Plaintiff filed suit against defendant in Sacramento County Superior Court on December 12, 2017, alleging a violation of the Song-Beverly Consumer Warranty Act, California Civil Code section 1790, known as the "lemon law," based on her lease of an allegedly defective 2015 BMW 328i. See Not. of Removal, ECF No. 1, at 8. Defendant removed the action to this court on January 17, 2018. Id. at 1. The parties exchanged initial disclosures and engaged in written discovery over the summer and fall of 2018. Opp'n, ECF No. 29, at 4. Collectively, the parties conducted four depositions. Id. After the parties exchanged expert witness disclosures, but before they filed dispositive motions, they reached a settlement in October of 2019 and notified the court of their agreement under Federal Rule of Civil Procedure 68. See ECF Nos. 17, 20, 22. The court then entered an Order of Judgment in this case, ECF No. 23, ordering that: defendant shall pay (1) to plaintiff, $24,000, and (2) to the applicable finance company, the sum necessary to pay off the financing of any loan still encumbering the subject vehicle. Order, ECF No. 23, at 1. In addition, the order stated defendant "shall pay plaintiff's reasonable attorneys' fees, costs, and expenses, in an amount to be agreed upon or, if the parties cannot agree, in the amount awarded by the court pursuant to a noticed motion." Id. at 2.
Because the parties could not agree on a reasonable attorneys' fees amount, plaintiff filed the instant motion for attorney's fees on November 26, 2019. Mot., ECF No. 25-1. Defendant opposes, Opp'n, and plaintiff has replied, Reply, ECF No. 30. The court submitted the motion without a hearing and resolves it here.
Attorneys' fees in Song-Beverly cases are governed by California Civil Code section 1794(d), which provides:
If the buyer prevails in an action under this section, the 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, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.
Cal. Civ. Code. § 1794(d). The parties do not dispute that plaintiff is entitled to recoup reasonable attorneys' fees, costs, and expenses under the Song-Beverly Act. "The plain wording of the statute requires the trial court to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged." Robertson v. Fleetwood Travel Trailers of CA, Inc., 144 Cal. App. 4th 785, 817 (2006).
"A prevailing buyer has the burden of showing that the fees incurred were 'allowable,' were 'reasonably necessary to the conduct of the litigation,' and were 'reasonable in amount.'" Durham v. FCA US LLC, No. 2:17-CV-00596-JLT, 2020 WL 243115, at *3 (E.D. Cal. Jan. 16, 2020) (citing Nightingale v. Hyundai Motor America, 31 Cal. App. 4th 99, 104 (1994);Goglin v. BMW of North America, LLC, 4 Cal. App. 5th 462, 470 (2016)). Under a contingent fee arrangement, "a prevailing buyer represented by counsel is entitled to an award of reasonable attorney fees for time reasonably expended by his or her attorney." Nightingale, 31 Cal. App. 4th at 105 n.6.
If a fee request is opposed, "[g]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice." Durham, 2020 WL 243115, at *3 (quoting Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc., 163 Cal. App. 4th at 550, 564 (2008)). "Rather, the opposing party has the burden to demonstrate the hours spent are duplicative or excessive." Id. (citing Premier Med. Mgmt. Sys., 163 Cal. App. 4th at 562, 564; Gorman v. Tassajara Dev. Corp., 178 Cal. App. 4th 44, 101 (2009) ("[T]he party opposing the fee award can be expected to identify the particular charges it considers objectionable")).
"The determination of what constitutes a reasonable fee generally begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate." Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 154 (2006) (quoting PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000)); see also Aviles v. Subaru of Am., Inc., No. 118CV01544 DAD SKO, 2020 WL 868842, at *2 (E.D. Cal. Feb. 21, 2020) (applying lodestar method to Song-Beverly Act case).
"To calculate the 'lodestar,' the Court must multiply the number of hours the attorneys reasonably spent on the litigation by the reasonable hourly rate in the community for similar work." Arias v. Ford Motor Co., No. EDCV181928 PSG SPX, 2020 WL 1940843, at *3 (C.D. Cal. Jan. 27, 2020) (citing McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1173 (9th Cir. 1999)). Plaintiff seeks recovery of "lodestar" attorney fees of $82,115 along with a "lodestar enhancement" or "multiplier" of 2.0, for a total of $164,230. Mot. at 14. Plaintiff includes a detailed billing record showing how plaintiff reached this amount. Jacobs Decl., Ex. 1, ECF No. 25-4. Specifically, plaintiff proposes the following hourly rate and number of hours:
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Mot. at 12.
Defendant argues plaintiff's fee demand is "unreasonable and excessive," Opp'n at 4, challenging (1) the attorneys' rates, (2) the reasonableness of the hours spent, and (3) the requested lodestar multiplier. See generally Opp'n. The court addresses these arguments in turn.
"[D]etermining an appropriate 'market rate' for the services of a lawyer is inherently difficult[.]" Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). To determine a reasonable rate, a court may refer to "[a]ffidavits of the plaintiffs' attorney and other attorneys regarding fees in the community" and rates paid in other cases. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). "The reasonable hourly rate is the rate prevailing in the community for similar work." Arias, 2020 WL 1940843, at *3 (citing, inter alia, Gonzalez v. City of Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013) ("[T]he court must compute the fee awardusing an hourly rate that is based on the prevailing market rates in the relevant community.")). "The relevant community is the community in which the court sits." Id. (citing Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995)). "If an applicant fails to meet its burden, the court may exercise its discretion to determine reasonable hourly rates based on its experience and knowledge of prevailing rates in the community." Id. (citations omitted).
Plaintiff seeks to recover the fees generated by five different attorneys at rates ranging from $350 to $650 per hour for work performed on the case. Opp'n at 7 (citing Mot. at 8). Plaintiff bases these rates loosely on the 2017-2018 United States Consumer Law Attorney Fee Survey Report, published by Ronald L. Burdge, Esq. See Baker Decl. ¶ 18, ECF No. 25-2; Jacobs Decl., Ex. 2 (excerpt of U.S. Consumer Law Attorney Fee Survey Report), ECF No. 25-4. Plaintiff also supports his request with declarations from counsel Terry Baker, Baker Decl., ECF No. 25-2, Bobby Walker, Walker Decl., ECF No. 25-3, and Jon Jacobs, Jacobs Decl., ECF No. 25-4, detailing counsel's experience and explaining why their requested rates are reasonable.
Defendant argues there is little evidence to support plaintiff's claim that the rate requested is similar to the rate of attorneys with comparable experience, litigating similar cases, in Sacramento County. See Opp'n at 9. Citing several state court cases awarding fees for "lemon law" cases, defendant argues a reasonable rate would be $270 for partners and $205 for associates, or a blended rate of $237.50 per hour (averaging partner and associates rates for the number of hours worked). Opp'n at 11 (citing Raphael Decl., Ex. 10, ECF No. 29-1 (summary of calculations and spreadsheet detailing challenged billing entries)).
In addition to the parties' evidence, the court looks to attorneys' fees awards in similar cases in this district for guidance. In Aviles, 2020 WL 868842, at *6, for example, the court awarded: an average of $650 per hour for an attorney with roughly 35 years of experience; $500 to $350 for 15 to 20 years' experience; $325 to $275 for roughly 8 years of experience; $250 to $225 for roughly 4 years of experience; and $150 for a legal assistant. See also Durham, 2020 WL 243115, at *9 ("[T]he Sacramento Division and Fresno Division award comparable rates."). By contrast, the court in Celestine v. FCA US LLC, No. 2:17-CV-0597-JLT, 2019 WL 4274092, at *12 (E.D. Cal. Sept. 10, 2019), found that $300 per hour was a reasonable rate for anattorney with roughly 16 years of experience, $250 for roughly 11 years' experience, $225 for attorneys with 6 to 8 years of experience, and $175 for attorneys with less than five years' experience.
Plaintiff seeks $650 per hour for Ms. Kheen, with roughly 35 years of experience, Jacobs Decl. ¶ 20, and Mr....
