L.H. et al v. Schwarzenegger et al

Filing 653

ORDER granting 617 Motion to Compel signed by Judge Lawrence K. Karlton on 9/13/11. (Kaminski, H)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11

JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their own
behalf and on behalf of the class
of all persons similarly situated,

12

NO. CIV. S-94-671 LKK/GGH
Plaintiffs,

13
v.
14
15

EDMUND G. BROWN, JR., Governor of
the State of California, et al.,

16

Defendants.
/

17
18
19

L.H., A.Z., D.K., and D.R.,
on behalf of themselves and
all other similarly
situated juvenile parolees
in California,
NO. CIV. S-06-2042 LKK/GGH

20
21
22

Plaintiffs,
v.

O R D E R

EDMUND G. BROWN, JR., Governor of
the State of California, et al.,

23
Defendants.
24

/

25

L.H. v. Brown and Valdivia v. Brown are two class actions

26

brought under 42 U.S.C. § 1983 and § 1343 for violations of the Due
1

1

Process Clause of the Fourteenth Amendment by California parolees

2

against the Governor. Valdivia was filed by adult parolees and L.H.

3

by juvenile parolees. Pending before the court is a motion by

4

plaintiffs to compel defendants to pay plaintiffs’ counsel’s rate

5

for work already performed in 2010. For the reasons stated below,

6

plaintiff’s motion is GRANTED.
I. Procedural Background

7
8
9

Plaintiffs
stipulated

have

order

for

prevailed

in

permanent

both

cases,

injunctive

obtaining

relief.

a

Valdivia

10

Permanent Injunctive Relief Order, March 9, 2004, ECF No. 1034.

11

Pursuant to an order issued by this court on July 8, 2004, ECF No.

12

1087,

13

defendants’ counsel for fees and costs incurred in obtaining and

14

monitoring compliance with the March 9, 2004 Injunction. The order

15

requires plaintiffs’ counsel to identify the billing rates sought

16

by plaintiffs’ counsel for that year. Defendants then have thirty

17

days in which to object to the fees sought. Plaintiffs are to file

18

a yearly motion to compel payment of any disputed items that remain

19

after a meet and confer period. If an unusually large number of

20

hours, or a significant issue is in dispute, plaintiffs may bring

21

a quarterly motion to compel fees.

plaintiffs’

counsel

submit

quarterly

statements

to

22

Plaintiffs brought such a motion on May 17, 2011. The parties

23

are currently unable to agree on the appropriate rates to be

24

charged for work performed in 2010.

25

The original hearing date on plaintiffs’ motion was vacated,

26

and a decision on the motion was stayed pending a decision in
2

1

Armstrong v. Brown, in the Northern District of California on a

2

similar motion by the same attorneys. ECF No. 641. A decision in

3

that case was rendered on July 8, 2011, and plaintiffs re-noticed

4

their motion with this court.
II. Standard

5
6

The Supreme Court has adopted a two-pronged approach to the

7

calculation of a reasonable attorneys’ fees under any statute that

8

permits recovery of attorneys’ fees. See Hensley, 461 U.S. 424, 433

9

n. 7 (“The standards set forth in this [§ 1988] opinion are

10

generally applicable in all cases in which Congress has authorized

11

an award of fees to a prevailing party.”); Fadhl v. City and County

12

of San Francisco, 859 F.2d 649, 650 n. 1 (9th Cir. 1988). A court

13

must first calculate a lodestar figure by multiplying the number

14

of hours reasonably expended on the litigation times a reasonable

15

hourly rate. Blum v. Stenson, 465 U.S. 886, 888 (1984); Cunningham

16

v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988), cert.

17

denied, 493 U.S. 1035 (1990). While this lodestar figure is

18

presumed

19

circumstances a court may adjust the award upward or downward to

20

take into account special factors. Blum, 465 U.S. at 897.

to

represent

an

appropriate

fee,

under

certain

21

The party seeking an award of attorneys’ fees bears the burden

22

of establishing the reasonableness of the hourly rates requested.

23

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

24

2008). The opposing party then has the “burden of rebuttal that

25

requires submission of evidence to the district court challenging

26

the accuracy and reasonableness of the facts asserted by the
3

1

prevailing party in its submitted affidavits.” Id.
III. Analysis

2
3

In an order issued on March 6, 2009, this court agreed with

4

plaintiffs that the “relevant legal community” for the purpose of

5

calculating plaintiffs’ counsel’s rates is the San Francisco Bay

6

Area, rather than Sacramento. The court found plaintiffs’ tendered

7

evidence to be persuasive that there were no Sacramento firms

8

experienced and capable enough, and willing to undertake the case.

9

March 6, 2009 Order in L.H., ECF No. 530. The court approved rates

10

ranging from $295 per hour to $640 per hour for work performed in

11

2008. ECF No. 530. During the first quarter of 2009, plaintiffs’

12

counsel agreed to accept the 2008 rates for work performed in 2009.

13

Plaintiff’s current motion seeks an order from this court

14

compelling defendants to pay rates for work performed in 2010

15

ranging from $275 to $800 for attorneys with Rosen, Bien, and

16

Galvan; Bingham McCutcheon; Prison Law office; and Youth Law

17

Center. See Bien Decl., Ex. 33, 34. Plaintiffs assert that the

18

rates are reasonable and consistent with the “prevailing rates in

19

[the Bay] Area for attorneys with similar levels of experience

20

performing work of similar complexity.” Bien Decl. 31, ECF No. 618.

21

Further, according to plaintiffs, the overall rate increases are

22

modest, especially since “the rate for each individual time-keeper

23

usually

24

experienced.” Id.1 Plaintiffs have submitted declarations from

increases

each

year,

as

the

individual

becomes

more

25
1

26

Whether such customary practice obtains in this era of
economic downturn is at least questionable, defendant, however, has
4

1

attorneys explaining their background and qualifications with

2

respect to this case. The declarations further describe how each

3

of the firms representing plaintiffs in this case arrived at their

4

2010 billing rates. Defendants do not dispute that the rates

5

themselves in line with the prevailing market rates in the Bay

6

Area.

7

Defendants argue that plaintiffs’ requested fees for work

8

performed in 2010 represent an unreasonable increase over the 2008

9

rates. By defendants’ calculations, the rate of increase from 2008

10

to 2010 ranges from 16% (for Prison Law Office attorneys) to 50%

11

(for Bingham McCutcheon attorneys). Defendants argue that the

12

increases are unreasonable, given the economic realities of the

13

local legal market, as well as the state’s “unprecedented budget

14

problems arising out of a protracted recession affecting the entire

15

country.” Defs.’ Opp’n 1, ECF No. 636.

16

Despite defendants’ citation of district court cases from

17

other circuits, in the Ninth Circuit it is not appropriate for a

18

district court judge to disallow particular rate increases, when

19

the rates themselves are reasonable. “‘Holding the line’ on fees

20

at a certain level goes well beyond the discretion of the district

21

court.” Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir.

22

2008).

23

methodology for awarding fees that the Supreme Court and our court

24

has adopted. . . If the lodestar leads to an hourly rate that is

A

holding-the-line

policy

25
26

tendered no evidence on this matter.
5

“is

inconsistent

with

the

1

higher than past practice, the court must award that rate without

2

regard to any contrary practice.” Id.

3

Moreover, the Ninth Circuit has “held that the court has

4

discretion to apply the rates in effect at the time the work was

5

performed,” but that it is “an abuse of discretion. . . to apply

6

market rates in effect more than two years before the work was

7

performed.” Bell v. Clackamas County, 341 F.3d 858, 868 (9th Cir.

8

2003).

9

Citizens for Better Forestry v. USDA, 2010 U.S. Dist. LEXIS

10

92415 (N.D. Cal. 2010)(Wilken), is easily distinguished from the

11

instant case, since it “concerned a fee request under the Equal

12

Access

13

limiting hourly rates to $125 per hour unless ‘an increase in the

14

cost

15

availability of qualified attorneys for the proceedings involved,

16

justifies a higher fee.” Armstrong v. Brown, No. C 9402307 (N.D.

17

Cal. 2011)(Wilken)(internal citations omitted). Here, there is no

18

such restriction.

19

District of California, approved these very fees.

to

of

Justice

living

Act,

or

a

which

contains

special

factor,

an

explicit

such

as

provision

the

limited

Indeed, Judge Wilken, sitting in the Northern

20

The court concludes that by submitting declarations that

21

establish that the rates requested are in line with prevailing

22

rates

23

comparable

24

plaintiffs have met their burden of establishing the reasonableness

charged

by

other

experience

San

Francisco

working

on

25
26
6

Bay

Area

similarly

attorneys

complex

of

cases,

the

rates

requested.2

1

of

Defendants

2

reasonableness of the rates, nor the reasonableness of the hours

3

spent. Accordingly, plaintiffs’ motion to compel fees, ECF No. 617

4

is GRANTED.

5

not

rebutted

the

IT IS SO ORDERED.

6

have

DATED: September 13, 2011.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2

25
26

The court notes that the rates considered “reasonable” among
lawyers seems quite remarkable, nevertheless, “reasonableness” is
measured by the prevailing rate and no contrary evidence has been
tendered on that issue.
7