April K. Jameson v. Ford Motor Company

O [7] United States District Court [8] Central District of California [10] 11 APRIL K. JAMESON, Case No. 2:18-cv-01952-ODW-(ASx) 12 Plaintiff, ORDER GRANTING IN PART, 13 v. PLAINTIFF JAMESON MOTION 14 FORD MOTOR CO. et al., FOR ATTORNEYS’ FEES [32] 15 Defendants. 16 I. INTRODUCTION 17 On February 2, 2018, Plaintiff April K. Jameson (“Jameson”) filed suit against 18 Defendant Ford Motor Co. (“Ford”) in the Superior Court of Los Angeles County for 19 violation of California’s Song-Beverly Consumer Warranty Act. (Not. of Removal 20 Ex. A (“Compl.”), ECF No. 1-1.) Subsequently, Ford removed the case to federal 21 court, (Not. of Removal (“Removal”), ECF No. 1) and over a year later, parties filed a 22 joint notice of settlement. (Not. of Settlement, ECF No. 20.) Plaintiff now moves for 23 attorneys’ fees and costs in the amount of $29,406.21. For the reasons discussed 24 below, the Court GRANTS IN PART Plaintiff’s Motion for Attorney’s Fees 25 (“Motion”). (Mot. for Att’y Fees (“Mot.”), ECF No. 32.)1 [27] 1 After carefully considering the papers filed in support of and in opposition to the Motions, the 28 Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 715. 1 II. FACTUAL AND PROCEDURAL BACKGROUND 2 On August 22, 2013, Jameson purchased a new 2013 Ford Fusion for 3 $43,490.16. (Mot. 3.) After three years and three months of owning the vehicle and 4 driving it 53,181 miles, Jameson began experiencing problems with the engine. 5 (Mot. 3.) Jameson took the vehicle, while still within warranty, to a Ford-authorized 6 repair facility after the vehicle began to shake and would not accelerate. (Mot. 3.) 7 She also felt a loss of power and believed the vehicle would stall. (Mot. 3.) At that 8 time, the repair technicians said they were unable to duplicate her concern. (Mot. 3.) 9 She returned five weeks later with a similar concern and the technicians replaced the 10 fuel low pressure sensor. (Mot. 3.) Although she still felt the vehicle lacked power, 11 technicians made no further repairs. (Mot. 3.) Within two months, Jameson returned 12 to the authorized facility because the “check engine” light was illuminated and the 13 revolutions per minute meter intermittently fluctuated at idle. (Mot. 3.) The 14 technicians replaced the faulty purge valve, but three weeks later Jameson felt her 15 vehicle shake and shut off. (Mot. 3.) Even after jump starting the vehicle, it stopped 16 operating after moving five feet. (Mot. 3.) To resolve this matter, the technicians 17 replaced the battery. (Mot. 4.) During this visit, the Technicians attempted to address 18 two recalls, but parts were only available for one of the recalls. (Mot. 4.) Even after 19 five visits to the repair facility in four months, Jameson’s problems with the vehicle 20 remained unresolved. (Mot. 4.) 21 On April 10, 2017 and twice thereafter, Jameson contacted Ford customer 22 service and requested that Ford repurchase her vehicle. (Mot. 4.) Jameson never 23 received a response. (Mot. 4.) With the assistance of counsel, she filed suit against 24 Ford on February 2, 2018. (See Compl.) On October 2, 2018, counsel for Jameson 25 propounded discovery requests to Ford. (Mot. 4.) In January 2019, counsel for 26 Jameson made additional discovery requests and deposed Ford’s “PMK.” (Mot. 5.) 27 On or about January 30, 2019, Ford served Jameson with an Offer of Judgment 28 pursuant to Federal Rules of Civil Procedure (“Rule”) 68 in the amount of 1 $107,070.00. (Mot. 5.) On February 12, 2019, Jameson accepted their offer and she 2 now moves for her attorney’s fees. (Mot. 5.) 3 III. LEGAL STANDARD 4 “State law governs attorney fees in diversity cases.” Negrete v. Ford Motor 5 Co., No. ED.18-cv-1972, 2019 WL 4221397 , at *2 (C.D. Cal. June 5, 2019) (citing 6 Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009) (“In a 7 diversity case, the law of the state in which the district court sits determines whether a 8 party is entitled to attorney fees, and the procedure for requesting an award of attorney 9 fees is governed by federal law”)). 10 The California Song-Beverly Act authorizes an award of costs and expenses to 11 plaintiffs prevailing in their claims pursuant to the act. Cal. Civ. Code § 1794 (d). 12 Plaintiffs may recover “a sum equal to the aggregate amount of costs and expenses, 13 including attorney’s fees based on actual time expended, determined by the court to 14 have been reasonably incurred by the buyer in connection with the commencement 15 and prosecution of such action.” Id. However, the “prevailing buyer has the burden 16 of showing that the fees incurred were allowable, were reasonably necessary to the 17 conduct of the litigation, and were reasonable in amount.” Morris v. Hyundai Motor 18 Am., 41 Cal. App. 5th 24 , 34, (Ct. App. 2019) (collecting case) (internal quotation 19 marks omitted). 20 In determining the amount of attorney’s fees award under § 1794(d), a court 21 must utilize the “lodestar” method of calculating the award, accomplished by 22 multiplying the number of hours reasonably expended on the litigation by a reasonable 23 hourly rate. Morris, 41 Cal. App. 5th at 34 (citing Meister v. Regents of Univ. of 24 California, 67 Cal. App. 4th 437 , 448–49 (1998) (“the California Supreme Court 25 intended its lodestar method to apply to a statutory attorney’s fee award”)). Section 26 1794 requires a trial court to “ascertain whether under all the circumstances of the 27 case the amount of actual time expended and the monetary charge being made for the 28 time expended are reasonable.” Id. Courts may grant an upward or downward 1 departure based on (1) the complexity of the case and procedural demands, (2) the 2 skill exhibited and results achieved, (3) the extent to which the nature of the litigation 3 precluded other employment by the attorneys, and (4) the contingent nature of the fee 4 award. Morris, 41 Cal. App. 5th at 34; Negrete, 2019 WL 4221397 , at *2. If the 5 court finds the time expended or the amount requested are not reasonable, it may 6 award attorney fees in a lesser amount. Morris, 41 Cal. App. 5th at 34. 7 IV. DISCUSSION 8 Jameson moves for costs in the amount of $4,866.21, attorney’s fees in the 9 amount of $16,360.00 and a lodestar modifier in the amount of $8,180.00, totaling to 10 $29,406.21. (Mot. 2.) Ford does not dispute the amount in costs. (Opp’n to Mot. 11 (“Opp’n”) 11, ECF No. 34.) Instead, Ford argues that the attorney’s fees are 12 unreasonable and asserts that the Court should grant at most $7,500.00 in attorney’s 13 fee. (Opp’n 11.) Since parties do not dispute the costs, the Court GRANTS an award 14 of $4,866.21 in costs. The Court now considers the reasonableness of the fees using 15 the lodestar method. 16 A. Lodestar Analysis 17 Plaintiff had six attorneys billing on this matter at the following rates and for the 18 following number of hours: 19 SBM Managing Partner $550 3.7 hours 20 ALM Partner $350 9.9 hours 21 KSC Associate $375 5.7 hours 22 MER Associate $325 5.4 hours 23 DD Associate $275 7.9 hours 24 MEH Discovery Attorney $350 13.7 hours 25 (Decl. of Steve Mikhov, Ex. A (“Billing Records”) 3, ECF No. 32-2.) Accordingly, 26 the lodestar proffered by Plaintiff is $16,360.00. [28] 1 The Court reviewed the Billing Records and found that Plaintiff’s counsel billed 2 for work it did not do, such as “prepare for and appear at hearing on Motion for 3 Attorney’s Fees (travel included)” and other administrative tasks such as “review and 4 audit billing.” (Billing Records 3.) Accordingly, the Court strikes those hours in the 5 bill. See Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1320 (2008) 6 (reducing the award by discounting hours billed); accord Hanna v. Mercedes-Benz 7 USA, LLC, 36 Cal. App. 5th 493, 507 (2019) (“[w]hen the trial court substantially 8 reduces a fee or cost request, we infer the court has determined the request was 9 inflated”); Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001) (“trial courts must 10 carefully review attorney documentation of hours expended”). 11 Next, the Court assesses whether the hourly rate charged by counsel is 12 reasonable. “[T]he reasonable value of attorney services is variously defined as the 13 hourly amount to which attorneys of like skill in the area would typically be entitled.” 14 See Ketchum, 24 Cal. 4th at 1133 (internal quotation marks omitted). Counsel may 15 present evidence of hourly rates state and federal courts had previously awarded him 16 or others for comparable work. Goglin, 4 Cal. App. 5th at 473. Counsel should 17 proffer evidence of a reasonable hourly rate relative to the normal rate for attorneys 18 “conducting noncontingent litigation of the same type.” Ketchum, 24 Cal. 4th at 1133 . 19 However, the Court is “not obliged to accept this evidence as conclusive of the 20 appropriate hourly rate.” Goglin, 4 Cal. App. 5th at 474. 21 Plaintiff’s counsel provided declarations showing that attorneys in similar cases 22 charged a comparable hourly rate. (See Mikhov Decl., ¶ 54.) Additionally, Plaintiff 23 contends that counsel has been awarded attorneys’ fees at similar rates under the 24 Song-Beverly Act. (See, id. at Exs. G–HH.) Furthermore, Plaintiff asserts that the 25 hourly rates are reasonable because this case required a range of specialized 26 knowledge including: (1) an understanding of the full scope of consumer protection 27 laws, which are “highly nuanced”; (2) knowledge of the intricacies of automobiles and 28 the lexicon associated with them, as well as knowledge concerning how to investigate 1 issues with automobiles; and (3) knowledge of auto manufacturers’ and dealers’ 2 policies and protocols for repairing vehicles and complying with their legal 3 obligations. (Mot. 10.) Plaintiff also argues the firm’s skill justifies the amount of 4 fees requested, noting that Plaintiff ultimately recovered $107,070.00 in damages, 5 which is almost two-and-a-half times the vehicle’s purchase price. (Mot. 12.) 6 Defendant criticizes Plaintiff’s attorneys for comparing their hourly rates to 7 those of other lawyers who work on a contingency basis. (Opp’n 6.) Defendant 8 argues the Court should calculate reasonable attorney’s fees using a “blended rate” of 9 $250 an hour for time spent reasonably and necessarily spent on the case. (Opp’n 6.) 10 Having considered the range of rates presented in the declaration and the level 11 of skill and advocacy required for the case at issue. The Court deems the following 12 hourly rates appropriate: 13 SBM Managing Partner $500 3.3 hours 14 ALM Partner $350 9.9 hours 15 KSC Associate $350 5.7 hours 16 MER Associate $250 5.4 hours 17 DD Associate $250 7.9 hours 18 MEH Discovery Attorney $350 9.7 hours 19 See id. (appellate court determining the trial court did not abuse its discretion in 20 basing its fee award on an hourly rate lower than the rate requested). Accordingly, the 21 Court recalculates the lodestar award to $13,830. 22 B. Lodestar Multiplier 23 The Court now evaluates whether a lodestar multiplier should be awarded and 24 considers: (1) the complexity of the case and procedural demands, (2) the skill 25 exhibited and results achieved, (3) the extent to which the nature of the litigation 26 precluded other employment by the attorneys, and (4) the contingent nature of the fee 27 award. See Morris, 41 Cal. App. 5th at 34. [28] 1 Plaintiff argues a 0.5 multiplier is appropriate due to the “risk of taking this case 2 on a contingent fee basis and the delay in payment since February 2018.” (Mot. 17.) 3 According to Plaintiff, Ford “dragged this case out for nearly one year before 4 submitting a reasonable settlement offer.” (Mot. 17.) 5 Defendant argues for a negative multiplier reducing the award of attorneys’ fees 6 from the base Lodestar amount. (Opp’n 9.) Defendant argues that a negative 7 multiplier is warranted because (1) there was no novelty in this claim; (2) the litigation 8 did not preclude other employment; and (3) there was very little contingent risk once 9 Ford served the first Offer of Judgment. (Opp’n 9.) As the Court considered the 10 Defendant’s arguments in determining the reasonable hourly rate, the Court does not 11 apply a negative multiplier. See Goglin, 4 Cal. App. 5th at 473 (declining to lower the 12 fee award). 13 Furthermore, the Court does not find that Plaintiff’s counsel merits a lodestar 14 multiplier. The Court does not find any issues that were particularly novel or complex 15 nor any special skill employed. Parties exchanged discovery, Plaintiff’s counsel took 16 one deposition and subsequently, Defendant made an offer. (See Opp’n) 17 Furthermore, Plaintiff does not forgo any other employment for this case and in fact 18 seems to engage in over fifty similar matters at once. (See Decl. of Steve Mikhov 19 ¶ 25.) Accordingly, the Court does not find the first two factors weigh in favor of an 20 upward departure. 21 Additionally, a contingent fee agreement only favors an upward departure when 22 there is an “uncertainty of prevailing on the merits and of establishing eligibility for 23 the award.” Robertson v. Fleetwood Travel Trailers of California, Inc., 144 Cal. App. 24 4th 785, 819 (2006). Here, the Song-Beverly Act statutorily authorizes an award of 25 attorney’s fees to a party prevailing on its claim and Plaintiff’s counsel has settled 26 over fifty similar cases in its client’s favor. Given pattern and practice of Plaintiff’s 27 counsel’s work, the Court does not find that counsel reasonably faced an uncertainty [28] 1 | of prevailing on the merits. Thus, this factor does not persuasively weigh in favor of 2 || an upward departure. 3 While counsel obtained a positive result for Plaintiff, the Court declines to apply a Lodestar multiplier in light of all the circumstances. The Court therefore GRANTS 5 || attorney’s fees in the amount of $13,830.00. Accordingly, the Court awards 6 | $13,830.00 in attorney’s fees and $4,866.21 in costs and expenses for a total award of 7) $18,696.21. 8 Vv. CONCLUSION 9 For the reasons discussed above, the Court GRANTS IN PART Plaintiff’s 10 | Motion for Attorneys’ Fees and AWARDS $18,696.21. (ECF No. 32.) [11] 12 IT IS SO ORDERED. [13] 14 December 16, 2019 15 4“ 16 Gill: Ya Mit 7 OTIS D. WRIGHT, II ig UNITED STATES DISTRICT JUDGE