Holcomb v. BMW of North America, LLC

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAMES HOLCOMB and ROTOCO, Case No.: 18cv475 JM (BGS)

INC.,

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ORDER ON PLAINTIFFS’ MOTION

Plaintiffs,

13 FOR PAYMENT OF ATTORNEY’S

v. FEES AND REIMBURSEMENT OF

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COSTS AND EXPENSES

BMW OF NORTH AMERICA, LLC,

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Defendant.

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18 Plaintiffs James Holcomb and Rotoco, Inc. (“Plaintiffs”) move for $129,804.96 in

19 attorney’s fees and costs pursuant to the Song-Beverly Consumer Warranty Act (“the

20 Song-Beverly Act”), CAL. CIV. CODE. § 1794(d). (Doc. No. 44.) The motion has been

21 briefed and the court finds it suitable for submission without oral argument in accordance

22 with Civil Local Rule 7.1(d)(1). For the below reasons, the motion is GRANTED IN

23 PART and DENIED IN PART.

24 I. BACKGROUND

25 Plaintiffs leased and then purchased a 2014 BMW M6 (“the vehicle”) on October 6,

26 2014 and October 12, 2017, respectively. The vehicle began exhibiting various problems

27 with its steering wheel, windows, fuel filler neck, carbon canister, and warning lights.

28 Plaintiffs brought the vehicle to Defendant’s repair facility at least eight times for warranty-

1 related repairs, which were unsuccessful. On January 19, 2018, Plaintiffs filed the instant

2 action in state court. The action was timely removed to federal court. On June 4, 2019,

3 the parties filed a notice of settlement. (Doc. Nos. 28-29.) The parties finalized the

4 settlement agreement and subsequently filed a joint motion to dismiss with prejudice.

5 (Doc. No. 40.) The court granted the motion and agreed to retain jurisdiction for the

6 purpose of hearing Plaintiffs’ motion for attorney’s fees and costs. (Doc. No. 43.)

7 II. LEGAL STANDARD

8 A buyer who prevails in an action under the Song-Beverly Act is entitled to an award

9 of attorney’s fees and costs “based on actual time expended, determined by the court to

10 have been reasonably incurred by the buyer in connection with the commencement and

11 prosecution of such action.” CAL. CIV. CODE § 1794(d). The court must determine “whether

12 under all the circumstances of the case the amount of actual time expended and the

13 monetary charge being made for the time expended are reasonable.” Nightingale v.

14 Hyundai Motor Am., 31 Cal. App. 4th 99, 104 (1994). “In a diversity case, the law of the

15 state in which the district court sits determines whether a party is entitled to attorney fees,

16 and the procedure for requesting an award of attorney fees is governed by federal law.”

17 Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007). The method of calculating fees is

18 determined by state law. Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th

19 Cir. 1995).

20 The lodestar method is the prevailing method for calculating attorney’s fees.

21 Robertson v. Fleetwood Travel Trailers of California, Inc., 144 Cal. App. 4th 785, 818-19

22 (2006); Ketchum v. Moses, 24 Cal. 4th 1122, 1135 (2001). In calculating the lodestar, the

23 court must “‘make an initial determination of the actual time expended; and then . . . .

24 ascertain whether under all the circumstances of the case the amount of the actual time

25 expended and the monetary charge being made for the time expended are reasonable.’”

26 Robertson, 144 Cal. App. 4th at 817 (quoting Nightingale, 31 Cal. App. 4th at 104). In

27 determining the reasonableness of the lodestar, courts can consider the complexity of the

28 case, procedural demands, the skill exhibited, and the results achieved. Id.

1 The plaintiff bears the burden of demonstrating that fees sought were allowable,

2 reasonably necessary to the conduct of the litigation, and reasonable in amount.

3 Karapetian v. Kia Motors Am., Inc., 970 F. Supp. 2d 1032, 1036 (C.D. Cal. 2013). If the

4 reasonableness of fees is challenged, “[g]eneral arguments that fees claimed are excessive,

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

6 Assoc., 163 Cal. App. 4th at 550, 564 (2008). In such cases, the opposing party has the

7 burden to demonstrate the hours spent are duplicative or excessive. Id. at 562, 564; see

8 also Gorman v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) (“The party

9 opposing the fee award can be expected to identify the particular charges it considers

10 objectionable”). Decisions by other courts regarding the reasonableness of the rate sought

11 may also provide evidence to support a finding of reasonableness. See Widrig v. Apfel, 140

12 F.3d 1207, 1210 (9th Cir. 1998). The court may also draw on its own experience in

13 determining what constitutes a reasonable rate. Ingram v. Oroudjian, 647 F.3d 925, 928

14 (9th Cir. 2011) (holding that “judges are justified in relying on their own knowledge of

15 customary rates and their experience concerning reasonable and proper fees”).

16 III. DISCUSSION

17 As the prevailing party in a Song-Beverly Act claim, Plaintiffs are entitled to an

18 award of fees and costs. See CAL. CIV. CODE § 1794(d). Plaintiffs seek $129,804.96 in

19 attorney’s fees and costs. (Doc. No. 44-2.) Detailed billing records provided by Plaintiffs’

20 counsel show the $129,804.96 in fees and costs consists of the following: (1) $80,066.50

21 for 170.1 hours of work by ten attorneys at rates between $355 and $665 per hour;

22 (2) $8,396 for 42.4 hours of work by paralegals or law clerks at a rate of $195 per hour;

23 (3) $797.50 for 5.5 hours of work by legal assistants at a rate of $145 per hour;

24 (4) $13,766.96 in costs; and (5) an additional $26,778 based on a 0.3 multiplier. (Doc. No.

25 44-2.) Defendant does not dispute that Plaintiffs are entitled to attorney’s fees and costs,

26 but argues the amount requested is unreasonable. (Doc. No. 45.)

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1 A. Attorney’s Fees and Hours

2 As noted above, Plaintiffs seek $80,066.50 for 170.1 hours of work by ten attorneys

3 at rates between $355 and $665 per hour. (Doc. No. 44-4 at 2-4.) The rates and hours for

4 each attorney by year is as follows:

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Attorney 2018 Hrs 2018 Rate 2018 Total 2019 Hrs 2019 Rate 2019 Total Total Hrs Total Bill

6 Bickel 0.1 $655 $66 5.3 $665 $3,525 5.4 $3,590

Sannipoli* 0.2 $425 $85 37.3 $465 $17,345 37.5 $17,430

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Solis 3.7 $425 $1,573 3.7 $1,573

8 Nemeth 71.7 $495 $35,492 11.4 $525 $5,985 83.1 $41,477

McGaffey 13.7 $415 $5,686 13.7 $5,686

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Lynch 2.7 $365 $986 2.7 $986

10 Myers 0.5 $365 $183 0.5 $183

Wagner 5.4 $425 $2,295 5.4 $2,295

11 Pengilley 5 $425 $2,125 5 $2,125

12 Goolsby 3.7 $375 $1,388 3.7 $1,388

*Also billed 9.4 hours at $355 per hour in 2017 for a total of $3,337 TOTAL 170.1 $80,066.50

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14 1. Number of Attorneys

15 At the outset, the reasonableness of Plaintiffs’ attorneys’ fees is questionable given

16 the number of experienced attorneys who purportedly worked on this case. As

17 acknowledged by Plaintiffs, Plaintiffs’ counsel’s firm employs a total of ten attorneys

18 practicing exclusively in the “niche market” of Song-Beverly Act cases. (Doc. No. 44-1

19 at 16.) Plaintiffs’ attorneys “routinely litigate these types of cases.” (Doc. No. 44-2 at 3.)

20 Their firm is among the largest firms in California, if not the largest firm, practicing

21 exclusively in this area of law. (Doc. No. 44-1 at 16.) Plaintiffs do not explain why this

22 case required the attention of an entire large and specialized law firm. For example,

23 Plaintiffs do not argue this case was complex. Plaintiffs do not claim that each of the

24 attorneys specializes in a particular phase of litigation. To the contrary, the biographies

25 provided by Plaintiffs highlight each attorney’s impressive experience handling these types

26 of cases, including bringing cases to trial. (Doc. No. 44-2 at 9-11.) Although in two recent

27 cases, courts did not fault the plaintiff for utilizing a similar number of attorneys, those

28 cases involved two different law firms, one of which was later associated for trial purposes,

1 and both cases were settled after extensive trial preparations. See Hamm v. FCA US LLC,

2 No. 17cv577 AJB (BGS), 2019 WL 3891139, at *3 (S.D. Cal. Aug. 19, 2019) (in case that

3 settled the day of trial, awarding fees to 12 attorneys at two firms for 150 hours of work);

4 Petropoulos v. FCA US LLC, No. 17cv398 W (KSC), 2019 WL 2289399, at *2-3 (S.D.

5 Cal. May 29, 2019) (in a case that was litigated for over two years, awarding fees for 11

6 attorneys at two firms). The parties here filed a notice of settlement over a month before

7 trial. Plaintiffs’ counsel’s billing records contain only one reference to trial preparation.

8 (See Doc. No. 44-3 at 17 (noting that on January 16, 2019, counsel discussed “trial and

9 case strategy” for less than 45 minutes).

10 As recognized by other courts, reliance on multiple attorneys necessarily requires

11 each attorney to get “up-to-speed” on the case. Luna v. FCA US LLC, No. 2:17cv8272

12 ODW (RAO), 2020 WL 491462, at *4 (C.D. Cal. Jan. 30, 2020) (imposing 10% across-

13 the-board cut because “[a]s a result of having twelve attorneys from two firms billing on

14 this matter, the billing records are riddled with duplicative inter-office communications and

15 entries reviewing prior filings and case materials”); Base v. FCA US LLC, No. 17cv1532

16 JCS, 2020 WL 363006, at *3 (N.D. Cal. Jan. 22, 2020) (noting that significant billings for

17 meetings between attorneys was “one of the potential inefficiencies of using a large number

18 of attorneys to staff a case”); Durham v. FCA US LLC, No. 2:17cv596 JLT, 2020 WL

19 243115, at *5 (E.D. Cal. Jan. 16, 2020) (noting a “significant amount of time spent on the

20 preparation of internal memorandums and summaries for co-counsel”). Based on the

21 above, the expertise and experience of Plaintiffs’ counsel, upon which Plaintiffs rely to

22 justify their high rates, is therefore uncertain given that it took ten of them, along with

23 multiple paralegals and assistants, to handle this single unextraordinary case. Other Song-

24 Beverly Act cases, albeit ones settling prior to any significant discovery, have required far

25 fewer attorneys. See Chavez v. Jaguar Land Rover N. Am., LLC, No. 18cv2811 W (JLB),

26 2020 WL 376209, at *2 (S.D. Cal. Jan. 23, 2020) (awarding fees to five attorneys at

27 Plaintiffs’ counsel’s firm for a total of 43.6 hours of work); Anderson v. BMW of N. Am.,

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1 LLC, No. 18cv57 WVG, 2018 WL 2011006, at *2 (S.D. Cal. Apr. 30, 2018) (awarding

2 fees to one attorney for 40 hours of work).

3 The court is not in a position, however, to determine the appropriate number of

4 attorneys assigned to this particular case given that it is not privy to the inner workings of

5 Plaintiffs’ counsel’s law firm. Also, for better or worse, the use of a large number of

6 attorneys in Song-Beverly Act cases appears relatively common. See Ortega v. BMW of

7 N. Am., LLC, No. 2:18cv6637 R (SK), 2019 WL 6792798, at *3 (C.D. Cal. Oct. 24, 2019)

8 (noting that defendant used 15 attorneys and that is was “not uncommon” to use a large

9 number of attorneys in lemon law cases). On their face, the billing records do not show

10 that a significant amount of time was unreasonably spent getting ten attorneys up-to-speed

11 on this case. Id. (“This Court declines to admonish the use of a larger number of attorneys,

12 as it appears there was no duplicative billing[.]”). As discussed below, this case involved

13 extensive discovery and there is no obvious indication that a fewer number of attorneys

14 would have generated significantly fewer hours. The efficiency gained from specializing

15 in these types of cases may have allowed Plaintiffs’ attorneys to familiarize themselves

16 with this case with minimal effort. Finally, Plaintiffs’ counsel submitted a declaration,

17 under the penalty of perjury, that all fees were entered contemporaneously, were not

18 adjusted upward, and were not duplicative, redundant, or unnecessary. (Doc. No. 44-2 at

19 2, 12.) The court has no compelling reason to doubt the honesty or judgment of Plaintiffs’

20 counsel regarding the number of attorneys necessary to litigate this case.

21 2. Number of Hours Billed

22 The reasonableness of Plaintiffs’ request for attorney’s fees is also somewhat

23 questionable given the number of hours it took to complete discovery and settle this case

24 before any significant trial preparation was required. In Hamm, for example, the attorneys

25 billed 150 hours for a case that settled on the day of trial. 2019 WL 3891139, at *4. In

26 Petropoulos, attorneys billed 146 hours for a case that settled after over two years of

27 “aggressive” litigation. 2019 WL 2289399, at *2-3; see also Pollard v. FCA US LLC, No.

28 17cv591 JLS (JCG), 2020 WL 57270, at *5 (C.D. Cal. Jan. 3, 2020) (requesting 150 hours

1 in a case that was being prepared for trial, including motions in limine). In contrast,

2 Plaintiffs’ counsel billed 170.1 hours after litigating the case for about 16 months and prior

3 to requiring any trial preparation.1 While Plaintiffs’ counsel should not be penalized for

4 choosing to specialize in Song-Beverly Act cases, the need for this amount of work is

5 uncertain given Plaintiffs’ counsel’s admission that “our office has developed forms and

6 other streamlining techniques in an effort to shorten the time required of particular tasks.”

7 (Doc. No. 44-2 at 3.) Again, Plaintiffs do not attempt to distinguish the instant case from

8 cases that were settled using fewer attorneys with lesser expertise in a shorter amount of

9 time.2

10 As discussed below, however, as least ten of the 170.1 hours billed were excessive.

11 Morever, the court cannot determine with any certainty that roughly 160 hours billed for

12 the instant case is unreasonable. See, e.g., Base, 2020 WL 363006, at *3 (finding that

13 approximately 200 hours for a total of $75,000 was reasonable where the parties settled

14 while preparing for trial). Over the course of fifteen months, counsel for Plaintiffs: (1)

15 removed the case from state court; (2) filed an answer; (3) attended an early neutral

16 evaluation and case management conference; (4) moved to amend the scheduling order;

17 (5) designated expert witnesses; (6) attended a mandatory settlement conference; and (7)

18 settled the case and reduced the settlement agreement to writing. Plaintiffs also state, and

19 Defendant does not dispute, that the parties participated in eleven depositions, including

20 expert depositions. (Doc. No. 44-1.) Defendant served written discovery requests that

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23 1 For reasons that are unclear, in the declaration supporting Plaintiffs’ motion, Plaintiffs’

counsel states that his office spent over 200 hours litigating this case. (Doc. No. 44-2 at

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26 ¶ 64.)

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2 The total attorney’s fees requested – $80,066.50 – is also questionable based on some

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decisions by other courts. See, e.g., Luna, 2020 WL 491462, at *6 (after imposing

27 reductions, awarding $55,062 in fees and costs to twelve attorneys who exchanged written

discovery, conducted depositions, and prepared pretrial documents); Pollard, 2020 WL

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1 included 50 interrogatories, 49 requests for admission, and 51 categories of document

2 production. (Doc. No. 44-2 at 5.) In response to Plaintiffs’ request for production,

3 Defendant produced over 300 pages of documents. (Id.) This is not an insignificant

4 amount of discovery and litigation. The court cannot confidently conclude, especially in

5 light of the detailed and voluminous billing records provided by Plaintiffs, that this amount

6 of activity did not reasonably occupy 160 hours.

7 3. Attorney Rates

8 With respect to the rates charged by Plaintiffs’ counsel, Plaintiffs cite no published

9 case upholding a fee greater than $575 per hour.3 (Doc. No. 44-1 at 18-19 (citing Goglin

10 v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 474 (Ct. App. 2016).) A maximum fee of

11 $575 per hour is consistent with what other judges on this court have found reasonable.

12 See Hamm, 2019 WL 3891139, at *4 (finding that $575 was unnecessarily high and

13 reducing it to $550, and finding that $375 for an attorney that had been barred for five years

14 should be reduced to $350, but approving rates between $350 and $550); Petropoulos,

15 2019 WL 2289399, at *3 (approving fees ranging from $275 to $575); Anderson, 2018 WL

16 2011006, at *3 (finding a fee of $500 reasonable given the attorney’s experience, the tasks

17 completed, and others cases finding that $425 and $575 were reasonable); see also Shaw

18 v. Ford Motor Co., No. 5:18cv1169 JLS (KK), 2020 WL 57273, at *3 (C.D. Cal. Jan. 3,

19 2020) (approving rates between $200 and $550).

20 In support of their rates, Plaintiffs’ counsel conducted an informal survey of seven

21 attorneys outside of their firm practicing in this area of law throughout the state who

22 purportedly charged between $600 and $650 per hour in 2015. (Doc. No. 44-1 at 12-13.)

23 Plaintiffs also argue higher rates are justified because their attorneys took the instant case,

24 like they do all their cases, on a contingency basis and thus bore the risk of loss. (Doc. No.

25 44-2 at 9.) Defendant responds by arguing (1) the survey conducted by Plaintiffs’ counsel

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3 Plaintiffs cite, however, an Alameda County Superior Court case finding rates between

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1 was not supported by any study or expert testimony regarding rates in this geographic area,

2 or by declarations from attorneys in this area, and (2) lower rates are in-line with rates

3 charged for similarly-experienced consumer law attorneys practicing in this geographic

4 area according to a “widely-cited and court approved” survey. (Doc. No. 45 at 10-15.)

5 Plaintiffs’ counsel’s willingness to take the case on a contingency basis, and to pay

6 all costs, provides only minimal support for the reasonableness of charging higher rates.

7 Nothing in the record suggests the risk of loss embraced by Plaintiffs’ counsel’s business

8 for taking clients on a contingency fee basis is any greater than the risk of loss posed by

9 requiring clients to pay costs. Plaintiffs’ counsel’s survey of other attorneys handling

10 Song-Beverly Act cases also provides minimal support given that only one of the attorneys

11 surveyed was based in this geographic area, and all had more experience than even the

12 most experienced of Plaintiffs’ counsel. Based on the above, Mr. Bickel’s rate is reduced

13 to $575. The remaining rates remain unchanged. The calculation for attorney’s fees is

14 therefore reduced from $80,066.50 to $79,582 based on the reduction to Mr. Bickel’s rate,

15 and is further reduced, as discussed below, based on the time spent in bringing the instant

16 motion.

17 B. Paralegal and Legal Assistants’ Work

18 Plaintiffs request $8,396 for 42.4 hours of work performed by seven paralegals or

19 law clerks at a rate of $195 per hour.4 (Doc. Nos. 44-1 at 18, 44-2 at 4.) In support of this

20 request, Plaintiffs’ counsel notes that each paralegal graduated with a certificate from an

21 ABA-approved school or obtained a certificate upon passing the proper examination,

22 and that each law clerk graduated from an ABA-approved law school. (Doc. No. 44-1 at

23 18.) Plaintiffs also cite an Alameda County Superior Court case purportedly upholding

24 paralegal fees between $135 and $195 for Plaintiffs’ counsel’s firm. (Doc. No. 44-2 at 16.)

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4 By the court’s calculation, 42.4 hours at $195 per hour equals $8,268, not $8,396.

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1 Plaintiffs also request $797.50 for 5.5 hours of work by four legal assistants at a rate of

2 $145 per hour. (Doc. Nos. 44-1 at 18, 44-2 at 4.)

3 Defendant argues (1) that 20.8 hours of the worked performed by paralegals, law

4 clerks and legal assistants was purely clerical or secretarial and cannot be billed at hourly

5 rates, and (2) Plaintiffs did not show that the $195 rate for paralegals and law clerks is

6 reasonable based on the complexity and challenges of the tasks. (Doc. No. 45 at 9-10, 16.)

7 Defendant contends that $100 is a reasonable rate for paralegal/law clerk work. (Id. at 12-

8 13.)

9 As noted by the Supreme Court, certain types of paralegal work, such as drafting

10 correspondence or fact investigation, “lies in a gray area of tasks that might appropriately

11 be performed either by an attorney or a paralegal.” Missouri v. Jenkins by Agyei, 491 U.S.

12 274, 288 n.10 (1989). The Court also noted that “[o]f course, purely clerical or secretarial

13 tasks should not be billed at a paralegal rate, regardless of who performs them.” Id. Under

14 state law, courts have found it appropriate to bill separately for paralegal work “at a

15 reasonable market value rate.” Guinn v. Dotson, 23 Cal. App. 4th 262, 269 (1994) (“An

16 award of attorney’s fees which does not compensate for paralegal service time would not

17 fully compensate the attorney.”).

18 Courts in this district have approved paralegal fees, but not at $195 per hour. See

19 Hamm, 2019 WL 3891139, at *3 (finding paralegal rate of $175 per hour excessive and

20 reducing it to $75 per hour for 18.7 hours); Petropoulos, 2019 WL 2289399, at *3 (finding

21 $175 per hour reasonable). Plaintiffs provide no evidence supporting the reasonableness

22 of a $195 rate in this geographic area. See Payne v. Bay Area Rapid Transit Dist., No.

23 08cv2098 WDB, 2009 WL 1626588, at *1 (N.D. Cal. June 5, 2009) (“To determine

24 appropriate hourly rates, we look to rates prevailing in the [area] for similar services

25 performed by attorneys of reasonably comparable skill, experience, and reputation. This

26 standard also applies to the rates charged for work performed by paralegals and law

27 clerks.”) (internal citation omitted). Furthermore, much of the work billed at the $195

28 paralegal/law clerk rate is clerical or border-line clerical. Many of the entries are also

1 block-billed, making it impossible to separate legal from clerical tasks. For example, on

2 April 11, 2018, Plaintiffs’ counsel billed $97.50 for the following paralegal work:

3 Receive and process phone call from chambers clerk regarding status of

plaintiffs’ early neutral evaluation statement. E-mail to Paralegal Angela

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Mason regarding same. Receive and process email from Paralegal Angela

5 Mason with department e-mail address. Scan and e-mail Plaintiffs’ Early

Neutral Evaluation Statement and Plaintiffs’ Initial Disclosures to chambers.

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Email to Attorney Tiffany Lynch and Laura Goolsby and note to file regarding

7 same.

8 (Doc. No. 44-3 at 5.) Additionally, on October 12, 2018, Plaintiffs’ counsel billed $253.50

9 for the following paralegal work:

10 Scan and submit deposition subpoenas through One Legal for personal service

. . . . Draft proofs of service. Serve Plaintiff’s Notices of Depositions with

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copies of deposition subpoenas on opposing counsel via mail and email.

12 Email to Attorney Nicole Nemeth and law clerk Keshav Nair and note to file

regarding same.

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14 (Id. at 12.) There are also numerous entries where paralegal/law clerks billed for “receiving

15 and processing” e-mails, including e-mails on which the paralegal/law clerk was merely

16 copied. For example, on September 20, 2018, Plaintiffs’ counsel billed $19.50 for a

17 paralegal to “[r]eceive and process e-mail response from Attorney Nicole Nemeth to client

18 regarding client’s inquiry regarding discovery process.” (Doc. No. 44-3 at 10.) Because

19 at least half of the paralegal/law clerk work was clerical or borderline clerical, the number

20 of hours billed is reduced by 50% to 21.2 hours. Also, in line with other courts in this

21 district, the paralegal/law clerk hourly rate is reduced from $195 to $100 per hour. The

22 total amount of reasonable fees for paralegal/law clerk work is therefore $2,120.

23 Furthermore, all the work performed by legal assistants was clerical, and Plaintiffs cite no

24 authority supporting the reasonableness of awarding legal assistants’ fees. Plaintiffs’

25 request for $797.50 for work performed by legal assistants is therefore denied.

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1 C. Unnecessary or Overstated Entries

2 Defendant points out five specific instances of alleged unnecessary or overstated

3 billing entries. (Doc. No. 45 at 17-18.) The court declines to reduce any of them. First,

4 the court disagrees that the January 12, 2018 entry for 2.2 hours to receive and review

5 documents, put together a litigation file, draft repair history summary, and begin drafting

6 a complaint, (Doc. No. 44-3 at 3), is unreasonable. The entry is not necessarily duplicative

7 based on a previous billing of 9.4 hours for case intake. Second, the court agrees the

8 November 16, 2018 entry for 0.8 hours for a paralegal/law clerk to draft an amended notice

9 of deposition and two subpoenas is unreasonable, especially given that no amended notice

10 was sent, but declines to reduce the amount any further than the court already has. Third,

11 the court disagrees that the April 26, 2019 entry for 0.6 hours to confer regarding notices

12 of appearance, or the April 29, 2019 entry for three hours to review expert reports and

13 depositions in preparation for a mandatory settlement conference, was unnecessary

14 overlap. Finally, the court disagrees that 0.5 hours to attend a mandatory settlement

15 disposition conference is unreasonable given that Defendant requested “judicial

16 intervention” and the conference may have been held regardless of Plaintiff’s alleged delay

17 in finalizing the settlement.

18 D. Fees Related to the Instant Motion

19 Plaintiffs include $20,291 in fees for 41.4 hours of work related to drafting and filing

20 the instant motion. (Doc. Nos. 44-1 at 23, 44-3 at 22-23.) This includes an estimated 12

21 hours of time to review Defendant’s opposition, draft a reply, and attend a motion hearing.

22 (Id.) Defendant argues this is unreasonable, especially in light of Plaintiffs’ counsel’s

23 experience. (Doc. No. 45 at 18.)

24 Fees related to the preparation and defense of a motion for attorney’s fees are

25 recoverable. Ketchum v. Moses, 24 Cal. 4th 1122, 1141 (2001). The court agrees, however,

26 that 41.4 hours in preparing the instant motion is excessive. Except for the amounts

27 requested and the defendant’s name, the instant motion is largely identical to a motion

28 Plaintiffs’ counsel previously filed with this court. See Motion for Attorney Fees, Chavez,

1 No. 18cv2811 (S.D. Cal. Aug. 7, 2019); see also Pollard, 2020 WL 57270, at *5 (finding

2 that 14.5 hours spent on a motion for attorney’s fees under the Song-Beverly Act was

3 unreasonable given that it was substantially identical to an earlier motion); Johnson v. FCA

4 US LLC, No. 17cv0536 AJB (BGS), 2019 WL 3891148, at *3 (S.D. Cal. Aug. 19, 2019)

5 (noting that a motion for attorney’s fees is a “template-driven motion” and reducing a

6 request for $6,252.50 to $2,000).

7 Plaintiffs’ counsel’s bills also show that a considerable amount of time was spent

8 auditing the charges. While some review of Plaintiffs’ counsel’s detailed and lengthy

9 billing statement is appropriate before filing the same before the court, it is unreasonable

10 that Defendant should pay Plaintiffs’ attorneys to confirm the accuracy of their own bills.

11 See Jameson v. Ford Motor Co., No. 18cv1952 ODW (AS), 2019 WL 6840758, at *3 (C.D.

12 Cal. Dec. 16, 2019) (striking fees for “review and audit billing”). To the extent Plaintiffs

13 claim the bills were reviewed for “excessive billing for reduction or removal,” again,

14 Defendant should not have to pay for time spent removing entries that Plaintiffs’ counsel

15 agree were excessive. Finally, even though there was no hearing on the instant motion,

16 Plaintiffs’ counsel billed for the estimated time spent “preparing for the motion hearing”

17 and “traveling to and attending the hearing.” (Doc. No. 44-3 at 22-23.) Because the records

18 are block-billed, the actual amount of time spent auditing or removing excessive bills, or

19 the time estimated to prepare for and attend a hearing, cannot be isolated. Accordingly,

20 Plaintiffs are awarded $5,000 in attorney’s fees for the time spent on the instant motion,

21 which equals a reduction of $15,291.

22 E. Block-Billing

23 Defendant argues that Plaintiffs’ counsel’s practice of “block-billing” warrants a

24 reduction in fees. (Doc. No. 45 at 19.) Defendant alleges, and Plaintiffs do not dispute,

25 that ten items on Plaintiffs’ counsel’s bill are block-billed. Defendant cites Welch v. Metro.

26 Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007), in which the Ninth Circuit upheld a district

27 court’s authority to reduce hours that are billed in block format. The court stated, however,

28 that “block billing makes it more difficult to determine how much time was spent on

1 particular activities.” In response, Plaintiffs cite Christian Research Inst. v. Alnor, 165

2 Cal. App. 4th 1315, 1325 (2008), in which the court stated that block-billing was “not

3 objectionable per se,” but is nonetheless “a risky choice” that can exacerbate the vagueness

4 of a request for attorney’s fees.

5 With the exception of the items discussed above, the entries in Plaintiffs’ counsel’s

6 billing records that Defendant identifies as blocked-billed all contain multiple specific tasks

7 that, when combined, reasonably amount to the time billed. For example, on November

8 30, 2018, Plaintiffs’ counsel billed 2.80 hours for preparing for a deposition of a technician

9 at BMW San Diego, meeting and conferring with opposing counsel regarding a stipulation

10 for an unavailable technician, e-mailing opposing counsel regarding the same, attending

11 and taking the deposition of the technician, and returning to the office. (Doc. No. 45-5 at

12 15.) While it would have been preferable for Plaintiffs’ counsel to have broken out the

13 time spent for each task, when combined, these distinct tasks could easily occupy 2.80

14 hours. Overall, Plaintiffs’ counsel’s billing records contain over 200 individual entries for

15 tasks performed and billed. (Doc. No. 45-5.) Only a small portion are block-billed. In

16 this instance, therefore, Plaintiffs’ counsel’s practice of block-billing some attorney tasks

17 does not significantly undermine the overall reasonableness of the requested fees. See

18 Chavez, 2020 WL 376209, at *3 (declining to fault Plaintiffs’ counsel for block-billing

19 because only a small number of block-billed entries exceeded two hours and because the

20 entries were sufficiently detailed).

21 F. Settlement Communications

22 Plaintiffs rely heavily on their attempts to settle the case early in the litigation to

23 justify an award of attorney’s fees and costs. In response, Defendant filed a motion to

24 strike any reference to the parties’ settlement discussions as protected settlement

25 negotiations. (Doc. No. 46-1.)

26 Defendant cites no caselaw supporting its argument that courts cannot consider the

27 parties’ settlement history in deciding attorney’s fees. In fact, courts regularly cite

28 plaintiffs’ attempts to settle early in the litigation in deciding the reasonableness of

1 attorney’s fees. See, e.g., Campos v. Ford Motor Co., No. 17cv2221 AGA (GR), 2020 WL

2 256125, at *2 (C.D. Cal. Jan. 13, 2020) (faulting plaintiff for not taking defendant’s initial

3 settlement offer); Base, 2020 WL 363006, at *1; Goglin, 4 Cal. App. 5th at 471 (assessing

4 the rejection of a pre-litigation settlement offer). Moreover, in the parties’ settlement

5 agreement, Defendant agreed Plaintiffs could disclose the “background” and “negotiation”

6 of the settlement agreement. (Doc. No. 51.)

7 According to Plaintiffs, on March 13, 2018, they sent a demand letter seeking

8 repurchase of the vehicle and $7,717 in attorney’s fees and costs, but Defendant did not

9 respond. (Doc. No. 44-1 at 5.) On June 6, 2018, Plaintiffs sent a second letter attempting

10 to initiate settlement discussions prior to moving forward with discovery, but Defendant

11 did not respond. (Id.) On April 29, 2019, after completion of discovery, Defendant made

12 its first settlement offer at a mandatory settlement conference. (Id.) At least part of the

13 settlement – the vehicle buy-back – was the same as what Plaintiffs initially demanded.

14 (Id. at 6.) Accordingly, Plaintiffs’ early attempt to settle the case supports the

15 reasonableness of the fees awarded in this order.

16 G. Multiplier

17 Plaintiffs argue their attorney’s fees, as well as the fees charged by paralegals, law

18 clerks, and legal assistants, are entitled to a 0.3 multiplier based on the delay in payment

19 and their demonstrated expertise in litigating this matter. (Doc. No. 44-1 at 24.) Out of

20 the thirty-seven state court cases cited by Plaintiffs purporting to support the

21 reasonableness of Plaintiffs’ counsel’s fees, only three of those courts approved the

22 application of a multiplier, and none of those cases were decided in this geographic area.

23 (Doc. No. 44-2 a ¶ 58.) The recent cases decided by this court have all declined to apply a

24 multiplier. Chavez, 2020 WL 376209, at *3 (rejecting 0.3 multiplier based on the posture

25 and lack of complexity of case); Hamm, 2019 WL 3891139, at *4 (rejecting 0.5 multiplier

26 because the case did not involve complexity or novel or difficult questions of law or fact);

27 Petropoulos, 2019 WL 2289399, at *4 (“Plaintiffs were not litigating important

28 constitutional rights here. Nor were they representing the public interest. . . . They were

1 seeking compensation and statutory penalties for a defective Durango.”). As noted above,

2 Plaintiffs’ counsel do not argue this case involved complexity warranting a multiplier and

3 do not identify anything special about their representation of Plaintiffs in this matter.

4 Plaintiffs’ counsel also cite no caselaw supporting the application of a multiplier based on

5 the delay in payment incurred as a result of their own choice to take this case on a

6 contingency basis. Accordingly, no multiplier to the lodestar amount is warranted.

7 H. Costs

8 Plaintiffs argue their attorneys are entitled to reimbursement of $13,766.96 in costs

9 and expenses. (Doc. No. 44-1 at 24.) Defendant argues that Plaintiffs’ counsel are not

10 entitled to at least some of their costs under Federal Rule of Civil Procedure 54 and because

11 they failed to submit a bill of costs in violation of Civil Local Rule 54.1. (Doc. No. 45 at

12 8, 22-23.) Defendant also argues that costs related to personally serving deposition

13 subpoenas, travel to depositions, and expert costs are not recoverable under Local Rule

14 54.1. (Id. at 23-24.)

15 The Song-Beverly Act specifically allows for the recovery of “a sum equal to the

16 aggregate amount of costs and expenses.” CAL. CIV. CODE § 1794(d). Under federal law,

17 however, costs available to the prevailing party are limited to those listed 28 U.S.C. § 1920.

18 Fed. R. Civ. P. 54(d); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).

19 District courts have reached different conclusions as to whether the provision regarding

20 costs and expenses in the Song-Beverly Act is procedural or substantive. See Base, 2020

21 WL 363006, at *7 (finding that “state law governs Plaintiff’s request for costs,” but listing

22 several cases in the Eastern District finding otherwise); Johnson, 2019 WL 3891148, at *4

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

24 Procedure 54(d) and not applicable state law, even in diversity cases.”); Forouzan v. BMW

25 of N. Am., LLC, 390 F. Supp. 3d 1184, 1187 (C.D. Cal. 2019) (finding the cost provision

26 to be substantive based on the state legislature’s intent); O’Brien v. FCA US LLC, No.

27 17cv4042 JCS, 2019 WL 5295066, at *7 (N.D. Cal. Oct. 18, 2019) (same).

28

1 The costs and expenses available to Plaintiffs are not limited by Rule 54(d) or by

2 Local Rule 54.1. The costs and expenses provision in the Song-Beverly Act is substantive

3 for the same reasons as the courts found persuasive in Base, Forouzan, and O’Brien.

4 Additionally, both Rule 54(d) and Local Rule 54.1 are based on an entry of judgment,

5 which has not occurred here. Accordingly, Defendant’s argument that certain costs are

6 prohibited by Local Rule 54.1 is not persuasive.

7 The expenses listed in Plaintiffs’ counsel’s bills consist mainly of fees related to

8 generating six transcripts and fees for Plaintiffs’ expert to inspect the vehicle, draft an

9 expert report, and prepare for a deposition. The expenses also include fees related to filing

10 and serving documents, including ten deposition subpoenas. The other lesser expenses

11 include transportation costs for attending events such as depositions, the vehicle inspection,

12 and the mandatory settlement conference, as well as several meals while traveling.5 Based

13 on the above, $13,766.96 in costs and expenses is reasonable.

14 IV. CONCLUSION

15 Based on the forgoing, the court decreases Plaintiffs’ request for $80,066.50 in

16 attorney’s fees by $485 based on the reduction to Mr. Bickel’s rate to $575 per hour, and

17 by $15,291 based on the excessive hours reportedly spent pursuing the instant motion. The

18 total amount awarded for attorney’s fees is $64,290.50. Additionally, Plaintiffs’ request

19 for $8,396 for paralegal/law clerk fees is reduced by $6,276 based on the decrease in the

20 paralegal/law clerk rate from $195 to $100 per hour, as well as a decrease from 42.4 hours

21 to 21.2 hours. The total amount awarded for paralegal/law clerk fees is $2,120. The court

22 therefore GRANTS Plaintiffs’ motion for attorney’s fees and paralegal/law clerk fees in

23 the amount of $66,410.50. The court also GRANTS Plaintiffs’ motion for $13,766.96 in

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27 5 The only questionable item is $29.74 for a “[m]eal expense incurred during travel for

deposition of Plaintiffs’ Expert Witness.” (Doc. No. 44-3 at 25.) The court will presume

28

1 |}costs and expenses. Plaintiffs’ request for $797.50 in legal assistant fees is DENIED.

2 || Plaintiffs’ request for an additional $26,778 based on a 0.3 multiplier is DENIED.

3 IT IS SO ORDERED.

4 ||DATED: February 14, 2020 Bite

5 J T. LER

ited States District Judge

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