Heffington 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 ROBERT HEFFINGTON, No. 2:17-cv-00317-DAD-JLT 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND MOTION 14 FCA US LLC, FOR COSTS AND EXPENSES, IN PART 15 Defendant. (Doc. Nos. 99, 100) 16 17 This matter is before the court on the motion for attorneys’ fees and motion for costs and 18 expenses filed by plaintiff Robert Heffington on May 19, 2020. (Doc. Nos. 99, 100.) Pursuant to 19 General Order No. 617 addressing the public health emergency posed by the coronavirus 20 pandemic, on May 21, 2020, the court took this matter under submission to be decided on the 21 papers. (Doc. No. 104.) For the reasons explained below, the court will grant plaintiff’s motions, 22 in part. 23 BACKGROUND 24 On January 10, 2017, plaintiff commenced this action against defendant FCA US LLC 25 (“FCA”) by filing suit in the Sacramento County Superior Court. (Doc. No. 1-1 at 2.) In his 26 complaint, plaintiff alleged that a new 2011 Jeep Wrangler that he purchased on March 24, 2011 27 was delivered to him with serious defects and nonconformities to warranty. (Doc. No. 1-1 at 3, 28 24.) Plaintiff asserted claims for breaches of express and implied warranties in violation of the 1 Song-Beverly Act, California Civil Code § 1790 et seq., and a claim for fraudulent inducement by 2 concealment. (Id. at 24–26.) On February 14, 2017, defendant removed this action to this federal 3 court. (Doc. No. 1.) Thereafter, the court set a trial date of February 12, 2019. (Doc. No. 14.) 4 Following several continuances due to the court’s unavailability, the trial date was ultimately 5 continued to February 19, 2020. (Doc. No. 82.) 6 On February 4, 2020, the parties notified the court that they had reached a settlement of 7 this action. (Doc. No. 89.) Following plaintiff’s rejection of FCA’s two prior offers of judgment 8 under Federal Rule of Civil Procedure 68, FCA had served plaintiff with a third Rule 68 offer in 9 the amount of $85,000.00, which plaintiff accepted. (Doc. No. 99-1 at 6, 12). The accepted offer 10 provided that in addition to $85,000.00, FCA would pay “a sum equal to the aggregate amount of 11 costs and expenses, including attorney’s fees based on actual time reasonably incurred in 12 connection with the commencement and prosecution of this action pursuant to Civil Code Section 13 1794(d), to be determined by the court if the parties cannot agree.” (Doc. No. 99-2 at 34.) 14 On May 19, 2020, the parties filed a stipulation that FCA shall pay $5,000.00 to plaintiff’s 15 trial counsel Hackler, Daghigian, Martino, & Novak, P.C. (“HDMN”)1 “in full satisfaction of 16 HDMN’s claims for attorneys’ fees in connection with this action.” (Doc. No. 97 at 2.) 17 Accordingly, the court will give effect to the parties’ stipulation and award $5,000 in attorneys’ 18 fees to HDMN. 19 Apparently unable to agree on the appropriate amount of attorneys’ fees, costs, and 20 expenses to be paid to his lead counsel Knight Law Group (“Knight Law”), on May 19, 2020, 21 plaintiff filed the pending motion for attorneys’ fees and motion for costs and expenses. (Doc. 22 Nos. 99, 100.) On June 2, 2020, FCA filed its oppositions to the pending motions. (Doc. Nos. 23 106, 107). On June 9, 2020, plaintiff filed his replies thereto. (Doc. Nos. 108, 109.) 24 LEGAL STANDARD 25 Under California’s Song-Beverly Act, “if [a] buyer prevails in an action . . ., the buyer 26 shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate 27 1 On October 24, 2018, the HDMN law firm associated into this matter as trial counsel in 28 anticipation of the matter proceeding to trial. (Doc. Nos. 40; 99-1 at 7 n.1). 1 amount of costs and expenses, including attorney’s fees based on actual time expended, 2 determined by the court to have been reasonably incurred by the buyer in connection with the 3 commencement and prosecution of such action.” Cal. Civ. Code. § 1794(d). “The plain wording 4 of the statute requires the trial court to base the fee award upon actual time expended on the case, 5 as long as such fees are reasonably incurred—both from the standpoint of time spent and the 6 amount charged.” Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 7 817 (2006). 8 It requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the 9 circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are 10 reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural 11 demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended 12 are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A 13 prevailing buyer has the burden of showing that the fees incurred were allowable, were reasonably necessary to the conduct of the 14 litigation, and were reasonable in amount. 15 Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994) (citation and internal 16 quotation marks omitted); see also Goglin v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 470 17 (2016). Under a contingent fee arrangement, “a prevailing buyer represented by counsel is 18 entitled to an award of reasonable attorney fees for time reasonably expended by his or her 19 attorney.” Nightingale, 31 Cal. App. 4th at 105 n.6. 20 “The determination of what constitutes a reasonable fee generally begins with the 21 ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly 22 rate.” Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM 23 Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000)). The court will apply the lodestar method 24 to the Song-Beverly Act because “the statutory language of section 1794, subdivision (d), is 25 reasonably compatible with a lodestar adjustment method of calculating attorney fees, including 26 use of fee multipliers.” Robertson, 144 Cal. App. 4th at 818; see also Warren v. Kia Motors Am., 27 Inc., 30 Cal. App. 5th 24, 35 (2018). Moreover, because “[the California] Supreme Court has 28 held that the lodestar adjustment method is the prevailing rule for statutory attorney fee awards to 1 be applied in the absence of clear legislative intent to the contrary, [the lodestar adjustment 2 method] . . . is applicable to attorney fee awards under section 1794, subdivision (d).” Robertson, 3 144 Cal. App. 4th at 818–19 (citing Ketchum v. Moses, 24 Cal. 4th 1122, 1135–36 (2001)). As 4 the California Supreme Court has explained: 5 [T]he lodestar is the basic fee for comparable legal services in the 6 community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the 7 questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other 8 employment by the attorneys, (4) the contingent nature of the fee award. The purpose of such adjustment is to fix a fee at the fair 9 market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a 10 contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the 11 fair market rate for such services. 12 Ketchum, 24 Cal. 4th at 1132 (internal citation omitted). In addition, “[a] contingent fee contract, 13 since it involves a gamble on the result, may properly provide for a larger compensation than 14 would otherwise be reasonable.” Id. “Decisions by other courts regarding the reasonableness of 15 the rate sought may also provide evidence to support a finding of reasonableness.” Hellenberg v. 16 Ford Motor Co., No. 18-cv-2202-JM-KSC, 2020 WL 1820126, at *1 (S.D. Cal. Apr. 10, 2020). 17 In opposing a request for attorneys’ fees, “[g]eneral arguments that fees claimed are 18 excessive, duplicative, or unrelated do not suffice.” Etcheson v. FCA US LLC, 30 Cal. App. 5th 19 831, 848 (2018) (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guar. Assoc., 163 Cal. App. 4th 20 550, 564 (2008)). Instead, the opposing party must demonstrate that the hours claimed are 21 duplicative or excessive. Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; Gorman v. 22 Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party opposing the fee award can 23 be expected to identify the particular charges it considers objectionable.”). “To challenge 24 attorneys’ fees as excessive, the challenging party must ‘point to the specific items challenged, 25 with a sufficient argument and citations to the evidence.’” Nai Hung Li v. FCA US LLC, No. 26 2:17-cv-06290-R-JEM, 2019 WL 6317769, at *1 (C.D. Cal. July 1, 2019) (quoting Premier Med. 27 Mgmt. Sys., 163 Cal. App. 4th at 564). 28 ///// 1 With this guidance in mind, the court turns to consider plaintiff’s pending motions.2 2 ANALYSIS 3 As the buyer who prevailed in this lawsuit, plaintiff is entitled to an award of reasonably 4 incurred attorneys’ fees, costs, and expenses. See Cal. Civ. Code § 1794(d). Here, plaintiff 5 seeks: (1) an award of attorneys’ fees in the amount of $30,867.50; (2) a lodestar multiplier of 6 0.5, in the amount of $15,433.75; and (3) an award of actual costs and expenses incurred in the 7 amount of $12,317.91. (Doc. Nos. 99 at 2; 100 at 2.) Plaintiff seeks a total award of $58,619.16. 8 (Id.) FCA contends that the lodestar requested by plaintiff is unreasonable and that a positive 9 multiplier is not warranted in this case. (Doc. No. 107 at 7.) FCA also objects to various costs 10 and expenses for which plaintiff seeks reimbursement. (Doc. No. 106.) 11 A. Attorneys’ Fees Request 12 To assess the reasonableness of plaintiff’s requested amount for attorneys’ fees, the court 13 will first consider the reasonableness of the number of hours expended by Knight Law, then 14 address the reasonableness of Knight Law’s hourly rates, and finally consider whether a lodestar 15 multiplier is warranted here. 16 1. Reasonableness of Number of Hours Expended 17 Knight Law’s billing records indicate that ten attorneys expended (or anticipated 18 expending) a total of 90.6 billable hours on this action, billing a total of $30,867.50 for its efforts 19 in prosecuting this case. (Doc. Nos. 99-1 at 14; 99-2 at 21–27; 108 at 11; 108-1 at 4.)3 FCA 20 contends that the number of hours billed by plaintiff’s attorneys is unreasonable for several 21 reasons. The court will address each of FCA’s arguments in turn. 22 First, FCA argues that it served plaintiff with two Rule 68 offers, and that instead of 23 accepting either of those offers or responding with a meaningful counteroffer, plaintiff continued 24 2 Each party objects to evidence presented by the other in support of or in opposition to the 25 pending motions. The court has considered these boilerplate evidentiary objections and, to the extent that the court considers any such objected-to evidence, those objections are overruled. 26 27 3 The billing records reflect a total of 91 hours and $30,977.50 billed, but plaintiff withdrew his fee request with respect to an erroneous time entry on November 27, 2017 for 0.4 hours, totaling 28 $110. (Doc. Nos. 108 at 11; 108-1 at 4.) 1 to litigate and “delayed resolution so that the maximum amount of legal fees could be incurred.” 2 (Doc. No. 107 at 5–6.) In particular, FCA points to plaintiff’s unwillingness to accept its second 3 Rule 68 offer only to accept its third Rule 68 offer a year later—on exactly the same terms to 4 resolve the case for $85,000.00. (Id.) FCA argues that plaintiff’s requested fee amount should be 5 substantially reduced because “[n]othing prevented plaintiff from accepting the previous $85,000 6 offer or making a demand for this amount at an earlier stage of the litigation.” (Id. at 6.) In his 7 reply, plaintiff does not squarely address FCA’s argument in this this regard, though he explains 8 in his motion that during the year between his rejection of FCA’s second offer and his acceptance 9 of FCA’s third offer, plaintiff had served FCA with three settlement offers of his own, all of 10 which FCA rejected. (Doc. No. 99-1 at 12.) The court is not persuaded by FCA’s argument that 11 plaintiff delayed during that year by not responding with meaningful counteroffers. In fact, 12 plaintiff’s last offer was only $7,000 more than the amount FCA offered to plaintiff. (Id.) In the 13 court’s view, the slim difference between those offers shows that plaintiff’s counteroffers were 14 meaningful, not dilatory. Moreover, FCA does not direct the court to any authority, and the court 15 is aware of none, to support its argument that where a plaintiff rejects an offer and then later 16 accepts an offer on the same terms, the court should reduce the number of hours for which 17 plaintiff’s counsel is compensated in a subsequent statutory fee award. 18 Second, FCA contends that plaintiff’s use of ten attorneys resulted in duplication of 19 efforts because by having a different attorney perform each task, “the handling attorney must 20 inevitably get up to speed with the file, including the facts of the case, resulting in duplication and 21 inefficiency.” (Doc. No. 107 at 11.) Here again, FCA fails to provide any authority in support of 22 its position that solely because multiple attorneys work on a case, this court should reduce the 23 number of attorney hours when considering an application for an award of attorneys’ fees. To the 24 contrary, it has been “recognized that ‘the participation of more than one attorney does not 25 necessarily constitute an unnecessary duplication of effort.’” McGrath v. County of Nevada, 67 26 F.3d 248, 255 (9th Cir. 1995) (quoting Kim v. Fujikawa, 871 F.2d 1427, 1435 n.9 (9th Cir. 27 1989)). Moreover, FCA has not identified in its opposition to the pending motion any entries that 28 reflect a duplication of effort. For example, FCA notes that three attorneys billed for time spent 1 on plaintiff’s motion to remand, but FCA neither addresses the descriptions of work performed 2 nor explains how any of that work was duplicative. (Doc. No 107 at 11.) In fact, the court has 3 reviewed those entries and concludes that there was no duplication of effort; the tasks described 4 were distinct: drafting the motion to remand is a distinct task from reviewing a court’s notice 5 regarding the hearing date4, which is also distinct from preparing for and attending the hearing on 6 the motion. (See Doc. No. 99-2 at 21–22.) FCA’s unsupported argument that these tasks were 7 duplicated by the attorneys who performed them is even more of a stretch given that the same 8 attorney who drafted the motion to remand also prepared for and attended the hearing, so that 9 attorney did not have to spend time getting up to speed on the motion. 10 Third, FCA contends that some entries show that Knight Law billed excessively. (Doc. 11 No. 107 at 12–14.) FCA contests the reasonableness of one attorney spending one hour to 12 “prepare joint mid-discovery status conference report” because “just six simple bullet points” 13 were contributed to the joint report from plaintiff’s counsel. (Id. at 12.) In his reply, plaintiff 14 argues that one hour was a reasonable amount of time for the attorney to not only draft plaintiff’s 15 contribution to the joint report, but also “thoroughly review the discovery in this matter (whether 16 additional written requests would be needed, additional depositions after reviewing transcripts, 17 etc.).” (Doc. No. 108 at 11.) FCA also contests the reasonableness of Knight Law attorney Steve 18 Mikhov spending 0.7 hours to “review and audit billing” and 4.7 hours preparing the pending 19 motion for attorneys’ fees and declaration in support thereof. (Doc. No. 107 at 12, 14.) But FCA 20 fails to show how these amounts are excessive, and the court is not persuaded that a reduction in 21 the number of hours for the tasks is warranted in the cited instances. 22 Fourth, FCA argues that the court should disallow all hours expended by plaintiff’s 23 counsel in relation to defending the deposition of Dr. Barbara Luna, who plaintiff hired to support 24 his fraud claim. (Doc. No. 107 at 13.) According to FCA, disallowing these hours is warranted 25 for two independent reasons: (1) recovery of fees is not authorized for fraud claims; and (2) 26 plaintiff did not actually achieve any recovery on her fraud claim. (Id.) In reply, plaintiff does 27 4 Though attorney billing for such a perfunctory task could be subject to challenge on other 28 grounds. 1 not explicitly contest FCA’s assertion that fees are not permitted on fraud claims. But plaintiff 2 asserts that where there is “an issue common to both a cause of action for which fees are 3 permitted and one for which they are not,” attorneys’ fees do not need to be apportioned, and “all 4 expenses incurred on common issues qualify for an award.” (Doc. No. 108 at 11–12). Both 5 parties cite to the decision by the California Court of Appeal in Akins v. Enterprise Rent-A-Car 6 Co. of San Francisco, 79 Cal. App. 4th 1127 (2000) to support their arguments. (See Doc. Nos. 7 107 at 13; 108 at 11.) FCA, however, ignores the state appellate court’s explanation in Akins that 8 “the joinder of causes of action should not dilute the right to attorney fees,” and that “[s]uch fees 9 need not be apportioned when incurred for representation of an issue common to both a cause of 10 action for which fees are permitted and one for which they are not.” Akins, 79 Cal. App. 4th at 11 1133. Plaintiff maintains that all work on the common law fraud claim was relevant to plaintiff’s 12 Song-Beverly Act claims and explains that, “[w]hile Dr. Luna’s expected testimony would 13 address fraud matters, a significant portion of her testimony would relate to the reasonableness of 14 FCA’s corporate conduct” and “provide support that FCA had knowledge of existing defects—a 15 topic relevant to the Song-Beverly Act’s civil penalties award.” (Doc. No. 108 at 12.) The court 16 finds that apportionment of fees is not warranted here. See Blasco Real Estate, Inc. v. FCA US 17 LLC, No. CIVDS1609641, 2019 WL 5965149, at *1 (Cal. Super. Ct. June 05, 2019) (declining to 18 apportion attorneys’ fees where “the claims of fraud and warranty and civil penalties 19 overlapped”). Accordingly, the court will not disallow the hours expended by counsel related to 20 the deposition of Dr. Luna. 21 Fifth, FCA argues that the court should reduce the number of hours allowed for attorney 22 Hernandez because her block-billed entries do not specify how much time was spent on traveling 23 for plaintiff’s deposition and vehicle inspection. (Doc. No. 107 at 12.) FCA speculates that of 24 the 6.8 hours billed for time related to plaintiff’s deposition, which lasted fifty minutes, five hours 25 were spent travelling. (Id.) Similarly, FCA speculates that of the 8.5 hours billed for time related 26 to plaintiff’s vehicle inspection, five hours were spent travelling. (Id. at 13.) The court is not 27 persuaded by FCA’s arguments in this regard, particularly because the time entries that FCA 28 refers to describe the work performed as: “prepare for and attend plaintiff’s deposition (travel 1 included); draft memorandum”; and “prepare for and attend VI [vehicle inspection] (travel 2 included); draft summary.” (Doc. No. 99-2 at 24.) Thus, although the deposition transcript may 3 indicate that plaintiff’s deposition was relatively short, 6.8 hours is not an unreasonable amount 4 of total time when considering attorney Hernandez also spent some of that time to prepare for the 5 deposition and to draft a memorandum afterwards, not just traveling. Moreover, although FCA 6 asserts that courts have frequently reduced travel time by half to create a reasonable rate, FCA 7 cites only to a Ninth Circuit decision upholding a district court’s reduction of travel time based on 8 the fact that all of the plaintiffs’ attorneys in that case travelled extensively throughout that 9 litigation and billed their entire travel time. (Doc. No. 107 at 12–13) (citing In re Washington 10 Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1298 (9th Cir. 1994)). FCA has not persuaded 11 this court that such a reduction for travel time is warranted under the circumstances in this case. 12 Finally, plaintiff’s request for fees includes entries for anticipated time related to 13 reviewing FCA’s oppositions to the pending motions and preparing plaintiff’s replies thereto, as 14 well as time for preparation and attendance at a hearing on the pending motions. (See Doc. No. 15 99-2 at 26.) Because the court took the pending motions under submission shortly after plaintiff 16 filed them and notified the parties that no hearing on the motions would be held—and indeed no 17 hearing was held—the court will not award the one hour of time that attorney Devabose 18 anticipated expending related to a hearing. As to the other entries, in his reply, plaintiff updated 19 and replaced some of the anticipated time entries with the actual hours billed: Knight Law 20 anticipated expending six hours reviewing FCA’s opposition to plaintiff’s motion for attorneys’ 21 fees and drafting his reply thereto, but the attorney actually expended 5.7 hours on those tasks. 22 (Doc. Nos. 108 at 10; 108-1 at 4.) Plaintiff adjusted his requested fee amount accordingly. (Id.) 23 The court finds no reason to reduce those 5.7 hours any further. But for some unexplained 24 reason, Knight Law did not provide an updated billing entry related to the anticipated expenditure 25 of 1.5 hours to review FCA’s opposition to plaintiff’s motion for costs and to draft plaintiff’s 26 reply thereto. No evidence of the time actually spent on those tasks has been presented to the 27 court. Nevertheless, the court finds that 1.5 hours for the performance of those tasks is reasonable 28 given the relatively short but detailed opposition by FCA and the reply thereto submitted by 1 plaintiff’s counsel. Thus, the court will only reduce attorney Devabose’s requested time by one 2 hour to account for the hearing on the motions that was not held. 3 The court has reviewed the Knight Law billing records at issue here and concludes that, 4 for the most part, the time billed was reasonably incurred in the commencement and prosecution 5 of this action. Thus, the court will include in the lodestar calculation of an attorneys’ fee award 6 the following hours: 7 Attorney Hours Hours 8 Requested Awarded Attorney Alastair Hamblin 10.2 10.2 9 Attorney Amy Morse 5.4 5.4 Attorney Deepak Devabose 21.0 20.0 10 Attorney Diane Hernandez 15.3 15.3 11 Attorney Joel Elkins 7.5 7.5 Attorney Kristina Stephenson-Cheang 9.8 9.8 12 Attorney Mitchell Rosensweig 4.4 4.4 Attorney Michael Morris-Nussbaum 3.7 3.7 13 Attorney Natalee Fisher 6.0 6.0 14 Attorney Steve Mikhov 7.0 7.0 Total Hours 90.3 89.3 15 16 2. Reasonableness of the Hourly Rates to be Applied 17 Next, the court must determine whether the hourly rates requested by plaintiff’s attorneys 18 are reasonable. Under California law, when awarding attorneys’ fees under Civil Code § 1794(d), 19 the relevant inquiry is whether “the monetary charge being made for the time expended [is] 20 reasonable” under all the circumstances including “factors such as the complexity of the case and 21 procedural demands, the skill exhibited and the results achieved.” Goglin v. BMW of N. Am., 22 LLC, 4 Cal. App. 5th 462, 470 (2016) (quoting Nightingale, 31 Cal. App. 4th at 104). California 23 courts therefore focus on the reasonable hourly rate for the work performed by the counsel who 24 did that work, regardless of the forum in which that work was performed and without regard to 25 ///// 26 ///// 27 ///// 28 ///// 1 typical hourly rates in the forum in which the matter was litigated.5 See Goglin, 4 Cal. App. 5th 2 at 470 (affirming a fee award applying a hourly rate of $575 per hour in a Song-Beverly Act case 3 on the grounds that the trial court had considered the evidence that the client agreed to 4 compensate counsel at the rate of $575 an hour (later increased to $625), other state and federal 5 courts had awarded the attorney comparable rates in similar cases, and the trial court had 6 observed the attorney’s skills first hand, while not even mentioning the prevailing rates in the trial 7 court’s area); see also Filiberto Negrete v. Ford Motor Co. et al., No. 18-cv-1972-DOC-KKx, 8 2019 WL 4221397, at *3 (C.D. Cal. June 5, 2019) (“Plaintiff has demonstrated that counsel has 9 been awarded attorneys’ fees at similar rates under the Song-Beverly Act. Such evidence is 10 11 5 In awarding attorneys’ fees under the Song-Beverly Act, other district courts have required “[t]he fee applicant . . . [to] produc[e] satisfactory evidence that the requested rates are in line 12 with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” Base v. FCA US LLC, No. 17-cv-01532-JCS, 2019 WL 4674368, at *4 13 (N.D. Cal. Sept. 25, 2019) (citing Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987)); see also Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *4–5 (E.D. 14 Cal. May 6, 2019); Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 WL 2298431, at *5–6 15 (E.D. Cal. May 21, 2018). Citing to Ninth Circuit and Supreme Court precedent, these courts have stated that the “relevant community” in determining a prevailing market rate is the forum in 16 which the district court sits and have then analyzed whether the rates requested by counsel are reasonable in light of rates paid to attorneys of similar skill and experience in the forum district. 17 See, e.g., Self, 2019 WL 1994459, at *4–6. This, however, is the framework that federal courts apply to motions seeking attorneys’ fees pursuant to a federal statute. The undersigned is aware 18 of no authority holding that a federal court must apply that same framework when awarding 19 attorneys’ fees pursuant to a state statute. Indeed, the California Court of Appeal in Goglin did not engage in that forum-based rate analysis and, as evidenced by the many state court fee orders 20 that the parties have pointed this court to, state courts generally do not engage in that analysis. The undersigned, therefore, considers the pending motion under the standard articulated by the 21 California Court of Appeal in Goglin and will determine “whether the monetary charge being made for the time expended [is] reasonable” in light of “the complexity of the case and 22 procedural demands, the skill exhibited and the results achieved.” 4 Cal. App. 5th at 470 (internal 23 quotation marks and citation omitted). This approach will appropriately result in plaintiff’s counsel being compensated at the same hourly rates they would have received in state court rather 24 than a lower rate based solely on the removal of the action to federal court. However, even if the rate determination framework utilized in motions seeking attorneys’ fees pursuant to federal 25 statutes were to apply in this case, the court notes that the hourly rates found to be reasonable by this order would be the same under that framework too. For, under the “relevant community” 26 analysis, this court would look to the orders of state courts within the Eastern District of 27 California and conclude that those rates are consistent with those prevailing in the community for similar services. See Tenorio v. Gallardo, No. 1:16-cv-00283-DAD-JLT, 2019 WL 3842892, at 28 *2 n.1 (E.D. Cal. Aug. 15, 2019). 1 generally sufficient to show that an attorney’s hourly rates are reasonable.”) (internal citation 2 omitted). The fee applicant bears the burden of producing satisfactory evidence that the fees 3 incurred were “reasonable in amount.” Goglin, 4 Cal. App. 5th at 470 (quoting Nightingale, 31 4 Cal. App. 4th at 104); see also Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). 5 Plaintiff requests an attorneys’ fee award based on the following hourly rates for its 6 attorneys who worked on this matter: 7 Attorney Requested Years of 8 Hourly Rate Practice Attorney Alastair Hamblin $325.00 8 years6 9 Attorney Amy Morse $350.00 7 years Attorney Deepak Devabose $275.00 6 years 10 Attorney Diane Hernandez $375.00 23 years 11 Attorney Joel Elkins $450.00 9 years Attorney Kristina Stephenson-Cheang $350.00 12 years 12 Attorney Mitchell Rosensweig $325.00 8 years Attorney Michael Morris-Nussbaum $225.00 3 years7 13 Attorney Natalee Fisher $250.00 5 years 14 Attorney Steve Mikhov $500.00 17 years 15 (Doc. No. 99-2 at 7–10, 27.) 16 In support of these requested rates, plaintiff has submitted the declaration of attorney 17 Steve Mikhov. (Doc. No. 99-2.) In his declaration, attorney Mikhov describes the experience 18 level and educational background of each of the attorneys that worked on this matter, and he 19 asserts that their hourly rates are reasonable and consistent not only with the rates that courts have 20 approved for these specific attorneys—including this court—but also with the rates that courts 21 6 Plaintiff did not provide any specific information regarding when Alastair Hamblin began 22 practicing law, but rather reported only that he “graduated from Southwestern Law School in 23 2007” and began working at Knight Law Group in 2016. (Doc. 99-2 at 8.) However, the court “may take judicial notice of the State Bar of California’s website regarding attorneys’ dates of 24 admission to the Bar.” Davis v. Hollins Law, 25 F. Supp. 3d 1292, 1298 n. 5 (2014). Thus, the court takes judicial notice of the admission date of Alastair Hamblin as February 2012, as 25 represented on the website of the State Bar of California. See id.; Fed. R. Evid. 201(b). 26 7 As with attorney Hamblin, plaintiff did not provide any specific information regarding when 27 Michael Morris-Nussbaum began practicing law, but the court takes judicial notice of the admission date of Michael Morris-Nussbaum as November 2017, as represented on the website of 28 the State Bar of California. 1 have approved for attorneys of comparable levels of experience in other consumer cases. (Id. at 2 7–17.) Attached to attorney Mikhov’s declaration are several hourly rate determinations by state 3 courts in Song-Beverly Act actions with respect to some of the attorneys who worked on this 4 case. (Id. at 12–16, Exs. D–O.) In support of its opposition to plaintiff’s motion for attorneys’ 5 fees, FCA filed a declaration from its counsel, attorney Leon V. Roubinian, which attached 6 several hourly rate determinations by state courts in Song-Beverly Act actions where some of the 7 attorneys who worked on this case have been awarded rates lower than those requested by them 8 here. (See Doc. No. 107-2 at 3–4, Exs. H–O.) The parties’ attachments demonstrate that various 9 superior courts in California have awarded the following rates in Song-Beverly Act actions to the 10 following attorneys at issue here: attorney Mikhov has been awarded hourly rates between 11 $300.00 and $500.00; attorney Morse has been awarded hourly rates between $225.00 and 12 $350.00; attorney Devabose has been awarded hourly rates between $175.00 and $250.00; 13 attorney Stephenson-Cheang has been awarded hourly rates between $250.00 and $350.00; and 14 attorney Hamblin has been awarded an hourly rate of $325.00. Moreover, after reviewing rates 15 awarded by various superior courts in California, the undersigned recently issued orders awarding 16 the following hourly rates to the following attorneys who have appeared in this action: $350.00 17 for attorney Morse; $250.00 for attorney Devabose; $350.00 for attorney Stephenson-Cheang; 18 $500.00 for attorney Mikhov; $325.00 for attorney Hamblin; and $325.00 for attorney 19 Rosensweig. See Sekula v. FCA US LLC, No. 1:17-cv-00460-DAD-JLT, 2019 WL 5290903, at 20 *7 (E.D. Cal. Oct. 18, 2019); Rueda v. FCA US LLC, No. 1:17-cv-00968-DAD-JLT, 2020 WL 21 469333, at *7 (E.D. Cal. Jan. 29, 2020); Figures v. FCA US LLC, No. 1:17-cv-00618-DAD-JLT, 22 2020 WL 820164, at *8 (E.D. Cal. Feb. 19, 2020); Aviles v. Subaru of Am., Inc., No. 1:18-cv- 23 01544-DAD-SKO, 2020 WL 868842, at *6 (E.D. Cal. Feb. 21, 2020). 24 Because “the reasonable value of attorney services is variously defined as the hourly 25 amount to which attorneys of like skill in the area would typically be entitled,” Ketchum, 24 Cal. 26 4th at 1133, the court finds that evidence of what some of the attorneys have previously been 27 awarded when litigating other Song-Beverly actions does assist this court in determining what the 28 reasonable hourly rates should be in this case. See also Goglin, 4 Cal. App. 5th at 470; Filiberto 1 Negrete, 2019 WL 4221397, at *3. While the undersigned has not previously awarded fees for 2 attorney Elkins, his hourly rate of $450.00 appears to be unreasonably high, and at least one other 3 court has determined that $450.00 was not a reasonable hourly rate for attorney Elkins. See 4 Morris v. Hyundai Motor Am., No. BC612232, 2018 WL 10086638, at *2 (Cal. Super. Ct. Apr. 5 16, 2018) (finding requested rates for associates, including $450.00/hour for attorney Elkins, to be 6 unreasonable and fixing all associate rates at $300.00 per hour). Here, plaintiff has not justified 7 the requested hourly rate of $450.00 for attorney Elkins. Attorney Mikhov declares that attorney 8 Elkins graduated from Southwestern Law School in 2007, and “has worked over 20 years in the 9 legal field, including nine as a practicing attorney.” (Doc. No. 99-2 at 9, ¶ 32.) But, attorney 10 Mikhov does not explain what other experience in the legal field attorney Elkins has, or why such 11 experience justifies awarding him an hourly rate of $450.00—the second highest rate requested in 12 this case. The court is particularly reluctant to do so given that attorney Elkins’s rate is higher 13 than two attorneys who have substantially more years of legal practice experience than he does, 14 and his requested rate is $150.00 more than the hourly rate for two attorneys who have just one 15 year less of practice experience than he does. Thus, the court finds that an hourly rate of 16 $325.00—not $450.00—is reasonable for attorney Elkins. 17 Having considered the various state court orders submitted by both plaintiff and FCA as 18 well as other evidence, the court concludes that the following hourly rates as to each of plaintiff’s 19 attorneys are reasonable: 20 Attorney Hourly Rate to Years of be Awarded Practice 21 Attorney Alastair Hamblin $325.00 8 years 22 Attorney Amy Morse $350.00 7 years Attorney Deepak Devabose $275.00 6 years 23 Attorney Diane Hernandez $375.00 23 years Attorney Joel Elkins $325.00 9 years 24 Attorney Kristina Stephenson-Cheang $350.00 12 years 25 Attorney Mitchell Rosensweig $325.00 8 years Attorney Michael Morris-Nussbaum $225.00 3 years 26 Attorney Natalee Fisher $250.00 5 years Attorney Steve Mikhov $500.00 17 years 27 28 ///// 1 3. Lodestar Calculation 2 Based on the hours and hourly rates that the court has determined are reasonable in this 3 matter, the lodestar here totals $29,572.50. The court’s calculations are reflected below: 4 Attorney Hours Hourly Rate Lodestar 5 Awarded Awarded Attorney Alastair Hamblin 10.2 $325.00 $3,315.00 6 Attorney Amy Morse 5.4 $350.00 $1,890.00 7 Attorney Deepak Devabose 20.0 $275.00 $5,500.00 Attorney Diane Hernandez 15.3 $375.00 $5,737.50 8 Attorney Joel Elkins 7.5 $325.00 $2,437.50 Attorney Kristina Stephenson-Cheang 9.8 $350.00 $3,430.00 9 Attorney Mitchell Rosensweig 4.4 $325.00 $1,430.00 10 Attorney Michael Morris-Nussbaum 3.7 $225.00 $832.50 Attorney Natalee Fisher 6.0 $250.00 $1,500.00 11 Attorney Steve Mikhov 7.0 $500.00 $3,500.00 Total: $29,572.50 12 13 4. Lodestar Multiplier 14 Next, plaintiff urges this court to apply a multiplier of 0.5 to the lodestar in this case. 15 (Doc. No. 99-1 at 20–22.) Specifically, plaintiff argues that the contingent nature of this litigation 16 warrants a 0.2 multiplier and that the delay in payment warrants a 0.3 multiplier. (Id. at 22.) 17 According to plaintiff, “there always existed the possibility Plaintiff would not prevail,” and that 18 “[t]he risk was compounded by the fact that Plaintiff’s attorneys advanced all litigation costs and 19 expenses without reimbursement.” (Id.) FCA argues that an upward multiplier is not warranted 20 here and suggests that a negative multiplier is warranted because Knight Law inflated their fees 21 for performing basic litigation tasks, without displaying any special skill and without addressing 22 any novel or difficult legal issues. (Doc. No. 107 at 21–23.) 23 The lodestar may be “augmented . . . by taking various relevant factors into account, 24 including (1) the novelty and difficulty of the questions involved and the skill displayed in 25 presenting them; (2) the extent to which the nature of the litigation precluded other employment 26 by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of 27 prevailing on the merits and of establishing eligibility for the award.” Robertson, 144 Cal. App. 28 4th at 819; see also Warren v. Kia Motors Am., Inc., 30 Cal. App. 5th 24, 35 (2018). 1 Here, plaintiff does not contend that his attorneys were precluded from seeking other 2 employment. Rather, plaintiff argues that “[t]his case required a range of specialized knowledge 3 including: (1) an understanding of the full scope of consumer protection laws, . . .; (2) knowledge 4 of the intricacies of automobiles . . .; and (3) knowledge of auto manufactures’ and dealers’ 5 policies and protocols for repairing vehicles and complying with their legal obligations.” (Doc. 6 No. 99-1 at 17.) However, the fact that plaintiff’s attorneys had to become familiar with a case is 7 not the type of novelty or difficulty that ordinarily justifies an upward multiplier. Moreover, as 8 plaintiff admits, his “attorneys have acquired knowledge and insight about these issues over the 9 course of many years of litigation,” and the attorneys do not “spend unreasonable time preparing 10 pleadings because they are able to use documents from other cases that need only be edited, rather 11 than written from scratch.” (Id. at 17–18.) Indeed, the issues presented by this case have recently 12 been addressed in several cases before this court, many of which involved the same attorneys who 13 appeared in this action. See, e.g., Sekula, 2019 WL 5290903; Self, 2019 WL 1994459; Hall, 2018 14 WL 2298431; Garcia v. FCA US LLC, 1:16-cv-00730-JLT (E.D. Cal. March 7, 2018). Finally, 15 with respect to counsel’s performance, the court has reviewed the pleadings filed in this action 16 and finds that the skills displayed by counsel were, on balance, average at best, given that it is 17 readily apparent from the face of the pleadings filed by plaintiff’s counsel that they relied upon 18 pleadings from other actions as templates. The court therefore finds that the first two factors that 19 could justify the application of a multiplier are not present here because this was a Song-Beverly 20 action of ordinary complexity and difficulty. 21 Moreover, the court concludes that the contingent nature of this action does not weigh in 22 favor of an upward multiplier.8 “The purpose of a fee enhancement, or so-called multiplier, for 23 contingent risk is to bring the financial incentives for attorneys enforcing important . . . rights . . . 24 8 FCA argues that because plaintiff has not provided a copy of the fee agreement, plaintiff has 25 not established that Knight Law represented him on a fully contingent basis. (Doc. No. 107 at 17). The court concludes that attorney Mikhov’s statement in his declaration that Knight Law 26 represented plaintiff on a “fully contingent basis” (Doc. No. 99-2 at 3) is sufficient and that 27 plaintiff is not required to provide the court a copy of the fee agreement. See Bratton v. FCA US LLC, No. 17-cv-01458-JCS, 2018 WL 5270581, at *7 (N.D. Cal. Oct. 22, 2018) (finding attorney 28 Mikhov’s declaration sufficient and not requiring plaintiffs to produce their retainer agreement). 1 into line with incentives they have to undertake claims for which they are paid on a fee-for- 2 services basis.” Ketchum, 24 Cal. 4th at 1132. 3 A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee 4 compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such 5 a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher 6 than that of conventional loans. 7 Id. (citation and internal quotation marks omitted). The court concludes that an upward multiplier 8 based on the contingent risk is not warranted here because that factor is outweighed by the other 9 factors the court has considered, namely that this case was not novel, complex, or difficult, 10 especially because the disputed facts and issues to be resolved were minimal. 11 Similarly, the court finds that an upward multiplier due to any delay in payment of fees to 12 plaintiff’s counsel is not warranted here. Plaintiff contends that “FCA dragged this case out for 13 years before finally making a reasonable settlement offer.” (Doc. No. 99-1 at 22.) Be that as it 14 may, the court is not convinced that (1) FCA is solely to blame for the delay in resolving this 15 action and (2), even if it was, it does not appear to the court that any delay was so egregious so as 16 to justify an upward multiplier. The court is also not persuaded by FCA’s arguments that a 17 negative multiplier is warranted.9 18 ///// 19 20 9 FCA also invites the court to speculate as to plaintiff’s tax liability and to analyze the tax consequences of a higher attorneys’ fee award on plaintiff’s net recovery. (Doc. No. 107 at 19.) 21 FCA has not pointed the court to any applicable authority to suggest that conducting such an analysis is appropriate here. FCA cites only to the California Court of Appeal’s decision in 22 Meister v. Regents of Univ. of Cal., 67 Cal. App. 4th 437, 453 (1998). But there, the court was 23 assessing whether a settlement offer that plaintiff had rejected had more favorable terms than the judgment ultimately entered in plaintiff’s favor. In making that assessment, the trial court 24 compared the value of the rejected offer, which was taxable, with the value of the judgment, for which a portion was nontaxable. Id. The appellate court concluded that “[b]ecause a portion of 25 the judgment was nontaxable, the trial court properly accounted for that distinction in comparing the two amounts.” Id. The court in Meister did not conduct an analysis of the tax consequences 26 of plaintiff’s “tax liability increas[ing] with every dollar of statutory attorneys’ fees awarded” or 27 conclude that such “tax liability will reduce plaintiff’s net recovery,” or that a reduction in the amount of fees awarded is warranted as a result—all of which FCA asks this court to do here. 28 (Doc. No. 107 at 19.) The court declines the invitation to do so here. 1 Accordingly, the court declines to apply an upward or downward multiplier to the lodestar 2 amount under the circumstances of this case, and will thus award $29,572.50 in attorneys’ fees. 3 B. Motion for Costs and Expenses 4 Pursuant to California Civil Code § 1794(d), plaintiff seeks an award of $12,317.91 as 5 reimbursement for costs and expenses incurred by Knight Law in litigating this matter. (Doc. 6 Nos. 100; 100-1 at 2.) Plaintiff did not file a bill of costs, but instead filed a motion for costs and 7 expenses under Federal Rule of Civil Procedure 54(d), and attached as an exhibit to the 8 declaration of Steve Mikhov in support thereof a bill of costs “for the purposes of assisting the 9 court’s review of plaintiff’s costs and expenses.” (Doc. Nos. 100-1 at 10, n.1; 100-2 at 4, Ex. A.) 10 Rule 54(d) provides that “costs—other than attorney’s fees—should be allowed to the 11 prevailing party.” Fed. R. Civ. P. 54(d). Moreover, 28 U.S.C § 1920 enumerates those costs that 12 may be taxed by the judge or the Clerk of the Court. For example, “[f]ees of the clerk and 13 marshal” are taxable, but fees for expert witnesses that were not appointed by the court are not 14 listed as a taxable cost. See 28 U.S.C § 1920; Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 15 U.S. 437 (1987) (holding that “absent explicit statutory or contractual authorization for the 16 taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations 17 set out in 28 U.S.C. § 1821 and § 1920”). In contrast, any “claim for attorney’s fees and related 18 nontaxable expenses must be made by motion . . ..” Fed. R. Civ. P. 54(d)(2)(A) (emphasis 19 added). 20 California law, however, permits plaintiffs who prevail in Song-Beverly Act cases to 21 recover costs and expenses, including expert witness fees. See Cal. Civ. Code § 1794(d); Jensen 22 v. BMW of N. Am., Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 23 22, 1995) (noting that with regards to § 1794, “the addition of awards of ‘costs and expenses’ by 24 the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, 25 marshal[]’s fees, etc., should open the litigation process to everyone”). Applying § 1794(d), the 26 court determines that expert witness fees and other costs that are nontaxable under federal 27 procedural rules are recoverable here. Clausen v. M/V New Carissa, 339 F.3d 1049, 1064–66 28 (9th Cir. 2003), as amended on denial of reh’g (Sept. 25, 2003) (applying Oregon statute 1 approving expert witness fees because the law was “an ‘express indication’ of a state legislature’s 2 ‘special interest in providing litigants’ with full compensation for reasonable sums” in pursuit of a 3 statutory claim). However, § 1794(d) only answers the question of whether plaintiff may recoup 4 such costs and expenses—it does not answer the question of how plaintiff must seek 5 reimbursement.10 6 Because the recovery of “costs in federal district court is normally governed by Federal 7 Rule of Civil Procedure 54(d) even in diversity cases,” Champion Produce, Inc. v. Ruby Robinson 8 Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003), the appropriate vehicle for plaintiff to recoup 9 expert witness fees and other expenses is by motion brought pursuant to Rule 54(d)(2)(A), not by 10 taxation through a Bill of Costs. The language of § 1794(d) is consistent with this approach: 11 If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum 12 equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the 13 court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. 14 15 Cal. Civ. Code § 1794(d) (emphasis added). Whereas taxable costs are awarded as a matter of 16 course, and a court must justify its refusal to award such costs, Champion Produce, 342 F.3d at 17 1022 (holding that a “district court must ‘specify reasons’ for its refusal to award costs” because 18 “Federal Rule of Civil Procedure 54(d)(1) establishes that costs are to be awarded as a matter of 19 course in the ordinary course”) (citation omitted), the party claiming nontaxable costs like expert 20 witness fees must demonstrate to the court, by motion, that its request is reasonable. See Fed. R. 21 Civ. P. 54(d)(2)(A); Cal. Civ. Code § 1794(d). This logic is precisely why plaintiff was required 22 to and is seeking attorneys’ fees, costs, and expenses by motion and not via a Bill of Costs. 23 ///// 24 10 The court recognizes that district courts in this circuit are divided as to whether expert witness fees and other costs and expenses are recoverable in federal court pursuant to § 1794(d), and if so, 25 whether such costs and expenses are taxable in a Bill of Costs or must be sought via motion. Compare Base v. FCA US LLC, No. 17-cv-01532-JCS, 2020 WL 363006, at *6–7 (N.D. Cal. Jan. 26 22, 2020) (listing and comparing cases), and Zomorodian v. BMW of N. Am., LLC, 332 F.R.D. 27 303, 307 (C.D. Cal. 2019), with Self v. FCA US LLC, No. 1:17-cv-01107-SKO, 2019 WL 1994459, at *15 (E.D. Cal. May 6, 2019), and Hall v. FCA US LLC, No. 1:16-cv-0684-JLT, 2018 28 WL 2298431, at *10 (E.D. Cal. May 21, 2018). 1 FCA opposes plaintiff’s motion for costs and expenses and contends that several of 2 plaintiff’s costs were not reasonably incurred in connection with the commencement and 3 prosecution of this action. 4 First, FCA asserts that the court should reduce plaintiff’s requested amount of $119.90 to 5 $65.00 for the fees for service of a deposition subpoena because $65.00 is the amount charged by 6 the U.S. Marshal, and Local Rule 292(f)(2) limits the amount recoverable to the amount charged 7 by the U.S. Marshal for the same service per 20 C.F.R. § 0.114(a). (Doc. No. 106 at 5.) Plaintiff 8 does not dispute this limitation, but he asserts that the U.S. Marshal currently charges $65.00 per 9 hour (or portion thereof) for each item served,” and here, the $119.90 fee was charged for service 10 of three items. (Doc. No. 109 at 6–7.) The court notes, however, that the regulation defines item 11 as “all documents issued in one action which are served simultaneously on one person or 12 organization.” See 20 C.F.R. § 0.114(d) (emphasis added). The invoice provided by plaintiff to 13 substantiate these service costs lists all three documents on the same invoice, with one order 14 number and one process serving charge (rather than three distinct charges), and there is no 15 indication that these documents were not served simultaneously. (Doc. No. 100-2 at 12.) 16 Accordingly, the court will reduce the amount to be reimbursed for this fee to $65.00. 17 Second, FCA contends that several costs incurred in connection with depositions were for 18 the convenience of counsel and should be disallowed. (Doc. No. 106 at 5–6.) In particular, FCA 19 challenges plaintiff’s inclusion of charges for: exhibit linking in deposition transcripts, 20 condensed transcripts, an eDisk, a litigation support packet, an exhibit flashdrive, exhibit 21 scanning with a CD, and parking. (Id. at 6.) FCA also contends that it should not have to 22 reimburse for “interest fees” charged due to Knight Law’s failure to timely pay invoices. (Id.) In 23 response, plaintiff counters that FCA has failed to show the unreasonableness of these costs, 24 which are allowable under the Song-Beverly Act. (Doc. No. 109 at 7.) However, plaintiff bears 25 the burden to demonstrate that these costs were reasonably incurred in connection with the 26 commencement and prosecution of this action. The court finds that plaintiff has not done so with 27 respect to the $35.40 charge for interest fees due to untimely payment of invoices. As to the other 28 charges, the court does not agree with FCA’s argument that because costs are incurred for the 1 convenience of counsel, they are somehow rendered unreasonable or not incurred in connection 2 with the commencement and prosecution of this action. Accordingly, the court will reduce the 3 amount to be reimbursed for these deposition related costs only by the amount of $35.40. 4 Third, FCA challenges plaintiff’s request for reimbursement of attorneys’ travel costs and 5 contends that under Local Rule 292(f)(8), only mileage fees for witnesses can be taxed as costs. 6 (Doc. No. 106 at 6–7.) But, as plaintiff points out in response (Doc. No. 109 at 7), plaintiff is not 7 limited to recovery of taxable costs in this Song Beverly Act case. Accordingly, the court will not 8 reduce any of the requested amount for plaintiff’s attorneys’ travel. 9 Fourth, FCA contends that $4,098.75 in expert witness fees for plaintiff’s expert Dr. Luna 10 were not reasonably incurred and should be disallowed. (Doc. No. 106 at 8.) FCA reiterates the 11 same argument that it presented in opposing plaintiff’s request for attorneys’ fees related to time 12 spent on the deposition of Dr. Luna—that Dr. Luna was hired to support plaintiff’s fraudulent 13 concealment claim (which plaintiff abandoned), not the warranty claims (which plaintiff settled). 14 (Id.) Here too, and for the reasons explained above, the court rejects FCA’s argument and 15 declines to reduce any of the requested amount for expert witness fees. 16 Fifth, FCA contends that the mediation fees of $1,175.00 must be disallowed because that 17 charge is not within the scope of 28 U.S.C. § 1920 or Local Rule 292(f). (Doc. No. 106 at 9.) 18 Plaintiff counters that these mediation costs were actually incurred in this action, and that FCA’s 19 reliance on federal procedural law to disallow these costs is misplaced. (Doc. No. 109 at 9.) The 20 court agrees and concludes that plaintiff reasonably incurred these mediation fees in connection 21 with the prosecution of this action. 22 Sixth, and finally, FCA contends that fees for messenger and courier services should be 23 disallowed because those charges fall outside the scope of recoverable costs under § 1920. (Doc. 24 No. 106 at 9.) Plaintiff again counters that FCA’s reliance on federal procedural law to disallow 25 these costs is misplaced. (Doc. No. 109 at 9–10.) The court agrees and concludes that plaintiff 26 reasonably incurred these costs in connection with the prosecution of this action and are thus 27 recoverable under the Song-Beverly Act. 28 ///// 1 The court will also award $150.00 in jury fees incurred by plaintiff before removal to this 2 court as reasonably incurred. Accordingly, after applying the reductions noted above, the court 3 will award costs and expenses as follows: 4 Cost and Expense Amount Amount Requested Awarded 5 Fees of the Clerk $435.00 $435.00 6 Fees for Service of Summons and Subpoena $157.85 $102.95 Jury Fees $150.00 $150.00 7 Deposition Costs $2,360.13 $2,324.73 Expert Witness Fees $7,824.68 $7,824.68 8 Messenger Services $75.36 $75.36 9 Mediation Fees $1,175.00 $1,175.00 Courier $21.57 $21.57 10 Travel $118.32 $118.32 Total: $12,317.91 $12,227.61 11 12 The court concludes that plaintiff is entitled to a total of $12,227.61 in reimbursements for 13 costs and expenses, in addition to an award of reasonably incurred attorneys’ fees. 14 CONCLUSION11 15 For the reasons explained above: 16 1. Plaintiff’s motion for attorneys’ fees and costs (Doc. No. 99) is granted in part; 17 2. The court awards $29,572.50 in attorneys’ fees based on the lodestar analysis set 18 forth above; 19 3. The court awards costs and expenses in the amount of $12,227.61; and 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 11 Counsel for both parties are well aware that this court has been operating with only four active District Judges since February of this year. Matters such as those addressed by this order should 26 be easily resolved by the parties without judicial intervention. In the future, if they are not, until 27 this court’s vacancies are filled it may simply be impossible for the undersigned to expend the time necessary to resolve such motions in light of the demand of having approximately 600 28 defendants in criminal cases pending before him at any one time. wOAOe LE OMAR VR Sat ONO OF ee TOY OV VI 1 4. Pursuant to the parties’ stipulation (Doc. No. 97), the court awards plaintiffs trial 2 counsel Hackler, Daghigian, Martino, & Novak, P.C. (““HDMN”) $5,000 in 3 attorneys’ fees. 4 | IT IS SO ORDERED. a " 5 /}/ fP A; Dated: _ August 24, 2020 wea rE 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23