Siafarikas v. Mercedes-Benz USA, LLC ( 2022 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DIMITRIOS SIAFARIKAS, an ) Case No. 2:20-cv-01784-JAM-AC individual ) 13 ) Plaintiff, ) ORDER GRANTING IN PART AND 14 ) DENYING IN PART PLAINTIFF’S v. ) MOTION FOR ATTORNEY’S FEES AND 15 ) COSTS MERCEDES-BENZ USA, LLC, a ) 16 Delaware Limited Liability ) Company, and Does 1 through 20, ) 17 inclusive, ) ) 18 Defendants. ) 19 Dimitrios Siafarikas (“Plaintiff”) requests $32,240.00 in 20 attorney’s fees and costs resulting from the settlement of his 21 claim against Mercedes-Benz USA, LLC (“Defendant”) for violation of 22 statutory obligations. Mot. for Attorney’s Fees and Costs 23 (“Mot.”), ECF No. 32. Plaintiff seeks these attorney’s fees and 24 costs pursuant to Cal. Civ. Code § 1794(d) and Fed. R. Civ. 25 P. 54(d)(1). Id. For the reasons stated below, the Court GRANTS 26 IN PART and DENIES IN PART Plaintiff’s motion.1 27 1 This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On May 18, 2020, Plaintiff sued Defendant under the Song- 3 Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq., for 4 defects that arose in his 2017 Mercedes-Benz C300C. See Exh. B to 5 Notice of Removal, ECF No. 1. After nearly two years of 6 litigation, the parties settled. See Notice of Settlement, ECF 7 No. 28. The Court dismissed Plaintiff’s claims with prejudice 8 following the parties’ joint stipulation for dismissal. See ECF 9 No. 31. Plaintiff now moves for an award of attorney’s fees and 10 costs. See Mot. Defendant opposes this motion. See Opp’n, ECF 11 No. 37. Plaintiff replied. See Reply, ECF No. 42.2 12 II. OPINION 13 A. Judicial Notice 14 The parties request that the Court take judicial notice of fee 15 awards in other cases. Such records are judicially noticeable. 16 See Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) 17 (“We may take judicial notice of undisputed matters of public 18 record, including documents on file in federal or state courts.”). 19 Accordingly, the Court grants Defendant’s and Plaintiff’s requests 20 for judicial notice. See Order on Motion for Attorney’s Fees, 21 Hanai v. Mercedes-Benz USA, LLC, Case No. 3:20-cv-06012-WHA (N.D. 22 Cal. March 10, 2022), Exh. 1 to Def.’s Req. for Judicial Notice, 23 ECF No. 38; see also Order on Motion for Attorney’s Fees, Mary 24 Quinonez v. FCA US LLC, Case No. 2:19-cv-02032-KJM-EFB (E.D. Cal. 25 June 5, 2022), Exh. 1 to Pl.’s Req. for Judicial Notice, ECF 26 2 Each party objects to evidence presented by the other in support 27 of or in opposition to the pending motion. The Court has read and considered these boilerplate evidentiary objections and, to the 28 extent that the Court considers any such evidence to which an 1 No. 43. 2 B. Attorney’s Fees 3 1. Legal Standard 4 District courts follow the forum state’s law for awarding 5 attorney’s fees when exercising their diversity jurisdiction over 6 state-law claims. Close v. Sotheby’s Inc., 909 F.3d 1204, 1208 7 (9th Cir. 2018). Federal Rule of Civil Procedure 54(d)(2) merely 8 sets the procedure for claiming attorney’s fees. See MRO Commc’ns, 9 Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999). 10 Thus, § 1794(d) of the Song-Beverly Act governs here. It provides 11 that the prevailing party shall be allowed to recover attorney’s 12 fees “based on actual time expended, determined by the court to 13 have been reasonably incurred by the buyer in connection with the 14 commencement and prosecution of such action.” Cal. Civ. Code 15 § 1794(d) (emphasis added). 16 As the prevailing party, Plaintiff bears the burden of 17 demonstrating that the fees were: (1) allowable; (2) reasonably 18 necessary to the conduct of the litigation; and (3) reasonable in 19 amount. Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99, 104 20 (Ct. App. 1994) (internal citations omitted). The Court retains 21 discretion to reduce the fee award where fees were not reasonably 22 incurred. See Ketchum v. Moses, 24 Cal. App. 4th 1122, 1132 (Cal. 23 2001). 24 The “lodestar method” is the primary method for determining 25 the reasonableness of an attorney’s fee request under the Song- 26 Beverly Act. Id. at 1135. Under the lodestar method, the Court 27 multiplies “the number of hours reasonably expended” by “the 28 reasonable hourly rate.” Ctr. for Biological Diversity v. Cty. of 1 San Bernardino, 188 Cal. App. 4th 603, 616 (Ct. App. 2010), as 2 modified (Oct. 18, 2010). The Court may then increase or decrease 3 the lodestar calculation amount based on factors such as “the 4 novelty and difficulty of the issues, the attorneys’ skill in 5 presenting the issues, the extent to which the case precluded the 6 attorneys from accepting other work, and the contingent nature of 7 the work.” Id. at 772–73. “The purpose of such adjustment is to 8 fix a fee at the fair market value for the particular action.” 9 Ketchum, 24 Cal. App. 4th at 1132. The party seeking attorney’s 10 fees bears the burden of proving that its requested fees are 11 reasonable. Ctr. for Biological Diversity, 188 Cal. App. 4th at 12 616. 13 2. Analysis 14 a. Hours Reasonably Expended 15 Plaintiff seeks $29,025.00 for 61.4 hours of work by two 16 attorneys. Mot. at 14. Attorney David Barry billed 45.5 hours of 17 work at a rate of $525 to $600 an hour. Id. Attorney Logan Pascal 18 billed 15.9 hours of work at a rate of $250 to $300 an hour. Id. 19 Defendant argues that Plaintiff’s claimed hours are excessive or 20 unreasonable. Opp’n at 6-12. The Court reviews Defendant’s 21 arguments in turn. 22 Defendant objects to Plaintiff’s inclusion of pre-litigation 23 time. Opp’n at 9. Upon review of the entries at issue, the Court 24 finds no basis to deduct these hours for pre-litigation work from 25 the requested fee, especially when Defendant provides no authority 26 supporting such a deduction. See Activities Export at 2, Exh. 4 to 27 Decl. of David Barry, ECF No. 32-6; DCL Tech., Inc. v. Ford Motor 28 Co., No. 1:21-cv-00828-AWI-BAM, 2022 WL 2441572 (E.D. Cal. Jul. 5, 1 2022) (declining to deduct pre-litigation hour in the absence of 2 supporting authority to do so). 3 Defendant next objects to Plaintiff’s inclusion of time spent 4 defending Plaintiff’s fraud claim, because the fraud claim was 5 ultimately dismissed before settlement. Opp’n at 12. When a party 6 “prevailed on some claims but not others, the court must evaluate 7 whether the successful and unsuccessful claims are distinctly 8 different claims for relief that are based on different facts and 9 legal theories or involve a common core of facts or [are] based on 10 related legal theories.” Herrington v. Cty. of Sonoma, 883 F.2d 11 739, 746 (9th Cir. 1989) (internal citations omitted). The Court 12 finds that Plaintiff’s fraud claim is based on the same core set of 13 facts and related legal theories as Plaintiff’s Song-Beverly Act 14 claim. As such, a reduction in fees is not warranted. See Drouin 15 v. Fleetwood Enterprises, 163 Cal.App.3d 486, 493 (“Attorneys’ fees 16 need not be apportioned between distinct causes of action where 17 plaintiff’s various claims involve a common core of facts or are 18 based on related legal theories.”). 19 Defendant also objects to Plaintiff’s prospective inclusion of 20 time spent on his motion for attorney’s fees, arguing that 21 “Plaintiff cannot claim fees for anticipated work.” Opp’n at 12. 22 The Court finds this argument meritorious. While Plaintiff may 23 recover for actual time spent on a fee motion, Plaintiff may not 24 recover for anticipated work that does not come to pass. As such, 25 the Court strikes from the fee award the hours billed in 26 anticipation of preparing for and attending a hearing on the fee 27 motion. See, e.g., Johnson v. Yates, No. 2:14-cv-1189-TLN-EFB, 28 2017 WL 3438737, at *2 (E.D. Cal. Aug. 10, 2017) (striking hours 1 billed for a hearing that was not held). The Court reduces the 2 hours billed by two. 3 Defendant objects to time spent on an email dated 4 September 24, 2021, which Defendant claims was erroneously billed 5 to Mr. Barry instead of Mr. Pascal. See Email dated September 24, 6 2021, Exh. H to Decl. of Mehgan Gallagher, ECF No. 37-10. 7 Plaintiff does not respond to this specific objection. See Reply. 8 Finding no contravening evidence that the email in question was 9 written and sent by Mr. Barry, the Court consents to modify the fee 10 award. Mr. Barry’s hours will be reduced by .10 hours and 11 Mr. Pascal’s hours will be correspondingly increased. 12 The Court finds the rest of Plaintiff’s counsels’ time entries 13 reasonable and not subject to reduction. Accordingly, the 14 remainder of Defendant’s specific objections to Plaintiff’s 15 counsel’s time entries are denied. In total, the Court reduces 16 Plaintiff’s counsels’ billing statement by 2 hours. The Court 17 approves 43.4 hours of work spent by Mr. Barry and 16 hours of work 18 spent by Mr. Pascal. 19 b. Reasonable Hourly Rate 20 To assist the Court in calculating the lodestar, the fee 21 applicant must submit “satisfactory evidence . . . that the 22 requested rates are in line with those prevailing in the community 23 for similar services by lawyers of reasonably comparable skill, 24 experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 25 n.11 (1984). The relevant community is that in which the district 26 court sits. See Schwarz v. Sec'y of Health and Human Serv., 73 27 F.3d 895, 906 (9th Cir. 1995). 28 Plaintiff’s counsel submitted affidavits, records of rates 1 approved in other cases, and a consumer law fee report survey in 2 support of their requested hourly rates. See Decl. of David Barry, 3 ECF No. 32-2; United States Consumer Law Fee Survey Report for 4 2017-2018, Exh. 6 to Decl. of David Barry, ECF No. 32-8 (reporting 5 median rates for attorneys handling vehicle cases as $450, median 6 rates for attorneys with 21-25 years of experience as $507, and 7 median rates for attorneys with 1-3 years of experience as $286). 8 Based on the forgoing and the Court’s own experience, the 9 Court finds that an hourly rate of $500.00 is appropriate for 10 Mr. Barry, who has practiced law for 21 years. Decl. of David 11 Barry ¶ 14; Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) 12 (permitting courts to draw on their own experiences to determine 13 what constitutes a reasonable rate); DCL Tech., Inc. v. Ford Motor 14 Co., No. 1:21-cv-00828-AWI-BAM, 2022 WL 2441572 (E.D. Cal. Jul. 5, 15 2022) (approving a rate of $500 for a senior attorney). 16 Further, the Court finds that an hourly rate of $250 is 17 appropriate for Mr. Pascal, who has practiced law for three years. 18 Decl. of Logan Pascal ¶ 4, ECF No. 32-9; Lowery v. Account 19 Outsourcing Group, LLC, 2018 WL 3769430 at *2 (E.D. Cal. Aug. 9, 20 2018) (finding $250 was appropriate for a lawyer who had been “a 21 consumer protection attorney” for three years). 22 Accordingly, the lodestar in this case is as follows: 23 Attorney Hours Rate Total David Barry 43.4 $500 $21,700 24 Logan Pascal 16 $250 $4,000 25 $25,700 26 c. Multiplier Award 27 Although the lodestar may be adjusted in light of additional 28 considerations, including the results obtained, neither party 1 requests a lodestar modifier. Opp’n at 17; Reply at 10; Hensley v. 2 Eckerhart, 461 U.S. 424, 434 (1983). Seeing as this case did not 3 present any novel or difficult issues, the Court agrees that the 4 lodestar value represents the fair market value of this particular 5 action. See Ketchum, 24 Cal. App. 4th at 1132. Accordingly, the 6 Court declines to impose a lodestar multiplier. 7 C. Costs 8 1. Legal Standard 9 Recovery of prevailing party costs in federal district court 10 is generally considered a question of procedure governed by Federal 11 Rule of Civil Procedure 54(d)(1), even in diversity cases. 12 Champion Produce Inc., v. Ruby Robinson Co., Inc., 342 F.3d 1016, 13 1022 (9th Cir. 2003). But the California Legislature has 14 demonstrated a special interest in permitting prevailing Song- 15 Beverly plaintiffs to recover costs and expenses under California 16 Civil Code § 1794(d). Forouzan v. BMW of North America, LLC, 390 17 F.3d 1184, 1187 (C.D. Cal. 2019) (citing Clausen v. M/V NEW 18 CARISSA, 339 F.3d 1049 (9th Cir. 2003)). Thus, the cost provision 19 of the Song-Beverly Act, rather than Federal Rule of Civil 20 Procedure 54(d)(1) applies here. Id. 21 Section 1794(d) of the Act defines the amount in costs and 22 expenses that may be recovered as “a sum equal to the aggregate 23 amount of costs and expenses . . . determined by the court to have 24 been reasonably incurred by the buyer in connection with the 25 commencement and prosecution of such action.” Recoverable under 26 § 1794(d) are such costs and expenses as expert witness fees and 27 filing fees. Jensen v. BMW of N. Am., Inc., 35 Cal. App. 4th 112, 28 138 (1995). —e—e mE IER ROEDER EI IIE IIE OS ESI IIE 1 2. Analysis 2 Plaintiff seeks $555.00 in costs for fees related to filing 3 |}his complaint. See Pl.’s Bill of Costs, ECF No. 33; see also Reply 4 ]lat 8 (voluntarily withdrawing $660.00 in requested costs for 5 ||vehicle inspections). 6 Of the requested costs, $120.00 is for “service of summon and 7 |}subpoena.” See Bill of Costs, ECF No. 33. However, in the 8 |}documentation provided by Plaintiff in support of his Bill of 9 ||}Costs, $120 accounts for the total cost of effecting service for 10 ||Inine cases without distinguishing the portion of the cost 11 |jattributable to the present case. Id. As such, the Court finds 12 |J[that Plaintiff shall only recover one-ninth of the documented fee: 13 |}$13.33. 14 Finding the remaining fees reasonable, the Court awards a 15 |/total of $448.33 in costs to Plaintiff. 16 Til. ORDER 17 For the reasons set forth above, the Court GRANTS IN PART and 18 ||DENIES IN PART Plaintiff’s Motion for Attorney’s Fees and Costs. 19 ||The Court awards Plaintiff $25,700.00 in attorney’s fees and 20 |1|$448.33 in costs, for a total of $26,148.33. 21 IT IS SO ORDERED. 22 |}Dated: November 10, 2022 23 : cp, JOHN A. MENDEZ 25 SENIOR UNITED*STATES DISTRICT JUDGE 26 27 28