Rueda v. FCA US LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA RUEDA and EDUARDO R. No. 1:17-cv-00968-DAD-JLT GUEVARA, 12 Plaintiffs, 13 ORDER GRANTING PLAINTIFFS’ MOTION v. FOR ATTORNEYS’ FEES, COSTS, AND 14 EXPENSES IN PART FCA US LLC, a Delaware Limited 15 Liability Company, and DOES 1 through (Doc. No. 57) 10 inclusive, 16 Defendants. 17 18 19 This matter came before the court on May 7, 2019 for hearing on plaintiffs Maria Rueda 20 and Eduardo Guevara’s (collectively, “plaintiffs”) motion for attorneys’ fees, costs, and expenses. 21 (Doc. No. 57.) Attorney Sepehr Daghighian appeared telephonically on behalf of plaintiffs, and 22 attorney Lisa Tudzin appeared telephonically on behalf of defendant FCA UC LLC (“FCA”). 23 The court has considered the parties’ briefs and oral arguments and, for reasons set forth below, 24 will grant plaintiffs’ motion in part. 25 BACKGROUND 26 On March 28, 2017, plaintiffs commenced this action against FCA by filing suit in Tulare 27 County Superior Court. (See Doc. No. 1-1 at 3.) Plaintiffs alleged that a new Fiat 500L that they 28 purchased in 2014 was delivered to them with serious defects and nonconformities to warranty. 1 (Id. at 5.) The complaint asserted causes of action for breaches of express and implied warranties, 2 in violation of the Song-Beverly Act, California Civil Code § 1790 et seq. (Id. at 6–8.) On June 3 20, 2017, FCA removed the action to this federal court. (Doc. No. 1.) Thereafter, a March 5, 4 2019 trial date was set. (Doc. No. 9.) On March 1, 2019, the parties informed the court that they 5 had reached a settlement. (Doc. No. 53.) FCA offered plaintiffs $110,000.00 to settle the matter. 6 (Doc. No. 57-2 at 81.) Plaintiffs accepted that offer. (Id. at 82.) The settlement also included a 7 provision that FCA “agree[d] to pay attorneys’ fees, costs and expenses either by motion or by 8 agreement.” (Id. at 81.) 9 Apparently unable to agree on the appropriate amount of attorney’s fees to be paid to their 10 counsel, on March 25, 2019, plaintiffs filed the pending motion for attorneys’ fees, costs, and 11 expenses. (Doc. No. 57.) On April 23, 2019, FCA filed its opposition to the pending motion, and 12 on April 30, 2019, plaintiffs filed their reply thereto. (Doc. Nos. 59, 60.) 13 LEGAL STANDARD 14 Under California’s Song-Beverly Act, “if [a] buyer prevails in an action . . ., the buyer 15 shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate 16 amount of costs and expenses, including attorney’s fees based on actual time expended, 17 determined by the court to have been reasonably incurred by the buyer in connection with the 18 commencement and prosecution of such action.” Cal. Civ. Code. § 1794(d). “The plain wording 19 of the statute requires the trial court to base the fee award upon actual time expended on the case, 20 as long as such fees are reasonably incurred—both from the standpoint of time spent and the 21 amount charged.” Robertson v. Fleetwood Travel Trailers of CA, Inc., 144 Cal. App. 4th 785, 22 817 (2006). 23 It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the 24 circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are 25 reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, 26 the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not 27 reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing 28 buyer has the burden of showing that the fees incurred were 1 allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount. 2 3 Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994) (citation and internal 4 quotation marks omitted); see also Goglin v. BMW of North America, LLC, 4 Cal. App. 5th 462, 5 470 (2016). Under a contingent fee arrangement, “a prevailing buyer represented by counsel is 6 entitled to an award of reasonable attorney fees for time reasonably expended by his or her 7 attorney.” Nightingale, 31 Cal. App. 4th at 105 n.6. 8 “The determination of what constitutes a reasonable fee generally begins with the 9 ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 10 rate.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM 11 Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000)). The court will apply the lodestar method 12 to the Song-Beverly Act because “the statutory language of section 1794, subdivision (d), is 13 reasonably compatible with a lodestar adjustment method of calculating attorney fees, including 14 use of fee multipliers.” Robertson, 144 Cal. App. 4th at 818; see also Warren v. Kia Motors 15 America, Inc., 30 Cal. App. 5th 24, 35 (2018). Moreover, because “[the California] Supreme 16 Court has held that the lodestar adjustment method is the prevailing rule for statutory attorney fee 17 awards to be applied in the absence of clear legislative intent to the contrary, [the lodestar 18 adjustment method] . . . is applicable to attorney fee awards under section 1794, subdivision (d).” 19 Robertson, 144 Cal. App. 4th at 818–19 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–36 20 (2001); see also Warren, 30 Cal. App. at 35–36.). 21 [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors 22 including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the 23 extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee 24 award. The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, 25 retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the 26 unadorned lodestar in order to approximate the fair market rate for such services. 27 * * * 28 1 As we [have] explained . . .: “ ‘[a] contingent fee contract, since it involves a gamble on the result, may properly provide for a larger 2 compensation than would otherwise be reasonable.’ ” 3 Ketchum, 24 Cal. 4th at 1132 (internal citation omitted). 4 If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive, 5 duplicative, or unrelated do not suffice.” Etcheson v. FCA US LLC, 30 Cal. App. 5th 831, 848 6 (2018) (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 4th 550, 7 564 (2008)). Instead, the opposing party must demonstrate that the hours claimed are duplicative 8 or excessive. Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; see also First American 9 Title Ins. Co v. Spanish Inn, Inc., 239 Cal. App. 4th 598, 606 (2015) (“Although defendants 10 argued to the trial court that the ‘amount claimed for attorneys fees is not reasonable,’ defendants 11 did not respond to First American’s evidence with evidence of their own, as required.”); Gorman 12 v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party opposing the fee award 13 can be expected to identify the particular charges it considers objectionable.”). 14 With this guidance in mind, the court turns to consider plaintiffs’ pending motion.1 15 ANALYSIS 16 Plaintiffs, as the auto buyers who prevailed in this suit, are entitled to reasonably incurred 17 attorneys’ fees, costs, and expenses. See Cal. Civ. Code § 1794(d). Here, plaintiffs seek: (1) an 18 award of attorneys’ fees in the amount of $58,177.50; (2) a lodestar multiplier of 0.5, in the 19 amount of $29,088.75; and (3) an award of actual costs and expenses incurred in the amount of 20 $12,135.93. (Doc. No. 57-1 at 7.) Plaintiffs seek a total award of $99,402.18. (Id.) FCA 21 contends that the lodestar requested by plaintiffs is unreasonable and that an upward multiplier is 22 not warranted in this case. (Doc. No. 59.) FCA also objects to various costs and expenses for 23 which plaintiffs seek reimbursement. (Id.) 24 ///// 25 ///// 26 1 Each party objects to evidence presented by the other in support of or in opposition to the 27 pending motion. The court has read and considered these boilerplate evidentiary objections and, to the extent that the court considers any such objected-to evidence, those objections are 28 overruled. 1 A. Attorneys’ Fees Request 2 Plaintiffs were represented by two law firms in this matter: the Knight Law Group 3 (“Knight Law”), which commenced this action on plaintiffs’ behalf and provided legal services 4 leading up to trial, and Hackler Daghighian Martino & Novak, P.C. (“HDMN”), which associated 5 into this action to provide services relating to and in anticipation of the trial of this action. (Doc. 6 No. 57-1 at 9–10.) Knight Law billed a total of $37,360.000 and HDMN billed a total of 7 $20,817.50. (Id. at 13) 8 1. Number of Hours to be Awarded 9 The billing records indicate that Knight Law attorneys expended 94.4 billable hours on 10 this action and that HDMN attorneys expended 70.75 billable hours on this action. (Doc. Nos. 11 57-2 at 22; 57-3 at 9–12.) A total of nine Knight Law attorneys and a total of four HDMN 12 attorneys billed in this matter. (Doc. Nos. 57-2 at 22; 57-3 at 9–12.) 13 FCA contends that the number of hours billed by both law firms are unreasonable. First, 14 FCA argues that it served plaintiffs with a $95,000 Rule 68 offer on March 13, 2018 and that 15 plaintiffs, instead of responding to that offer with a meaningful counteroffer, continued to litigate 16 the matter and incur fees. (Doc. No. 59 at 8.) Second, FCA contends plaintiffs’ use of “[two] 17 firms and a total of 13 attorneys” resulted in a duplication of efforts, the costs of which should not 18 be borne by it. (Id. at 9.) FCA therefore asks the court “to exclude the entire invoice from either 19 KLG totaling $37,360.00,[] or from HDMN totaling $20,817.50.” (Id.) Third, FCA asks the 20 court to reduce the total number of hours attributed to HDMN lawyers due to the firm’s practice 21 of billing in quarter-hour increments. (Id. at 9.) The court addresses each of FCA’s arguments in 22 turn. 23 FCA’s first argument—the hours billed are unreasonable because it offered to settle the 24 matter for $95,000 in March of 2018, yet plaintiffs’ counsel incurred an additional $46,052.50 25 only to settle the matter for a mere $15,000 more—is not availing. FCA points the court to no 26 authority, and the court is aware of none, that indicates that a plaintiffs’ failure to accept an offer 27 that is close to, but ultimately less than, the final settlement amount is a basis by which a court 28 ///// 1 should reduce the number of hours for which plaintiffs’ counsel is compensated in a subsequent 2 statutory fee award. 3 Next, defendant argues that plaintiffs’ employment of two law firms and thirteen lawyers 4 to litigate this matter was unreasonable. (Doc. No. 59 at 9.) Here, too, FCA has failed to provide 5 any authority in support of its position that solely based upon the employing of two law firms 6 who assign multiple lawyers to a case, this court should reduce the number of attorney hours 7 when considering an application for award for attorneys’ fees. To the contrary, it has been 8 “recognized that ‘the participation of more than one attorney does not necessarily constitute an 9 unnecessary duplication of effort.’” McGrath v. County of Nevada, 67 F.3d 248, 255 (9th Cir. 10 1995) (citing Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir.1989)). Moreover, FCA has not 11 identified in its opposition any entries in Knight Law and HDMN’s billings that indicate a 12 duplication of effort. For example, FCA contends that attorney Steve Mikhov of Knight Law 13 billed twice for “reviewing Mandatory Settlement Conference results on 3/7/18 and then again on 14 3/12/18.” (Id.) However, FCA provides no analysis for why this means that those efforts were 15 duplicative. Not only do the billing entries reveal that attorney Mikhov only billed a mere “0.1” 16 hours for each time he reviewed the settlement (see Doc. No. 57-2 at 20), and there is no reason 17 to believe that reviewing the settlement on two different days means that the area of review was 18 duplicative. The other instances that FCA argues are duplicative billing are similarly unavailing. 19 The fact that HDMN attorneys, after being associated into the case, had to learn the facts of the 20 case, review files, and get up to speed in preparation for the trial of this action does not constitute 21 a duplication of effort. HDMN was brought in to try the case and therefore necessarily had to 22 review files and pre-existing work-product to do so. 23 Finally, FCA contends that HDMN’s total hours billed should be reduced across-the- 24 board, because the firm billed its time in quarter-hour increments. (Doc. No. 59 at 11.) A court 25 may impose an across-the-board reduction on hours that are billed by quarter-hour increments 26 when such billing results in an attorney’s fees award request reflecting an excessive number of 27 hours. See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007) (affirming 28 district court’s twenty percent, across-the-board reduction of hours where this billing practice 1 || resulted in inflated time records). In Welch, the Ninth Circuit affirmed an across-the-board 2 || reduction in hours after the district court had found that “the hours were inflated because counsel 3 || billed a minimum of 15 minutes for numerous phone calls and e-mails that likely took a fraction 4 | ofthe time.” Jd. The Ninth Circuit’s own review of the time records in Welch revealed that they 5 || were “replete with quarter-hour or half-hour charges for the drafting of letters, telephone calls and 6 || intra-office conferences.” Jd. Here, the court also finds that HDMN’s practice of billing by 7 || quarter-hour increments likely resulted in an inflated amount of attorney time being billed to this 8 | matter. For example, HDMN’s billing statement indicates various email and telephonic 9 || correspondences between HDMN lawyers and opposing counsel, inter-office meetings, and 10 || correspondences with the court, plaintiffs, and expert witnesses that were billed a minimum of 11 || fifteen or thirty minutes. (Doc. No. 57-3 at 9-12.) The court finds that these time entries are 12 | likely inflated “because counsel billed a minimum of 15 minutes for numerous phone calls and e- 13 || mails that likely took a fraction of the time.” Welch, 480 F.3d at 949. The court will therefore 14 || exercise its discretion and apply a twenty-percent, across-the-board reduction to the number of 15 || hours awarded to HDMN attorneys in this case. See Hall v. FCA US LLC, No. 1:16-cv-0684- 16 | JLT, 2018 WL 2298431, at *5 (E.D. Cal. May 21, 2018) (applying a twenty-percent, across-the- 17 || board reduction to HDMN’s hours billed in quarter-hour increments for similar reasons). 18 The court has reviewed the Knight Law billing statements at issue here and concludes that 19 | the time billed was reasonably incurred in the commencement and prosecution of this action. The 20 || court will include in the award the following hours to the Knight Law attorneys: Requested | Awarded 23 Attorney Deepak Devabose 24 Attorney Kirk Donnell 5 Attorney Jennifer Reiz Attorney Jessica Underwood 26 Attorney Kristina Stephenson-Cheang Attorney Russell Wirtz | =680.0CUd BOT 27 Attorney Steve Mikhov | 99 | 99 | 1 The court has also reviewed the HDMN billing statements at issue here and concludes 2 that, generally, the time billed was reasonably incurred in the commencement and prosecution of 3 this action. However, as discussed above, the court will exercise its discretion and apply a 4 twenty-percent across-the-board reduction to HDMN’s billed hours due to the firm’s practice of 5 billing in quarter-hour increments even with respect to various emails and telephone 6 conversations between HDMN lawyers and opposing counsel, inter-office meetings, and 7 correspondences with the court, plaintiffs, and expert witnesses when those tasks almost certainly 8 consumed only a fraction of the time billed. In addition, the court will not award attorney Sepehr 9 Daghighian the full three hours he anticipatorily billed to prepare for and appear in-person at the 10 hearing on the pending motion (Doc. No. 57-3 at 12) because he appeared telephonically at that 11 hearing obviating the need for any travel time. Instead, the court will award attorney Daghighian 12 one hour for the time he billed to prepare for and telephonically appear at the hearing, given that 13 the hearing lasted roughly fifteen minutes and the issues discussed were straightforward and did 14 not require significant preparation. Moreover, the court declines to award attorney Kevin 15 Jacobson the full 6.5 hours that he anticipatorily billed to review and analyze FCA’s opposition to 16 this motion and to draft a reply thereto. (Id.) No evidence of the time actually spent on these 17 tasks was presented to the court, but the court finds that an award of two hours for the 18 performance of those tasks is reasonable given how brief the reply was and the fact that it is 19 readily apparent from the face of the reply that attorney Jacobson relied upon pleadings from 20 other actions as templates. Accordingly, the court finds the following hours appropriately 21 attributable to the efforts of HDMN attorneys: 22 HDMN Attorney/Paralegal Hours Hours 23 Requested Awarded Attorney Larry Castruita 1.0 0.8 24 Attorney Sepehr Daghighian 10.25 6.6 Attorney Eric Schmitt 4.25 3.4 25 Attorney Kevin Jacobson 50.25 36.6 26 Paralegal Andrea Plata 5 4 Total Hours 70.75 51.4 27 28 1 2. Hourly Rates to be Applied 2 Next, the court must determine whether the hourly rates requested by plaintiffs’ attorneys 3 are reasonable. Under California law, when awarding attorney’s fees under § 1794(d), the 4 relevant inquiry is whether “the monetary charge being made for the time expended [is] 5 reasonable” under all the circumstances including “factors such as the complexity of the case and 6 procedural demands, the skill exhibited and the results achieved.” Goglin v. BMW of North 7 America, LLC, 4 Cal. App. 5th 462, 470 (2016) (quoting Nightingale, 31 Cal.App.4th at 104). 8 California courts therefore focus on the reasonable hourly rate for the work performed by the 9 counsel who did that work, regardless of the forum in which that work was performed and 10 without regard to typical hourly rates in the forum in which the matter was litigated.2 See Goglin, 11 2 In awarding attorneys’ fees under the Song-Beverly Act, other district courts have required 12 “[t]he fee applicant . . . [to] produc[e] satisfactory evidence that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable 13 skill and reputation.” Base v. FCA US LLC, No. 17-cv-01532-JCS, 2019 WL 4674368, at *4 (N.D. Cal. Sept. 25, 2019) (citing Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 14 1987)); see also Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *4–5 (E.D. 15 Cal. May 6, 2019); Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 WL 2298431, at *5–6 (E.D. Cal. May 21, 2018). Citing to Ninth Circuit and Supreme Court precedent, these courts 16 state that the “relevant community” in determining a prevailing market rate is the forum in which the district court sits and then analyze whether the rates requested by counsel are reasonable in 17 light of rates paid to attorneys of similar skill and experience in the forum district. See, e.g., Self, 2019 WL 1994459, at *4–6. This, however, is the framework that federal courts apply to motions 18 seeking attorneys’ fees pursuant to a federal statute. The court is aware of no authority holding 19 that a federal court must apply that same framework when awarding attorneys’ fees pursuant to a state statute. Indeed, the California Court of Appeal in Goglin did not engage in that forum-based 20 rate analysis and, as evidenced by the many state court fee orders that the parties have pointed this court to, state courts generally do not engage in that analysis. The undersigned, therefore, 21 considers the pending motion under the standard articulated by the California Court of Appeal in Goglin and will determine “whether the monetary charge being made for the time expended [is] 22 reasonable” in light of “the complexity of the case and procedural demands, the skill exhibited 23 and the results achieved.” 4 Cal. App. 5th at 470 (internal quotation marks and citation omitted). This approach will appropriately result in plaintiffs’ counsel being compensated at the same 24 hourly rates they would have received in state court rather than some lower rate based solely on the removal of the action to federal court. Even if the rate determination framework utilized in 25 motions seeking attorneys’ fees pursuant to federal statutes were to apply in this case, the court 26 notes that the hourly rates found to be reasonable by this order would be the same under that framework. For, under the “relevant community” analysis, this court would look to the orders of 27 state courts within the Eastern District of California and conclude that those rates are consistent with those prevailing in the community for similar services. See Tenorio v. Gallardo, No. 1:16- 28 cv-00283-DAD-JLT, 2019 WL 3842892, at *2 n.1 (E.D. Cal. Aug. 15, 2019). 1 4 Cal. App. 5th at 470 (affirming a fee award applying a hourly rate of $575 per hour in a Song- 2 Beverly Act case on the grounds that the trial court had considered the evidence that the client 3 agreed to compensate counsel at the rate of $575 an hour (later increased to $625), other state and 4 federal courts had awarded the attorney comparable rates in similar cases, and the trial court had 5 observed the attorney’s skills first hand, while not even mentioning the prevailing rates in the trial 6 court’s area); see also Filiberto Negrete v. Ford Motor Co. et al., No. ED CV 18-1972-DOC 7 (KKx), 2019 WL 4221397, at *3 (C.D. Cal. June 5, 2019) (“Plaintiff has demonstrated that 8 counsel has been awarded attorneys’ fees at similar rates under the Song-Beverly Act. [citation 9 omitted.] Such evidence is generally sufficient to show that an attorney’s hourly rates are 10 reasonable.”). The fee applicant bears the burden of producing satisfactory evidence that the fees 11 incurred were “reasonable in amount.” Goglin, 4 Cal. App. 5th at 470 (quoting Nightingale, 31 12 Cal. App. 4th at 104); see also Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). 13 The Knight Law attorneys request the following hourly rates for its attorneys who worked 14 on this matter: 15 Knight Law Attorney Requested Years of 16 Hourly Rate Experience Attorney Amy Morse $350.00 6 years 17 Attorney Constance Morrison $375.00 20 years Attorney Deepak Devabose $275.00 5 years 18 Attorney Kirk Donnelly $400.00 20 years 19 Attorney Jennifer Reiz $225.00 4 years Attorney Jessica Underwood $350.00 4 years 20 Attorney Kristina Stephenson-Cheang $375.00 11 year Attorney Richard Wirtz $575.00 25 years 21 Attorney Steve Mikhov $550.00 16 years 22 (Doc. No. 857-2 at 6–8.) The HDMN attorneys request the following hourly rates for its 23 attorneys who worked on this matter: 24 HDMN Attorney or Paralegal Requested Years of 25 Hourly Rate Experience Attorney Larry Castruita $350.00, $385.00 8 years 26 Attorney Sepehr Daghighian $490.00, $550.00 14 years Attorney Erik Schmitt $250.00, $275.00 2 years 27 Attorney Kevin Jacobson $250.00, $275.00 1 years 28 Paralegal Andrea Plata $75.00 2 years 1 (Doc. No. 57-3 at 2–4.) 2 In support of the rates requested by their attorneys, plaintiffs have submitted the 3 declarations of attorneys Daghighian and Mikhov and rate determinations by courts in other cases 4 for some of the attorneys at issue. (Doc. Nos. 57-2, 57-3, 64-1.) These declarations both state the 5 rates that the attorneys and other lawyers from their respective firms charged in this matter and 6 aver that the requested rates are reasonable. (See Doc. No. 57-2 at 6–9; 57-3 at 2–7.) Attached to 7 attorney Mikhov’s declaration and supplemental declaration are several hourly rate 8 determinations by state courts in Song-Beverly Act actions with respect to some of the attorneys 9 who worked on this case. (See Doc. Nos. 57-2 at 84–146; 64-1, Exs. C–Q.) FCA has also 10 attached to its opposition and supplemental briefing hourly rate determinations by state courts in 11 Song-Beverly Act actions where some of the attorneys at issue have been awarded rates lower 12 than those requested by them here. (See Doc. Nos 59-3 at 2–18; 65-1, Exs. A–E.) These 13 attachments demonstrate that various superior courts in California have awarded the following 14 rates in Song-Beverly Act actions to the following attorneys at issue here: attorney Mikhov has 15 been awarded hourly rates between $300.00 and $500.00; attorney Morse has been awarded 16 hourly rates between $250.00 and $350.00; attorney Devabose has been awarded hourly rates 17 between $200.00 and $250.00; attorney Underwood has been awarded hourly attorney rates of 18 $250.00; attorney Stephenson-Cheang has been awarded hourly rates between $300.00 and 19 $350.00; attorney Wirtz has been awarded hourly rates between $300.00 and $500.00; attorney 20 Castruita has been awarded an hourly rate of $300.00; attorney Daghigian has been awarded an 21 hourly rate of $350.00; attorney Schmitt has been awarded an hourly rate of $225.00; and 22 attorney Jacobson has been awarded an hourly rate of $200.00. Moreover, after reviewing rates 23 awarded by various superior courts in California, the undersigned recently issued an order 24 awarding the following hourly rates to the following attorneys at issue in this action as well: 25 $350.00 for attorney Morse; $250.00 for attorney Devabose; $350.00 for attorney Stephenson- 26 Cheang; $500.00 for attorney Mikhov; $300.00 for attorney Castruita; $500.00 for attorney 27 Daghighian; $250.00 for attorney Schmitt; and $75.00 for paralegal Plata. Sekula v. FCA US 28 LLC, No. 1:17-cv-00460-DAD-JLT, 2019 WL 5290903, at *7 (E.D. Cal. Oct. 18, 2019). 1 Because “the reasonable value of attorney services is variously defined as the hourly 2 amount to which attorneys of like skill in the area would typically be entitled,” Ketchum, 24 Cal. 3 4th at 1133, the court finds that evidence of what some of the attorneys have previously been 4 awarded when litigating other Song-Beverly actions does assist this court in determining what the 5 reasonable hourly rates should be in this case. See also Goglin, 4 Cal. App. 5th at 470; Filiberto 6 Negrete, 2019 WL 4221397, at *3. Having considered the various state court orders submitted by 7 both plaintiffs and FCA as well as other evidence, the court concludes that the following hourly 8 rates as to each of plaintiffs’ attorneys are reasonable: 9 Knight Law Attorney Hourly Rate to Years of be Awarded Experience 10 Attorney Amy Morse $350.00 6 years 11 Attorney Constance Morrison $350.00 20 years Attorney Deepak Devabose $250.00 5 years 12 Attorney Kirk Donnelly $350.00 20 years Attorney Jennifer Reiz $250.00 4 years 13 Attorney Jessica Underwood $250.00 4 years 14 Attorney Kristina Stephenson-Cheang $350.00 11 year Attorney Richard Wirtz $500.00 25 years 15 Attorney Steve Mikhov $500.00 16 years HDMN Attorney or Paralegal Hourly Rate to Years of 16 be Awarded Experience Attorney Larry Castruita $300.00 8 years 17 Attorney Sepehr Daghighian $500.00 14 years 18 Attorney Erik Schmitt $250.00 2 years Attorney Kevin Jacobson $200.00 1 years 19 Paralegal Andrea Plata $75.00 2 years 20 3. Lodestar Calculation 21 Based on the hours and hourly rates that the court has awarded plaintiffs’ attorneys, the 22 lodestar here totals $44,725.00. The court’s calculations are reflected below: 23 Law Legal Professional Hours Hourly Rate Lodestar 24 Firm Awarded Awarded 25 Knight Attorney Amy Morse 3.0 $350.00 $1,050.00 Law Attorney Constance Morrison 14.8 $350.00 $5,180.00 26 Attorney Deepak Devabose 5.1 $250.00 $1,275.00 Attorney Kirk Donnelly 16.0 $350.00 $5,600.00 27 Attorney Jennifer Reiz 4.5 $250.00 $1,125.00 28 Attorney Jessica Underwood 20.5 $250.00 $5,125.00 1 Attorney Kristina Stephenson- 12.6 $350.00 $4,410.00 Cheang 2 Attorney Richard Wirtz 8.0 $500.00 $4,000.00 3 Attorney Steve Mikhov 9.9 $500.00 $4,950.00 4 HDMN Attorney Larry Castruita 0.8 $300.00 $240.00 Attorney Sepehr Daghighian 6.6 $500.00 $3,300.00 5 Attorney Erik Schmitt 3.4 $250.00 $850.00 6 Attorney Kevin Jacobson 36.6 $200.00 $7,320.00 Paralegal Andrea Plata 4 $75.00 $300.00 7 Total: $44,725.00 8 4. Lodestar Multiplier 9 Next, plaintiffs urge this court to apply a multiplier of 0.5 to the lodestar in this case. 10 (Doc. No. 57-1 at 19–21.) Plaintiffs argue that the contingent nature of this litigation warrants a 11 0.2 multiplier and that the delay in payment warrants a 0.3 multiplier. (Id. at 20–21.) According 12 to plaintiffs, “there always existed the possibility that Plaintiffs would not prevail” and that 13 “Plaintiffs’ attorneys advanced all litigation costs and expenses without reimbursement.” (Id. at 14 20.) FCA argues that an upward multiplier is not warranted here. (Doc. No. 59 at 14–20.) For 15 the reasons that follow, the court chooses to not apply an upward multiplier. 16 The lodestar may be “augmented . . . by taking various relevant factors into account, 17 including (1) the novelty and difficulty of the questions involved and the skill displayed in 18 presenting them; (2) the extent to which the nature of the litigation precluded other employment 19 by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of 20 prevailing on the merits and of establishing eligibility for the award.” Robertson, 144 Cal. App. 21 4th at 819; see also Warren v. Kia Motors America, Inc., 30 Cal. App. 5th 24, 35 (2018). 22 Here, plaintiffs do not contend that their attorneys were precluded from seeking other 23 employment, and the court finds that the questions involved in this action were not novel or 24 difficult, nor did the attorneys demonstrate exceptional skill in presenting the issues. Rather, 25 plaintiffs argue that “[t]his case required a range of specialized knowledge including: (1) an 26 understanding of the full scope of consumer protection laws, . . .; (2) knowledge of the intricacies 27 of automobiles . . .; and (3) knowledge of auto manufactures’ and dealers’ policies and protocols 28 for repairing vehicles and complying with their legal obligations.” (Doc. No. 57-1 at 15.) 1 However, the fact that plaintiffs’ attorneys had to become familiar with a case is not the type of 2 novelty or difficulty that ordinarily justifies an upward multiplier. Moreover, as plaintiffs admit, 3 “[p]laintiffs’ attorneys have acquired knowledge and insight about these [issues] over the course 4 of many years of litigation,” and the attorneys do not “spend unreasonable time preparing 5 pleadings because they are able to use documents from other cases that need only be edited.” (Id. 6 at 15–17.) Indeed, the issues presented by this case have recently been addressed in several cases 7 before this court, many of which involved the same attorneys who appeared in this action. See, 8 e.g., Sekula, 2019 WL 5290903; Self, 2019 WL 1994459; Hall, 2018 WL 2298431; Garcia v. 9 FCA US LLC, 1:16-cv-00730-JLT (E.D. Cal. March 7, 2018). Finally, with respect to counsel’s 10 performance, the court has reviewed the pleadings filed in this action and finds that the skills 11 displayed by counsel were, on balance, average at best, given that it is readily apparent from the 12 face of the pleadings filed by plaintiffs that counsel relied upon pleadings from other actions as 13 templates and that some of their filings here contained references to vehicles, individuals, and 14 issues that had no relation to this action. The court therefore finds that the first two factors that 15 could justify the application of a multiplier are not present here because this was a Song-Beverly 16 action of ordinary complexity and difficulty.3 17 Moreover, the court concludes that the contingent nature of this action does not weigh in 18 favor of an upward multiplier. “The purpose of a fee enhancement, or so-called multiplier, for 19 contingent risk is to bring the financial incentives for attorneys enforcing important . . . rights . . . 20 into line with incentives they have to undertake claims for which they are paid on a fee-for- 21 services basis.” Ketchum, 24 Cal. 4th at 1132. 22 A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the 23 lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher 24 because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of 25 conventional loans. 26 27 3 The undersigned also notes that its comments in this regard are limited to the written work produced by plaintiffs’ attorneys in this case. Attorney Daghighian, for instance, has tried a 28 Song-Beverly Act case before the undersigned and demonstrated notable trial skills in that matter. 1 Id. (citation and internal quotation marks omitted). The court concludes that an upward multiplier 2 based on the contingent risk is not warranted here because that factor is outweighed by the other 3 factors the court has considered, namely that this case was not novel, complex, or difficult, 4 especially because the disputed facts and issues to be resolved were minimal. 5 Similarly, the court finds that an upward multiplier due to any delay in payment of fees to 6 plaintiffs’ counsel is unwarranted here. Plaintiffs contend that “FCA dragged this case until they 7 agreed to settle.” (Doc. No. 57-1 at 21.) Be that as it may, the court is not convinced that 8 (1) FCA is solely to blame for the delay in resolving this action and (2), even if it was, it does not 9 appear to the court that any delay was so egregious so as to justify an upward multiplier. 10 Accordingly, the court declines to apply an upward multiplier to the lodestar amount 11 under the circumstances of this case. 12 B. Costs and Expenses Request 13 Finally, plaintiffs seek an award for costs and expenses incurred by their counsel in 14 litigating this matter. Initially, plaintiffs sought $12,135.93 in costs and expenses. (Doc. No. 57- 15 1 at 13.) This initial sum, however, included costs that were properly pursued through a bill of 16 costs, which is processed by the court clerk, as opposed to a motion for attorneys’ fees and costs. 17 See 28 U.S.C. § 1920; Fed. R. Civ. P. 54(d); Local Rule 242. Accordingly, at the May 7, 2019 18 hearing on the pending motion, the court instructed plaintiffs to refile their request and eliminate 19 from their motion costs reimbursable through a separately filed bill of costs. On May 17, 2019, 20 plaintiffs filed a bill of costs that was approved in part on June 26, 2019. (See Doc. Nos. 63, 68.) 21 Now pending before the court is plaintiffs’ motion for reimbursement of costs and expenses in the 22 amount of $10,939.93. (Doc. No. 64 at 2.) FCA contends that the costs sought should be 23 reduced, arguing that: “travel related [costs] . . . are unreasonable, particularly because Plaintiffs 24 have failed to offer any explanation for why it took lawyers from Lost Angeles to represent them” 25 in this action. (Doc. No. 65 at 7–8.) 26 The court does not find FCA’s general challenge to the travel costs and expenses claimed 27 here to be persuasive. Plaintiffs’ travel costs incurred were reasonably incurred in prosecuting 28 this action. The court has reviewed the records for the remaining costs and expenses sought by 1 | plaintiffs and finds them to be reasonably incurred. Accordingly, the court concludes that 2 | plaintiffs are also entitled to a total of $10,939.93 in reimbursements for costs in addition to an 3 || award of reasonably incurred attorneys’ fees. 4 CONCLUSION 5 For the reasons set forth above: 6 1. Plaintiffs’ motion for attorneys’ fees and costs (Doc. No. 57) is granted in part; 7 2. The court awards $44,725.00 in attorneys’ fees based on the lodestar analysis set 8 forth above; 9 3. The court awards costs, in addition to the amount of the separate bill of costs, in 10 the amount of $10,939.93; and 11 4. The Clerk of the Court is directed to close this case. 12 IT IS SO ORDERED. ~ 14 Dated: _ January 29, 2020 Sea 1" Sng UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 16