Richard Sinohui v. CEC Entertainment, Inc.

Filing 76

MINUTES (IN CHAMBERS) ORDER by Magistrate Judge Kenly Kiya Kato,Defendant shall pay to Plaintiff the sum of $10,976.25 as reasonable attorneys fees and costs pursuant to Federal Rule of Civil Procedure 37(a)(5)(B) no later than June 22, 2016. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 14-2516-JLS (KKx)

Date June 7, 2016

Title Richard Sinohui v. CEC Entertainment, Inc.
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Awarding Plaintiff’s Reasonable Attorney’s Fees and Costs Re:
Defendant’s Motion to Compel [Dkt. 61]
I.
INTRODUCTION

On May 11, 2016, the Court denied Defendant CEC Entertainment, Inc.’s
(“Defendant”) Motion to Compel Responses to Requests for Production of Documents and
Interrogatories (“Motion to Compel”) and found an award of reasonable attorney’s fees and
costs to Plaintiff Richard Sinohui (“Plaintiff”) were warranted. ECF Docket No. (“Dkt.”) 67.
On May 23, 2016, Plaintiff filed declarations from his counsel Brennan S. Kahn and James M.
Trush regarding the fees and costs incurred in opposing Defendant’s Motion to Compel and
requesting an award of $20,737.50. Dkt. 72, Kahn Decl.; Dkt. 72-1, Trush Decl. According to
the declarations, Mr. Kahn spent a total of 31.75 hours conferring with Defendant’s counsel and
opposing Defendant’s Motion to Compel at an hourly rate of $450.00 and Mr. Trush spent a
total of 8.6 hours at an hourly rate of $750.00. Id.
On May 31, 2016, Defendant filed objections to Plaintiff’s declarations with a supporting
declaration from Defendant’s counsel, Christopher Petersen. Dkt. 74, Objs.; Dkt. 74-1, Petersen
Decl. Defendant objects to the hourly rates of Plaintiff’s counsel and argues Plaintiff’s counsel
should not be awarded fees for time spent on (a) clerical tasks such as scheduling meetings with
Defendant’s counsel, (b) having two attorneys attend a telephonic conference with Defendant’s
counsel, and (c) excessive time spent preparing correspondence and the Joint Stipulation. Id.

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For the reasons set forth below, the Court awards Plaintiff reasonable attorney’s fees and
costs in the sum of $10,976.25.
II.
LEGAL STANDARD
Under Rule 37(a)(5)(B), if a motion to compel is denied, the Court must award the party
who opposed the motion its reasonable expenses, including attorney’s fees, unless the motion
was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ.
P. 37(a)(5)(B).
When an award of attorney’s fees is authorized, the court must calculate the proper
amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983). Reasonableness is generally determined using the “lodestar” method, where a court
considers the work completed by the attorneys and multiplies “the number of hours reasonably
expended on the litigation by the reasonable hourly rate.” Gracie v. Gracie, 217 F.3d 1060, 1070
(9th Cir. 2000) (internal citations omitted). The moving party has the burden to produce
evidence that the rates and hours worked are reasonable. See Intel Corp. v. Terabyte Int’l, 6
F.3d 614, 623 (9th Cir. 1983).
III.
DISCUSSION
Here, Defendant’s Motion to Compel was denied in its entirety and the Court found the
Motion was not substantially justified. Hence, Plaintiff’s request for an award of reasonable costs
and expenses incurred in opposing the Motion to Compel was granted. However, as discussed
below, the Court finds the requested amounts unreasonable and, thus, reduces the sum to be
awarded accordingly.
A.

Reasonableness of Hours Spent

First, the Court will not award attorney fees for activities that can be classified as
secretarial or clerical in nature. Jones v. Corbis Corp., No. CV 10-8668-SVW (CWx), 2011 WL
4526084, at *5 (C.D. Cal. Aug. 24, 2011) (“Activities that can be classified as secretarial or
clerical in nature generally cannot be recovered as attorney’s fees under the lodestar
methodology”), aff’d, 489 F. App’x 155 (9th Cir. 2012); see also Missouri v. Jenkins, 491 U.S.
274, 288 n.10 (1989) (holding that an attorney may not seek reimbursement for purely clerical or
secretarial tasks). As the Ninth Circuit has stated, “[i]t simply is not reasonable for a lawyer to
bill, at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a
much lower cost.” Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992),
opinion vacated in part on denial of reh’g on other grounds, 984 F.2d 345 (9th Cir. 1993).
Moreover, the Court may exclude any hours that are excessive, redundant, or otherwise
unnecessary. Hensley, 461 U.S. at 434.

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Second, the Court finds it is excessive and unnecessary for Mr. Kahn to bill 2.0 hours and
Mr. Trush to bill 0.8 hours to exchange emails regarding scheduling a meet and confer
conference. This work could also be characterized as clerical in nature.
Third, the Court declines to award fees for time spent by Mr. Kahn on January 16, 2016
preparing a letter requesting an extension to respond to Defendant’s December 22, 2015
correspondence as this time did not further resolution of the discovery dispute at issue.
Finally, the Court finds the time Mr. Kahn spent preparing a substantive response to the
December 22, 2016 correspondence, 7.75 hours, and Plaintiff’s portion of the Joint Stipulation,
15.3 hours, to be excessive for an eighth year employment litigation associate. First, Plaintiff’s
counsel had already made similar arguments in opposing Defendant’s Ex Parte Application to
Continue Class Certification. See Dkt. 49. Second, even though the Joint Stipulation is over a
hundred pages, Plaintiff’s arguments and legal authority are repetitive. See Dkt. 62. Hence, the
Court finds it appropriate to strike 5.0 hours from the preparation of the responsive
correspondence and 8.5 hours from preparation of the Joint Stipulation. See Hensley, 461 U.S. at
434.
The following is a chart of the time claimed by Mr. Kahn in opposing Defendant’s
Motion to Compel and the Court’s reasonableness reductions:
Date
12/28/15
1/16/16
1/19/16
1/20/16
1/27/16
1/29/16
2/1/16
2/2/16
2/9/16
2/11/16
4/6/16
4/12/16
4/13/16
4/14/16
5/23/16

Task
Review letter from Defendant and confer with cocounsel
Draft email requesting extension to respond to
12/22/15 letter
Draft substantive response to 12/22/16 letter
Revise response to 12/22/16 letter
Confer with co-counsel re: strategy
Email re: scheduling meet and confer and legal
research
Email exchange re: scheduling meet and confer
Email exchange re: scheduling meet and confer
Email exchange re: scheduling meet and confer
Prepare for and participate in meet and confer
Confer with co-counsel re: strategy
Draft Plaintiff’s portion of Joint Stipulation
Draft Plaintiff’s portion of Joint Stipulation
Revise and finalize Plaintiff’s portion of Joint
Stipulation
Prepare declaration in support of request for
attorney’s fees

Time Spent
1.0

Reduction
0

0.5

0.5

6.25
1.5
0.25
1.8

4.0
1.0
0
0.3

1.2
0.25
0.25
1.3
0.4
5.0
8.5
1.8

1.2
0.25
0.25
0
0
2.5
6.0
0

1.75

0

Total Reduction 16
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Accordingly, the Court finds it reasonable for Mr. Kahn to have spent 15.75 hours in
connection with opposing Defendant’s Motion to Compel.
The following is a chart of the time claimed by Mr. Trush in opposing Defendant’s
Motion to Compel and the Court’s reasonableness reductions:
Date
12/22/15
1/20/16
1/27/16
2/1/16 –
2/2/16
2/3/16
2/4/16
2/11/16
4/6/16
4/13/16

Task
Review letter from Defendant
Review and revise response to 12/22/16 letter
Review discovery documents and confer with cocounsel re: strategy
Email exchange re: scheduling meet and confer

Time Spent
1.2
.8
.5

Reduction
0
0
0

.8

.8

Prepare for meet and confer
Participate in meet and confer
Prepare for and participate in meet and confer
Confer with co-counsel re: strategy and review
Defendant’s portion of Joint Stipulation
Review and revise Plaintiff’s portion of Joint
Stipulation

1.2
1
1.3
.9

0
0
0
0

.9

0

Total Reduction 0.8
Accordingly, the Court finds it reasonable for Mr. Trush to have spent 7.8 hours in
connection with opposing Defendant’s Motion to Compel.
B.

Reasonableness of Counsel’s Rates

To assist the Court in calculating the lodestar, the fee applicant must submit “satisfactory
evidence . . . that the requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v.
Stenson, 465 U.S. 886, 895-96 n.11 (1984). The relevant community is that in which the district
court sits. See Schwarz v. Sec’y of Health and Human Serv., 73 F.3d 895, 906 (9th Cir. 1995).
Plaintiff’s counsel seeks hourly rates of $450.00 for Mr. Kahn and $750.00 for Mr.
Trush. As evidence that these rates are reasonable, Plaintiff’s counsel attests to each attorney’s
experience in employment and class action litigation, and success in law school. Kahn Decl., ¶¶
3-11; Trush Decl., ¶¶ 13-16; see United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d
403, 407 (9th Cir. 1990) ( “Affidavits of the plaintiffs’ attorney and other attorneys regarding
prevailing fees in the community, and rate determination in other cases, particularly those setting
a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”). Mr.
Trush also states his hourly rate has been approved in connection with wage an hour class actions
in California District Courts. Trush Decl., ¶ 12.

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However, after reviewing awards in similar cases, the Court concludes that the hourly
rates Plaintiff’s counsel seeks are excessive for this case. The Court finds hourly rates of $650.00
for Mr. Trush and $375.00 for Mr. Kahn to be reasonable. See, e.g., Gonzalez v. S. Wine &
Spirits of Am. Inc., No. 2:11-CV-05849-ODW, 2014 WL 1630674, at *3 (C.D. Cal. Apr. 24, 2014)
(class action wage and hour case).
In summary, the Court awards Mr. Kahn 15.75 hours at $375.00 per hour, for a total of
$5,906.25 and Mr. Trush 7.8 hours at $650.00 per hour, for a total of $5,070.00. Accordingly,
the Court finds an award of $10,976.25 to be reasonable under the circumstances of this case.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Defendant shall pay to Plaintiff the sum of
$10,976.25 as reasonable attorney’s fees and costs pursuant to Federal Rule of Civil Procedure
37(a)(5)(B) no later than June 22, 2016.

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