Gene Edwards, on behalf of herself and all others similarly situated v. Ford Motor Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GENE EDWARDS, on behalf of herself
and all others similarly situated,
Plaintiff-Appellee,
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
No. 16-55868
D.C. No.
3:11-cv-01058-MMA-BLM
MEMORANDUM*
GENE EDWARDS, on behalf of herself
and all others similarly situated,
Plaintiff-Appellant,
v.
FORD MOTOR COMPANY,
Defendant-Appellee.
No. 16-55935
D.C. No.
3:11-cv-01058-MMA-BLM
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Argued and Submitted February 8, 2018
San Francisco, California
Before: TASHIMA, BERZON, and CHRISTEN, Circuit Judges.
Defendant Ford Motor Company (“Ford”) appeals, and plaintiff Gene
Edwards cross-appeals, from the district court’s grant of attorney fees to Edwards.
The district court determined that Edwards’s lawsuit was a substantial factor
contributing to Ford’s adoption of a customer satisfaction program for owners of
Ford Freestyles, among other cars, and thus Edwards was a successful party under
a catalyst attorney fee theory pursuant to Cal. Code Civ. Proc. § 1021.5. See
generally Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004). The court
did not apply a contingency fee multiplier to the award, reasoning that the award
already accounted for the contingent nature of Edwards’s counsel’s work. We
affirm.
1. Ford argues that the district court applied the wrong burden of proof in its
fee analysis. It maintains that the district court did not properly consider that the
“presumption” established by the chronology of events in Edwards’s lawsuit
should have “disappear[ed]” once Ford produced a declaration from its employee,
David Ott, stating that Ford’s customer satisfaction program was adopted in
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response to an investigation by the National Highway Traffic Safety
Administration (“NHTSA”), and not in response to the Edwards litigation.
We disagree. In California, the inference from the chronology of events
does not evaporate when the defendant introduces relevant and credible evidence
to the contrary; rather, the trial court must weigh the evidence and determine on all
the evidence, including any inference arising from the chronology, if the plaintiff’s
story is persuasive. See Hogar v. Cmty. Dev. Comm’n of City of Escondido, 157
Cal. App. 4th 1358, 1367 (2008).
That is what the district court in this case did. As the court emphasized
when ruling on Ford’s motion for reconsideration, it “did not rely solely on the fact
that Plaintiff’s lawsuit preceded the [customer satisfaction program] in determining
whether Plaintiff’s lawsuit was a causal factor.” Rather, the court took into
account factors other than chronology, such as the parallel between the remedies
Edwards requested and those eventually provided, the provision of remedies
NHTSA could not order, and Ford’s own evidence regarding NHTSA’s skepticism
regarding whether Ford’s vehicles had any safety defect. Thus, the inference from
chronology was only one of several factors the district court weighed in Edwards’s
favor when concluding that she had adequately established that her lawsuit was a
factor in Ford’s decision to institute the customer satisfaction program it ultimately
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adopted, and that Ford’s evidence introduced to prove to the contrary was not
persuasive. This analysis contained no legal error.
2. As to Ford’s argument that the trial court erred in its factual findings, we
might have reached the opposite conclusion were we the triers of fact. But, we
conclude, the district court did not commit clear error in finding that Ford was
substantially motivated by Edwards’s lawsuit. See Barrientos v. 1801-1825
Morton LLC, 583 F.3d 1197, 1207 (9th Cir. 2009).
The district court carefully explained why it found that this litigation was a
substantial factor in Ford’s actions, noting that: (1) even though NHTSA had
already begun an informal investigation into Ford Freestyles’ surging issues in late
2010 or early 2011, Ford did not begin to adopt its remedial program until 2012,
after Edwards filed her suit; (2) Ford’s customer satisfaction program grants relief
that Edwards sought under California law and that NHTSA was not empowered to
order, making it unlikely the program was instituted only as a result of the NHTSA
investigation; and (3) the primary declaration for Ford, submitted by Ott, included
evidence that in part tended to support Edwards’s theory of the case, rather than
Ford’s, and that was otherwise uninformative as to the motivation of the employees
at Ford who actually decided to adopt the customer satisfaction program.
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As to the last point: Although the declaration demonstrated that the NHTSA
investigation was one reason the customer satisfaction program was adopted, under
applicable law, a catalyst for fees purposes need not be the only reason for
providing a remedy. Cates v. Chiang, 213 Cal. App. 4th 791, 807–08 (2013).
Because Ott’s declaration was not from an actual decision-maker but from an
individual whose authority reached only the NHTSA proceeding, it could not
competently address the pertinent question—was the lawsuit one reason Ford
adopted the customer satisfaction program?
Ford contends that the large scale of its customer satisfaction program, along
with its employees’ declarations, the timeline of Edwards’s failed class
certification motion, and Edwards’s lack of direct evidence, definitively indicate
that Edwards’s lawsuit could not have motivated Ford when it adopted its remedial
program. But we cannot say that the district court clearly erred in its careful
consideration of all the evidence and its resultant finding that Edwards’s lawsuit
was a substantial motivating factor for its adoption. We thus affirm the district
court’s finding that Edwards was a successful party under Cal. Code Civ. Proc.
§ 1021.5.
3. Finally, Edwards contends that the district court erred in denying her
request for a 1.5 times contingency multiplier for her attorney fees. We disagree.
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“[T]he trial court is not required to include a fee enhancement to the basic
lodestar figure for contingent risk, exceptional skill, or other factors, although it
retains discretion to do so in the appropriate case . . . .” Ketchum v. Moses, 24 Cal.
4th 1122, 1138 (2001); accord Chaudry v. City of Los Angeles, 751 F.3d 1096,
1112 (9th Cir. 2014) (under California law, “[t]he choice whether to award a
[contingency] multiplier . . . is within the district court’s discretion”). Here, the
district court found that Edwards’s counsel’s average hourly rate already
compensated for contingent risk. The court compared Edwards’s counsel’s
average rate to similar rates for plaintiffs’ contingency attorneys in two cases from
the relevant geographic area and time period; the district courts in those
comparator cases had found such rates reasonable in light of “the specter of
nonpayment . . . in the event [counsel] did not recover for the class.” Shames v.
Hertz Corp., 2012 WL 5392159, No. 07-CV-2174, at *19 (S.D. Cal. Nov. 5, 2012);
accord Gallucci v. Boiron, Inc., 2012 WL 5359485, No. 11-CV-2039, at *9–10
(S.D. Cal. Oct. 31, 2012).
Again, another court could have come to a different conclusion on this
record. But we cannot say the district court clearly erred in finding that the
lodestar adequately compensated Edwards’s counsel for the contingent nature of
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her case. We thus affirm the district court’s refusal to apply a contingency
multiplier to Edwards’s attorney fee award.
AFFIRMED.
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