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declining to exclude non-clerical tasks such as reviewing notices and "drafting documents to be filed with the Court"
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CV 18-4857-RSWL-PLA
03-03-2020
Henrik ZARGARIAN, Plaintiff, v. BMW OF NORTH AMERICA, LLC et al, Defendants.
Brian Tate Shippen-Murray, Michael H. Rosenstein, Law Offices of Michael H. Rosenstein LC, Dara Tabesh, Ecotech Law Group PC, Gregory Sogoyan, Payam Shahian, Caitlin J. Scott, Carey B Wood, Christine J. Haw, Jacob William Cutler, Kyle Raine Tracy, Strategic Legal Practices APC, Los Angeles, CA, for Plaintiff.
Brian Tate Shippen-Murray, Michael H. Rosenstein, Law Offices of Michael H. Rosenstein LC, Dara Tabesh, Ecotech Law Group PC, Gregory Sogoyan, Payam Shahian, Caitlin J. Scott, Carey B Wood, Christine J. Haw, Jacob William Cutler, Kyle Raine Tracy, Strategic Legal Practices APC, Los Angeles, CA, for Plaintiff.
ORDER re: Plaintiff's Motion for Prejudgment Interest [81]; Plaintiff's Motion for Attorney Fees, Costs, and Expenses [83]; Plaintiff's Application to the Clerk to Tax Costs [82]
HONORABLE RONALD S.W. LEW Senior U.S. District Judge
Plaintiff Henrik Zargarian("Plaintiff ") brings this Action for violations of the Song-Beverly Consumer Warranty Act and fraud against Defendant BMW of North America, LLC. ("Defendant"). Currently before the Court is Plaintiff's Motion for Prejudgment Interest [81], Plaintiff's Motion for Attorney Fees, Costs, and Expenses ("Motion for Fees") [83], and Plaintiff's Application to the Clerk to Tax Costs ("Application to Tax Costs") [82]. Having reviewed all papers submitted, the Court NOW FINDS AND RULES AS FOLLOWS: the Court DENIES Plaintiff's Motion for Prejudgment Interest; GRANTS in part Plaintiff's Motion for Fees; and GRANTS in part Plaintiff's Application to Tax Costs.
Plaintiff originally commenced this action also against Pacific BMW; however Plaintiff dismissed Defendant Pacific BMW on May 11, 2018.
I. BACKGROUND
A. Factual Background
On or about June 18, 2014, Plaintiff purchased a 2011 BMW 750LI ("Vehicle"), which was manufactured and distributed by Defendant. Compl. ¶ 7, ECF No. 1-1. In connection with Plaintiff's purchase of the Vehicle, Defendant provided an express written warranty by which it undertook to preserve or maintain the utility or performance of the Vehicle, or to provide compensation if there was failure of such performance within a specified amount of time. Id. ¶ 8.
During the warranty period, Plaintiff alleges that the Vehicle contained or developed several engine defects, battery defects, oil consumption defects, fuel injector defects, and timing chain defects. Id. ¶ 9. The Oil Consumption Defect is allegedly a "safety concern because it prevents the engine from maintaining the proper level of engine oil and causes voluminous oil consumption that cannot be reasonably anticipated or expected." Id. ¶ 39. The defect can cause engine failure at any time, "thereby exposing the driver, ... passengers, and others on the road to serious risk of accident and injury." Id.
Plaintiff alleges that Defendant and its representatives, after a reasonable number of opportunities, were unable to service the Vehicle to conform to the warranty. Id. ¶ 10. Defendant did not promptly replace the Vehicle, provide restitution, or buyback the Vehicle. Id. ¶¶ 10-11.
Plaintiff also alleges that Defendant knew or should have known of the Vehicle's defects, but failed to disclose this information to Plaintiff before he acquired the Vehicle. Id. ¶ 41. Plaintiff claims that Defendant became aware of the defects through sources not available to consumers such as Consumer Reports, customer complaints, pre-release testing data, and aggregate data from BMW dealers. Id. ¶¶ 42, 38, 43, 53.
Plaintiff contends that, had he known the Vehicle's engine was defective, he would not have purchased the Vehicle. Id. ¶ 63.
B. Procedural Background
Plaintiff filed his Complaint [1-1] in California State Court on December 27, 2019. The Complaint alleges six claims: (1) violation of Civil Code section 1793.2, subdivision (d) ; (2) violation of Civil Code section 1793.2, subdivision (b) ; (3) violation of Civil Code section 1793.2, subdivision (a)(3) ; (4) breach of express warranty; (5) breach of the implied warranty of merchantability; and (6) fraud. Compl. ¶¶ 7-67. On February 20, 2018, Defendant filed its Answer [1-2]. Subsequently, Defendant timely removed [1].
On October 23, 2019, the Court granted Defendant's Motion for Judgment on the Pleadings as to Plaintiff's sixth claim for fraud [30]. The parties engaged in a contested discovery period, and on November 19, 2019, Defendant accepted Plaintiff's California Code of Civil Procedure § 998 offer [79]. Accordingly, the Court entered Judgment for Plaintiff [80]. On December 19, 2019, Plaintiff filed the instant Motion for Prejudgment Interest [81], Motion for Fees [83], and Application to Tax Costs [82]. Defendant opposed [85, 87, 89], and Plaintiff timely replied [90-92].
II. DISCUSSION
A. Legal Standard
1. Motion for Prejudgment Interest
For federal cases sitting in diversity, "state law determines the rate of prejudgment interest ...." Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1107 (9th Cir. 1998). Further, the Song-Beverly Act does not preclude an award of prejudgment interest. Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 1004, 94 Cal. Rptr. 3d 797, 801-02 (2009). California Civil Code Section 3827 governs the recovery of prejudgment interest, and states, in relevant part: "[a] person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day." Cal. Civ. Code § 3287(a).
Further, Section 3287(b) states that "[e]very person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed." Courts have taken the following factors into consideration when determining whether to exercise their discretion to award prejudgment interest: (1) the time between the lawsuit's filing and the judgment, (2) whether awarding interest will penalize the defendant for "litigating a bona fide dispute" or recognize that the plaintiff incurred "an additional amount of damage" as a result of the breach, and (3) whether the plaintiff made settlement offers such that the defendant's refusal to settle could be construed as "placing the prejudgment interest amount at risk." Forouzan v. BMW of N. Am., LLC, No. CV-1-73875-DMG-GJSX, 2019 WL 856395, at *3 (C.D. Cal. Jan. 11, 2019) (citing A&M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 186 Cal. Rptr. 114, 129 (1982) ).
2. Motion for Fees
Under California Civil Code Section 1794, the "prevailing buyer" in a Song-Beverly action "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." Cal. Civ. Code § 1794(d). The Ninth Circuit utilizes the lodestar method for calculating reasonable attorneys' fees, "multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate." Welch v. Metro. Life Ins. Co., 480 F. 3d 942, 945 (9th Cir. 2007). The burden is on the party seeking fees to establish their reasonableness. Id. at 945-46 (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ).
In determining a reasonably hourly rate, the district court should consider: (1) the experience, reputation, and ability of the attorney; (2) the outcome of the proceedings; (3) customary fees; and (4) the novelty or difficulty of the question presented. Hiken v. Dep't of Def., 836 F. 3d 1037, 1044 (9th Cir. 2016) (citing Chalmers v. City of L.A., 796 F.2d 1205, 1211 (9th Cir. 1986) ). Additionally, district courts may "rely[ ] on their own knowledge of customary rates and their experience concerning reasonable and proper fees." Ingram v. Oroudjian, 647 F. 3d 925, 928 (9th Cir. 2011). District courts have broad "discretion in determining the amount of a fee award ... in view of [their] superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The "district court may exclude from the fee request any hours that are ‘excessive, redundant, or otherwise unnecessary.’ " Ingram, 647 F.3d at 926 (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933 ). If a court determines that some hours billed are not reasonable, it may exclude them using one of two methods: the court may either conduct an "hour-by-hour analysis" of the fee request or make an "across the board percentage cut." Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013).
B. Discussion
1. Requests for Judicial Notice
Under Federal Rule of Evidence 201, "a court may take judicial notice of matters of public record," but "a court may not take judicial notice of a fact that is subject to reasonable dispute." Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001) (internal quotations and citations omitted). Court filings are also properly subject to judicial notice under Federal Rule of Evidence 201. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (noting that courts may take judicial notice of "court filings" as they are "readily verifiable, and therefore, the proper subject of judicial notice"). Furthermore, judicial notice of proceedings in other courts is appropriate "if those proceedings have a direct relation to matters at issue." U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) ; see Coalition for Clean Air v. VWR Intern., LLC, 922 F. Supp. 2d 1089, 1093 n.1 (E.D. Cal. 2013).
a. Plaintiff's Request for Judicial Notice
In support of his Motion for Fees, Plaintiff requests that the Court take judicial notice of certain documents that are matters of public record. See Request for Judicial Notice in Supp. of Mot. for Fees, ECF No. 83-34. Defendant opposes Plaintiff's request. See Def.'s Obj. to Request for Judicial Notice in Supp. of Mot. for Fees, ECF No. 87-3.
Plaintiff requests that the Court take judicial notice of the following: (1) a February 27, 2014 minute order granting Plaintiff's motion for fees and costs in the matter Khani v. Ford Motor Company; (2) a May 9, 2017 stipulation and signed order regarding judgment of jury verdict with a two times civil penalty and attorney fees, costs, and expenses in the matter Vanwaus v. FCA US, LLC; (3) a September 27, 2017 minute order concerning the court's fee order in the matter of Fuller v. FCA US, LLC; (4) a February 27, 2018 notice of ruling and tentative ruling in the matter of Kazaryan v. Mercedes-Benz USA, LLC; (5) a notice of ruling in the matter of Geredes v. Chrysler Group LLC; (6) a notice of ruling in the matter of Ahmed Al-Jiboury v. FCA; (7) a second amended judgment on jury verdict after entry of additur in the matter of Kadkhoda v. MBUSA; (8) a notice of ruling on Plaintiff's motion for attorney's fees, costs and expenses in the matter of Raul Galindo v. General Motors; (9) an order on attorney's fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW ; (10) an order on attorney's fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA; (11) an order on attorney's fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW; and (12) a copy of order on attorney's fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW.
These documents are all matters of public record not subject to reasonable dispute, and are therefore the proper subject of judicial notice. Therefore, the Court GRANTS Plaintiff's Request for Judicial Notice. Defendant objects on the basis that Plaintiff cites to no authority in support of his request, as well as that the contents of the documents are not subject to judicial notice. The Court OVERRULES Defendant's objections, as Plaintiff makes his request pursuant to Federal Rule of Evidence 201 and the documents at issue here are not subject to reasonable dispute.
b. Defendant's Requests for Judicial Notice
Here, Defendant twice requests that the Court take judicial notice of certain documents. In support of both its Opposition to Plaintiff's Motion for Fees and its Opposition to Plaintiff's Motion for Prejudgment Interest, Defendant requests that the Court take judicial notice of the following: (1) an order dated January 11, 2019, in the case Abraham Forouzan v. BMW of North America, LLC, et al. ; and (2) an order dated July 23, 2019, in the case Jerry Zomordian v. BMW of North America, LLC, et al. See ECF No. 87-2, 86. The Court has already taken judicial notice of the aforementioned documents pursuant to Plaintiff's request; therefore, Defendant's Request for Judicial Notice in Support of its Opposition to Plaintiff's Motion for Fees and Request for Judicial Notice in Support of its Opposition to Plaintiff's Motion for Prejudgment Interest are DENIED as MOOT .
2. Motion for Prejudgment Interest
Plaintiff seeks an award of prejudgment interest in the amount of $34,743.37 under California Civil Code Section 3287(a) from the date of purchase of the Vehicle, or, in the alternative, $12,323.80 in prejudgment interest within the Court's discretion under Section 3287(b) from the date of the filing of the Complaint.
a. Mandatory Prejudgment Interest Under Section 3287(a)
"Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage." Duale v. Mercedes-Benz USA, LLC, 148 Cal.App.4th 718, 56 Cal. Rptr. 3d 19, 26 (2007) (quoting Fireman's Fund Ins. Co. v. Allstate Ins. Co., 234 Cal.App.3d 1154, 286 Cal. Rptr. 146, 158 (1991) ). Put simply, "[w]here the amount of damages cannot be resolved except by verdict or judgment, prejudgment interest is not appropriate." Id. (citing Children's Hosp. v. Bonta, 97 Cal.App.4th 740, 118 Cal. Rptr. 2d 629, 645-55 (2002) ); Baker v. Garden Grove Med. Inv'rs, Ltd., 306 F. App'x 393, 396 (9th Cir. 2009) ("Damages are not certain under California law where a defendant does not know what amount he or she owes and cannot ascertain it except by judicial process.") (citing Duale, 56 Cal. Rptr. 3d at 27 ).
Plaintiff seeks to distinguish Duale despite its ready application to the facts of this case. In Duale, the Court held that prejudgment interest was not available under Section 3287(a) because it was in dispute: "(1) whether any of the many defects alleged in the complaint represented a nonconformity, (2) whether any such nonconformity ‘substantially impaired [the] use, value, or safety’ of the vehicle, and (3) [ ] for any such nonconformity—the mileage at which plaintiffs first presented the car to defendant for repair." Duale, 56 Cal. Rptr. 3d at 27. Similarly, here it was contested : (1) whether the Vehicle had a nonconformity; (2) whether the alleged nonconformity substantially impaired use, value, or safety of the Vehicle; (3) whether incidental expenses were incurred; (4) whether Defendant willfully violated the terms of the statute; and (5) whether Defendant committed fraud.
Plaintiff attempts to argue that the dispute between the parties concerning whether the Vehicle had a nonconformity or whether the nonconformity impaired the use relate to liability and "have absolutely nothing to do with whether the damages were capable of being made certain." Pl.'s Reply in Supp. Of Mot. for Prejudgment Interest 1:27-28, ECF No. 91. But the court in Duale, as well as the Court here, found that these disputes affect the amount of recoverable damages, and therefore prevent an award of prejudgment interest under Section 3287(a).
Plaintiff relies on Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 1004, 94 Cal. Rptr. 3d 797 (2009), to support his argument that prejudgment interest under Section 3287(a) is appropriate in this Action. However, Doppes merely stands for the proposition that "[t]he Song–Beverly Consumer Warranty Act does not bar recovery of prejudgment interest under Civil Code section 3287." 94 Cal. Rptr. 3d at 802. Doppes does not "show[ ] that prejudgment interest is recoverable under Plaintiff's claims here." Mot. 4:3-4. In fact, the court in Doppes did not engage with the facts of that specific case at all; the court merely found that claims for prejudgment interest under Section 3287 were not barred by the Song-Beverly Act and it was within the trial court's jurisdiction to award prejudgment interest. Accordingly, Plaintiff's attempt to analogize to Doppes here without taking into account the facts of the cases misses the mark.
But for the parties' settlement, the contested issues in this Action would have remained as such until a verdict was reached at trial. Accordingly, the Court finds that Defendant could not have ascertained the amount of damages it would owe, so prejudgment interest under Section 3287(a) is inappropriate here.
b. Discretionary Prejudgment Interest Under Section 3287(b)
Under Section 3287(b), the trial court "has discretion to decide whether prejudgment interest should be awarded on an unliquidated contractual claim." N. Oakland Med. Clinic v. Rogers, 65 Cal.App.4th 824, 76 Cal. Rptr.2d 743, 746 (1998). "[T]he threshold question is whether Plaintiff's claim was ‘based upon a cause of action in contract.’ " Forouzan, 2019 WL 856395, at *9 (citing Cal. Civ. Code § 3287(b) ). California courts have not decided whether claims under the Song-Beverly Act qualify as contract actions under Section 3287(b), but two decisions are illustrative.
In Bishop v. Hyundai Motor Am., 44 Cal.App.4th 750, 52 Cal. Rptr. 2d 134, 139 (1996), the California Court of Appeal reversed the trial court's award of emotional distress damages under the Song-Beverly Act because emotional distress damages "may not be recovered in an action for breach of contract." Further, in A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 186 Cal. Rptr. 114, 128 (1982), which was not a case under the Song-Beverly Act, the Court awarded prejudgment interest under section 3287(b) based on causes of action for breach of express and implied warranties. But, even if these cases provided sufficient grounds to establish that Plaintiff's claims are contract causes of actions, prejudgment interest under Section 3287(b) is unwarranted in this case.
The court in Bishop did not address prejudgment interest under Section 3287, but the court treated a cause of action brought under the Song-Beverly Act as a cause of action in contract.
As discussed above, courts awarding prejudgment interest under Section 3287(b) have considered: (1) the time between the lawsuit's filing and the judgment; (2) whether awarding interest will penalize the defendant for litigating a bona fide dispute; and (3) whether the plaintiff made settlement offers such that the defendant's refusal could be construed as placing the prejudgment interest amount at risk. Forouzan, 2019 WL 856395, at *9 (citing A&M Produce, 186 Cal. Rptr. at 128-29 ).
Here, the first factor weighs against prejudgment interest. Plaintiff filed his Complaint in December 2017, and the parties reached an agreement in November 2019. Thus, the relatively short 23-month duration of this Action does not support an award of prejudgment interest. See Ardestani v. BMW of N. Am. LLC, No. 8:17-CV-00721-JDE, 2019 WL 2098351, at *8 (C.D. Cal. May 13, 2019) (finding that "the relatively short time between the filing of the Complaint and the start of trial [ ] (23 months)" weighed against an award of prejudgment interest); contra A&M Produce, 186 Cal. Rptr. at 128 (finding that the seven years that passed between the filing of the initial complaint and the entry of judgment favored an award of prejudgment interest).
The second factor also weighs against an award of prejudgment interest. Here, the bona fide nature of the dispute was evidenced by the Court having considered the positions and arguments of the parties, including on a motion for judgment on the pleadings. See, e.g., Ardestani, 2019 WL 2098351, at *8 (declining to exercise discretion to award prejudgment interest under Section 3287(b) in a Song-Beverly case); Forouzan, 2019 WL 856395, at *9 (same); Ruiz v. BMW of N. Am., LLC, No. 2:16-CV-01177-ODW-AGR, 2018 WL 2106454, at *7 (C.D. Cal. May 7, 2018) (same).
The third factor also weighs against the Court exercising its discretion to award prejudgment interest. Here, Plaintiff did not make multiple settlement offers; the one offer Plaintiff made, pursuant to Cal. Civ. Code Section 998, was accepted by Defendant. Therefore, because Defendant did not reject any of Plaintiff's settlement offers thereby placing the prejudgement amount at risk, the Court finds that this factor weighs against an award of prejudgment interest.
Having weighed the factors typically employed by courts in determining whether to award discretionary prejudgment interest under Section 3827(b), the Court concludes that discretionary interest should not be awarded under this subsection. Accordingly, because the Court finds that prejudgment interest is not available under either Section 3287(a) or (b), the Court DENIES Plaintiff's Motion for Prejudgment Interest.
3. Motion for Fees, Costs, and Expenses
a. Attorneys' Fees
i. Reasonable Rates
Plaintiff seeks $150,538.50 in attorneys' fees. The first step in calculating the lodestar is determining the reasonable hourly rate. While the prevailing market rate for attorneys of comparable experience, skill, and reputation controls this determination, the fact that "a lawyer charges a particular hourly rate, and gets it, is evidence bearing on what the market rate is, because the lawyer and his clients are part of the market." Carson v. Billings Police Dep't, 470 F. 3d 889, 892 (9th Cir. 2006). Plaintiff contends that the following hourly rates for his attorneys are reasonable: (1) $525 for Gregory Yu (16 years of practice); (2) $435 for Jacob Cutler (10 years of practice); (3) $350 for Gregory Sogoyan (2 years of practice); (4) $335 in 2018 and $365 for 2019 for Caitlin Scott (3 years of practice); (5) $410 for Christine Haw (6 years of practice); (6) $445 for Kyle Tracy (9 years of practice); (7) $385 for Natasha Bhushan (7 years of practice); (8) $445 for Anna Knafo (13 years of practice); (9) $375 in 2018 and $395 in 2019 for Carey Wood (6 years of practice); (10) $650 for Payam Shahian (16 years of practice); (11) $545 for Dara Tabesh (18 years of practice); (12) $600 for Michael Rosenstein (26 years of practice); and (13) $275 for Jonathan Cagliata (2 years of practice). Mot. for Fees 16:6-12; Decl. of Payam Shahian in Supp. of Mot. for Fees ("Shahian Decl.") ¶¶ 3-7, 20-37, ECF No. 83-20; Decl. of Dana Tabesh in Supp. of Mot. for Fees ("Tabesh Decl.") ¶¶ 4-7, Ex. A, ECF No. 83-18; Decl. of Michael Rosenstein in Supp. of Mot. for Fees ("Rosenstein Decl.") ¶¶ 3-6, Exs. A-B, ECF No. 83-14.
Plaintiff's primary evidence in support of the requested fees are the declarations of Payam Shahian, Dara Tabesh, and Michael Rosenstein. Defendant objects to almost every paragraph of these declarations with nothing more than stating "Relevance" or "Hearsay" and listing the corresponding Federal Rule of Evidence. See generally, Obj. to Decl. of Shahian, ECF No. 87-4; Obj. to Decl. of Tabesh, ECF No. 87-5; Obj. to Decl. of Cutler, ECF No. 87-6; Obj. to Decl. of Rosenstein, ECF. No 87-7. The Court OVERRULES Defendant's evidentiary objections because they are without merit and "are boilerplate and devoid of any specific argument or analysis as to why any particular exhibit or assertion in a declaration should be excluded." United States v. HVI Cat Canyon, Inc., 213 F. Supp. 3d 1249, 1257 (C.D. Cal. 2016) ; see also Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013) (refusing to "scrutinize each objection and give a full analysis of identical objections"); Amaretto Ranch Breedables v. Ozimals, Inc., 907 F. Supp. 2d 1080, 1081 (N.D. Cal. 2012) ("This Court need not address boilerplate evidentiary objections."); Capitol Records, LLC v. BlueBeat, Inc., 765 F. Supp. 2d 1198, 1200 n.1 (C.D. Cal. 2010) (citation omitted) (noting that "it is often unnecessary and impractical" to scrutinize "boilerplate recitations of evidentiary principles or blanket objections").
As the founder and most senior attorney of Strategic Legal Practices, Payam Shahian is "familiar with the experience and background of each attorney who has worked on this case at Strategic Legal Practices" and bases his determination that the hourly rates are reasonable on his "own experience and review of relevant court orders in the Los Angeles area." Shahian Decl. ¶ 20. Additionally, Shahian cites to several previous cases for each attorney in which hourly rates comparable to those requested in the instant Action were awarded to that specific attorney or to an attorney of similar experience in Los Angeles County. See Shahian Decl. ¶¶ 7, 22, 24, 26, 28, 30, 32, 34, 38, 37. Dara Tabesh bases his statement that the hourly rates are reasonable on his experience "both in [his] individual capacity and as an attorney and shareholder at EcoTech Law Group, P.C." with "extensive experience ... in consumer protection litigation," specifically "cases brought under California's consumer protection statutes, including the Song-Beverly Consumer Warranty Act." Tabesh Decl. ¶4. Tabesh also cites to several cases in which his hourly rate was awarded under similar circumstances. See id. ¶ 5. Michael Rosenstein bases his determination that the requested hourly rates are reasonable on his "25+ years of litigation experience, the skills and knowledge acquired over those years, and the rates reasonably charged by other attorneys who work in this area of law." Rosenstein Decl. ¶ 3. Rosenstein cites to the United States Consumer Law Attorney Fee Survey Report to support his position that the rates charged by his firm are reasonable. Id. ¶ 6.
Based on these declarations and support contained therein the Court establishes that the requested rates are reasonable.
ii. Hours Reasonably Expended
Plaintiff seeks $150,538.50 in attorneys' fees. Mot. for Fees 7:14-23. He claims that his attorneys have spent a total of 317.7 hours litigating this case. Id. 17:13. Defendant argues that Plaintiff should not recover for all 317.7 hours because: Plaintiff engaged in block billing; billed for duplicative and unrelated work; and overstaffed this case.
This number does not include the requested "1.5 multiplier enhancement," but does include the request for $5,000 "as reasonably anticipated to review Defendant's fee Opposition, draft the Reply, review Defendant's Opposition to the Motion for Prejudgment Interest, draft the Reply, and attend the hearing on these Motions." Mot. for Fees 7:14-23. Furthermore, in his Reply, Plaintiff withdrew his request for $360 in fees concerning a billing item on September 20, 2019, described as "Reviewed and revised Plaintiff's Motion for Leave to Amend; directed co-counsel regarding the same," as the billing entry was inadvertently included. See Ex. 4 to Supplemental Cutler Decl., ECF No. 92-5.
The Court has carefully examined the bills submitted and finds they contain an appropriate level of detail to permit the Court to conduct a meaningful review for reasonableness. First, Defendant objects to "block billing," and cites as an example an entry of 11.1 hours on December 16, 2019, described as "draft fee motion." Opp'n to Mot. for Fees 8:3-5, ECF No. 87. Further, in Ex. A to Defendant's Opposition to the Motion for Fees, Defendant notes that Tabesh's billing entry on November 17, 2019 for 8.4 hours described as "Further prepare ex parte application; proposed order; Tabesh declaration and exhibits; notice of motion and motion" was inappropriately block billed. Ex. A to Opp'n to Mot. for Fees. The Court finds that the disputed entries are reasonable here, as block billing only becomes an issue where there is a need to separate work that qualifies for compensation from work that does not. See Jaramillo v. Cty. of Orange, 200 Cal.App.4th 811, 133 Cal. Rptr. 3d 751, 765 (2011) (holding that block billed entries were reasonable where "there was no need to separate out covered from uncovered work"). The Court is faced with no such problem here.
Second, Defendant maintains that many of Plaintiff's billing items are impermissibly vague and should be excluded from the fee award. However, attorneys seeking fee awards are "not required to record in great detail how each minute of [their] time was expended." Hensley, 461 U.S. at 437 n.12, 103 S.Ct. 1933. Attorneys need only "keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed." Id. at 441, 103 S.Ct. 1933 (Burger, C.J., concurring); see also United Steelworkers of Am. v. Ret. Income Plan For Hourly—Rated Employees of ASARCO, Inc., 512 F.3d 555, 565 (9th Cir. 2008). Under that standard, the Court finds no reason to reduce or eliminate any entries for vagueness.
Third, Defendant objects to the award of fees for items that Defendant claims are better suited as "Paralegal task[s]." See Ex. A to Opp'n for Mot. for Fees. These tasks include preparing case management conference documents, drafting the dismissal of other defendants, drafting a notice of appearance, drafting initial disclosures, drafting discovery documents, reviewing notices, and drafting documents to be filed with the Court. Id. It is well established that a plaintiff may not recover fees for time spent on purely clerical work. See Davis v. City & Cty. of S.F., 976 F. 2d 1536, 1543 (9th Cir. 1992), vacated on other grounds by Davis v. City & Cty. of S.F., 984 F.2d 345 (9th Cir. 1993) ("[P]urely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate, regardless of who performs them ... [The] dollar value [of such non-legal work] is not enhanced just because a lawyer does it.") (internal quotations and citations omitted). However, the items here that Defendant describes as "paralegal tasks" differ from the "purely clerical or secretarial tasks" in Davis. Accordingly, the Court declines to exclude them from the fee award.
Fourth, Defendant contends that Plaintiff billed for "duplicative," "excessive," and "unrelated" work, and, further, "unnecessarily [ran] up fees when it [was] not warranted to do so" by hiring three different law firms to work on this matter. Opp'n to Mot. for Fees 6:11-14, 8:16-17. Specifically, Defendant objects to Plaintiff's decision to associate the Law Offices of Michael Rosenstein in as trial counsel because the case was not close to trial when it settled. Id. at 8:10-15. Further, Defendant objects to Plaintiff's billing items from EcoTech Law Group ("EchoTech") because EchoTech is located in San Francisco and hiring an additional firm was unnecessary to "litigate this simple lemon law dispute." Id. at 8:24-9:4. Here, the Court does not take issue with Plaintiff counsel's staffing decisions; from the billing records, it is clear that there was a strict division of labor between the firms, and the Court finds no evidence of duplicative work between the firms.
The Court also finds that billing items for motions that were ultimately not filed are reasonable, under the circumstances. Defendant objects to Plaintiff's counsel's billing entries related to a never-filed opposition to a motion for stay. The Court finds that in light of the back-and-forth motion filing that took place during the subject time period, it was not unreasonable for Plaintiff's counsel to work on a motion that was either eventually rendered moot, see Reply in Supp. of Mot. for Fees 23:6-13, ECF No. 92, or that counsel perhaps strategically decided not to file. Further, the Court finds that Defendant's remaining disputes as to the billing items being "excessive" or "unreasonable" as to the amount of time spent are without merit. Defendant provides the Court with no basis as to why the amount of time spent on these items was unreasonable or excessive.
Accordingly, the Court finds that all of the 317.7 hours Plaintiff billed to this Action were reasonable. However, because the instant motions were taken under submission and no hearing was required, Plaintiff's request for $5,000 to cover responding to Defendant's objections to the instant motions, as well as attending the hearings, is reduced to $3,000.
iii. Lodestar Modification
Plaintiff's reasonable rates and hours expended in this Action yield a lodestar of $148,538.50. The Court next must consider whether to increase or decrease the lodestar. See Stanger v. China Elec. Motor, Inc., 812 F. 3d 734, 740 (9th Cir. 2016) ("The decision to enhance or reduce the lodestar ... is within the district court's discretion"). Plaintiff argues for an upward modification of 1.5 because Plaintiff's counsel was forced to address unusually difficult issues as a result of Defendant's discovery tactics, Plaintiff's counsel obtained an excellent outcome, and the risks posed by this litigation were substantial. Mot. for Fees 21:1-2, 23:14, 24:7.
The Ninth Circuit has plainly stated that the lodestar amount is "presumptively the reasonable fee amount," and that a modification of the lodestar is appropriate only in "rare" and "exceptional" cases supported by both "specific evidence on the record and detailed findings ... that the lodestar amount is unreasonably low or unreasonably high." Van Gerwen v. Guarantee Mut. Life Co., 214 F. 3d 1041, 1045 (9th Cir. 2000) (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) ). Generally, courts consider the following factors when determining whether to enhance a lodestar: "(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award." Ketchum v. Moses, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735, 741 (2001) (citing Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, 1316-17 (1977) ). Courts have also recognized that "the lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable attorney's fee’ and ‘an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation.’ " Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (quoting Pennsylvania, 478 U.S. at 566, 106 S.Ct. 3088 ). The "novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors ‘presumably [are] fully reflected in the number of billable hours recorded by counsel.’ " Id. Furthermore, "the quality of an attorney's performance generally should not be used to adjust the lodestar ‘[b]ecause considerations concerning the quality of a prevailing party's counsel's representation normally are reflected in the reasonable hourly rate.’ " Id.
The Court declines Plaintiff's request to apply an upward multiplier of 1.5 in this case. The amount of time and skill required to properly resolve this litigation, counsel's success in resolving the matter, and the case's novelty or complexity are reflected in the number of billable hours recorded and the reasonable hourly rate. Further, Plaintiff does not argue that counsel was prevented from taking other work because of the representation here. The Court acknowledges the contingent nature of this case; nonetheless, "[a]n attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not. To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney's time ... in cases where his client does not prevail." City of Burlington v. Dague, 505 U.S. 557, 565, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). While Plaintiff claims that Defendant's litigation tactics made the risks associated with the contingent nature of this litigation extremely high, the Court finds that this case does not warrant the requested enhancement. The lodestar reflects the reasonable amount of attorneys' fees Plaintiff should recover, and the Court DENIES the requested 1.5 multiplier enhancement.
Accordingly, the Court awards Plaintiff $148,538.50 in attorneys' fees.
b. Costs and Litigation Expenses
Here, Plaintiff seeks $8,911.06 in litigation costs and expenses. Plaintiff filed an Application to the Clerk to Tax Costs [82], as well as made a request for costs and expenses in its Motion for Fees. Accordingly, the Court shall address the award of costs here.
Generally, "[a] federal court follows federal procedural law and, where it applies, state substantive law." Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 830 (9th Cir. 2006). The recovery of prevailing party "costs in federal district court" is generally considered as procedural in nature, and "is normally governed by Federal Rule of Civil Procedure 54(d), even in diversity cases." Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003). However, courts have repeatedly held that the Song-Beverly Act's costs provision is substantive in nature, so costs should be awarded pursuant to Section 1794(d), rather than Rule 54. See, e.g., Forouzan v. BMW of N. Am., LLC, 390 F. Supp. 3d 1184, 1187 (C.D. Cal. 2019) ; Zomorodian v. BMW of N. Am., LLC, 332 F.R.D. 303, 307 (C.D. Cal. 2019).
Under the Song-Beverly Act, a prevailing 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." Cal. Civ. Code § 1794(d).
First, Defendant objects to Plaintiff's state court costs incurred prior to removal of the case because Plaintiff fails to provide a citation to the applicable state statute as required by the Bill of Costs Handbook." Def.'s Obj. to Pl.'s Appl. to Tax Costs ("Def.'s Costs Obj.") 3:27-28, ECF No. 89. However, the Court finds that Plaintiff properly relies on Section 1794(d) in requesting these costs. Accordingly, Defendant's objections to Plaintiff's state court costs are OVERRULED .
Defendant argues that Plaintiff should not be able to recover $3,115.75 in costs related to the October 29, 2019 deposition of Arcenio Campos and November 19, 2019 deposition of Plaintiff because "Local Rule 54-3.5(b) only permits the recovery of transcript costs ‘if the transcript is used for any pursuant [sic] in connection with the case.’ " Def.'s Costs Obj. 3:20-23 (citing C.D. Local Rule 54-3.5). Defendant argues that these deposition transcripts were not used in connection with the case because the case settled on November 19, 2019. Id. 3:23-25. First, the Court notes that Defendant is mistaken; Plaintiff's invoices indicate that Arcenio Campos's deposition took place on September 23, 2019, and Plaintiff's deposition took place on October 30, 2019. See Ex. A to Pl.'s Appl. To Tax Costs. Further, the Court finds that depositions taken over two weeks before the case settled were, in fact, "used for any purpose in connection with the case." C.D. Local Rule 54-3.5(a). At the time these depositions were taken, a settlement had not yet been reached in this case; it was within Plaintiff counsel's right, and duty, to diligently pursue Plaintiff's case by conducting discovery. Accordingly, the Court OVERRULES Defendant's objections to the deposition costs.
The Court assumes that Defendant mistook the "Invoice Date" for the "Job Date" in evaluating the invoices. See Ex. A to Pl.'s Appl. to Tax Costs.
Defendant also objects to $643 in costs that Plaintiff seeks for court reporter fees and transcript. Defendant argues that recovery of these costs is only warranted, pursuant to Local Rule 54-3.4, if they were ordered by the court or stipulated by counsel to be recoverable. Def.'s Costs Obj. 4:3-6. While "Local Rule 54-3.4 prohibits recovery for court reporter's transcripts without a court order to that effect, California law provides that prevailing plaintiffs can recover those expenses under [S]ection 1794(d)." BMW of N. Am., 390 F. Supp. 3d at 1188. Accordingly, Defendant's objections to the $643 in costs related to court reporter fees and transcript are OVERRULED .
Defendant objects to $1,767.20 for costs associated with surveillance and service of process of a deposition subpoena on Defendant's senior engineer, Michael Murray because it was unreasonable and unnecessary for Plaintiff to incur these costs when Plaintiff noticed the deposition pursuant to Federal Rules of Civil Procedure Rule 30 and 45. Def.'s Costs Obj. 4:9-13. Plaintiff maintains that these costs were reasonable because Defendant objected to the deposition on the basis that Plaintiff did not properly subpoena the witness and provide Defendant with a copy of the subpoena. Pl.'s Resp. to Def.'s Costs Obj.("Pl.'s Costs Resp.") 7:18-21, ECF No. 90. Here, the Court finds that Plaintiff has failed to demonstrate why it was reasonable to undertake $1,767.20 in surveillance and service costs after it was Plaintiff who failed to properly subpoena the witness by failing to serve Defendant before serving the witness. Accordingly, the Court DENIES the $1,767.20 for costs associated with surveillance and service of process of a deposition subpoena on Defendant's senior engineer, Michael Murray.
Defendant objects to $998.08 in costs that were never incurred in this case, including $140.68 to file a motion to compel and $58.40 to file a supplemental request in support of the motion to compel, but no motion to compel was filed in this case. See Def.'s Costs Obj. 4:18-23. The Court DENIES these costs. Defendant also objects to $800.00 for payment to Plaintiff's expert to attend the vehicle inspection on September 17, 2019, because Plaintiff's expert was ultimately unavailable and the inspection did not go forward. See Def.'s Costs Obj. 4:24-5:1. Plaintiff argues that while the inspection did not take place, Plaintiff had to pay the expert's invoice. Pl.'s Costs Resp. 8:7-11. The Court finds that these costs were not reasonably incurred because it was due to Plaintiff's expert's unavailability that the inspection did not take place. Therefore, the Court DENIES the costs for the expert's fee to attend the vehicle inspection.
Plaintiff admits in his Response to Defendant's Objections to Application for Costs that a motion to compel was never filed in this Action, however Plaintiff states that he inadvertently listed as a motion to compel what was actually a Motion for Reconsideration of the State Court's ruling on the Motion to Compel Arbitration. See Pl.'s Costs Resp. 8:3-6. Plaintiff further concedes that he inadvertently included "a charge for $58.40 to file supplemental authority," but "[t]hat charge was for another lemon law case against BMW." Id. at 8:26-28. The Court declines to award costs in connection with filing the Motion for Reconsideration because those costs were not properly included in Plaintiff's Application for Costs.
Plaintiff also seeks to recover $163.44 for various costs without any documentation supporting the amount and taxability of each item. See Def.'s Costs Obj. 5:6-15. But, Plaintiff did provide the documentation for the January 5, 2018 invoice for $43.85 to get conformed copies of the proof of service. See Ex. 7 in Supp. of Appl. for Costs at 5. However, Plaintiff did not file any documentation supporting his request for costs related to: (1) $31.80 to attend the motion to compel arbitration on May 3, 2018; (2) October 30, 2019 invoice for $44.44 for Michael Rosenstein to attend Plaintiff's deposition; or (3) October 30, 2019 invoice for $43.35 for Gregory Sogoyan to attend Plaintiff's deposition. Accordingly, the Court DENIES these costs.
These items include: (1) January 5, 2018 invoice for $43.85 to get conformed copies of the proof of service; (2) $31.80 to attend the motion to compel arbitration (mileage and parking) on May 3, 2018; (3) October 30, 2019 invoice for $44.44 for Michael Rosenstein to attend Plaintiff's deposition (mileage, parking and food); and (4) October 30, 2019 invoice for $43.35 for Gregory Sogoyan to attend Plaintiff's deposition (mileage, parking, and food).
Lastly, Defendant objects, in part, to Plaintiff's delivery and messenger service costs. Specifically, Defendant objects to $738.27 in costs associated with hiring messenger services because Defendant claims that Plaintiff may only recover costs associated with fees for service of process under Federal Rule of Civil Procedure 4. See Def.'s Costs Obj. 5:17-22. Defendant also objects to $24.16 in costs associated with serving a notice of acceptance of a 998 offer to Defendant's attorneys' offices at two incorrect locations. Id. at 5:25-6:2. The Court finds that the costs associated with messenger services are reasonable and recoverable under Section 1794(d), which controls an award of costs here. See Donner v. FCA, No. CV 17-2303 MRW, 2019 WL 2902704, at *4 (C.D. Cal. Mar. 15, 2019) (granting the plaintiff's costs for messenger services). The Court finds that the cost associated with serving a notice of acceptance of a 998 offer at Defense counsel's improper address is not reasonable under Section 1794(d), and the Court DENIES the $24.16 in costs. See Donner, 2019 WL 2902704, at *4 ("The Court also accepts Defendant's contentions regarding costs associated with ‘bad address’ service attempts and ... [t]he Court does not find those costs to have been reasonably incurred or properly transferable.").
As such, the Court GRANTS Plaintiff $6,001.03 in costs and expenses pursuant to Section 1794(d).
III. CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff's Motion for Prejudgment Interest. The Court GRANTS in part Plaintiff's Motion for Attorneys' Fees, Costs, and Expenses. The Court GRANTS in part Plaintiff's Application to Tax Costs. Accordingly, Defendant is ORDERED to pay reasonable attorneys' fees in the amount of $148,538.50 and costs and expenses in the amount of $6,001.03.