Winding v. NDEX West, LLC et al

Filing 77

ORDER GRANTING defendants' Motion for Attorneys' Fees, document 62 , and AWARDING defendant Wells Fargo attorneys' fees as the prevailing party against Jacob Winding dba Top to Bottom Cleaning Services in the sum of $25,516.00; order signed by Chief Judge Anthony W. Ishii on 11/1/2011. (Rooney, M)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT FOR THE

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9
10
11
12
13

JACOB WINDING dba Top to Bottom
Cleaning Service,

)
)
Plaintiff,
)
)
v.
)
)
NDEX WEST, LLC as TRUSTEE;
)
WELLS FARGO BANK, N.A., and
)
DOES 1 through 100, inclusive,
)
)
Defendants
)
____________________________________)

CV F 10 - 2026 AWI
DLB
ORDER ON DEFENDANTS’
REQUEST FOR AWARD OF
ATTORNEYS’ FEES
Doc. # 62

14
15

In this action for damages and declaratory relief, the court entered judgment in favor

16

of defendants NDEX West and Wells Fargo Bank, N.A. (Collectively “Defendants”) on May

17

18, 2011. Currently before the court is Defendants’ motion for an award of attorneys’ fees,

18

which was filed on June 15, 2011. Defendants’ claim for attorney’s fees arises from a

19

promissory note secured by a trust deed on property located in Salida, California, (the

20

“Property”) that plaintiff, Jacob Winding (“Plaintiff”) became subject to when he accepted

21

title to the property by way of quitclaim deed. Defendants seek attorneys’ fees pursuant to

22

provisions in the promissory note for legal fees and expenses relating to their successful

23

defense of Plaintiff’s action to quiet title and cancel void instruments. For the reasons that

24

follow the court will grant Defendants’ motion with minor adjustments to requested rates.

25
26
27
28

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 13, 2007, a first trust deed (the “2007 Trust Deed”) was executed by then
owners, Warner and Iris Bowers, (“Owners”) using the Property to secure a loan in the

1

amount of $255,500.00 (the “2007 Loan”). The lender was World Savings Bank, FSB, which

2

eventually became Wells Fargo Bank, N.A. (“Wells Fargo”). The court has previously

3

judicially noticed documents denoting the transition of World Savings Bank, FSB, through

4

sales, mergers and name changes to its current identity as Wells Fargo. On December 4,

5

2009, the owner Warner Bowers transferred his interest in the Property via quitclaim deed to

6

TTB Services, Inc. The quitclaim deed was recorded on December 7, 2009. The 2007 Loan

7

went into default at sometime prior to March 24, 2010. Wells Fargo recorded a Notice of

8

default on March 24, 2010, and recorded a Notice of Sale on June 25, 2010. A trustee’s sale

9

was conducted on September 22, 2010. Wells Fargo took title to the Property at the trustee’s

10
11

sale pursuant to its credit bid.
Plaintiff’s First Amended Complaint (‘FAC”) was filed on March 16, 2011, following

12

the dismissal of Plaintiff’s original complaint pursuant to Defendants’ motion to dismiss.

13

The FAC alleged three claims for relief. The first requested the court to declare Plaintiff’s

14

rights with regard to the priority of the Plaintiff’s and Defendants’ claims on the Property.

15

The second claim for relief requested injunctive relief to hold void the promissory note

16

secured by 2007 Deed of Trust and the Deed of Trust Upon Sale. Plaintiff’s third claim for

17

relief alleged fraud based on Defendants’ representation of the status of their Deed of Trust as

18

superior to Plaintiff’s. Defendants successfully defended Plaintiff’s action challenging their

19

claim to their interest in the Property by way of motions to dismiss and to strike filed on

20

March 31, 2011. On May 18, 2011, the court granted Defendants’ motion to dismiss in its

21

entirety with prejudice and direct entry of judgment. The court’s order of judgment in favor

22

of Defendants was entered on the same day. Plaintiff filed notice of appeal on June 13, 2011.

23

Defendants’ motion for attorneys’ fees was filed on June 15, 2011. The hearing on

24

Defendants’ request for attorneys’ fees was vacated by the court on August 23, 2011.

25

Plaintiff’s opposition to the motion for attorneys’ fees was filed on September 6, 2011.

26

Defendants’ claim to attorneys’ fees is pursuant to two sections of the Promissory

27
28

2

1

Note securing the 2007 Loan. Defendants quote Section 7(E) of the Promissory Note as

2

follows:

3
4

Payment of Lender’s Costs and Expenses: The Lender will have the right to be
paid by me for all of its costs and expenses in enforcing this Note to the extent
not prohibited by applicable law. Those expenses may include, for example,
reasonable attorneys’ fees and court costs.

5
Defendants also cite a fee clause in the Deed of Trust at Paragraph 7:
6
7
8
9
10
11
12
13
14
15
16

If: (A) I do not keep my promises and agreements made in this Security
Instrument, or (B) someone, including me, begins a legal proceeding that may
significantly affect Lender’s rights in the Property (including but not limited to
any manner of legal proceeding in bankruptcy, in probate, for condemnation or
to enforce laws or regulations), then Lender may do and pay for whatever it
deems reasonable or appropriate to protect the Lender’s rights in the Property.
Lender’s actions may include, without limitation , appearing in court, paying
reasonable attorneys’ sees, purchasing insurance required under Paragraph 5,
above (such insurance may cost more and provide less coverage than the
insurance I might purchase), and entering on the Property to make repairs
Lender must give me notice before Lender may take any of these actions.
Although Lender may take action under this Paragraph 7, Lender does not
have to do so. Any action taken by Lender under this Paragraph 7, will not
release me from my obligations under this Security Instrument. ¶ I will pay to
Lender any amounts which Lender advances under this Paragraph 7 with
interest, at the interest rate in effect under the Secured Notes . . . .
Doc. # 62 at 2:22-3:9.
Plaintiff’s opposition to Defendants’ motion for attorneys’ fees is somewhat difficult

17

to interpret, but Plaintiff’s primary contention appears to be that Defendant’s motion for

18

attorneys’ fees is time-barred.

19
20

LEGAL STANDARD
An award of reasonable attorney’s fees is determined through the hybrid lodestar

21

multiplier approach. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.

22

2000); McElwaine v. U.S. West, Inc., 176 F.3d 1167, 1173 (9th Cir. 1999); cf. Ketchum v.

23

Moses, 24 Cal.4th 1122, 1133-36 (2001) (discussing the lodestar approach in California).

24

The Ninth Circuit has explained the hybrid lodestar approach as follows:

25
26

The lodestar/multiplier approach has two parts. First, a court determines the
“lodestar” amount by multiplying the number of hours reasonably expended
on the litigation by a reasonable hourly rate. See D’Emanuelle [v.
Montgomery Ward & Co., Inc., 904 F.2d 1379, 1383 (9th Cir. 1990)]; Hensley

27
28

3

1
2
3
4
5
6
7
8
9
10

[v. Eckerhart, 461 U.S. 424,] 461 (1983). The party seeking an award of fees
must submit evidence supporting the hours worked and the rates claimed. See
Hensley, 461 U.S. at 433. A district court should exclude from the lodestar
amount hours that are not reasonably expended because they are “excessive,
redundant, or otherwise unnecessary.” Id. at 434. Second, a court may adjust
the lodestar upward or downward using a “multiplier” based on factors not
subsumed in the initial calculation of the lodestar. See Blum v. Stenson, 465
U.S. 886, 898-901 (1984) (reversing upward multiplier based on factors
subsumed in the lodestar determination); Hensley, 461 U.S. at 434 n.9 (noting
that courts may look at “results obtained” and other factors but should
consider that many of these factors are subsumed in the lodestar calculation).
The lodestar amount is presumptively the reasonable fee amount, and thus a
multiplier may be used to adjust the lodestar amount upward or downward
only in “‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’
on the record and detailed findings by the lower courts” that the lodestar
amount is unreasonably low or unreasonably high. See Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)
(quoting Blum, 465 U.S. at 898-901); Blum, 465 U.S. at 897; D'Emanuele,
904 F.2d at 1384, 1386; Cunningham v. County of Los Angeles, 879 F.2d 481,
487 (9th Cir. 1989).

11
Van Gerwen, 214 F.3d at 1045; cf. Ketchum, 24 Cal.4th at 1132-39 (discussing lodestar and
12
multipliers in California).
13
The fee applicant “has the burden of producing satisfactory evidence, in addition to
14
the affidavits of its counsel, that the requested rates are in line with those prevailing in the
15
community for similar services of lawyers of reasonably comparable skill and reputation.”
16
Blum, 465 U.S. at 896 n.11; Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005); Schwarz v.
17
Secretary of Health and Human Servs., 73 F.3d 895, 908 (9th Cir. 1995). The Ninth Circuit
18
has elaborated that:
19
20
21
22
23
24
25
26

Once the number of hours is set, “the district court must determine a reasonable
hourly rate considering the experience, skill, and reputation of the attorney requesting
fees.” [Chalmers v. City of Los Angeles, 796 F.2d 796 F.2d1205, 1210.] This
determination “is not made by reference to rates actually charged by the prevailing
party.” Id. The court should use the prevailing market rate in the community for
similar services of lawyers “of reasonably comparable skill, experience, and
reputation.” Id. at 1210-11. Either current or historical rates prevailing rates may be
used. Missouri v. Jenkins, 491 U.S. 271 (1984). The use of current rates may be
necessary to adjust for inflation if the fee amount would otherwise be unreasonable;
the district court must look to the “totality of the circumstances and the relevant
factors, including delay in payment.” [Jordan v. Multnomah County, 815 F.2d 1258,
1262 (9th Cir. 1987).]
D’Emanuelle v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir. 1990); cf.

27
28

4

1

Ketchum, 24 Cal.4th at 1139 (“Indeed, the ‘reasonable hourly rate [used to calculate the

2

lodestar] is the product of a multiplicity of factors . . . the level of skill necessary, time

3

limitations, the amount to be obtained in the litigation, the attorney's reputation, and the

4

undesirability of the case.’”). The “relevant legal community” in the lodestar calculation is

5

generally the forum in which the district court sits.1 Mendenhall v. NTSB, 213 F.3d 464, 471

6

(9th Cir. 2000); Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997); Schwarz, 73 F.3d at

7

906; Deukmejian, 987 F.2d at 1405; Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir.

8

1991); cf. Childrens Hospital and Medical Center v. Belshe, 97 Cal. App. 4th 740, 782-783

9

(2002) (upholding rate in a case tried in San Francisco after trial court reviewed rates of

10

attorneys in the San Francisco Bay area); A & S Air Conditioning v. John J. Moore Co., 184

11

Cal.App.2d 617, 621 (1960) (“The determination of reasonable attorneys' fees is controlled

12

by the amounts customarily charged in the locale of the action, here Alameda County.”).

13
14

DISCUSSION
I. Timeliness of Motion

15

Plaintiff contends that Federal Rules of Civil Procedure require that a motion for

16

attorneys’ fees be filed within 14 days of the date of judgment in an action, and that

17

Defendants’ motion for attorneys’ fees was not filed within the required time. Although

18

Plaintiff does not specifically cite the legal source for his contention that motions for

19

attorneys’ fee must be filed within 14 days of the date of judgment in an action, the court

20

assumes that Plaintiff’s source is Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure.

21

While Fed.R.Civ.P. Rule 54(d)(2)(B)(i) mandates that motions for attorney's fees be filed no

22

later than fourteen days after judgment, the rule also provides the fourteen day rule does not

23

apply if a statute or court order provides otherwise. Fed.R.Civ.P. 54(d)(2)(B)(i). In this

24
25
26
27
28

1

There are narrow exceptions to the general rule that the relevant legal community is the forum in which the
court sits. See Schwarz, 73 F.3d at 907; cf. Horsford v. Board of Trustee of California State Univ., 132 Cal.App.4th
359, 396-97 (2005) (finding court abused discretion in not considering “out of town” San Francisco rates where
plaintiff was unable to obtain local counsel). Plaintiff, however, does not argue that a recognized exception to the
general rule applies.

5

1

district, Local Rule 54-293 provides that motions for attorney's fees shall be filed within

2

thirty days after entry of judgment. Judgment in this case was entered on May 18, 2011 and

3

the motion for attorneys’ fees was filed twenty-seven days later on June 15, 2011. (Docs. 56

4

and 62). Therefore, Defendants’ motion for attorneys’ fees is timely. Eastwood v. National

5

Enquirer, Inc. 123 F.3d 1249, 1257(9th Cir.1997) (Local rules are standing orders for

6

purposes of Rule 54(d)).

7

II. Other Considerations

8
9

In addition to its timeliness requirement, Local Rule 54-294 requires that a party
moving for an award of attorneys’ fees show: (1) that it was the prevailing party; (2) that it is

10

eligible to receive an award of attorneys’ fees; (3) the amount of fees requested; (4)

11

justification for the amount of fees sought including time and labor required, skill required

12

and novelty of the action, and conformity with prevailing local fees; and (5) such other

13

matters as statute or the court may require. Beyond Plaintiff’s contention as to the timeliness

14

of Defendants’ motion, there is no real dispute that Defendants prevailed and that Defendants

15

are eligible under the terms of the Promissory Note and Deed of Trust to be compensated for

16

attorneys’ fees expended to defend their interest in the Property. Therefore, the court will

17

focus its discussion on Defendants’ justification for the amount of fees requested including

18

principally the number of hours billed and the hourly billing rate.

19

A. Personnel Involved

20

Defendants list the following personnel as having rendered billable legal services in

21

the defense against Plaintiff’s action:

22

1.

23

Mark T. Flewelling, J.D. (“MTF”)2; lead attorney and partner citing 30 years
experience in litigating business and banking cases in federal and state courts.

24

2.

Daniel Armstrong, J.D. (“DAA”); citing one year of experience in

25
26
27
28

2

Initials are those used by Defendants on the invoices provided to list time worked by individual
personnel in Exhibit A to the Declaration of Mark T. Flewelling in Support of Motion for Attorneys’ Fees. Doc. #
62-1.

6

1
2

representing financial institutions in federal and state court.
3.

3
4
5

Jeremy Shulman, J.D. (“JES”); citing nine years experience in litigating
business and commercial disputes, including real estate.

4.

Sandra Dries (“SAD”), Legal Assistant; Malinda Sinclair (“MSS”), Paralegal;
and Helene Saller (“HPS”), Paralegal.

6

B. Time Billed

7

Exhibit A to the Declaration of Mark T. Flewelling in Support of Motion for

8

Attorneys’ Fees, Document number 62-1 (hereinafter “Flewelling Dec.”) consists of a series

9

of invoices for legal services rendered by month beginning on October 4, 2010 and ending on

10

May 30, 2011. The court has reviewed the invoices provided and finds that the categories of

11

activities billed generally track Defendants’ responses to Plaintiff’s pleadings and generally

12

reflect effort relating to documents that have been filed in this case. The court has reviewed

13

the amount of time billed per activity per individual and can see no obvious instances of

14

inappropriate amounts of time billed. The court notes that Plaintiff has not alleged any

15

instance of inappropriate billing of time.

16

The court approves the amount of time (hours) billed per attorney per year as follows:

17

Attorney

2010 Hours

2011 Hours

18

MTF

9.2

34.4

19

DAA

50.9

16.0

20

JES

0.0

4.3

21
22

Similarly, the court approves the amount of time (hours) billed per support person per
year as follows:

23

Support Person

2010 Hours

2011 Hours

24

SAD

2.60

0.0

25

MSS

0.7

1.1

26

HPS

3.7

2.8

27
28

7

1

C. Rates of Compensation

2

Attorneys Flewelling and Armstrong requests rates of compensation of $325 per hour

3

and $200 per hour respectively for work performed prior to January 1, 2011, and $350 per

4

hour and $265 per hour respectively for work performed thereafter. The rates of

5

compensation requested for the remaining personnel reflect a single rate for both 2010 and

6

2011 as follows:

7

Attorney:

8
9
10
11
12

Jeremy Shulman

$280/hour

Support Staff:
Sandra Dries
Malinda Sinclair
Helene Saller

$125/hour
$140/hour
$160/hour

The court finds that the rates billed by Jeremy Shulman, Sandra Dries, Malinda

13

Sinclair and Helene Saller are reasonable and within the range of rates normally billed for

14

like services in the Fresno Area. The court finds that the rate of $325 per hour for the

15

services of a lead attorney with 30 years experience is within the range normally billed in the

16

Fresno area for legal services in cases such as this. See Johnson v. JP Morgan Chase Bank,

17

2010 WL 4977648 (E.D. Cal. 2010) at *2 ($300 per hour for lead attorney in FDPCA case is

18

reasonable). However, the court is not aware of any basis for increment of approximately 8%

19

that would have occurred between 2010 and 2011. So far as the court can determine, there

20

has been no general increase in legal fees over the past year nor has anything occurred with

21

regard to this particular case that would call for an increase in fees. The court will approve

22

the rate $325 per hour for Flewelling for services performed in both 2010 and 2011.

23

With regard to Armstrong, there is a purpose in increasing billing rates apart from

24

inflationary adjustment where an individual transitions from the first year of service to the

25

second or third. However, the court finds that an increase of fees billed on the order of 33%

26

for an increase in experience of one year is not supported by local experience. The court

27
28

8

1

finds that an increase in fees billed by Armstrong from $200 per hour in 2010 to $225 per

2

hour in 2011 is reasonable. To the extent Defendants look to the complexity of Plaintiff’s

3

action to justify higher fees, the court finds there is nothing about this case that suggests an

4

unusual or novel legal challenge. Although Plaintiff’s frequent and sometimes imaginative

5

pleadings have necessitated more work than necessary, the court has found that, for the most

6

part, the legal propositions invoked have been usual and well settled. The court therefore

7

finds no “premium” rate of compensation is due based on novelty or legal difficulty.

8

D. Other Factors/Calculations

9

In the invoices submitted and in Defendants’ motion, there are two notations labeled

10

“MTF Adjustments” which correspond to two unexplained write-downs of $3,000 and

11

$2,000 subtracted from the October-November 2010 and the March 2011 invoices,

12

respectively. Since Defendants have incorporated these write-downs in their calculations of

13

attorneys’ fees, the court will do likewise. As Defendants point out the court has previously

14

awarded attorneys’ fees in this action in the amount of $2,480 in connection with attorneys’

15

fees incurred in Defendants’ motion to expunge notice of lis pendens. That amount will also

16

be subtracted from the total award. In addition, Defendants request an amount estimated at

17

between $1,575 and $2,975 for fees relating to the instant motion for attorneys’ fees. In this

18

circuit it is well established that a party that is entitled to reasonable attorney’s fees is entitled

19

to a reasonable fee for the time expended in the attorney’s fees application. See Serrano, 32

20

Cal.3d at 631 (“the time expended by attorneys in obtaining a reasonable fee is justifiably

21

included in the attorneys’ fee application, and in the court’s fee award”). The range of fees

22

anticipated by Defendants represents Defendants’ anticipation of a need to respond to

23

Plaintiff’s opposition to the fee request and need for court hearing on the motion. Since reply

24

to Plaintiff’s opposition was not need and since the hearing on Defendants’ motion was

25

vacated, the court finds that the lower figure of $1,575 is appropriate. That amount will be

26

added to Defendants’ award of attorneys’ fees.

27
28

9

1
2

THEREFORE, Pursuant to the foregoing discussion, the court approves time and
rates in this action as follows:

3

Individual

Hours

Hourly Rate

Total Amt.

4

MTF

43.6

$325

$14,820

5

DAA - 2010

50.9

$200

$10,180

6

DAA - 2011

16.0

$225

$3,600

7

JES

4.3

$280

$1,204

SAD

2.6

$125

$325

MSS

1.8

$140

$252

HPS

6.5

$160

$1040

8
9
10

Sub-Total:

$31,421

MTF Adjustment

( $5,000)

Prior Award Adjustment

($2,480)

Sub-Total

$23,941

11
12
13
14
Defendants’ Motion on Fees

$1,575

15
TOTAL AWARD

$25,516.00

16
It is therefore hereby ORDERED that Defendant Wells Fargo is AWARDED
17
attorneys’ fees as the prevailing party against Jacob Winding dba Top to Bottom Cleaning
18
Services in the SUM OF $25,516.00.
19
20
21
22

IT IS SO ORDERED.
Dated:
0m8i78

November 1, 2011
CHIEF UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28

10