Bird v. Wells Fargo Bank

Filing 83

ORDER assessing reasonable attorney fees following order granting request for Rule 37 discovery sanctions 54 . Order signed by Magistrate Judge Erica P. Grosjean on 9/18/2017. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-01130-DAD-EPG

KIMBERLY SUE BIRD,
Plaintiff,

ORDER ASSESSING REASONABLE
ATTORNEY FEES FOLLOWING ORDER
GRANTING REQUEST FOR RULE 37
DISCOVERY SANCTIONS

vs.
WELLS FARGO BANK,

(ECF No. 54)

Defendant.

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A. Background

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On April 28, 2017, Plaintiff Kimberly Sue Bird (“Plaintiff”) filed a motion to compel

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and for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure contending in

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part that Defendant Wells Fargo Bank (“Defendant”) failed to comply with the Court’s March

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31, 2017 discovery order. (ECF No. 30).

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On July 20, 2017, the Court granted the motion for sanctions. (ECF No. 54). The Court
ordered Wells Fargo to pay “fifty-percent of the reasonable costs and attorney fees associated
with the filing of Plaintiff’s motion to compel and motion for sanctions (ECF No. 30), inclusive
of the costs and attorney fees associated with preparing Plaintiff’s May 27, 2017 filings (ECF
Nos. 35-36) and attendance at the June 1, 2017 hearing.” (ECF No. 54, p. 9). The Court further

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ordered Plaintiff to submit a record of the costs and attorney fees for court review along with an
affidavit attesting to the reasonableness of the costs and attorney fees. (Id.)
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On August 10, 2017, the Court received a submission from Plaintiff’s counsel and now

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issues this order assessing reasonable attorney fees following its review of Plaintiff’s

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submission.

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Plaintiff’s counsel Daniel J. Cravens and Yosef Peretz submitted declarations attesting
to the reasonableness of their requested hourly billing rate of $550 (each) and billing records
related to the May 27, 2017 filings and attendance at the June 1, 2017 hearing. Attorneys
Cravens and Peretz also submitted a copy of an order from the Superior Court of California,
Alameda County, wherein Cravens and Peretz were awarded attorney fees at a rate of $500

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(each) after an unopposed motion for final approval of a class action settlement was granted in
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the case of Davera, et al., v. Employee Equity Administration, et al., RG-11-559690 (Sep. 11,
2015) (the Davera case).
B. Legal Standard
Generally, the U.S. Court of Appeals for the Ninth Circuit has adopted the “lodestar”

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approach for assessing the award of reasonable attorneys’ fees, Camacho v. Bridgeport Fin.,

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Inc., 523 F.3d 973, 978 (9th Cir. 2008), and district courts have applied lodestar when sanctions

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are appropriate under Rule 37, Glob. Ampersand, LLC v. Crown Eng'g & Const., Inc., 261

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F.R.D. 495, 502 (E.D. Cal. 2009). The reasonableness of the requested attorney fees is to be

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determined on the facts of each case. Camacho, 523 F.3d at 978 (citing Hensley v. Eckerhart,

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461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). “The ‘lodestar’ is calculated by

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multiplying the number of hours the prevailing party reasonably expended on the litigation by a

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reasonable hourly rate.” Id. (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4

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(9th Cir. 2001)). “Although in most cases, the lodestar figure is presumptively a reasonable fee

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award, the district court may, if circumstances warrant, adjust the lodestar to account for other

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factors which are not subsumed within it.” Id. (quoting Ferland v. Conrad Credit Corp., 244

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F.3d 1145, 1149 n.4 (9th Cir. 2001)).
“The party seeking an award of fees must submit evidence supporting the hours worked

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and the rates claimed.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.

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2000) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). Hours that are not reasonably

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expended because they are “excessive, redundant, or otherwise unnecessary” are excluded

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from the lodestar amount. Id. (citing Hensley, 461 U.S. at 434, 103 S.Ct. 1933). After the

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lodestar amount is determined, the court may then “adjust the lodestar upward or downward

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using a ‘multiplier’ based on factors not subsumed in the initial calculation of the lodestar.”1 Id.

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(citing Blum v. Stenson, 465 U.S. 886, 898–901, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984);
Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933).

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C. Analysis
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1. Requested Hourly Rates

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With regard to determining the appropriate the hourly rate for the lodestar amount,
district courts apply the rates of attorneys practicing within the forum district, here, the Eastern
District of California, Fresno. See Blum, 465 U.S. at 895 (“[R]easonable fees . . . are to be

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calculated according to the prevailing market rates in the relevant community . . .”); Gates v.

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Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992) (“[T]he general rule is that the rates of

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attorneys practicing in the forum district . . . are used.”). The fee applicant bears the burden of

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producing sufficient evidence that the requested rates are commensurate “with those prevailing

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in the community for similar services by lawyers of reasonably comparable skill, experience,

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and reputation.” Blum, 465 U.S. at 895 n.11.

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Here, attorneys Cravens and Peretz have requested rates of $550 each. They declare

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that $550 per hour is their “usual and customary” rate and that “$550 an hour is a fair market

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rate” for attorneys with their competence and experience and a case of this complexity. They

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“Under Hensley, 11 factors are relevant to the determination of the amount of attorney's fees: (1) the
time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the
results obtained; (8) the experience, reputation and ability of the attorneys; (9) the “undesirability” of the case;
(10) the nature and length of the professional relationship with the client; and (11) awards in similar cases.” Van
Gerwen, 214 F.3d at 1045 n.2 (citing Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. 1933).

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point to the Davera case, where they were awarded rates $500 in the Superior Court of

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California, Alameda County, after an unopposed motion for final approval of a class action

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settlement was granted.

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Attorneys Cravens and Peretz have provided no evidence of that the requested $550 rate

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is commensurate “with those prevailing in the community for similar services by lawyers of

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reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11. The

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attorneys’ declarations provide no support for the prevailing market rate. Similarly, the $500
billing rate awarded in the unopposed motion for final approval of a class action settlement

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Davera case in Alameda County, California has no bearing on the prevailing rate in the Eastern
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District of California, Fresno. Not only were the rates awarded in another market, but the $500
awarded in that case was a result of an unopposed motion for class action settlement. Thus, the
Davera case is not sufficiently similar to the circumstances of this case, which is a singleplaintiff employment discrimination case. Accordingly, attorneys Cravens and Peretz have

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failed to meet their burden of producing sufficient evidence to justify a reasonable billing rate

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of $550 in the Eastern District of California, Fresno.

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“[H]ourly rates generally accepted in the Fresno Division for competent experienced

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attorneys [are] between $250 and $380, with the highest rates generally reserved for those

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attorneys who are regarded as competent and reputable and who possess in excess of 20 years

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of experience.” Munoz v. Giumarra Vineyards Corp., No. 109CV00703AWIJLT, 2017 WL

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2665075, at *18 (E.D. Cal. June 21, 2017) (quoting Silvester v. Harris, 2014 WL 7239371 at

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*4 (E.D. Cal. Dec. 2014); see also Trujillo v. Singh, 2017 WL 1831941 (E.D. Cal. May 8,

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2017) (awarding an hourly rate of $300 per hour to counsel with 15 years of experience,

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finding this amount was appropriate for the Fresno area); Miller v. Schmitz, 2014 WL 642729

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at *3 (E.D. Cal. Feb. 18, 2014) (the “prevailing hourly rate in this district is in the $400/hour

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range for experienced attorneys,” and awarding $350 per hour for an attorney with 20 years of

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experience)). “For attorneys with ‘less than ten years of experience ... the accepted range is

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between $175 and $300 per hour.’” Id. (quoting Silvester, 2014 WL 7239371 at *4 (citing

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Willis v. City of Fresno, 2014 WL 3563310 (E.D. Cal. July 17, 2014); Gordillo v. Ford Motor

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Co., 2014 WL 2801243 (E.D. Cal. June 19, 2014)).

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Here, the Court observes that attorneys Cravens and Peretz are generally regarded as
competent and reputable, and the attorneys have approximately 17-18 years of litigation
experience. The Court finds that $325 per hour is the prevailing market rate in the Eastern
District of California, Fresno, for this type of case and attorneys with Cravens and Peretz’s
qualifications and litigation experience.

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2. Requested Hourly Reimbursement
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“The fee applicant bears the burden of documenting the appropriate hours expended in
the litigation and must submit evidence in support of those hours worked.” Welch v. Metro. Life
Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (citing Gates v. Deukmejian, 987 F.2d 1392, 1397
(9th Cir. 1992)). Attorneys Cravens and Peretz have provided a declaration and time records

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reflecting the hours worked in support of the request for attorney fees. The attorneys have

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declared under oath that the records are true and correct.

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Attorney Cravens declares that he spent 50.2 hours of attorney time related to the May

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27, 2017 filings and attendance at the June 1, 2017 hearing. He includes time spent: 1)

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reviewing local rules, 2) reviewing meet and confer correspondence, 3) preparing and filing

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the notice of motion and motion to compel and for sanctions, 4) reviewing discovery responses

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and court orders, 5) drafting the joint statement, 6) meet and confer communications with

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opposing counsel, 7) preparation of exhibits to joint statement, 8) review Defendant’s portion

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of joint statement, 8) preparing reply arguments, 9) preparation and attendance of hearing on

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motion to compel and for sanctions, 10) review Defendant’s post-hearing submission,2 11)

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preparation of objections, 12) review of court orders, 13) preparation of reply brief, and 14)

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Although some of the entries include attorney time post-June 1, the Court considers this post-June 1
attorney time to be sufficiently related the Plaintiff’s May 27, 2017 filings and attendance at the June 1, 2017
hearing.

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communications with co-counsel.
Attorney Peretz declares that he spent 13.1 hours attorney time related to the May 27,

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2017 filings and attendance at the June 1, 2017 hearing. He includes time spent: 1) reviewing

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communications from opposing counsel, 2) reviewing and revising the motion to compel and

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exhibits, 3) reviewing and revising the joint statement, 4) communications with opposing
counsel, 5) reviewing Defendant’s portion of joint statement, 6) reviewing and revising reply,
reviewing court orders and transcripts, and 7) communications with opposing counsel.
The Court has reviewed the hours reported by each attorney to determine whether they

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are reasonable. Review of the billing entries raised concerns about the reasonableness of the
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time spent on the associated tasks.
First, there is notable overlap between the hours expended by each attorney. It is
observed that the attorneys may have different expertise and are playing different roles in this
litigation, so some degree of overlap may be expected. However, the attorneys provided no
explanation for the degree of overlap.
The Court was also concerned about the attorneys’ block-billing entries (i.e. entries that

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contain multiple tasks in one “block” entry). “[B]lock billing makes it more difficult to

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determine how much time was spent on particular activities.” Welch, 480 F.3d at 948 (citing

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Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C.Cir. 2004) (reducing requested

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hours because counsel's practice of block billing “lump[ed] together multiple tasks, making it

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impossible to evaluate their reasonableness”); Hensley, 461 U.S. at 437, 103 S.Ct. 1933

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(holding that applicant should “maintain billing time records in a manner that will enable a

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reviewing court to identify distinct claims”); Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1121

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(9th Cir. 2000) (holding that a district court may reduce hours to offset “poorly documented”

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billing)). Here, only 3 of the total 22 entries between the two attorneys were not block-billed.
Of the 63.3 hours requested, 51.6 hours appeared in block entries.
Attorneys Cravens and Peretz have failed to meet their burden of documenting that the

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hours expended related to the May 27, 2017 filings and attendance at the June 1, 2017 hearing

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were reasonable. Accordingly, the Court will apply a 20% reduction to the total hours

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requested for reimbursement and award 50.6 hours.3

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3. Final Assessment of Reasonable Attorney Fees
After review of attorneys Cravens and Peretz’s submission, the Court awards reasonable
attorney fees in the amount of $8,222.50 (fifty-percent of $325 x 50.6 hours) in connection with
the Court’s July 20, 2017 order granting Plaintiff’s the motion for sanctions pursuant to Rule 37
of the Federal Rules of Civil Procedure. (ECF No. 54).

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IT IS SO ORDERED.

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Dated:

September 18, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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It is observed that in Welch v. Metro. Life Ins. Co., the Ninth Circuit held that the district court clearly
erred in applying a 20% reduction to all of the requested hours because only about half of the entries were blockbilled. See Welch, 480 F.3d at 948. Here, the Court observed that approximately three of the entries were not
block-billed. Nonetheless, the Court distinguishes the present situation from Welch because the Court is finding
that a 20% reduction is necessary both because it is unable to determine the degree of overlap between the two
attorneys and due to its inability to determine the time spent on particular activities.

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