Keli Parker v. Peters and Freedman, LLP et al
Filing
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Order Granting in Part Plaintiff's Motion for Attorney's Fees (Dkt. 115 ) by Magistrate Judge Douglas F. McCormick. Fees awarded in favor of Keli Parker against Peters and Freedman, LLP. The Court GRANTS Plaintiff's application in part. Attorney's fees are awarded in the amount of $112,420 and costs are awarded in the amount of $1,650.11 for a total of $114,070.11. (See document for details.) (sbou)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
KELI PARKER,
Case No. SA CV 17-0667-DFM
Plaintiff,
Order Granting in Part Plaintiff’s
Motion for Attorney’s Fees (Dkt. 115)
v.
PETERS & FREEDMAN, LLP et al.,
Defendants.
Before the Court is Plaintiff’s Motion for Attorney’s Fees and Costs.
Dkt. 115 (“Motion”). Having considered all of the papers filed, the Court
GRANTS Plaintiff’s motion, subject to the limitations discussed below.
BACKGROUND
Plaintiff Keli Parker filed this action against Defendants Peter &
Freedman, LLP (“P&F”) and the Discovery at Cortez Hill Homeowners
Association (“the HOA”) for violations of the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692, et seq. and the Rosenthal Fair Debt
Collection Practices Act (“RFDCPA”), California Civil Code § 1788, et seq.
See Dkt. 1.
Plaintiff and the HOA settled for $3,000 in September 2017. See Dkt. 40.
In December 2017, Plaintiff reached out to P&F about settlement but received
no response. See Motion at 6-7, Ex. 4. On January 31, 2018, Plaintiff again
inquired about settlement, and noted that fees were now “significant.” Id. at 7,
Ex. 6. The next day, Plaintiff’s counsel stated that he had authority to settle the
case for $16,000 inclusive of fees and costs. Id. at 7-8, Ex. 7. Several days later
P&F stated their intention to move for summary judgment. Id. at 8, Ex. 8. In
response, Plaintiff withdrew the settlement offer. Id.
On April 7, Plaintiff made another settlement offer of $50,000 to cover
attorney’s fees plus “an additional $7,500 for our client & vacating the state
court judgment so our client is not forced to hire us to bring a motion to do
so.” Dkt. 122-1, Declaration of David Peters ¶ 6, Ex. Q. Two days later, the
Court granted Plaintiff’s motion for partial summary judgment, finding that
P&F violated § 1692e of the FDCPA by filing a time-barred collections action.
See Dkt. 61.
Later in April, Plaintiff offered to stipulate to $35,000 in damages, or, in
the alternative, settle the case for $80,000 inclusive of all attorney’s fees and
costs. See id. ¶ 7, Ex. E. In May, P&F wrote Plaintiff, explaining that it did not
have the ability to vacate the underlying state-court judgment or compel
Discovery to do so. See id. ¶ 10, Ex. H. Plaintiff later offered to stipulate to
$25,000 in damages, and then $20,000. See id. ¶¶ 8, 9, Exs. F, G. P&F rejected
both offers and the parties prepared for trial.
At a September pre-trial conference, Plaintiff’s counsel told the Court
that Plaintiff intended to pursue damages in the amount of the state-court
judgment. See id. ¶ 20, Ex. R at 4:21-8:25. The next day, the Court ordered
Plaintiff to provide an itemized computation of damages. See Dkt. 91. To the
extent Plaintiff sought damages related to the state-court judgment, Plaintiff
was required to “specify how such damages would be computed and the legal
basis for bringing any further damages.” Id. Plaintiff’s subsequent disclosure
did not identify any damages related to the state-court judgment, leading the
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Court to preclude Plaintiff from seeking those damages at trial. See Dkts. 92,
98.
On October 4, after the jury was empaneled and sworn, Plaintiff and
P&F settled for $11,000. See Dkts. 104, 109. The parties agreed in the
settlement agreement and on the record that P&F would pay reasonable
attorney’s fees and costs. See Motion at 3. On October 30, Plaintiff offered to
settle its attorney’s fees for $115,000.00. See Peters Decl. ¶ 24, Ex. V. P&F
rejected this offer.
Having reached an impasse, Plaintiff filed the instant motion, seeking
$136,970.00 in attorney’s fees, $4,050.00 in paralegal fees, and $1,650.11 in
costs, totaling $142,670.11. In opposition, P&F does not challenge counsels’
rates or billing practices. Instead, P&F asks the Court to deny or reduce the
award to no more than $16,000 because Plaintiff prolonged this litigation by its
persistent demand that P&F resolve, extinguish, and later pay the state-court
judgment.
LEGAL STANDARD
Both the FDCPA and the RFDCPA authorize an award of costs and
reasonable attorney’s fees in a successful action to enforce liability for a
violation of the Acts. See 15 U.S.C. § 1692k(a)(3); Cal. Civ. Code § 1788.30(c).
The Ninth Circuit has adopted the use of the “lodestar” method for
determining reasonable attorney’s fees in FDCPA cases. See Ferland v.
Conrad Credit Corp., 244 F.3d 1145, 1148 (9th Cir. 2001). Under the lodestar
method, a reasonable attorney’s fee is determined by multiplying the number
of hours reasonably expected on the litigation by an attorney with the
attorney’s reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983).
Although the lodestar figure is presumptively a reasonable fee award, a
district court “may, if circumstances warrant, adjust the lodestar to account for
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other factors which are not subsumed within it.” Ferland, 244 F.3d at 1149
n.4. A court must articulate its reasoning in evaluating the propriety of an
hourly rate or hours claimed and in adjusting the hourly rate, hours claimed,
or lodestar amount. See id. at 1148.
DISCUSSION
The Court first considers P&F’s argument that the Court should deny or
substantially reduce Plaintiff’s fee award. The Court then addresses the
propriety of Plaintiff’s requested hourly rates, followed by the number of hours
worked.
Denial of Fee Award
P&F contends that the “hallmark of this litigation” has been Plaintiff’s
persistent attempt to procure damages from P&F stemming from the statecourt judgment. According to P&F, this litigation would have ended much
sooner had Plaintiff not been so attached to its legally baseless position.
P&F’s suggestion that the Court should deny attorney’s fees entirely is a
non-starter. “The FDCPA’s statutory language makes the award of fees
mandatory.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1032 (9th
Cir. 2012). “The reason for mandatory fees is that congress chose a ‘private
attorney general’ approach to assume enforcement of the FDCPA.” Id.
(citation omitted). Plaintiff’s conduct does not constitute the sort of “special
circumstances” that have warranted denials in other fee-shifting contexts. See,
e.g., Hensley, 461 U.S. at 429 (holding that a prevailing plaintiff in a civil
rights action should recover fees “unless special circumstances would render
such an award unjust”).
The Court does find that a small reduction is appropriate. Several of
Plaintiff’s settlement offers and damage stipulations appear to have included
the state-court judgment in some way, shape, or form. Indeed, Plaintiff offered
to stipulate to $35,000 in damages in April 2018, more than triple the $11,000
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that Plaintiff ultimately received. Plaintiff’s wrong-headed contention that the
extinguishing the state-court judgment should be part of a settlement appears
to have hindered settlement and consequently prolonged resolution of the
conflict.
On the other hand, P&F is not entirely blameless. Plaintiff’s Motion
spends several pages setting out the efforts it made to settle this case before
attorney’s fees became significant. See Motion at 5-10. These attempts mostly
fell on deaf ears. See id., Exs. 4-7.
In sum, both parties failed to take actions that might have ended this
case much sooner. Consequently, the Court will reduce the lodestar amount
for time spent by counsel related to damages. This was not an easy task given
the time records, but the Court was able to identify approximately 8.6 hours
that fell into this category: 6.0 from Chami and 2.6 from Price.1 The Court
eliminates these hours.
Reasonableness of Hourly Rate
A reasonable hourly rate is determined by the prevailing rate in the
community for similar work by attorneys of comparable skill, experience, and
reputation. See Blum v. Stenson, 465 U.S. 886, 895 & n.11 (1984); Van Skike
v. Dir. of Office of Workers’ Comp. Programs, 557 F.3d 1041, 1046 (9th Cir.
2009).
Plaintiff has submitted time records for work billed on this case by three
attorneys: Stuart M. Price at $600.00 per hour, David A. Chami at $500.00 per
hour, and Brian J. Brazier at $400.00 per hour. Motion at 4-5. Additionally,
counsel’s paralegals billed at $150.00 per hour. Id. at 5. In support of the
The Court notes that Plaintiff’s Motion lists Chami at 204.2 hours
billed, whereas the attached billing records show 200.2 hours billed. The Court
dusted off its calculator to determine the correct number: 204.2.
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claimed rates, each attorney attests to his qualifications. See id. at 18-19.
Plaintiff also submits a declaration of Ronald Wilcox, a California attorney
who avers that he is experienced in consumer litigation. See Dkt. 119. He
attests that Chami’s rate is reasonable. See id. In addition, Plaintiff contends
the requested rates are reasonable as determined by the Real Rate Report,
which states that partners in Los Angeles doing consumer services have an
hourly rate ranging from $340 to $675. See Motion at 15-16.
These rates give the Court considerable pause. Notably, neither Price nor
Brazier direct the Court to any cases in which their respective rates were
approved, whereas Chami cites to one case where he was approved at $400.
Moreover, the Court is also skeptical whether average rates for partners in
consumer services accurately capture FDCPA work. Nevertheless, given the
absence of any opposition from P&F, the Court will move forward with the
rates sought by counsel.
Reasonableness of Hours Expended
The fee applicant bears the initial burden of substantiating the rate
claimed and the hours worked. See Hensley, 461 U.S. at 437; Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Courts may exclude hours
from the lodestar calculation if the time has not been reasonably expended, i.e.
hours that are excessive, redundant, or otherwise unnecessary. See Hensley,
461 U.S. at 434. Even if the opposing party has not objected to the time billed,
as is the case here, “the district court may not uncritically accept a fee request,
but is obligated to review the time billed and assess whether it is reasonable.”
De Amaral v. Goldsmith & Hull, No. 12-3580, 2014 WL 1309954, at *3 (N.D.
Cal. Apr. 1, 2014) (citing Sealy, Inc v. Easy Living, Inc., 743 F.2d 1378, 1385
(9th Cir. 1984)).
While P&F has not challenged the reasonableness of the hours spent, the
Court has reviewed Plaintiff’s counsels’ billing records and the entire docket in
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this case and has several concerns as to the reasonableness of the hours
included in the lodestar. Much of the time spent on clerical or menial tasks is
excessive. The timesheets are full of 0.2 and 0.3 hour entries for filing
documents—tasks that should have taken no more than a minute or two. As
another example, Chami billed 1.5 hours “search[ing] for” an attorney who
was involved in the state- court lawsuit. See id. This is an excessive amount of
time for a task that should have been completed by a paralegal.
The Court is also concerned with the sheer number of hours spent by
counsel on substantive tasks. In particular, counsel spent almost 40 hours on
Plaintiff’s motion for summary judgment. But the motion is brief and not
particularly complicated, including a six-page argument section devoted
mostly to setting out elements of an FDCPA violation. See Dkt. 51. As
another example, Chami spent 1.3 hours preparing and filing Plaintiff’s
“supplemental disclosure regarding Emotional Distress Damages.” The filed
document, however, is barely two pages and consists of a few string cites and
lists statutory penalties. See Dkt. 92. The Court also has concerns about the
13.2 hours spent on this motion, which is mostly boilerplate. See Motion.
Several other entries strike the Court as problematic, including multiple
long telephone calls with the client. Rather than go through each individual
entry, the Court believes that a 20% reduction across the board is appropriate.
The new lodestar is as follows:
Name
Rate
Hours Billed
Total
Price
$600.00
44.8
$26,880.00
Chami
$500.00
158.6
$79,300.00
Brazier
$400.00
7.5
$3,000.00
Paralegals
$150.00
21.6
$3,240.00
$112,420
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Costs
The FDCPA allows for an award of “the costs for the action.” 15 U.S.C.
§ 1692k(a)(3). Plaintiff seeks costs in the amount of $1,650.11. P&F does not
contest this number. The Court awards the full amount requested.
CONCLUSION
The Court GRANTS Plaintiff’s application in part. Attorney’s fees are
awarded in the amount of $112,420 and costs are awarded in the amount of
$1,650.11 for a total of $114,070.11.
Date: January 11, 2019
___________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge
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