Avery Armani v. Northwestern Mutual Life Insurance Company et al

Filing 56

ORDER Re: PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, TO DETERMINE COSTS AND INTEREST RATE 48 by Judge Ronald S.W. Lew: For the reasons set forth above, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Attorneys Fees . Plaintiff is awarded a total of $101,947.50 in attorneys fees, $1,660.36 in costs, and prejudgment interest on the total amount of benefits owed to Plaintiff at the applicable rate as set forth by 29 U.S.C. § 1961(a) to be compounded annually. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 AVERY ARMANI,

CV 13-07058 RSWL (RZx)

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ORDER Re: PLAINTIFF’S
MOTION FOR ATTORNEY’S
FEES, TO DETERMINE COSTS
AND INTEREST RATE [48]

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)
)
)
Plaintiff,
)
v.
)
)
NORTHWESTERN MUTUAL LIFE
)
)
INSURANCE COMPANY, a
corporation; DOES 1 through )
)
10, INCLUSIVE,
)
)
)
Defendant.
)

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I.

INTRODUCTION

Currently before the Court is Plaintiff Avery

21 Armani’s (“Plaintiff”) Motion for Attorney’s Fees, to
22 Determine Costs and Interest Rate (“Motion”) against
23 Defendant Northwestern Mutual Life Insurance Company
24 (“Defendant”). Pl.’s Mot. for Att’y’s Fees (“Mot.”),
25 ECF No. 48. The Court, having reviewed all papers and
26 arguments submitted pertaining to this Motion, NOW
27 FINDS AND RULES AS FOLLOWS: the Court GRANTS in part
28 and DENIES in part Plaintiff’s Motion for Attorney’s
1

1 Fees.
2

II. BACKGROUND

3 A.

Factual Background

4

Plaintiff worked as a full-time controller for the

5 Renaissance Insurance Agency (“Renaissance”) from
6 November 3, 2008 to May 18, 2011.
7 Court Trial 2:1-5, ECF No. 27.

Ruling and Order re

On January 6, 2011,

8 Plaintiff injured his back lifting a backup power
9 supply while at work.

Id. at 4:19-20.

Plaintiff was

10 diagnosed with a lumbar region sprain, muscle spasms,
11 and sciatica.

Id. at 4:22-5:6.

12 working on May 18, 2011.
13

Plaintiff stopped

Id. at 6:14-15.

As a Renaissance employee, Plaintiff was insured

14 under a group long-term disability policy (“the LTD
15 Plan”) issued by Defendant.

Id. at 2:6-8.

Plaintiff

16 completed a Group Disability Claim Employee Statement
17 for Defendant on July 15, 2011, reporting that his back
18 injury prevented him “from sitting, standing, walking,
19 driving, and concentrating for prolonged periods of
20 time without experiencing a lot of pain &/or
21 difficulty.”
22

Id. at 8:12-17.

Between September 2011 and January 2012, Plaintiff

23 continued to visit chiropractors, pain specialists, and
24 physicians, all of whom confirmed that Plaintiff’s
25 disability precluded him from working.
26 14:26.

Id. at 13:14-

On January 16, 2012, another chiropractor

27 indicated that Plaintiff was limited to sitting for
28 four hours a day and to standing and walking for two
2

1 hours a day, but believed that Plaintiff’s condition
2 would improve and that he could return to work on July
3 6, 2012.

Id. at 14:26-15:8.

Based on these medical

4 records, Defendant’s reviewing physician, Dr. John
5 Hart, determined that Plaintiff was capable of working
6 in a sedentary position.
7

Id. at 15:9-19.

By letter dated July 9, 2013, Defendant informed

8 Plaintiff that his LTD claim was being closed because
9 his records did not support a disability under the “own
10 occupation” or “any occupation” test.

Id. at 18:24-28.

11 Plaintiff appealed the decision and asked for review by
12 a second doctor.

Id. at 19:1-6.

After being assigned

13 to review Plaintiff’s records, Dr. Hans Carlson also
14 found that the records “[did] not support that
15 [Plaintiff] would be precluded from sedentary-level
16 work.”

Id. at 19:6-12.

Defendant informed Plaintiff

17 that it was upholding its claim decision.

Id. at

18 19:18-20.
19 B.

Procedural Background

20

Pursuant to the Employee Retirement Income Security

21 Act of 1974 (“ERISA”), Plaintiff filed his Complaint
22 against Defendant on September 23, 2013 [1].

Following

23 a bench trial, on November 25, 2014, this Court awarded
24 Plaintiff benefits for the remainder of the first 24
25 months of his disability under the LTD Plan (nine days
26 total), but also found that Plaintiff failed to show by
27 a preponderance of the evidence that he was disabled
28 from “all occupations” after July 18, 2013 [27].
3

1

On December 1, 2014, Plaintiff appealed this

2 Court’s Judgment [29], and on November 4, 2016, the
3 Ninth Circuit Court of Appeals vacated the part of this
4 Court’s Judgment denying Plaintiff his long-term
5 disability benefits and remanded the case for further
6 proceedings [31].

After Plaintiff’s Writ of Mandamus

7 was granted reversing this Court’s remand of the matter
8 to Defendant, this Court entered Judgment for Plaintiff
9 on May 18, 2017 [47].

On May 30, 2017, Plaintiff filed

10 the instant Motion for Attorney’s Fees [48].

On June

11 26, 2017, Defendant filed its Opposition [51], and
12 Plaintiff’s Reply followed on June 28, 2017 [54].
13

III. DISCUSSION

14 A.

Legal Standard

15

1.

16

29 U.S.C. § 1132(g)(1) states that “the court in

Attorney’s Fees

17 its discretion may allow a reasonable attorney’s fee
18 and costs of action to either party.”

Under the

19 “American Rule,” each party to a lawsuit is generally
20 responsible for its own attorney’s fees.
21 Eckerhart, 461 U.S. 424, 429 (1983).

Hensley v.

The general rule

22 in federal courts is that attorney’s fees will not be
23 awarded in civil cases absent an express statutory
24 command.

Id.

When attorney’s fees are awarded, the

25 amount of the fee award is subject to the court’s
26 discretion.

Rodriguez v. Disner, 688 F.3d 645, 653

27 (9th Cir. 2012).

If a plaintiff is entitled to an

28 award of attorney’s fees, then the district court
4

1 should be guided by the considerations identified in
2 Hensley.

In Hensley, the Supreme Court approved the

3 lodestar method for calculating fees by multiplying the
4 number of hours reasonably expended on the litigation
5 by the reasonable hourly rate.
6

461 U.S. at 429.

In determining the appropriate hourly rate to be

7 included in a lodestar calculation, the district court
8 must look to the rate prevailing in the community for
9 similar work performed by attorneys of comparable
10 skill, experience, and reputation.

Chalmers v. City of

11 Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh’g
12 denied amended on other grounds, 808 F.2d 1373 (9th
13 Cir. 1987).

In determining the appropriate number of

14 hours to be included in a lodestar calculation, the
15 district court should exclude hours “that are
16 excessive, redundant, or otherwise unnecessary.”
17 Hensley, 461 U.S. at 434.

“The party seeking the award

18 should provide documentary evidence to the court
19 concerning the number of hours spent[.]”

McCown v.

20 City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009)
21 (internal citation omitted).

Counsel must demonstrate

22 that the time actually spent was reasonably necessary
23 to effectively litigate the claims.

Sealy, Inc. v.

24 Easy Living, Inc., 743 F.2d 1378, 1385 n.4 (9th Cir.
25 1984).
26

In exercising its discretion in determining whether

27 a party should be awarded attorney’s fees, courts
28 should consider the following factors: (1) the degree
5

1 of the opposing parties’ culpability or bad faith; (2)
2 the ability of the opposing parties to satisfy an award
3 of fees; (3) whether an award of fees against the
4 opposing parties would deter others from acting under
5 similar circumstances; (4) whether the parties
6 requesting fees sought to benefit all participants and
7 beneficiaries of an ERISA plan or to resolve a
8 significant legal question regarding ERISA; and (5) the
9 relative merits of the parties’ positions.

Hummell v.

10 S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir. 1980).
11 B.

Analysis

12

1.

13

Defendant requests the Court take judicial notice

Defendant’s Request for Judicial Notice

14 of the weekly average 1-year constant maturity Treasury
15 yield rates from July 2013 to May 12, 2017, as
16 published by the Board of Governors of the Federal
17 Reserve System.

Def.’s Req. for Jud. Ntc. 2:1-7.

This

18 was downloaded from the Federal Reserve Bank of St.
19 Louis’ website.
20

Id. at 2:14-17.

A court may take judicial notice of a fact that is

21 not subject to reasonable dispute because it “can be
22 accurately and readily determined from sources whose
23 accuracy cannot reasonably be questioned.”
24 Evid. 201(b)(2).

Fed. R.

Plaintiff does not object to

25 Defendant’s Request for Judicial Notice.

VMR Products,

26 LLC v. V2H ApS, No. 2:13-CV-7719-CBM-JEMX, 2016 WL
27 1177834, at *1 (C.D. Cal. Mar. 18, 2016).

Courts may

28 also take judicial notice of “records and reports of
6

1 administrative bodies.”

Balance Studio, Inc. v.

2 Cybernet Entm’t, LLC, No. 15-CV-04038-DMR, 2016 WL
3 1559745, at *1 n.2 (N.D. Cal. Apr. 18, 2016)(quoting
4 Mack v. South Bay Beer Distributors, Inc., 798 F.2d
5 1279, 1282 (9th Cir. 1986)).

As this document was

6 downloaded from the Federal Reserve Bank of St. Louis’
7 website and its accuracy cannot reasonably be
8 questioned, the Court GRANTS Defendant’s request for
9 judicial notice.
10
11
12

2.

The Hummell Factors Weigh in Favor of Awarding
Attorney’s Fees

As an initial matter, Defendant spends the majority

13 of its Opposition raising issues that are irrelevant to
14 the instant Motion.

See generally Def.’s Opp’n to

15 Pl.’s Mot. for Att’y’s Fees (“Opp’n”).

Defendant

16 spends a significant amount of time discussing
17 Plaintiff’s lack of cooperation in providing requested
18 documents to Defendant to process his claim.
19 at 7-10:10.

See id.

However, the Opposition to this Motion is

20 not the appropriate avenue to raise issues Defendant is
21 having in paying Plaintiff’s benefits and these
22 arguments do nothing to assist the Court in determining
23 the appropriate attorney’s fees.

Moreover, in its

24 March 2015 Order granting Plaintiff’s Writ of Mandamus,
25 the Ninth Circuit awarded Plaintiff attorney’s fees.
26 While this Court still needs to determine the
27 appropriate hourly rate and reasonable amount of hours
28 expended, Defendant attempts to argue that despite the
7

1 Ninth Circuit’s ruling, this Court should deny
2 Plaintiff’s Motion because of irrelevant issues.
3 Nevertheless, the Court will still go into an analysis
4 of the factors courts look to when determining if
5 attorney’s fees are appropriate in ERISA cases.
6

In any action brought by a plan participant,

7 beneficiary, or fiduciary under ERISA, “the court in
8 its discretion may allow a reasonable attorney’s fee
9 and costs of action to either party.”
10 1132(g).

29 U.S.C. §

The Ninth Circuit has held that a successful

11 ERISA participant who “prevails in his suit . . . to
12 enforce his rights under his plan should ordinarily
13 recover an attorney’s fee unless special circumstances
14 would render such an award unjust.”

Smith v. CMTA-IAM

15 Pension Trust, 746 F.2d 587, 589 (9th Cir. 1984)
16 (internal quotation marks and citation omitted).
17

The Court finds Plaintiff is entitled to attorney’s

18 fees because the Hummell factors courts consider in
19 deciding whether to grant attorney’s fees weigh in
20 Plaintiff’s favor.

634 F.2d at 453; see also

21 Mardirossian v. Guardian Life Ins. Co. of America, 457
22 F. Supp. 2d 1038, 1044 (C.D. Cal. 2006)(awarding
23 plaintiff attorney’s fees because four of the five
24 Hummell factors weighed in his favor).

When applying

25 these factors, ERISA’s goal of providing remedies to
26 individuals “should be liberally construed in favor of
27 protecting participants in employee benefit plans.”
28 McElwaine v. US West, Inc., 176 F.3d 1167, 1172 (9th
8

1 Cir. 1999).
2

a.

3
4

Degree of Defendant’s Culpability or Bad
Faith

When there is no evidence of bad faith, the first

5 Hummell factor weighs neither for a plaintiff nor a
6 defendant and is therefore not decisive.

Frei v.

7 Hartford Life Ins. Co., No. C-05-01191 EDL, 2006 WL
8 1409360, at *3 (N.D. Cal. May 23, 2006)(holding the
9 first factor in the plaintiff’s request for attorney’s
10 fees was neutral because there was no evidence of bad
11 faith on the plaintiff or the defendant’s part); see
12 also Smith, 746 F.2d at 590 (“[a]s there was no bad
13 faith on either side, this factor should not have been
14 considered decisive”).

Here, Defendant alleges that

15 Plaintiff has acted in bad faith by refusing to turn
16 over tax returns along with other earning documents,
17 preventing Defendant from calculating the amount of
18 benefits owed to Plaintiff.

Opp’n 14:7-13.

However,

19 Plaintiff argues that he has sixty days to respond to
20 Defendant’s request, and at the time the parties
21 briefed this Motion the sixty-day window had not yet
22 elapsed.

Pl.’s Reply to Mot. for Att’y’s Fees

23 (“Reply”) 4:2-10.

Because Plaintiff still had time to

24 respond to Defendant’s requests, it is not evident to
25 the Court that he has acted in bad faith.

Since

26 neither Plaintiff nor Defendant acted in bad faith,
27 this first factor is neutral.
28 ///
9

1

b.

2
3

Ability of the Opposing Party to Satisfy
an Award of Fees

The second Hummell factor weighs in Plaintiff’s

4 favor because Defendant can satisfy an award of fees.
5 Defendant itself admits that it is capable of
6 satisfying an award of fees.

Opp’n 14:16-18;

7 Mardirossian, 457 F. Supp. 2d at 1045.

The ability of

8 a party to satisfy an award of fees is relevant to a
9 court’s inquiry.
10 1984).

Smith, 746 F.2d at 589 (9th Cir.

While the Court agrees with Defendant that this

11 factor alone is not determinative, it nevertheless
12 weighs in Plaintiff’s favor.
13
14

c.

Whether an Award Would Deter Others

Defendant argues an award would not deter others

15 from acting in similar circumstances because Defendant
16 was simply defending its position and it should not be
17 penalized for doing so.

Opp’n 14:20-28.

The Court

18 finds that the third Hummell factor weighs in
19 Plaintiff’s favor because an award of attorney’s fees
20 could deter insurance companies from denying benefits
21 to those with work-related injuries or to investigate a
22 claim more thoroughly when there is a dispute.

When

23 the position of both parties has some merit, “a
24 decision clarifying the terms of a plan after
25 litigation benefits all participants and beneficiaries
26 by settling a disputed provision or ambiguity.”

Smith,

27 746 F.2d at 590 (holding the third Hummell factor
28 weighed in the plaintiff’s favor because litigation
10

1 removed ambiguity from the terms of his plan and was a
2 deterrent to trustees to deny such claims in the
3 future).
4

Here, awarding attorney’s fees to Plaintiff could

5 deter Defendant from denying similar claims to future
6 claimants since this litigation clarified the term
7 “sedentary” with regards to ERISA.

Awarding Plaintiff

8 attorney’s fees would deter insurance companies from
9 denying appropriate benefits to those with conditions
10 that do not allow them to perform sedentary work.
11 Thus, the third factor marginally weighs in Plaintiff’s
12 favor.
13

d.

Party Requesting Fees Sought to Benefit

14

All Participants and Beneficiaries of an

15

ERISA Plan or to Resolve a Significant

16

Legal Question Regarding ERISA

17

As an initial matter, Plaintiff did not seek to

18 benefit all plan participants and beneficiaries of an
19 ERISA plan because this was an individual claim.
20 Mardirossian, 457 F. Supp. 2d at 1045.

However,

21 arguably, this litigation has assisted in resolving the
22 meaning of the word “sedentary” as it relates to
23 insurance claims.

If the litigation will assist plan

24 fiduciaries to some degree in their future
25 administration of plan benefits, then this factor
26 weighs in Plaintiff’s favor.

See Arnett v. Hartford

27 Life & Acc. Ins. Co., 558 F. Supp. 2d 975, 980 (C.D.
28 Cal. 2007)(finding that a court’s analysis in
11

1 determining disability also benefits additional plan
2 participants).

Similarly, other employees with the

3 same job description as Plaintiff covered under a
4 similar plan will benefit from clarification of the
5 word “sedentary” as set forth by the Ninth Circuit
6 because clarifications are useful in resolving
7 ambiguities.

Smith, 746 F.2d at 590.

Therefore, the

8 fourth factor weighs in Plaintiff’s favor.
9
10

e.

Relative Merits of the Parties’ Positions

The fifth Hummell factor weighs in Plaintiff’s

11 favor because Plaintiff received a favorable judgment
12 in this case.

When a party obtains a judgment in their

13 favor, the court should weigh this factor accordingly.
14 See Arnett, 558 F. Supp. 2d at 980; Mardirossian, 457
15 F. Supp. 2d at 1045.

While this Court initially

16 partially ruled in Defendant’s favor after the bench
17 trial, Plaintiff received a judgment from this Court on
18 the merits of his case on May 18, 2017, after the
19 appeal to the Ninth Circuit.

Defendant’s argument that

20 Plaintiff is now working has no basis in determining
21 whether the parties’ positions have merit.
22 15:26-16:6.

Opp’n

Accordingly, the fifth factor weighs in

23 Plaintiff’s favor.
24

As the majority of the Hummell factors weigh in

25 Plaintiff’s favor, there are no special circumstances
26 that would render an award unjust, and considering the
27 Ninth Circuit’s Order on May 8, 2017, Plaintiff is
28 entitled to attorney’s fees.
12

1

3.

The Lodestar Calculation

2

Next, the Court must determine the lodestar figure,

3 which is the reasonable hourly rate multiplied by the
4 reasonable hours expended as set forth in Hensley.
5 Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110
6 (9th Cir. 2014).

Then, the Court must determine if for

7 any reason the lodestar figure should be adjusted.
8 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th
9 Cir. 1975), abrogated on other grounds by City of
10 Burlington v. Dague, 505 U.S. 557 (1992).1

There is a

11 presumption that the lodestar calculation represents a
12 reasonable fee.

Morales v. City of San Rafael, 96 F.3d

13 359, 363 (9th Cir. 1996).
14

Plaintiff requests $104,647.50 in attorney’s fees

15 for 152.3 hours spent on the litigation for this case.
16 Mot. 8:1-4.

Plaintiff’s lead counsel, Charles

17 Fleishman, requests an hourly rate of $675 for 144.5
18 hours he spent on the case.

Declaration of Charles

19 Fleishman (“Charles Fleishman Decl.”) ¶¶ 4, 6, ECF No.
20 48.

He requests an additional four hours for reviewing

21
1

In Kerr, the Ninth Circuit found the following factors

22 important in determining whether attorney’s fees are reasonable:
the time and
23 (1)the questions labor required; (2) the novelty and difficulty
of
involved; (3) the skill requisite to perform the
24 legal service properly; (4) the preclusion of other employment by
25
26
27
28

the attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases. Id.
13

1 and responding to Defendant’s Opposition to the instant
2 Motion and four hours for appearing at the hearing for
3 this Motion.

Id.

He believes $675 per hour is a

4 reasonable rate because of his extensive experience
5 with ERISA claims and the complex nature of ERISA law.
6 Id. at ¶¶ 7-8.

His experience includes approximately

7 200 ERISA claims and he is currently working on ten
8 ERISA matters.

Id. at ¶ 7.

Attorney Paul Fleishman

9 requests an hourly rate of $450 per hour for 3.8 hours
10 spent on the case.
11
12

a.

Id.

Hourly Rate

“Fee applicants have the burden of producing

13 evidence that their requested fees are ‘in line with
14 those prevailing in the community for similar services
15 by lawyers of reasonably comparable skill, experience,
16 and reputation.’”

Chaudhry, 751 F.3d at 1110 (quoting

17 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980
18 (9th Cir. 2008)).

The relevant community is the forum

19 in which the district court sits.

Id.

The district

20 court has discretion in determining which fees are
21 reasonable.
22

Id.

Attorney Charles Fleishman has been practicing

23 since 1970 and he states that his practice is devoted
24 to ERISA claims.

Charles Fleishman Decl. ¶¶ 1, 4.

He

25 has tried approximately 225 jury trials and 1500 court
26 trials, including 200 ERISA cases.

Id. at ¶¶ 3, 7.

27 Additionally, Charles Fleishman was previously awarded
28 $600 per hour and Paul Fleishman was awarded $350 per
14

1 hour in a 2012 Eastern District of California case.
2 Mot. 7:1-3.

Paul Fleishman has been practicing since

3 2007 exclusively in the area of ERISA and has been
4 recognized as a Southern California Rising Star in the
5 field of ERISA every year since 2013.

Declaration of

6 Paul Fleishman (“Paul Fleishman Decl.”) ¶¶ 2, 4, ECF
7 No. 48-3.

Paul Fleishman has also previously been

8 awarded $350 by this Court in a different case in 2011
9 and $400 in an ERISA case in this District in 2015.
10 Id. at ¶ 5.
11

Charles Fleishman and Paul Fleishman’s rates of

12 $675 and $450 are reasonable, because they reflect the
13 prevailing market rate in this community for their
14 levels of experience.

“Affidavits of the plaintiffs’

15 attorney and other attorneys regarding prevailing fees
16 in the community, and rate determinations in other
17 cases, particularly those setting a rate for the
18 plaintiffs’ attorney, are satisfactory evidence of the
19 prevailing market rate.”

United Steelworkers of Am. v.

20 Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.
21 1990)(citing Chalmers, 796 F.2d at 1214).
22 Additionally, it is appropriate to adjust an hourly
23 rate for delay in payment, as was the case here since
24 the case was taken on a contingency basis.

Missouri v.

25 Jenkins by Agyei, 491 U.S. 274, 283-84 (1989).
26

Plaintiff submits affidavits from attorneys in this

27 District supporting their requested rates.

Michael

28 McKuin’s declaration states that $700 and $500 would be
15

1 more appropriate hourly rates for Charles Fleishman and
2 Paul Fleishman; however, he concedes that in his 233 year practice in ERISA litigation, he has been awarded
4 $550 per hour.

Declaration of Michael McKuin (“McKuin

5 Decl.”) ¶¶ 6, 8, ECF No. 48-4.

The Declaration of

6 Susan Horner points to a case where an attorney was
7 awarded $700 in an ERISA litigation.

Declaration of

8 Susan Horner (“Horner Decl.”) ¶ 10, ECF No. 48-5.

The

9 remaining cases Ms. Horner cites to shows that
10 attorneys have also been awarded hourly rates of $57511 $650.

Id. at ¶¶ 11-16.

Moreover, Paul Fleishman was

12 awarded $400 in an ERISA case in 2015.
13

Therefore, the Court finds $675 per hour for

14 Charles Fleishman and $450 per hour for Paul Fleishman
15 are reasonable hourly rates based on counsels’ levels
16 of experience and prior awards.
17
18

b.

Reasonable Hours

A district court has “wide latitude in determining

19 the number of hours that were reasonably expended by
20 the prevailing lawyers.”

Sorenson v. Mink, 239 F.3d

21 1140, 1147 (9th Cir. 2001).

The fee applicant “bears

22 the burden of documenting the appropriate hours
23 expended in litigation and must submit evidence in
24 support of hours worked.”

Gates v. Deukmejian, 987

25 F.2d 1392, 1398 (9th Cir. 1992).
26

Charles Fleishman spent 144.5 hours and Paul

27 Fleishman spent 3.8 hours preparing for and litigating
28 this case.

“A court may award attorneys’ fees only for
16

1 the number of hours it concludes were reasonably
2 expended litigating the case” and should exclude hours
3 that are excessive, redundant, or otherwise
4 unnecessary.
5

Mardirossian, 457 F. Supp. 2d at 1049.

Plaintiff’s time sheets do not appear to be

6 excessive, redundant, nor otherwise unnecessary because
7 they are not duplicative.

Charles Fleishman appears to

8 have tracked his time meticulously, as has Paul
9 Fleishman.

Paul Fleishman spent the majority of his

10 hours reviewing Charles Fleishman’s work, which is not
11 uncommon for attorneys and thus not duplicative.

After

12 a review of the time sheets, the Court finds the
13 requested number of hours are reasonable.
14

Charles Fleishman also anticipated and requested

15 four hours for reviewing and responding to Defendant’s
16 Opposition for the instant Motion and four hours for
17 appearing at the hearing for this Motion.

This matter

18 was taken under submission and the parties did not
19 appear at a hearing, therefore Charles Fleishman is not
20 entitled to the four hours requested for an appearance.
21 The Court finds that four hours is reasonable for
22 reviewing Defendant’s Opposition and preparing the
23 Reply.

Therefore, Charles Fleishman shall be

24 compensated for a total of 148.5 hours and Paul
25 Fleishman shall be compensated for a total of 3.8
26 hours.
27

Using the hourly rate of $675 per hour for Charles

28 Fleishman, multiplied by the 148.5 hours he spent
17

1 working on this case, his total fee comes to
2 $100,237.50.

For Paul Fleishman, at an hourly rate of

3 $450 per hour and 3.8 hours spent on this litigation,
4 the fee amounts to $1,710.

When totaled, the sum is

5 $9101,947.50.
6

Finally, the Court must look to the Kerr factors in

7 determining whether the lodestar figure is reasonable
8 and if it should be adjusted.

526 F.2d at 70.

When

9 looking at the totality of the circumstances, none of
10 the Kerr factors necessitate that the Court adjust the
11 lodestar figure.

This matter was litigated for the

12 past four years and required time and labor, including
13 an appeal to the Ninth Circuit and a Writ of Mandamus.
14 ERISA litigation is a particularized field that
15 requires specialized skills to perform the legal
16 services.

Charles Fleishman and Paul Fleishman did

17 take this matter on a contingency basis and Plaintiff
18 did achieve positive results, as he was awarded all of
19 the past benefits he sought.

Additionally, both

20 attorneys have dedicated a significant number of years
21 to the practice of ERISA litigation.

Therefore, the

22 lodestar figure is appropriate and reasonable and does
23 not require an adjustment.
24

4.

25

Plaintiff also requests $1,660.36 for costs

Plaintiff is Entitled to Costs

26 associated with the litigation, including $400 for
27 filing the Complaint, $505 for filing an appeal to the
28 Ninth Circuit, $255.36 for printing briefs to the Ninth
18

1 Circuit, and $500 for filing a petition for a Writ of
2 Mandamus.

Charles Fleishman Decl. ¶ 11.

Defendant

3 argues that Plaintiff should be denied his costs
4 because he failed to make an application to the Clerk
5 of Court for costs.

Opp’n 2:12.

While Local Rule 54-

6 2.1 does state that a party shall file with the Clerk
7 of Court and serve an application for costs, in ERISA
8 cases such as the instant case, it is the Court, not
9 the Clerk of Court, who awards fees and costs in its
10 discretion.

Mogck v. UNUM Life Ins. Co. of America,

11 No. Civ. 99-CV-201-CGA, 2001 WL 34084379, at *1-2 (S.D.
12 Cal. Jan. 8, 2001); 29 U.S.C. § 1132(g).

Therefore,

13 Plaintiff is awarded $1,660.36 in costs.
14

5.

15

Plaintiff also requests prejudgment interest on the

Prejudgment Interest on Award

16 benefits owed him at a rate of ten percent.
17 18.

Mot. 7:15-

Plaintiff argues that ERISA statutes do not

18 mention interest and therefore there is no set rate;
19 thus, the Court should use California Insurance Code §
20 10111.2 to set the interest rate.

Id. at 7:19-23.

21 Defendant argues that if interest is awarded, it should
22 be at the same rate as post-judgment interest as set
23 forth by 28 U.S.C. § 1961(a) and not as set by the
24 California Insurance Code, which is preempted by ERISA.
25 Opp’n 10:20-11:12.
26

The Ninth Circuit has held that the decision to

27 award interest in an ERISA case “is a question of
28 fairness, lying within the court’s sound discretion, to
19

1 be answered by balancing the equities.”

Day v. AT&T

2 Disability Income Plan, 608 F. App’x 454, 458 (9th Cir.
3 Apr. 9, 2015)(unpublished)(quoting Shaw v. Int’l Ass’n
4 of Machinists & Aerospace Workers Pension Plan, 750
5 F.2d 1458, 1465 (9th Cir. 1985)).

Additionally,

6 awarding interest as set forth in 28 U.S.C. § 1961(a)
7 is reasonable, unless there is substantial evidence or
8 the equities of a specific case require a different
9 interest rate.

Id. (citing Blankenship v. Liberty Life

10 Assur. Co. of Bos., 486 F.3d 620, 628 (9th Cir. 2007)).
11

Plaintiff’s argument that the interest rate should

12 be set based on California Insurance Code § 10111.2 is
13 unconvincing.

As stated above, it is within the

14 Court’s discretion to award interest and to determine
15 the rate.

Using the rate as set forth by 28 U.S.C. §

16 1961(a) has not only been found to be reasonable, but
17 it is also fair and just to all parties.

The Court

18 need not go into a discussion of whether the California
19 Insurance Code is preempted by ERISA because the Court
20 exercises its discretion to award prejudgment interest
21 as set forth in 28 U.S.C. § 1961(a).
22

Plaintiff shall be awarded prejudgment interest at

23 a rate equal to the average 1-year constant maturity
24 Treasury yield, as published by the Board of Governors
25 of the Federal Reserve System for the calendar week
26 preceding the due date of any past due benefit payment.
27 28 U.S.C. § 1961(a).

The interest is to be compounded

28 annually.
20

1
2

IV. CONCLUSION
For the reasons set forth above, the Court GRANTS

3 in part and DENIES in part Plaintiff’s Motion for
4 Attorney’s Fees.

Plaintiff is awarded a total of

5 $101,947.50 in attorney’s fees, $1,660.36 in costs, and
6 prejudgment interest on the total amount of benefits
7 owed to Plaintiff at the applicable rate as set forth
8 by 29 U.S.C. § 1961(a) to be compounded annually.
9 IT IS SO ORDERED.
10 DATED: July 24, 2017

s/

11

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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