Marcelo V. Pacheco v. Ford Motor Company et al, No. 2:2018cv09006 - Document 56 (C.D. Cal. 2022)
Court Description: ORDER GRANTING IN PART PLAINTIFF'S MOTIONS FOR ATTORNEYS' FEES, COSTS, AND EXPENSES 43 , 44 by Judge Otis D. Wright, II: The Court GRANTS IN PART and DENIES IN PART Plaintiffs Motions for Attorneys' Fees, Costs, and Expenses, and AW ARDS the following: 1. $19,051.20 in attorneys' fees to Knight Law Group,2. $19,492.65 in attorneys' fees to Altman Law Group, and 3. $15,128.98 in costs and expenses. Defendant shall render payment within sixty (60) days. (lc) Modified on 3/22/2022 (lc).
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Marcelo V. Pacheco v. Ford Motor Company et al Doc. 56 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:18-cv-09006-ODW (ASx) MARCELO V. PACHECO, Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTIONS FOR ATTORNEYS’ FEES, COSTS, AND EXPENSES [43] [44] v. FORD MOTOR COMPANY, Defendant. I. INTRODUCTION On September 17, 2018, Plaintiff Marcelo V. Pacheco filed suit against Defendant Ford Motor Company (“Ford”) in the Superior Court of California, County of Los Angeles for violations of the California Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). (Notice Removal (“NOR”) Ex. A (“Compl.”), ECF No. 1.) On October 18, 2018, Defendant removed the case to this Court based on diversity jurisdiction. (See NOR). Over two and a half years later, on June 18, 2021, the parties settled the case. (See Notice of Settlement, ECF No. 32.) Plaintiff now moves for attorneys’ fees, costs, and expenses in the total amount of $114,168.98. (Mot. Attorneys’ Fees, ECF No. 43-1; Mot. Costs & Expenses, ECF No. 44-1 (together, “Mots.” or “Motions”).) After carefully considering the papers filed in connection with Dockets.Justia.com 1 the Motion, the Court deemed the matter appropriate for decision without oral 2 argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons discussed below, 3 the Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motions. II. 4 BACKGROUND 5 On June 28, 2014, Pacheco purchased a used 2013 Ford Escape (the “Vehicle”) 6 for $31,110.32. (Decl. of Steve Mikhov (“Mikhov Decl.”) Ex. B (“Purchase Contract”), 7 ECF No. 43-2.) The Vehicle came with an express warranty under which Ford 8 undertook to preserve and maintain the utility and performance of the Vehicle. (Id.) 9 On November 21, 2016, Pacheco took the Vehicle to a Ford authorized repair 10 facility to resolve engine-related issues. (Mikhov Decl. ¶ 4.) The technicians at the 11 facility were unable to reproduce the issues. (Id.) On November 29, 2016, Pacheco 12 returned to the facility with similar engine-related concerns. (Id. ¶ 5.) Technicians 13 replaced a temperature sensor in the engine, but this did not resolve the problems. (Id.) 14 From October 21, 2017 to April 6, 2021, Pacheco took the Vehicle to a Ford authorized 15 repair facility an additional four times. (Id. ¶ 6.) 16 ultimately unsuccessful. (Id.) 17 18 Multiple attempts at repair were On or around January 23, 2018, Pacheco asked Ford to repurchase the Vehicle. (Id. ¶ 8.) Ford refused. (Id.) 19 On September 17, 2018, with the assistance of counsel, Pacheco filed suit against 20 Ford. (See Compl.) On October 18, 2018, Defendant removed the case to this Court 21 based on diversity jurisdiction. (See NOR). The parties subsequently engaged in 22 multiple rounds of discovery. (See Mikhov Decl. ¶¶ 11–18.) On June 29, 2021, Ford 23 served Pacheco with an Offer of Judgment pursuant to Federal Rules of Civil Procedure 24 (“Rule”) 68 in the amount of $60,000. (See Offer J., ECF No. 52-1.) Pacheco accepted 25 the same day. (See id.) Pacheco now moves to recover his attorneys’ fees, costs, and 26 expenses. (See generally Mots.) 27 28 III. LEGAL STANDARD “State law governs attorney fees in diversity cases.” Negrete v. Ford Motor Co., 2 1 No. ED CV 18-cv-1972-DOC (KKx), 2019 WL 4221397, at *2 (C.D. Cal. June 5, 2019) 2 (citing Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009)). 3 California’s Song-Beverly Act authorizes a prevailing buyer to recover attorneys’ fees 4 “based on actual time expended, determined by the court to have been reasonably 5 incurred.” Cal. Civ. Code 1794(d). The Court is to base the fee award “upon actual 6 time expended on the case, as long as such fees are reasonably incurred—both from the 7 standpoint of time spent and the amount charged.” Warren v. Kia Motors Am., Inc., 8 30 Cal. App. 5th 24, 35 (2018). “By permitting prevailing buyers to recover their 9 attorney fees, [the California] Legislature has provided injured consumers strong 10 encouragement to seek legal redress in a situation in which a lawsuit might not 11 otherwise have been economically feasible.” Murillo v. Fleetwood Enters., Inc., 17 Cal. 12 4th 985, 994 (1998). The Song-Beverly Act also authorizes prevailing buyers to recover reasonably 13 14 incurred “costs and expenses.” Id. 15 The “prevailing buyer has the burden of showing that the fees incurred were 16 allowable, were reasonably necessary to the conduct of the litigation, and were 17 reasonable in amount.” Morris v. Hyundai Motor Am., 41 Cal. App. 5th 24, 34 (2019) 18 (internal quotation marks omitted) (collecting cases). IV. 19 The Court addresses attorneys’ fees first, followed by costs and expenses. 20 21 DISCUSSION A. Attorneys’ Fees 22 In determining the amount of attorneys’ fees to award under Civil Code 23 section 1794(d), a court must utilize the “lodestar” method of calculating the award, 24 accomplished by multiplying the number of hours reasonably expended on the litigation 25 by a reasonable hourly rate. Morris, 41 Cal. App. 5th at 34; see Meister v. Regents of 26 Univ. of Cal., 67 Cal. App. 4th 437, 448–49 (1998) (“[T]he California Supreme Court 27 intended its lodestar method to apply to a statutory attorney’s fee award unless the 28 statutory authorization for the award provided for another method of calculation.”). If 3 1 the court finds the time expended or rates requested are not reasonable, “it must take 2 this into account and award attorney fees in a lesser amount.” Morris, 41 Cal. App. 5th 3 at 34. 4 After fixing a reasonable fee award using the lodestar method, the Court has 5 discretion to apply a positive or negative multiplier based on (1) the complexity of the 6 case and procedural demands, (2) the skill exhibited and results achieved, (3) the extent 7 to which the nature of the litigation precluded other employment by the attorneys, and 8 (4) the contingent nature of the fee award. Morris, 41 Cal. App. 5th at 34; Negrete, 9 2019 WL 4221397, at *2. “In effect, the court determines, retrospectively, whether the 10 litigation involved a contingent risk or required extraordinary legal skill justifying 11 augmentation of the unadorned lodestar in order to approximate the fair market rate for 12 such services.” 13 imposing a multiplier, courts must ensure not to do so on the basis of a criterion that it 14 already considered in adjusting the hours reasonably expended or the reasonable hourly 15 rate. See, e.g., Salmeron v. Ford Motor Co., No. 2:18-cv-07266-SVW-PLA, 2020 WL 16 9217979, at *6 (C.D. Cal. July 14, 2020). 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). However, in 4 1 Pacheco had ten attorneys from Knight Law Group, LLP (“Knight Group”) and 2 four attorneys from The Altman Law Group (“Altman Group”) billing on this matter at 3 the following rates and for the following numbers of hours: 4 Knight Law Group, LLP 5 6 SBM Managing Partner $550 3.5 hours 7 ALM Partner $350 (2020) 10.9 hours 8 ALM Partner $400 (2021) 7.6 hours 9 JWC Senior Attorney $425 17 hours 10 KSC Associate $375 14.5 hours 11 HA Associate $325 3.8 hours 12 MC Associate $300 (2020) 4.3 hours 13 MC Associate $345 (2021) 3.9 hours 14 MM Associate $295 2.2 hours 15 DK Associate $250 (2020) 3.9 hours 16 DK Associate $295 (2021) 3.9 hours 17 SS Associate $225 3.1 hours 18 AL Associate $200 7.9 hours 19 20 21 22 23 24 The Altman Law Group BCA Managing Partner $950 6.3 hours CJU Associate $400 22.5 hours DA Associate $325 54.8 hours AJ Associate $300 0.5 hours 25 26 27 28 (Mikhov Decl., Ex. A (“Knight Fee Records”); Decl. Bryan C. Altman (“Altman Decl.”) Ex. C (“Altman Fee Records”) ECF No. 43-3.) Accordingly, Plaintiff seeks $30,365 in attorneys’ fees for work done by the Knight Group and $32,945 in attorneys’ 5 1 fees for work done by the Altman Group. Plaintiff additionally requests a lodestar 2 multiplier of 1.5 on the attorneys’ fees, for a total fee award of $94,965. (Mot. 3 Attorneys’ Fees 18–20.) 4 Ford argues that while Pacheco is entitled to recover attorneys’ fees in a Song- 5 Beverly case, the number of hours spent on this case and the hourly rates charged are 6 unreasonable. (Opp’n Mot. Attorneys’ Fees 6–9, ECF No. 48.) Ford also contends that 7 this case does not warrant the application of a multiplier. (Id. at 10–11.) 8 1. Hourly Rates 9 The Court first determines whether the requested hourly rates are reasonable. 10 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to 11 the attorney’s own affidavits—that the requested rates are in line with those prevailing 12 in the community for similar services by lawyers of reasonably comparable skill, 13 experience and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th 14 Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). “Generally, the 15 relevant community is the forum in which the district court sits.” Barjon v. Dalton, 16 132 F.3d 496, 500 (9th Cir. 1997). In the event that the moving party fails to provide 17 affidavits from local attorneys or from a fee expert to show that the requested rates 18 match the prevailing market rates, the district court may rely on its own knowledge of 19 customary rates and its familiarity with the legal market. See Ingram v. Oroudijian, 20 647 F.3d 925, 928 (9th Cir. 2011). 21 In support of his attorneys’ fees request, Pacheco provides a self-compiled survey 22 of seven consumer attorneys showing hourly rates as high as $800 an hour. (Mikhov 23 Decl. ¶ 37.) Pacheco also points to a 2017–2018 attorney fee survey report showing a 24 median hourly rate of $450 for attorneys handling vehicle cases brought under 25 consumer protection law, and an average hourly rate of $531 for consumer law attorneys 26 with more than 45 years of experience. (Altman Decl. Ex. A (“Attorney Fee Survey 27 Report”) 59.) Finally, Pacheco cites Ninth Circuit cases, many from the Central 28 6 1 District, approving rates up to $550, and at least one case approving an hourly rate of 2 $695 an hour. (See Reply ISO Mot. Attorneys’ Fees 2–5, ECF No. 51.) 3 Ford, for its part, cites a series of cases finding the prevailing hourly rate for 4 lemon law work to be around $325 for partners and $225 for associates. (Opp’n Mot. 5 Attorneys’ Fees, 12–16 (citing cases from the Central, Southern, and Northern 6 Districts).) In many of these cases, the parties and the court relied on the 2018 Real 7 Rate Report to arrive at their decisions. See, e.g., Arias v. Ford Motor Company, No. 8 5:18-cv-1928-PSG (SPx), 2020 WL 1940843, at *4–*7. 9 The Court notes that both the Attorney Fee Survey Report cited by Pacheco and 10 the 2018 Real Rate Report referred to by Ford focus on nationwide hourly rates rather 11 than those in the Los Angeles market. Moreover, the Court does not find Pacheco’s 12 self-reported rates to be reliable, as they consist of a biased sample of only seven 13 attorneys, not all of whom specialize in lemon law matters. (See Mikhov Decl. ¶ 37.) 14 The Court makes the following adjustments, relying on these reports and surveys, the 15 evidence-backed facts about the attorneys who worked on this case, and the Court’s 16 own familiarity with the legal market: 17 The $425 per hour charged by Knight Group’s JWC is unreasonable given JWC’s 18 non-partner position and the lack of clarity regarding how long JWC has 19 practiced lemon law. (Mikhov Decl. ¶ 34.) The Court therefore reduces JWC’s 20 hourly rate to $375/hour. 21 The $375 per hour charged by Knight Group’s KSC is unreasonable given KSC’s 22 associate position and minimal additional credentials. (Mikhov Decl. ¶ 28.) The 23 Court therefore reduces KSC’s hourly rate to $350/hour. 24 The $950 per hour rate charged by Altman Group’s BCA is patently 25 unreasonable. The Court therefore reduces BCA’s hourly rate to $550/hour. 26 The $400 per hour rate charged by Altman Group’s CJU is unreasonable given 27 that CJU appears to have practiced consumer protection law for five years or less. 28 (Altman Decl. ¶ 10.) The Court reduces CJU’s hourly rate to $300/hour. 7 1 The $325 per hour rate charged by Altman Group’s DA is unreasonable given 2 that DA appears to be a new attorney whose credentials, though substantial, are 3 primarily academic. (Altman Decl. ¶ 11.) The Court reduces DA’s hourly rate 4 to $250/hour. 5 The Court determines that the remainder of the rates charged by Pacheco’s 6 attorneys, while generally higher than the typical rates in Los Angeles for attorneys with 7 similar experience, nevertheless fall within the range of reasonableness. 8 2. Hours Expended 9 In analyzing the reasonableness of the number of hours expended, the Court must 10 examine detailed time records to determine whether the hours claimed are adequately 11 documented and whether any of them are unnecessary, duplicative, or excessive. 12 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), opinion amended 13 on denial of reh’g, 808 F.2d 1373 (9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 14 424, 433–34 (1983)). The trial court, due to its familiarity with the case, is in the best 15 position to evaluate the reasonableness of the hours requested. Moreno v. City of 16 Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008). 17 Knight Group includes in its billing records an hour of time for JWC to prepare 18 for and attend a hearing on this matter. (See Knight Fee Records 8.) Because no hearing 19 was held, the Court reduces JWC’s hours by 1. 20 Knight Group includes in its billing records an estimated 9 hours at a rate of $425 21 per hour for JWC to review and respond to Ford’s oppositions to these Motions. (See 22 id.) However, Knight Group acknowledges that it only spent 7 hours at a rate of $295 23 per hour for DK to review and respond to the oppositions. (See Decl. Daniel Kalinowski 24 (“Kalinowski Decl.”) ¶¶ 4–6, ECF No. 51-1.) Accordingly, the Court reduces JWC’s 25 hours by 9 and increases DK’s hours billed in 2021 by 7. 26 Knight Group’s SBM billed $440 for the 0.8 hours spent to “review and audit 27 billing” in preparation for Pacheco’s Motions. (See Opp’n Mot. Attorneys’ Fees 17; 28 Knight Fee Records 8.) Although the practice of reviewing and auditing one’s own 8 1 billing records is generally commendable, “it is unreasonable that Defendant should pay 2 Plaintiffs’ attorneys to confirm the accuracy of their own bills.” Holcomb v. BMW of 3 N. Am., LLC, No. 18-CV-00475 JM (BGSx), 2020 WL 759285, at *6 (S.D. Cal. Feb. 4 14, 2020). Accordingly, the Court reduces SBM’s hours by 0.8. 5 Knight Group’s SBM billed 2.2 hours without including the date of work. (Opp’n 6 Mot. Attorneys’ Fees 21–22; Knight Fee Records 1.) “By failing to identify when 7 [Plaintiff’s attorney] performed this work, Plaintiff has failed to meet its burden of 8 sufficiently ‘documenting the hours expended in the litigation.’” Arriaga v. Ford Motor 9 Co., No. 18- CV-9089-DSF (KSx) (C.D. Cal. May 8, 2020), at *10 (quoting Welch v. 10 Metro. Life Ins. Co., 480 F.3d 942, 945 (9th Cir. 2007)). The Court therefore reduces 11 SBM’s hours by 2.2. 12 Ford contests two sets of discovery-related billing entries in the Knight Group’s 13 Fee Records, claiming that the entries are substantially identical. (See Opp’n Mot. 14 Attorneys’ Fees 20.) Specifically, on October 16, 2018, attorney KSC billed 1.9 hours 15 at a rate of $375 an hour to draft various discovery documents, and on May 15, 2019, 16 attorney ALM billed 2.6 hours at a rate of $350 an hour to draft similar documents. 17 (See Knight Fee Records 1–2.) Pacheco explains that because Ford did not respond to 18 the first set of discovery requests after removing the case to federal court, his attorneys 19 needed to draft new requests after removal. (Reply ISO Mot. Attorneys’ Fees 9.) The 20 Court does not find the 2.6 hours utilized to re-draft the discovery requests to have been 21 reasonably incurred and accordingly reduces ALM’s hours billed in 2020 by 2.6. 22 Ford also challenges the 6.7 hours Knight Group’s JWC spent filing the instant 23 Motions. These Motions are largely template motions Pacheco’s counsel uses in many 24 Song-Beverly cases, and assuming the billing records are complete and accurate, these 25 Motions require little more than (1) setting forth the substantive facts and procedural 26 history of the case and (2) adding names and numerical figures to the analysis section. 27 The former, of course, is the same in both Motions. The Court does not find the 28 9 1 6.7 hours used to draft the Motions to have been reasonably incurred and accordingly 2 reduces JWC’s hours by 3.7. 3 Ford challenges additional time entries it claims are inefficient, unnecessary, or 4 redundant. (See Opp’n Mot. Attorneys’ Fees 17–23.) The Court accepts in part and 5 rejects in part these additional challenges. On one hand, the Court does not find the 6 work Pacheco’s attorneys spent preparing and reviewing documents to have been 7 generally unnecessary or “clerical tasks” better suited for non-attorneys or lower-billing 8 associates. (See Opp’n Mot. Attorneys’ Fees 19–20, 22–23.) Disputed entries that 9 include “preparing, reviewing, and drafting notices of deposition . . . are not ‘purely 10 clerical’ tasks,” and the Court declines to exclude them from the fee award. Bauman v. 11 Ford Motor Co., No. 18-CV-7971-DMG (Ex), 2021 WL 2792310, at *7 (C.D. Cal. Feb. 12 3, 2021) (quoting Davis v. City & County of San Francisco, 976 F.2d 1536, 1543 13 (9th Cir. 1992), vacated on other grounds by Davis v. City & County of San Francisco, 14 984 F.2d 345 (9th Cir. 1993)). 15 On the other hand, the Court agrees that intrinsic inefficiency and duplication of 16 labor arises from the fact that this case was litigated by a total of fourteen attorneys 17 from two different firms. Mathematically, it is more straightforward to incorporate this 18 observation into the multiplier analysis, which the Court does below. 19 The Court does not adjust the number of hours billed by the Altman Group. The 20 Court found no individual line-items that need adjustment in the Altman Group’s 21 records. The Altman Group’s billing records, like those of the Knight Group, do 22 indicate some inefficiency or duplicated work due to a large number of attorneys 23 working on the case, and the Court incorporates this observation into the multiplier 24 analysis, below. In sum, after reviewing the attorneys’ fees record provided by Pacheco, the 25 26 lodestar calculations are as follows. 27 /// 28 /// 10 Knight Group Lodestar Calculations 1 2 Attorney Lodestar Rate Lodestar Hours Lodestar Total 3 SBM $550 .5 hours $275.00 4 ALM $350 8.3 hours $2,905.00 5 ALM $400 7.6 hours $3,040.00 6 JWC $375 3.3 hours $1,237.50 7 KSC $350 14.5 hours $5,075.00 8 HA $325 3.8 hours $1,235.00 9 MC $300 4.3 hours $1,290.00 10 MC $345 3.9 hours $1,345.50 11 MM $295 2.2 hours $649.00 12 DK $250 3.9 hours $975.00 13 DK $295 10.9 hours $2,950 14 SS $225 3.1 hours $697.50 AL $200 7.9 hours $1,580.00 15 16 KNIGHT GROUP LODESTAR TOTAL: $23,520 17 18 19 Altman Group Lodestar Calculations 20 21 22 23 24 25 26 Attorney Lodestar Rate Lodestar Hours Lodestar Total BCA $550 6.3 hours $3,465 CJU $300 22.5 hours $6,750 DA $250 54.8 hours $13,700 AJ $300 0.5 hours $150 ALTMAN GROUP LODESTAR TOTAL: $24,065 27 28 11 1 3. Lodestar Multiplier 2 The Court now evaluates whether a lodestar multiplier should be awarded, 3 considering, among other things, (1) the complexity of the case and procedural 4 demands, (2) the skill exhibited and results achieved, (3) the extent to which the nature 5 of the litigation precluded other employment by the attorneys, and (4) the contingent 6 nature of the fee award. See Morris, 41 Cal. App. 5th at 34. 7 This case did not present any particularly novel or complex issues and did not 8 require special skills. The parties exchanged written discovery, conducted depositions, 9 and prepared pretrial documents—all of which are standard litigation tasks. 10 Furthermore, Pacheco does not assert his counsel sacrificed other employment for this 11 case. Accordingly, the Court finds that the first three factors do not weigh in favor of a 12 positive multiplier. 13 As to the fourth factor, Song-Beverly litigation is not true contingent litigation. 14 In true contingent litigation, an attorney’s fee is awarded as a percentage of the 15 plaintiff’s recovery. In Song-Beverly cases, as discussed above, the attorney’s fee 16 award is tethered to the fees actually and reasonably incurred, with no regard 17 whatsoever for the total amount recovered by the buyer. See Morris, 41 Cal. App. 5th 18 at 35 (discussing the “prohibited proportionality analysis”). A fee’s contingent nature 19 is relevant to the multiplier analysis because true contingency increases the risk the 20 attorney assumes, and in certain cases, courts should apply a positive multiplier in 21 recognition of that risk. Certainly, Song-Beverly attorneys assume the risk of receiving 22 no recovery at all, but that risk is hedged somewhat by the Song-Beverly Act’s lodestar- 23 based attorneys’ fee provision, which allows for fee awards that are in some cases many 24 times greater than the plaintiff’s damages. Thus, the fourth factor does not weigh 25 materially in favor of a positive multiplier. 26 For these reasons, the Court will not award a positive multiplier. 27 28 12 1 That said, as indicated above, a negative1 multiplier is appropriate because the 2 high number of attorneys created inefficiencies in the litigation process. (Opp’n Mot. 3 Attorneys’ Fees 15–16.) Although “the use of a large number of attorneys in Song- 4 Beverly Act cases appears relatively common,” Holcomb v. BMW of N. Am., LLC., 5 2020 WL 759285 at *3 (S. D. Cal. Feb. 14, 2020), the fact that a practice is common 6 does not mean that it is efficient in all cases. The Court has reviewed the billing records 7 in this case and finds that the individual line items reflect a mild to moderate amount of 8 inefficiency arising from the high number of attorneys that worked on this case. When, 9 as here, a case is “significantly overstaffed,” the court may adjust the award, either by 10 adjusting the number of hours reasonably incurred or by applying a negative multiplier. 11 Salmeron, 2020 WL 9217979, at *6. 12 multiplier of 0.9 (that is, a 10% reduction) to the attorney fee awards. Accordingly, the Court applies a negative 13 Finally, the Court “can impose a small reduction, no greater than 10 percent—a 14 ‘haircut’—based on its exercise of discretion and without a more specific 15 explanation.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). The 16 court may properly impose a “haircut” reduction even after imposing a negative 17 multiplier based on express criteria. See Salmeron, 2020 WL 9217979, at *8. Based 18 on the history of this case and the Court’s experience with similar cases, the Court finds 19 that a “haircut” reduction is appropriate here and applies an additional negative 20 multiplier of 0.9 (that is, a 10% reduction) to the attorney fee awards. See id. 21 Accordingly, the Court AWARDS Pacheco attorneys’ fees in the amount of 22 $23,520 x 0.9 x 0.9 = $19,051.20 to Knight Group and $24,065 x 0.9 x 0.9 = $19,492.65 23 to Altman Group. 24 25 26 27 28 1 Strictly speaking, the phrase “negative multiplier” is a misnomer. The multiplier itself is not a negative number; it is a positive number with a value of less than 1, such that applying the multiplier decreases the lodestar. The Court uses the phrase “negative multiplier” as a way of referring to a multiplier that decreases the lodestar when applied. 13 1 B. Costs and Expenses 2 Pacheco also seeks $19,203.98 in costs and expenses. (Mot. Costs & Expenses 3 Ex. A (“Cost & Expense Records”) 4–7, ECF No. 44-2.) Ford opposes these costs and 4 expenses on the basis that they are disallowed under federal court rules or are otherwise 5 unreasonable.2 (See generally Opp’n Mot. Costs & Expenses, ECF No. 49.) 6 “An award of standard costs in federal district court is normally governed by 7 Federal Rule of Civil Procedure 54(d), even in diversity cases.” Champion Produce, 8 Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir. 2003). However, the Ninth 9 Circuit carved out an exception to this rule in Clausen v. M/V NEW CARISSA, 339 F.3d 10 1049, 1052 (9th Cir. 2003). In Clausen, the Ninth Circuit affirmed an award of expert 11 witness fees under Oregon law after determining that “a state damages provision that 12 permits prevailing plaintiffs . . . to recover ‘costs of any kind’ as one element of its 13 compensatory damages” was “substantive in nature.” Id. at 1064–65. The relevant 14 Oregon law defined damages as: “damages, costs, losses, penalties or attorney fees of 15 any kind for which liability may exist under the laws of this state resulting from, arising 16 out of or related to the discharge or threatened discharge of oil.” Id. at 1061 (quoting 17 Or. Rev. Stat. § 468B.300(6)) (internal quotation marks omitted)). 18 Here, the Song-Beverly Act provides: 19 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 equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. 20 21 22 23 24 25 26 27 28 2 Ford additionally contends that because it offered to settle the case on June 8, 2021, the Court should not award Pacheco costs incurred after that date. (See Opp’n Mot. Costs & Expenses 14–15.) Because Ford allocates only two sentences for this argument and cites no authority supporting it, the Court declines to consider it. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived.”). 14 1 Cal. Civ. Code § 1794(d). District courts within the Ninth Circuit disagree about the 2 application of Clausen to the Song-Beverly Act’s “costs and expenses” provision. See 3 Seebach v. BMW of N. Am., LLC, No. 2:18-CV-00109-KJM (ACx), 2021 WL 516712, 4 at *2 (E.D. Cal. Feb. 11, 2021) (enumerating decisions finding Clausen’s exception 5 applicable, and other decisions finding it inapplicable, to Song-Beverly costs and 6 expenses). 7 This Court finds persuasive the decisions construing the Song-Beverly Act’s 8 costs and expenses provision as substantive. The Ninth Circuit in Clausen described 9 the inclusion of “costs of any kind” in the definition of damages as “an ‘express 10 indication’ of [the] state legislature’s ‘special interest in providing litigants’ with full 11 compensation for reasonable sums expended.” Clausen, 339 F.3d at 1065 (quoting 12 Chevalier v. Reliance Ins. of Ill., 953 F.2d 877, 886 (5th Cir. 1992). Although the Song- 13 Beverly Act does not explicitly define damages to include costs and expenses, the Court 14 finds the deliberate inclusion of costs and expenses as part of the judgment a buyer can 15 recover sufficiently indicative of the California legislature’s intent that prevailing 16 litigants in a Song-Beverly action are provided with “full compensation for reasonable 17 sums expended.” Id.; see also Jensen v. BMW of N. Am., Inc., 35 Cal. App. 4th 112, 18 138 (1995) (determining, based on legislative history of Song-Beverly Act, that the Act 19 permits the recovery of expert witness fees not provided by Code of Civil Procedure 20 section 1033.5). And the fact that California courts would look to the substantive 21 provisions of the Song-Beverly Act in awarding costs and expenses, rather than to the 22 cost provision in California Code of Civil Procedure section 1033.5 governing civil 23 cases generally, reinforces this conclusion. California Civil Code section 1794(d) is 24 substantive in nature, and Pacheco may therefore recover his “costs and expenses” 25 under that provision. 26 The practical effect of this finding in federal court is that Pacheco may recover a 27 wider variety of costs and expenses he incurred “in connection with the commencement 28 and prosecution of [the] action,” and in so doing, he is not limited by any cost provisions 15 1 in the Federal Rules of Civil Procedure or the Central District Local Rules. Cal. Civ. 2 Code § 1794(d). The Court finds that all categories of costs and expenses Pacheco 3 requests qualify as “costs and expenses” as this term is used in Civil Code section 4 1794(d).3 5 That said, the Song-Beverly Act nevertheless requires that the costs and expenses 6 Pacheco requests were reasonably incurred. Id. Ford argues that the costs for several 7 deposition transcripts are unreasonable. (See Opp’n Mot. Costs & Expenses 9–12.) In 8 particular, Ford computes that the per-page cost for the transcript of the depositions of 9 Chris Ike and Christopher Eikey were $6.55, which Ford points out greatly exceeds the 10 $3.65 per-page transcript rate set by the Judicial Conference of the United States. (See 11 id. at 7–8.) Pacheco, for his part, provides no explanation for these inflated rates, nor 12 does Pacheco contest any of these calculations. (See Reply ISO Mot. Costs & Expenses 13 8, ECF No. 50.) The Court thus finds the $6.55 per page rates to be unreasonable and 14 awards these transcript costs pursuant to the Judicial Conference rates. Accordingly, 15 the Court deducts $1,176.60 + $1,688.05 = $2,864.65 from Pacheco’s requested costs 16 and expenses.4 (See Opp’n Mot. Costs & Expenses 7–8.) 17 Additionally, one of expert Anthony Micale’s invoices contains the line items 18 relating to Micale’s expert deposition. (Cost & Expense Records 29.) This invoice 19 indicates a total of $2,012.50 in expert fees. The Court finds that all these fees arise 20 from Micale preparing for the deposition, which are not all reasonably incurred. While 21 some preparation is naturally expected, the Court expects that Micale would already be 22 familiar with the case based on the work he already performed. The Court therefore 23 deducts $1,000 from this invoice as not reasonably incurred. 24 25 26 27 28 3 This includes Pacheco’s requested filing fees, service of process fees, deposition transcript fees, deposition conference room fees, expert witness fees, attorney services fees, mediation fees, and overnight courier fees. (Decl. Steve Mikhov re: Costs Ex. A, ECF No. 44-2.) 4 Ford observes that other transcripts were billed at a flat $375 without reference to the length of the transcripts and argues that the fee is therefore not sufficiently supported. (See id. at 10.) An examination of the relevant invoice reveals that these are minimum transcript costs, which the Court also finds is reasonable. (See Cost & Expense Records 20.) 16 1 Finally, the Court notes two entries for a “Meal” in Micale’s invoice and will not 2 award these items as costs or expenses. (Id. at 28.) Therefore, the Court further deducts 3 $100.55 + $109.80 = $210.35. 4 The Court has reviewed the remainder of the requested costs and expenses and 5 finds each of them to have been “reasonably incurred by [Plaintiff] in connection with 6 the commencement and prosecution of [this] action.” Cal. Civ. Code § 1794(d). 7 Accordingly, the Court GRANTS costs and expenses in the amount of 8 $19,203.98 – ($2,864.65 + $210.35 + $1,000) = $15,128.98. V. 9 CONCLUSION 10 For the reasons discussed above, the Court GRANTS IN PART and DENIES 11 IN PART Plaintiff’s Motions for Attorneys’ Fees, Costs, and Expenses, (ECF Nos. 43, 12 44), and AWARDS the following: 13 1. $19,051.20 in attorneys’ fees to Knight Law Group, 14 2. $19,492.65 in attorneys’ fees to Altman Law Group, and 15 3. $15,128.98 in costs and expenses. 16 17 Defendant shall render payment within sixty (60) days. 18 19 IT IS SO ORDERED. 20 21 March 21, 2022 22 23 24 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 25 26 27 28 17
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