather than federal law. 3 Significantly, the Ninth Circuit determined an award of costs in the district court is governed 4 by Federal Rule of Civil Procedure 54(d) and not applicable state law, even in diversity cases.5 See 5 Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing In re 6 Merrill Lynch Relocation Mgmt., Inc., 812 F.2d 1116, 1120 n. 2 (9th Cir. 1987)). This is because 7 “federal courts sitting in diversity apply state substantive law and federal procedural law.” Feldman v. 8 Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 9 (1938)). Thus, federal procedural law governs Plaintiffs’ request for an award of costs. 10 Rule 54 of the Federal Rules of Civil Procedure provides that costs “should be allowed to the 11 prevailing party.” Fed. R. Civ. P. 54(d)(1). This “creates a presumption in favor of awarding costs to 12 the prevailing party, but the district court may refuse to award costs within its discretion.” Champion 13 Produce, 342 F.3d at 1022. “[A] district court need not give affirmative reasons for awarding costs; 14 instead, it need only find that the reasons for denying costs are not sufficiently persuasive to overcome 15 the presumption in favor of an award.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 16 2003). For example, costs may be declined in light of “a losing party’s limited financial resources” or 17 where there has been “misconduct by the prevailing party.” Champion Produce, 342 F.3d at 1022. 18 The Supreme Court explained that 28 U.S.C. § 1920 “defines the term ‘costs’ as used in Rule 19 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Costs that may be taxed 20 under 28 U.S.C. § 1920 include: 21 (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use 22 in the case; (3) Fees and disbursements for printing and witnesses; 23 (4) Fees for exemplification and the costs of making copies of any materials where the 24 5 An exception to this rule exists if “a state law provision allows for the awarding of costs as part of a substantive, 25 compensatory damages scheme.” Self v. FCA US LLC, 2019 WL 1994459, n. 8. (E.D. Cal. May 6, 2019) (citing Kelly v. Echols, 2005 WL 2105309, at *16 (E.D. Cal. Aug. 30, 2005); Clausen v. M/V New Carissa, 339 F.3d 1049, 1064-65 (9th 26 Cir. 2003). Thus, where a statute expressly defines “damages” as including “costs,” state law governs an award of costs because “the measure of damages is a matter of state substantive law.” Andresen v. Int’l Paper Co., 2015 WL 3648972, at 27 *3 (C.D. Cal. June 10, 2015). Because the Song-Beverly Act does not make “costs” an element of damages as in Clausen, this Court has declined “to depart from the general rule that federal law governs whether costs should be awarded.” Self, 28 2019 WL 1994459, n. 8; see also Robinson v. Kia Motors Am., Inc., 2016 WL 4474505, at *1 (E.D. Cal. Aug. 25, 2016) 1 copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; 2 (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 3 of this title. 4 Generally, the court may not award costs under Rule 54(d) that are not authorized by statute or court 5 rule. Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301 (2006). Thus, “costs 6 almost always amount to less than the successful litigant’s total expenses in connection with a 7 lawsuit.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 573 (2012) (citing 10 Wright & Miller § 8 2666, at 203). 9 1. Service 10 Pursuant to Local Rule 292(f)(2), a party may recover “fees for service by a person other than 11 the Marshal under Fed. R. Civ. P. 4 to the extent they do not exceed the amount allowable for the same 12 service by the Marshal.” Currently, the United States Marshal charges $8 per mailed item and $65 per 13 hour for personal service. 20 C.F.R. § 0.114(a). Requests for costs that exceed these amounts may be 14 reduced to align with the amount authorized by Section 0.114(a). See Yeager v. Bowlin, 2010 WL 15 716389 at *2 (E.D. Cal. Feb. 26, 2010). 16 Plaintiffs seek costs for service of the summons to FCA in the amount of $37.95. (Doc. 83 at 3) 17 This fee is within the amount authorized under Section 0.114(a) and will be allowed. However, 18 Plaintiffs also seek $114.35 for service upon Lampe Chrysler, $171.00 for service upon Lampe 19 Chrysler’s Tech David Brakeen, $65.50 for service upon Lampe Chrysler’s SA Rodney Savazos, and 20 $65.50 for service upon Lampe Chrysler’s Tech Ric Duarte. (Id.) According to Plaintiffs’ invoices, the 21 higher service charges included fees due to copying, area surcharges, and “rush” service. (Id. at 9, 11) 22 Plaintiffs offer no explanation as to why “rush” service was necessary, and there is no evidence 23 regarding the amount of time required for this service. Thus, the Court reduces these each of these 24 service fees to $65.00 contemplated by statute, for a total deduction of $157.35. 25 2. Filing service 26 Plaintiffs seek $179.96 in costs for use of a service that filed their documents. (Doc. 83 at 4) 27 However, courier and messenger services “fall outside of the[] parameters” of Section 1920. Bonilla v. 28 KDH Backhoe Serv., 2007 WL 39307 at *3 (N.D. Cal. Jan. 4, 2007). Accordingly, Plaintiffs’ request 1 for these costs is denied, and the cost award will be reduced by $179.96. 2 3. Mileage 3 The itemization of costs indicates that Plaintiffs seeks costs for travel by counsel, including 4 mileage to and from several depositions. (Doc. 83 at 3-4) In total, Plaintiff seeks $302.76 in mileage 5 for Diane Hernandez and $14.85 for Michael Morris-Nussbaum. (See id.) 6 Pursuant to Local Rule 292(f)(8), mileage for witnesses, not attorneys, may be taxed as costs. 7 Likewise, other courts have determined attorneys are not entitled to mileage under Section 1920. See, 8 e.g., Syngenta Seeds, Inc. v. Delta Cotton Co-op, Inc., 2007 WL 1106116 at *2 (E.D. Ark. Apr. 12, 9 2007) (declining “to award travel and mileage costs for his attorney as such costs are not found in § 10 1920”); Horina v. City of Granite City, 2007 WL 489212 at *2 (S.D. Ill. Feb. 9, 2007) (“mileage 11 expenses of attorneys are not recoverable costs under 28 U.S.C. § 1920”). As a result, Plaintiffs are not 12 entitled to mileage for their attorneys to travel to the depositions. See Atain Specialty Ins. Co. v. Sierra 13 Pacific Mgmt. Co., 2016 WL 7034887 at *2 (E.D. Cal. Dec. 2, 2016) (finding the plaintiffs were “not 14 entitled to the … mileage fee for their attorney’s travel”). Therefore, Plaintiffs’ request for costs will 15 be reduced by $317.61. 16 4. Miscellaneous deposition costs 17 The requested costs related to depositions also include parking in the amount of $10 for Michael 18 Morris-Nussbaum. (Doc. 83 at 3) Such costs are not permitted under Section 1920. See Self v. FCA 19 US LLC, 2019 WL 1994459 at*15 (E.D. Cal. May 6, 2019) (finding costs for “conference rooms, 20 airport parking, gasoline, rental cars, meals, and lodging... are not permitted under section 1920”). 21 Accordingly, the Court will deduct $10.00 from the cost award. 22 5. Deposition transcripts 23 Section 1920(2) provides that “fees for printed or electronically recorded transcripts necessarily 24 obtained for use in the case” may be taxed as costs. Similarly, Local Rule 292(f)(3) provides that items 25 taxable as costs include “Court reporter fees.” Thus, if found to be necessary to the litigation of a case, 26 the costs of transcripts of depositions taken in a case may be taxed as costs under Rule 54 and Section 27 1920. See Aflex Corp. v. Underwriters Laboratories, 914 F.2d 175, 176-78 (9th Cir. 1990) (finding the 28 “taxing of costs for copies of depositions” was proper). 1 On the other hand, costs incurred related to deposition transcripts that are “merely for the 2 convenience of counsel” are not permitted under Section 1920. Oyarzo v. Tuolumne Fire Dist., 2014 3 WL 1757217 at *7 (E.D. Cal. Apr. 30, 2014). As a result, costs for expediting transcripts, condensing 4 the transcripts, and litigation support packages are not permitted. See Daniel v. Ford Motor Co., 2018 5 WL 1960653 at *4 (E.D. Cal. Apr. 26, 2018) (“the court will not allow costs for rough drafts, expedited 6 fees, CD litigation packages, … ‘e-transcripts,’ ‘digital transcripts,’ or ‘condensed transcripts,’ which 7 appear to have been provided for the convenience of the attorneys”); see also Hesterberg v. United 8 States, 75 F.Supp.3d 1220, 1225 (N.D. Cal. 2014) (noting it was “well established” in the district that 9 “expedited delivery charges for deposition transcripts are not allowable”) 10 Plaintiff has not made any showing that the copies for Ms. Hernandez, litigation support 11 package, flashdrive, exhibit linking, condensed transcripts, eDisks, and associated handling fees were 12 necessary. Rather, it appears these were for the convenience of counsel, and recovery is not permitted 13 under Section 1920. See Oyarzo, 2014 WL 1757217 at *7; Daniel, 2018 WL 1960653 at *4. 14 Accordingly, the Court will deduct $379.10 from the requested cost award. (See Doc. 54 at 3; Doc. 55- 15 2 at 54) 16 6. Experts 17 Plaintiff seeks $9,570.60 related to the depositions of expert witnesses Thomas Lepper and 18 Barbara Luna. (Doc. 83 at 4) Defendant objects to these costs, arguing Plaintiffs are entitled to 19 recover only the witness fees under 28 U.S.C. § 1821. (Doc. 86 at 7) 20 Significantly, the Ninth Circuit determined a court must apply federal law to a request for costs 21 in a diversity action. See Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th Cir. 1995). The Court in Aceves 22 awarded the prevailing party costs, including expert witness fees, under section 998(c) of the California 23 Code of Civil Procedure. Id., 68 F.3d at 1167. The Ninth Circuit found the district court erred in 24 applying California law because “reimbursement of witness fees is an issue of trial procedure” and in a 25 diversity action, “federal law controls the procedure by which the district court oversaw the litigation.” 26 Id., citing Hanna v. Plumer, 380 U.S. 460, 463 (1965). Accordingly, here, the Court must apply federal 27 law to determine whether Plaintiffs are entitled to recover expert fees as costs. 28 Under Section 1920, only compensation for “court appointed experts” and witness fees is 1 permitted. See 28 U.S.C. § 1920. Neither of Plaintiffs’ witnesses were appointed by the Court. As 2 such, Plaintiffs are not entitled to recover the expert fees under Section 1920. On the other hand, 28 3 U.S.C. § 1821 provides that “[a] witness shall be paid an attendance fee of $40 per day for each day’s 4 attendance,” including testimony at a deposition. Thus, a prevailing party may be awarded the witness 5 fee under Section 1821 for an expert who testifies at a deposition. See Ruff v. County of Kings, 700 6 F.Supp.2d 1245, 1247-48 (E.D. Cal. 2010). Consequently, Plaintiff is entitled to $80 in costs for the 7 depositions of Mr. Lepper and Ms. Luna. 8 7. Mediation costs 9 Plaintiffs seek $34.48 related to a mediation with Maureen Summers in April 2017, which 10 addressed 29 cases against FCA. (Doc. 83 at 4) However mediation costs are not within the scope of 11 either Section 1920 or Local Rule 292(f). Thus, the cost award will be reduced by $34.48. 12 8. Total costs to be awarded 13 With the deductions set forth above, Plaintiffs are entitled to $2,453.80 in costs under federal 14 law, as provided under 28 U.S.C. §§ 1821 and 1920. 15 V. Conclusion and Order 16 Based upon the foregoing, the Court ORDERS: 17 1. Plaintiffs’ motion for fees is GRANTED in the modified amount of $20,766.75; and 18 2. Plaintiffs’ motion for costs is GRANTED in the modified amount of $2,453.80. 19 20 IT IS SO ORDERED. 21 Dated: November 21, 2019 /s/ Jennifer L. Thurston 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28