Johnson v. FCA US LLC et al

Filing 67

ORDER granting in Part Plaintiff's Motion for Attorney's Fees (Doc. No. 53 ). Signed by Judge Anthony J. Battaglia on 8/16/2019. (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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RIADON JOHNSON, MARK
JOHNSON,

Case No.: 3:17-cv-0536-AJB-BGS
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES
(Doc. No. 53)

Plaintiffs,
v.
FCA US LLC,

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Defendant.

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Before the Court is Plaintiffs’ motion for attorney’s fees. (Doc. No. 53.) For the

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reasons stated herein, the Court GRANTS IN PART the motion with a reduction of fees

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and costs as stated below.

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I.

BACKGROUND

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This case arose out of the purchase of a 2012 Dodge Durango by the Plaintiffs

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Riadon and David Johnson. The Subject vehicle was manufactured by Defendant FCA US

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LLC. The Dodge Durango was sold with FCA US’s basic limited warranty which covered

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the cost of all parts and labor needed to repair any item on the vehicle that was defective

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in material, workmanship or factory preparation for 3 years or 36,000 miles.

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Mr. and Mrs. Johnson contended that the Durango was delivered to them containing

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defects covered by the warranty that substantially impaired the vehicle’s use, value and

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safety. Plaintiffs claimed that despite numerous repair presentations to FCA US’s
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authorized repair facility FCA US and its authorized repair facilities were unable to repair

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the Durango to conform to warranty after a reasonable number of opportunities to do so.

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Further, FCA US failed to promptly replace or buy back the Durango in violation of the

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Song-Beverly Consumer Warranty Act. Plaintiffs sought a repurchase of the Dodge

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Durango along with statutory civil penalties based on FCA US’s willful failure to promptly

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repurchase or replace the defective Dodge Durango. Additionally, Plaintiffs claimed that

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FCA US knew about alleged defects in the totally integrated power module in the 2012

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Dodge Durango yet concealed this information from the Johnsons and through this

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concealment, committed fraudulent concealment.

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Defendant contended that its dealerships repaired each mechanical complaint that

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the Plaintiffs brought to the attention of the dealership within a reasonable number of repair

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attempts. FCA US contended that it promptly offered to repurchase Plaintiffs’ Dodge

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Durango and no civil penalty was warranted. FCA US contended that there was no known

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defect in the TIPM in Plaintiffs’ Dodge Durango and that when FCA US discovered that

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the fuel pump relays in TIPMs were prematurely wearing, the company conducted an

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investigation and then conducted a nationwide recall to replace the fuel pump relays. All

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owners of the potentially affected vehicles were notified of that recall.

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The parties filed a notice of joint settlement on August 20, 2018. (Doc. No. 47.)

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Plaintiffs filed their motion for attorneys’ fees and bill of costs in January 2019.

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(Docs. No. 52, 53.)

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II.

LEGAL STANDARDS

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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 § 794(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).

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If a fee request is opposed, “[g]eneral arguments that fees claimed are excessive,

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duplicative, or unrelated do not suffice.” Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee

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Assoc., 163 Cal. App. 4th at 550, 564 (2008). Rather, the opposing party has the burden to

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demonstrate the hours spent are duplicative or excessive. Id. at 562, 564; see also Gorman

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v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“[t]he party opposing the fee

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award can be expected to identify the particular charges it considers objectionable”).
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III.

DISCUSSION

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As prevailing buyers, Plaintiffs are 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, Plaintiffs seek: (1) an award of attorneys’ fees under Cal. Civ. Code § 1794(d) under

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the lodestar method for $46,382.50; (2) for a lodestar modifier of .5 under California law

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for $23,191.25; and (3) actual costs and expenses for $21,489.12. (Doc. No. 53-1 at 8–10.)

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Thus, Plaintiffs seek a total award of $91,062.87. (Id. at 9.) Defendant acknowledges,

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“Plaintiffs are entitled to recover attorney’s fees, costs” but argues the amount requested is

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unreasonable. (Doc. No. 59 at 7.)

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A.

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Plaintiffs seek $29,370.00 for work completed by Knight Law Group and

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$17,012.50 for work completed by Hackler Daghighian Martino & Novak, P.C.

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(“HDMN”). (Doc. No. 53-1 at 14.) This totals $46,382.50.

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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. 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 (“inefficient or duplicative efforts [are] not subject to compensation”).

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The billing records Knight Law Group submitted indicate the attorneys expended

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82.9 billable hours through the settlement. (Doc. No. 53-2 at 33.) Defendant objects to the
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reported hours arguing there was duplication by HDMN, as well as other excessive rates

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or time billed. (Doc. No. 59 at 8–9.) Defendant lists 15 examples where billing entries were

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excessive or included clerical work.

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These include billing: (1) $1,750 for 5 hours drafting the same discovery requests

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they do in every lemon law case; (2) $825 for 2.2 hours attending a telephonic CMC and

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drafting the results; (3) $55 to review a notice of change of address; (4) $3,450 for 11.5

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hours traveling and defendant taking Plaintiff’s depositions, which Defendant claims took

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less than five hours to complete; (5) $3,000 for 10 hours to travel and attend a vehicle

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inspection and drafting a summary, which normally take less than four hours to complete;

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(6) $725 for a paralegal to do 1.5 hours of clerical tasks, which was billed at the partner

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rate; (7) $37.50 for 30 minutes spent on calendaring; (8) $112.50 to arrange trial exhibits

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in a folder and number them; (9) $225 for one hour extracting and organizing documents;

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(10) $112.5 for 30 minutes adding repair invoices to a file; (11) $56.25 to revise exhibit

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numbers; (12) $56.25 to draft proofs of service; (13) $56.25 to review a notice of hearing;

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(14) $6,252.50 for bringing a motion for attorney’s fees, which is a template-driven motion.

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(Doc. No. 59 at 9–11.)

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The Court agrees with Defendant. Clerical tasks cannot be recovered. See Castillo-

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Antionio v. Iqbal, 2017 WL 1113300, at *7 (N.D. Cal. Mar. 24, 2017). Thus, the Court

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strikes contested entries 3, 6, 7, 8, 9, 10, 11, 12, and 13 for a total of $1,436.25. In its

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discretion, the Court also reduces the other amounts as follows: $500 for discovery

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requests, $400 for CMC attendance, $1,000 for depositions, $1,000 for vehicle inspection,

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and $2,000 for this motion. This reduces the entries by $4,900.

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Additionally, the Court reduced Daghighian’s hours by 6.00 because the Court
vacated the hearing.
2.

Hourly Rates

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Defendant argues the hourly rates of Alastair Hamblin, Amy Morse, Kristina

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Stephenson-Cheang, Michelle Lumasag, Raymond Areshenko, Russell Higgins, Larry

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Castruita, Asa Eaton, Kevin Yaghoubzadeh, Matthew Evans, and paralegal Andrea Plata
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are unsupported by competent evidence. (Doc. No. 59 at 11.) However, in Steve Mikhov’s

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declaration, he provides a basis for Hamblin, Morse, Stephenson-Cheang, Lumasag,

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Areshenko, and Higgins. (Doc. No. 53-2 at 6–7.) Sepehr Daghighian’s declaration provides

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support for the rest. (Doc. No. 53-3 at 35.) The Court finds the rates cited for all attorneys

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are supported and reasonable for the area.

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3.

Lodestar Calculation

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The lodestar method calculates attorney fees by “by multiplying the number of hours

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

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rate.” Florida, 915 F.2d at 545 n.3 (citing Hensley, 461 U.S. at 433); see also Laffitte v.

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Robert Half Int’l Inc., 1 Cal. 5th 480, 489 (2016).

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LAW FIRM

LEGAL PROFRESSIONAL

HOURS

RATE

LODESTAR

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Knight Law Group

Steve Mikhov

11.40

$550

$6,270.00

Alastair Hamblin

20.50

$325

$6,597.50

9.20

$350

$3,220.00

10.10

$375

$3,787.50

4.50

$200

$ 900.00

24.90

$300

$7,470.00

Russell Higgins

2.50

$450

$1,125.00

Sepehr Daghighian

5.00

$490

$2,450.00

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Amy Morse

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Kristina Stephenson-Cheang,

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Michelle Lumasag

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Raymond Areshenko

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HDMN

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Larry Castruita

12.00

$350

$4,200.00

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Asa Eaton

14.50

$225

$3,262.50

Kevin Yaghoubzadeh

13.25

$250

$3,312.50

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Andrea Plata

2.00

$75

$ 150.00

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Erik Schmitt

1.00

$250

$ 250.00

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Lauren C. Martin

0.50

$250

$ 125.00

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TOTAL

$43,120

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Here, with no adjustments to rates, that amount is: $43,120.00. Minus the previous
reductions, $1,436.25 and $4,900 for clerical tasks and excessive billing, brings Plaintiffs’
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attorney fees total to: $36,783.75.

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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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Significantly, however, this case did not present novel or difficult questions of law

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or fact. Indeed, the issues related to the TIPM were addressed in Velasco, et al. v. Chrysler

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Group LLC, Case No. 2:13–cv–08080–DDP–VBK and Hall v. FCA US LLC, Case No.

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1:16-cv-0684-JLT. Thus, the issues presented in this action were not complex. 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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Defendant observes that the case was not novel, not difficult, and that no special skill was

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required to handle the case. (Doc. No. 59 at 15–16.) Plaintiffs contend to the contrary,

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arguing that 13 attorneys expended around 130 hours of work that was necessary. Finally,

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the Court finds the contingent nature of the fee award is outweighed by the other factors,

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particularly in this action where the disputed facts and issues to be resolved were minimal.

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Accordingly, the Court finds the lodestar amount of $36,783.75 is reasonable and declines

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to award a multiplier.

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B.

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Plaintiffs request costs in the amount of $21,489.12. (Doc. No. 52 at 1.) In general,

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an award of costs in federal district court is governed by Federal Rule of Civil Procedure

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54(d) and not applicable state law, even in diversity cases. See Champion Produce, Inc. v.

Costs to be Awarded

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Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing In re Merrill Lynch

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Relocation Mgmt., Inc., 812 F.2d 1116, 1120 n. 2 (9th Cir. 1987)). This is because “federal

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courts sitting in diversity apply state substantive law and federal procedural law.” Feldman

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v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing Erie R.R. v. Tompkins, 304

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U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ). Thus, federal procedural law governs a

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request for an award of costs.

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Rule 54 of the Federal Rules of Civil Procedure provides that costs “should be

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allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). This “creates a presumption in

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favor of awarding costs to the prevailing party, but the district court may refuse to award

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costs within its discretion.” Champion Produce, 342 F.3d at 1022. “[A] district court need

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not give affirmative reasons for awarding costs; instead, it need only find that the reasons

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for denying costs are not sufficiently persuasive to overcome the presumption in favor of

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an award.” Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). For

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example, costs may be declined in light of “a losing party’s limited financial resources” or

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where there has been “misconduct by the prevailing party.” Champion Produce, 342 F.3d

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at 1022.

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The Supreme Court explained that 28 U.S.C. § 1920 “defines the term ‘costs’ as

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used in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).

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Costs that may be taxed under 28 U.S.C. § 1920 include:

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(1) Fees of the clerk and marshal;

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(2) Fees for printed or electronically recorded transcripts necessarily obtained for

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use in the case;

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(3) Fees and disbursements for printing and witnesses;

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(4) Fees for exemplification and the costs of making copies of any materials where

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the copies are necessarily obtained for use in the case;

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(5) Docket fees under section 1923 of this title;

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(6) Compensation of court appointed experts, compensation of interpreters, and

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salaries, fees, expenses, and costs of special interpretation services under section 1828 of
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this title.

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Generally, the court may not award costs under Rule 54(d) that are not authorized

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by statute or court rule. Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,

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301 (2006). Thus, “costs almost always amount to less than the successful litigant’s total

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expenses in connection with a lawsuit.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,

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573 (2012) (citing 10 Wright & Miller § 2666, at 203).

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1.

Personal Service

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Under Local Rule 54.1(b), a party may recover “fees for service of process.”

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Requests for costs that exceed these amounts may be reduced to align with the amount

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authorized by Section 0.114(a). See Yeager v. Bowlin, 2010 WL 716389 at *2 (E.D. Cal.

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Feb. 26, 2010).

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As to Plaintiffs’ fees for service of summons, Plaintiffs charge $907.85. (Doc. No.

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52 at 3.) This includes eight $110 invoices for service on Chrysler. (Id.) Defendant argues

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this is excessive as the “personal service of the deposition subpoenas all occurred at the

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same location and therefore should not be billed separately for each one.” (Doc. No. 57 at

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4.) The Court agrees this practice was unnecessary and unreasonable. Accordingly, the

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Court reduces personal service fees by $780.00.

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2.

Deposition Costs

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Defendant argues the requested $2,613.00 should be reduced by $68.73 for failure

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to attach receipts of parking or meals. (Doc. No. 57 at 5.) Local Rule 54.1(a) requires

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“copies of invoices for requested costs.” As such, the Court agrees and reduces

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accordingly.

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3.

Expert Witness Fees

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Plaintiffs seek $17,115.61 in expert witness fees. (Doc. No. 52 at 4.) Plaintiffs assert

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such costs are appropriate under state law, noting: “Under the Song–Beverly Act, a

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prevailing buyer shall be allowed to recover as part of the judgment a sum equal to the

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aggregate amount of costs and expenses.” (Doc. No. 53-1 at 23 (emphasis in original).)

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Significantly, the Ninth Circuit determined a court must apply federal law to a
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request for costs in a diversity action. See Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th

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Cir. 1995). The Court in Aceves awarded the prevailing party costs, including expert

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witness fees, under section 998(c) of the California Code of Civil Procedure. Id., 68 F.3d

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at 1167. The Ninth Circuit determined the district court erred in applying California law

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because “reimbursement of witness fees is an issue of trial procedure” and in a diversity

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action, “federal law controls the procedure by which the district court oversaw the

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litigation.” Id., citing Hanna v. Plumer, 380 U.S. 460, 463 (1965). Accordingly, here, the

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Court must apply federal law to determine whether Plaintiffs are entitled to recover expert

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fees as costs.

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Under Section 1920, only compensation for “court appointed experts” and witness

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fees are permitted. See 28 U.S.C. § 1920. Neither of Plaintiffs’ witnesses were appointed

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by the Court. As such, Plaintiffs are not entitled to recover the expert fees under Section

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1920. On the other hand, 28 U.S.C. § 1821 provides that “[a] witness shall be paid an

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attendance fee of $40 per day for each day’s attendance,” including testimony at a

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deposition. Thus, a prevailing party may be awarded the witness fee under Section 1821

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for an expert who testifies at a deposition. See Ruff v. County of Kings, 700 F. Supp. 2d

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1245, 1247–48 (E.D. Cal. 2010). Consequently, Plaintiffs are entitled to $40 in costs for

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Micale’s deposition. The Court finds no issue with the rest of Plaintiffs’ costs. After

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reductions, the total Costs awarded is: $3,564.78 in costs under federal law, as provided

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under 28 U.S.C. §§ 1821 and 1920.

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IV.

CONCLUSION

Based upon the foregoing, the Court ORDERS:

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1. Plaintiffs’ motion for fees is GRANTED in the modified amount of $36,783.75; and

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2. Plaintiffs’ motion for costs is GRANTED in the amount of $3,564.78.

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IT IS SO ORDERED.
Dated: August 16, 2019

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