Gerber v. FCA US LLC et al

Filing 106

Order Granting in Part and Denying in Part: (1) Plaintiffs Motion for Attorneys Fees, Costs, and Expenses, (Doc. No. 80 ); and (2) Plaintiffs Motion to Re-Tax Costs, (Doc. No. 95 ). Plaintiffs motion for attorneys' fees is granted in part an d denied in part in the modified amount of $30,430.82; and Plaintiff's motion to re-tax costs is granted in part and denied in part in the modified amount of $10,000.00. Signed by Judge Anthony J. Battaglia on 10/26/2020. (All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL GERBER,
Plaintiff,

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Case No.: 17-cv-00518-AJB-BGS
ORDER GRANTING IN PART AND
DENYING IN PART:

v.
FCA US LLC,
Defendant.

(1) PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES, COSTS, AND
EXPENSES, (Doc. No. 80); AND

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(2) PLAINTIFF’S MOTION TO RETAX COSTS, (Doc. No. 95)

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Before the Court is Plaintiff Michael Gerber’s (“Plaintiff”) (1) motion for attorneys’

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fees, costs, and expenses, (Doc. No. 80), and (2) motion to re-tax costs, (Doc. No. 95).

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Defendant FCA US LLC (“FCA”) opposed both motions. (Doc. Nos. 88, 97.) For the

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reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART both

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motions, with the appropriate reduction of fees and costs as set forth below.

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I.

BACKGROUND

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This case arose out of the purchase of a new 2012 Jeep Grand Cherokee (“the

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Vehicle”) for a total price of $49,000.00. The Vehicle was manufactured and distributed

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by Defendant FCA US LLC. FCA provided a written warranty with the Vehicle. Within

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the applicable warranty period, the Vehicle exhibited issues relating to transmission
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function, engine no-starts, vehicle stalls, steering malfunctions, recalls, and other defects.

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Plaintiff first presented the Vehicle to an FCA-authorized repair facility on August 1, 2013

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when the transmission was shifting. Thereafter, Plaintiff returned to FCA’s repair facility

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on seven separate occasions for various other issues. Plaintiff filed his Complaint in this

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action in San Diego Superior Court on June 30, 2016, alleging violations of the Song-

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Beverly Act and fraudulent concealment. The action was removed to this Court on March

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16, 2017. On May 8, 2019, the parties filed a notice of settlement. (Doc. No. 73.) Plaintiff

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filed his motion for attorneys’ fees, costs, and expenses, (Doc. No. 80), and to re-tax costs,

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(Doc. No. 95). FCA opposed both motions. (Doc. Nos. 88, 97.) This order follows.

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II.

LEGAL STANDARD

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“In a diversity case, the law of the state in which the district court sits determines

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whether a party is entitled to attorney fees, and the procedure for requesting an award of

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attorney fees is governed by federal law.” Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir.

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2007); see also Mangold v. Cal. Public Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir.

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1995) (noting that in a diversity action, the Ninth Circuit “applied state law in determining

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not only the right to fees, but also in the method of calculating the fees”).

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As explained by the Supreme Court, “[u]nder the American Rule, ‘the prevailing

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litigant ordinarily is not entitled to collect a reasonable attorneys’ fee from the loser.’”

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Travelers Casualty & Surety Co. of Am. v. Pacific Gas & Electric Co., 549 U.S. 443, 448

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(2007) (quoting Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247

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(1975)). However, a statute allocating fees to a prevailing party can overcome this general

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rule. Id. (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717

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(1967)). Under California’s Song-Beverly Act, a prevailing buyer is entitled “to recover as

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part of the judgment a sum equal to the aggregate amount of costs and expenses, including

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attorney’s fees based on actual time expended, determined by the court to have been

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reasonably incurred by the buyer in connection with the commencement and prosecution

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of such action.” Cal. Civ. Code § 1794(d).

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The Song-Beverly Act “requires the trial court to make an initial determination of
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the actual time expended; and then to ascertain whether under all the circumstances of the

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case the amount of actual time expended, and the monetary charge being made for the time

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expended are reasonable.” Nightingale v. Hyundai Motor America, 31 Cal. App. 4th 99,

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104 (1994). The court may consider “factors such as the complexity of the case and

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procedural demands, the skill exhibited, and the results achieved.” Id. If the court finds the

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time expended or fee request “is not reasonable under all the circumstances, then the court

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must take this into account and award attorney fees in a lesser amount.” Id. “A prevailing

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buyer has the burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably

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necessary to the conduct of the litigation,’ and were ‘reasonable in amount.’” Id. (quoting

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Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App. 4th 807, 816 (1992)); see also Goglin

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v. BMW of North America, LLC, 4 Cal. App. 5th 462, 470 (2016) (same). If a fee request

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is opposed, “[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated

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do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 4th

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550, 564 (2008). Rather, the opposing party has the burden to demonstrate the hours spent

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are duplicative or excessive. Id. at 562, 564; see also Gorman v. Tassajara Dev. Corp., 178

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Cal. App. 4th 44, 101 (2009) (“[t]he party opposing the fee award can be expected to

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identify the particular charges it considers objectionable”).

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III.

DISCUSSION

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As a prevailing buyer, Plaintiff is entitled to an award of fees and costs under the

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Song-Beverly Act. See Cal. Civ. Code § 1794(d); see also Goglin, 4 Cal. App. 5th at 470.

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Here, Plaintiff seeks: (1) for an award of attorneys’ fees pursuant to Civil Code section

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1794(d) under the “lodestar” method in the amount of $39,766.25, (2) for a “lodestar”

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modifier of 0.5 under California law, in the amount of $19,883.13, and (3) to award actual

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costs and expenses incurred in the amount of $20,483.81. (Doc. No. 80-1 at 8.) Plaintiff

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requests a total of $80,133.19 in attorney’s fees, costs, and expenses. (Id.) FCA

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acknowledges Plaintiff is entitled to recover attorney’s fees, costs, and expenses, but argues

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the amount requested is unreasonable and should be reduced. (Doc. No. 88 at 6.)

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//
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A.

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First, Plaintiff seeks $25,442.50 for work completed by Knight Law Group (“KLG”)

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and $14,323.75 for work completed by co-counsel, Hackler Daghighian Martino & Novak,

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P.C. (“HDMN”). (Doc. No. 80-1 at 14.) KLG associated with HDMN to have HDMN serve

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as trial specialists. For both law firms, the attorneys’ fees requested totals $39,766.25.

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Plaintiff’s Attorneys’ Fee Request

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Hours Worked By Counsel

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A fee applicant must provide time records documenting the tasks completed and the

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amount of time spent. See Hensley v. Eckerhart, 461 U.S. 424, 424 (1983); Welch v.

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Metropolitan Life Ins. Co., 480 F.3d 942, 945–46 (9th Cir. 2007). Under California law, a

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court “must carefully review attorney documentation of hours expended” to determine

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whether the time reported was reasonable. Ketchum v. Moses, 24 Cal. 4th 1122, 1132

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(2001) (quoting Serrano v. Priest, 20 Cal.3d 25, 48 (1977)). Thus, evidence provided by

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the fee applicant “should allow the court to consider whether the case was overstaffed, how

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much time the attorneys spent on particular claims, and whether the hours were reasonably

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expended.” Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008). The

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court must exclude “duplicative or excessive” time from its fee award. Graciano v.

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Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 161 (2006); see also Ketchum, 24 Cal.

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4th at 1132 (stating “inefficient or duplicative efforts [are] not subject to compensation”).

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The billing records submitted by the KLG indicate that its attorneys expended 66.4

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billable hours on this case while HDMN billed 46.75 hours. (Doc. No. 80-2 at 38.) FCA

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objects to the reported hours, arguing there was duplication by HDMN, as well as other

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excessive rates or time billed. (Doc. No. 88 at 8.) FCA lists 13 examples and objections

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where billing entries were either excessive, duplicative, or included clerical work. The

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Court will address each objection below.

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First, FCA objects to the $562.50 and $37.50 billed by HDMN relating to “file

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review” and “getting up to speed.” (Doc. No. 88 at 8.) Essentially, FCA argues KLG’s

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decision to pull in HDMN for trial resulted in duplication of efforts. Reviewing the bill,

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the Court finds the $562.50 billed by attorney LCM reasonable as this time was billed for
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the review of document production, repair orders, and preparation of exhibits for trial.

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(Doc. No. 80-3 at 8.) However, the Court finds the $37.50 amount for “[r]eceiv[ing] and

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review[ing] trial countdown from co-counsel” and for “[c]alendaring important deadlines

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and court hearings” as unrecoverable clerical tasks. As such, the Court reduces HDMN’s

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fees by $37.50.

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Next, Plaintiff seeks to recover $1,155.00 billed by KLG for the following three

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entries: (1) “[i]nitial communication with Client and evaluation of Client’s claims,” (2)

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analyze vehicle documentation, (3) communication with client. (Doc. No. 80-3 at 31.)

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Plaintiff argues these entries are a customary practice, (Doc. No. 90 at 6), while FCA

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maintains that these entries are undated, and there no evidence that a fee agreement was

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even in place when these tasks occurred. (Doc. No. 88 at 8.) Furthermore, FCA points out

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these charges appear to be part of the “free consultation” that was offered to the public.

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(Id.) The Court agrees with FCA and in its discretion, will exclude $500.00 from KLG’s

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recoverable fees.

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Next, FCA objects to the $1,820.00 billed by attorney ALM of KLG for the 5.2 hours

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spent drafting written discovery and the $877.50 billed by AH of KLG for drafting

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additional written discovery. FCA contends Plaintiff’s counsel propounds the same

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discovery requests in every lemon law action KLG brings against FCA on behalf of

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different plaintiffs. (Doc. No. 88 at 8.) While Plaintiff argues that these amounts are

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reasonable, the Court agrees with FCA that these amounts are slightly excessive

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particularly given that ALM is a partner at KLG, and this level of work should primarily

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consist of adapting templates. Thus, the Court, in its discretion, will reduce KLG’s

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recoverable fees by $500.00.

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In FCA’s next objection, FCA opposes the $1,755.00 billed by attorney AH of KLG

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for drafting Plaintiff’s motion to remand, which was ultimately denied. (Doc. No. 88 at 8–

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9.) Plaintiff responds by stating that the time spent on the motion was necessary after FCA

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decided to remove the case to federal court. (Doc. No. 90 at 6.) Because the Court denied

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the motion, the Court will reduce KLG’s fees by $1,755.00. See Ferrigno v. Philips Elecs.
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N. Am. Corp., No. C-09-03085 RMW, 2009 WL 10692955, at *5 (N.D. Cal. Nov. 5, 2009)

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(“Plaintiff seeks to recover reasonable attorneys’ fees incurred as a result of litigating

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against defendants’ removal. [] Plaintiff’s motion is denied. Because the court has denied

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the motion to remand, there is no basis upon which to award attorneys’ fees.”).

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Moving on, FCA objects to the $3,300.00 billed by attorney CM of KLG for

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attending Plaintiff’s deposition, which FCA argues lasted less than two hours. (Doc. No.

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88 at 9.) Plaintiff responds that the amount includes travel to and from the deposition, and

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time spent preparing for the deposition, and drafting the memorandum regarding the

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deposition. (Doc. No. 90 at 6.) Because of this block bill, the Court is unable to determine

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how many hours were spent traveling versus drafting the memorandum or preparing for

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the deposition. Thus, the Court, in its discretion, reduces KLG’s fees by $1,000.

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FCA next challenges the $440.00 billed by attorney SM from KLG for spending 0.8

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hours on “review and audit billing.” (Doc. No. 88 at 9.) Plaintiff retorts that review by a

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partner is customary practice. (Doc. No. 90 at 8.) But here, because the billing description

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is so vague, the Court cannot determine what exactly was reviewed. Additionally, tasks

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such as auditing bill are clerical and administrative and cannot be recovered. As such, the

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Court strikes this item, and reduces KLG’s fees by $440.00.

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Next, FCA seeks to exclude the $112.50 billed by paralegal AP of KLG for clerical

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tasks such as printing and saving documents, opening and preparing files, receiving a trial

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countdown, and calendaring dates. (Doc. No. 88 at 9.) The Court agrees that Plaintiff’s

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counsel may not be compensated for purely clerical tasks. See Castillo-Antionio v. Iqbal,

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2017 WL 1113300, at *7 (N.D. Cal. Mar. 24, 2017). Thus, this amount will be excluded

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from KLG’s fees.

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FCA protests the $1,856.25 billed by HDMN for preparing the instant motion for

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attorneys’ fees because the motion is similar to other motions for attorneys’ fees filed in

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cases against FCA by KLG and HDMN. (Doc. No. 88 at 10.) Finding FCA’s position

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persuasive, the Court will reduce HDMN’s fees by $300.00 for the work completed on the

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motion for attorneys’ fees. FCA also seeks for the Court to exclude the $4,537.50 billed by
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HDMN in “anticipated” costs for preparing both the reply brief and attending the hearing

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on the motion for attorneys’ fees. (Id.) Plaintiff responds the $1,512.50 billed for the

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“Reply Brief is absolutely necessary and not templated work. Responding to every

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improper deduction that Defendant’s attempt to make requires case-specific facts, attention

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to detail, as well as a review of the case files.” (Doc. No. 90 at 7.) As to the reply, because

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HDMN does not supplement its bills with actual time spent, the Court will reduce the

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amount recoverable for the reply brief by $300.00. Finally, HDMN may not be

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compensated for the “$2,750.00 for ‘anticipated’ time for traveling to and appearing for

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the hearing on instant fee motion.” The hearing on this motion for attorneys’ fees was

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vacated by the Court in its determination that the matter was suitable for determination on

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the papers. (Doc. No. 99.)

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Finally, FCA takes issue with HDMN’s practice of billing in quarterly hour

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increments. (Doc. No. 88 at 10.) According to the Ninth Circuit, the “practice of billing by

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the quarter-hour” may result in a request for excessive hours because counsel may bill “a

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minimum of 15 minutes for numerous phone calls and emails that likely took a fraction of

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the time.” Welsh v. Metro Life Ins. Co., 480 F.3d 942, 948–49 (9th Cir. 2007). FCA argues

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that here, many email/communication and review of basic court filings is billed at .25 or .5

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such that there is a real risk of overbilling. Consequently, FCA advocates for a 20%

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reduction, in accordance with the Ninth Circuit’s decision in Welsh. See Welch, 480 F.3d

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at 949 (9th Cir. 2007) (affirming a 20% reduction after finding the billing practice inflated

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the time recorded); Prudential Ins. Co. v. Am. v. Remington, No. 2:12–cv–02821–GEB–

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CMK, 2014 WL 294989, at *4 (E.D. Cal. Jan. 24, 2014) (also applying a 20% reduction

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where counsel billed in 15 minute-increments). In response, Plaintiff states that the Court

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should only entertain a minimal 5% reduction because there is no evidence of actual

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overbilling by Plaintiff’s counsel. (Doc. No. 90 at 7.) While not excessively widespread,

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the Court does find that HDMN billed in increments of .25 for several items including

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email correspondence, and review of basic court documents such as .25 for review of

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“Court Docket regarding vacated Mandatory Settlement Conference.” (Doc. No. 80-3 at

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9.) Accordingly, in its discretion, will adjust HDMN’s fees downward by 15%.

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In summation, KLG’s total recoverable fee amount is reduced by $4,307.50. This
brings KLG’s recoverable fees down to a total of $21,135.00.

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HDMN’s fees are reduced by $3,387.50. This places HDMN’s fees to a total of

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$10,936.25. After applying the 15% reduction ($1,640.43) to account for HDMN’s

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quarterly hour billing practices, HDMN’s total fees comes out to $9,295.82.

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2.

Hourly Rates

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FCA next argues that under all of the circumstances of this case, from the value of

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the vehicle in issue, to the basic nature of the litigation tasks involved, the hourly rates are

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unreasonable. (Doc. No. 88 at 12.) However, the Court is satisfied with the bases for

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Plaintiff’s counsels’ hourly rates. Particularly, Plaintiff has provided ample evidence,

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including surveys of the hourly rates of similar attorneys with similar experience and

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qualifications. Thus, the Court finds the rates cited for all attorneys supported by evidence

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and reasonable.

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3.

Lodestar Calculation

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The lodestar method calculates attorneys’ fees by “by multiplying the number of

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hours reasonably expended by counsel on the particular matter times a reasonable hourly

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rate.” State of Fla. v. Dunne, 915 F.2d 542, 545 n.3 (9th Cir. 1990) (citing Hensley, 461

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U.S. at 433); see also Laffitte v. Robert Half Int’l Inc., 1 Cal. 5th 480, 489 (2016).

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LAW FIRM

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HOURS

RATE

LODESTAR

Alastair Hamblin

18.9

$325

$6,142.50

Amy Morse

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$350

$3,850.00

Constance Morrison

8.8

$375

$3,300.00

Christopher Swanson

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LEGAL

6.2

$375

$2,325.00

Kristina Stephenson-

7.2

$375

$2,700.00

PROFRESSIONAL
Knight Law Group

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Cheang

2

Lauren B. Veggian

3.7

$350

$1,295.00

3

Steve Mikhov

10.6

$550

$5,830.00

4

Knight Law Group

$25,442.50

Total

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6

HDMN

Andrea Plata

1.50

$75

$112.50

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Kevin Jacobson

1.25

$275

$343.75

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Lauren C. Martin

36.50

$250/$275

$9,900.00

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Larry S. Castruita

0.50

$ 385.00

$192.50

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Sepehr Daghighian

7.0

$490.00/$550.00 $3,775.00

HDMN Total

$14,323.75

TOTAL

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$39,766.25

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Here, with no adjustments, the total amount of fees for both KLG and HDMN is

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$39,766.25. Taking into account the aforementioned reductions, the total lodestar amount

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is $21,135.00 for KLG’s fees and $9,295.82 for HDMN’s fees. Therefore, Plaintiff’s

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counsels’ total lodestar amounts is $30,430.82.

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4.

Application of a Multiplier

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Once a court has calculated the lodestar, “it may increase or decrease that amount

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by applying a positive or negative ‘multiplier’ to take into account a variety of other factors,

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including the quality of the representation, the novelty and complexity of the issues, the

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results obtained, and the contingent risk presented.” Laffitte, 1 Cal. 5th at 504 (citation

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omitted); see also Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (indicating the court

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may adjust the fee award considering “the following factors: (1) the novelty and difficulty

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of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which

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the nature of the litigation precluded other employment by the attorneys, (4) the contingent

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nature of the fee award.”

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Here, Plaintiff seeks a 0.5 multiplier “based on the risk of taking this case on a

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contingent fee basis, the substantial costs advanced, the exceptional result achieved and the
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delay in payment.” (Doc. No. 82-1 at 21.) Significantly, however, this case did not present

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particularly novel or difficult questions of law or fact. Indeed, the issues related to the

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complained of defect addressed in Velasco, et al. v. Chrysler Group LLC, Case No. 2:13–

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cv–08080–DDP–VBK and Hall v. FCA US LLC, Case No. 1:16-cv-0684-JLT. Thus, the

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issues presented in this action were not uniquely complex or difficult. See Steel v.

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GMC, 912 F. Supp. 724, 746 (N.J. Dist. 1995) (“the issues in lemon law litigation are not

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complex and do not require a significant amount of legal analysis or novel pleading”).

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Additionally, it is highly unlikely that the litigation of this specific case precluded counsel,

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as lemon law attorneys, from taking on other matters. Finally, the Court finds the

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contingent nature of the fee award is outweighed by the other factors, especially in this

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action where the disputed facts and issues to be resolved were minimal. Indeed, there was

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nothing unusual about this case that would put counsel at great risk for accepting the matter

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on a contingent basis. Accordingly, the Court declines to award a multiplier and finds the

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lodestar amount of $30,430.82 as reasonable.

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B.

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Turning to Plaintiff’s motion to re-tax costs, Plaintiff additionally seeks to re-tax the

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$17,825.18 portion of Plaintiff’s cost bill. (Doc. No. 95.) Plaintiff originally filed a Bill of

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Costs seeking to recover $20,483.81 but the Clerk of Court issued an Order Taxing Costs

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in the amount of $2,658.63 in favor of Plaintiff. (See Doc. No. 92.) Plaintiff then submitted

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a motion seeking to re-tax the remaining $17,825.18 in costs. (See Doc. No. 95.) FCA

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argues these remaining costs include numerous items that are not recoverable by statute or

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local rule, and are also excessive, unreasonable, and unnecessary. (Doc. No. 97.)

Motion to Re-Tax Costs

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“In general, an award of costs in federal district court is governed by Federal Rule

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of Civil Procedure 54(d) and not applicable state law, even in diversity cases.” Self v. FCA

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US LLC, No. 1:17-CV-01107-SKO, 2019 WL 1994459, at *12 (E.D. Cal. May 6, 2019)

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(citing Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1022 (9th Cir.

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2003)). An exception exists under Clausen v. M/V NEW CARISSA, 339 F.3d 1049 (9th Cir.

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2003), as amended on denial of reh’g (Sept. 25, 2003), which held that the measure of
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damages is a matter of state substantive law where “a state law provision allows for the

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awarding of costs as part of a substantive, compensatory damages scheme[,]” Kelly v.

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Echols, No. CIVF05118AWISMS, 2005 WL 2105309, at *16 (E.D. Cal. Aug. 30, 2005).

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In Clausen, the Ninth Circuit found that the measure of damages under Oregon’s Oil Spill

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Act “‘is inseparably connected with the right of action[.]’” Clausen, 339 F.3d at 1065

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(quoting Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 491 (1916)). The Ninth Circuit

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added that the Oregon Oil Spill Act presented the court “with an ‘express indication’ of a

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state legislature’s ‘special interest in providing litigants’ with full compensation for

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reasonable sums expended in pursuit of [their] Oil Spill Act claim.” Clausen, 339 F.3d at

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1065 (citation omitted).

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Here, section 1794(d) of the California Civil Code provides that buyers prevailing

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in an action under the Song-Beverly Act “shall be allowed by the court to recover as part

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of the judgment a sum equal to the aggregate amount of costs and expenses, including

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attorney’s fees based on actual time expended, determined by the court to have been

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reasonably incurred by the buyer in connection with the commencement and prosecution

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of such action.” Cal. Civ. Code § 1794 (emphasis added). Plaintiff states that because the

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Song-Beverly does make “costs” an element recoverable under this section, state

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substantive law should govern the award of costs.

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Citing Self, FCA counters that the Clausen exception does not apply here because

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“the Song-Beverly Act does not make costs an element of damages as in Clausen,” Self,

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2019 WL 1994459, at *12 n.8. But district courts within the Ninth Circuit are split as to

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whether the Clausen exception applies to the Song-Beverly Act. Compare, e.g., Self, 2019

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WL 1994459, at *12 n.8 (“[T]he Song-Beverly Act does not make costs an element of

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damages as in Clausen[.]”); Celestine v. FCA US LLC, No. 2:17-CV-0597 - JLT, 2019 WL

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4274092, at *14 (E.D. Cal. Sept. 10, 2019) (same); Flores v. FCA US LLC, No. 1:17-CV-

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0427-JLT, 2019 WL 6211367, at *14 (E.D. Cal. Nov. 21, 2019) (same), with, e.g.,

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Petropoulos v. FCA US LLC, No. 17-CV-0398 W (KSC), 2019 WL 2289399, at *4 (S.D.

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Cal. May 29, 2019); Arias v. FCA US LLC, No. 2:18-CV-00392-JAM-AC, 2019 WL
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6211353, at *3 (E.D. Cal. Nov. 21, 2019).

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Having reviewed both sides of this split amongst the district courts, the Court finds

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that state substantive law applies to Plaintiff’s request for costs. Of note, the California

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Legislature has demonstrated a “special interest” in permitting prevailing Song-Beverly

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plaintiffs to recover costs and expenses under section 1794. As the California Court of

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Appeal has noted “[a]n analysis by the Assembly Committee on Labor, Employment, and

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Consumer Affairs states: ‘Indigent consumers are often discouraged from seeking legal

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redress due to court costs. The addition of awards of ‘costs and expenses’ by the court to

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the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees,

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marshal’s fees, etc., should open the litigation process to everyone.’” Jensen v. BMW of N.

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Am., Inc., 35 Cal. App. 4th 112, 138 (1995), as modified on denial of reh’g (June 22, 1995).

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While state substantive law may apply, this does not obviate the Court’s obligation

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to ensure that the costs were “reasonably incurred.” Many of the items Plaintiff seeks to

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re-tax have already been awarded by the Clerk. Additionally, FCA argues the charges of

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$14,061.50 related to Dr. Luna were not “reasonably incurred in connection with the

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commencement and prosecution of this case. According to the invoices attached to the Bill

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of Costs, Dr. Luna’s firm spent over 48 hours on a case where her testimony was nearly

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identical to that given in a hundred or more other cases against Defendant.” (Doc. No. 97

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at 7.) Moreover, FCA argues “Plaintiff recovered nothing on his fraud claim, the reason

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Plaintiff’s counsel gave for hiring Dr. Luna . . . . Finally, while there may be statutory basis

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under California law for recovery of costs under the Song-Beverly Act, there is no such

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statutory authority for Plaintiff to recover costs based on the fraud claim, much less a losing

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fraud claim.” (Id.) The Court largely agrees with FCA, and so, in its discretion, will re-tax

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costs in the amount of $10,000.00. See Escriba v. Foster Poultry Farms, Inc., 743 F.3d

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1236, 1249 (9th Cir. 2014) (district courts are afforded significant “flexibility in evaluating

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the suitability of awarding costs in a particular case.”). This $10,000.00 will be in addition

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to the $2,658.63 already awarded by the Clerk.

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//
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17-cv-00518-AJB-BGS

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IV.

CONCLUSION
Based upon the foregoing, the Court ORDERS as follows:

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1. Plaintiff’s motion for attorneys’ fees is GRANTED IN PART AND

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DENIED IN PART in the modified amount of $30,430.82; and

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2. Plaintiff’s motion to re-tax costs is GRANTED IN PART AND DENIED

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IN PART in the modified amount of $10,000.00.

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IT IS SO ORDERED.
Dated: October 26, 2020

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17-cv-00518-AJB-BGS