Z.F., et al v. Ripon Unified School District, et al

Filing 293

ORDER signed by District Judge Troy L. Nunley on 3/20/17 ORDERING that the Court AWARDS Plaintiffs the $107,940 lodestar for reasonable attorneys' fees. (Kastilahn, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 Z.F., a minor, by and through his parents M.A.F. and J.F. and M.A.F. and J.F. individually; L.H., and J.H., minors, by and through their parents J.A. and J.R.H. and J.A. and J.R.H. individually; A.N., a minor, by and through his parents G.N. and M.R., and G.N. and M.R. individually, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs, No. 2:10-cv-00523-TLN-CKD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES PURSUANT TO A RULE 68 OFFER OF JUDGMENT OF MINORS’ CLAIMS AGAINST MODESTO CITY SCHOOLS v. RIPON UNIFIED SCHOOL DISTRICT (RUSD); RIPON UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES; SAN JOAQUIN COUNTY OFFICE OF EDUCATION; VALLEY MOUNTAIN REGIONAL CENTER (VMRC), MODESTO CITY SCHOOLS, MODESTO CITY SCHOOLS BOARD OF EDUCATION, RICHARD JACOBS, Executive Director of VMRC, in his official and individual capacity, TARA SISEMORE-HESTER, Coordinator for Autism Services for VMRC, in her official and individual capacity; VIRGINIA JOHNSON, Director of Modesto City Schools SELPA, in her official and individual capacity; SUE SWARTZLANDER, Program Director for Modesto City Schools, in her official and individual capacity and Does 1 – 200, Defendants. 28 1 1 2 3 VALLEY MOUNTAIN REGIONAL CENTER, RICHARD JACOBS and TARA SISEMORE-HESTER, Counterclaimants, 4 v. 5 6 7 M.A.F. and J.A., SPECIAL NEEDS ADVOCATES FOR UNDERSTANDING, and AUTISM REFORM CALIFORNIA, Counterdefendants. 8 This matter is before the Court pursuant to Plaintiffs J.H., L.H., and their parents J.A., 9 10 J.R.H.’s (collectively “Plaintiffs”) Motion for Attorneys’ Fees (ECF No. 283.) Defendant 11 Modesto City Schools (“MCS”) opposes Plaintiffs’ motion. (ECF No. 288.) The Court has 12 carefully considered the arguments raised by both parties. For the reasons set forth below, 13 Plaintiffs’ Motion for Attorneys’ Fees (ECF No. 283) is GRANTED IN PART and DENIED IN 14 PART. 15 I. BACKGROUND AND PROCEDURAL HISTORY 16 Plaintiffs are one of three families suing four defendant agencies for disability services. 17 On May 28, 2014, MCS served a Rule 68 Offer of Judgment on Plaintiffs, offering to pay 18 Plaintiffs J.H. and L.H. $50,001 each along with costs and reasonable attorneys’ fees. (Notice of 19 Rule 68 Offer Acceptance, ECF No. 239-1 at 2.) On June 4, 2014, Plaintiffs accepted Defendant 20 MCS’s Rule 68 offer. (ECF No. 239-1 at 2.) Plaintiffs and MCS, however, were unable to reach 21 an agreement on the amount of costs and reasonable attorneys’ fees payable by MCS. (Pltfs.’ 22 Motion for Fees, ECF No. 283 at 3.) Plaintiffs bring this motion for attorneys’ fees against MCS, 23 but maintain their surviving claims against the other Defendants. 24 II. LEGAL STANDARD 25 In the Ninth Circuit, the starting point for determining reasonable attorneys’ fees is the 26 calculation of the “lodestar,” which is obtained by multiplying the number of hours reasonably 27 expended on litigation by a reasonable hourly rate. See Jordan v. Multnomah County, 815 F.2d 28 1258, 1262 (9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). In determining a 2 1 reasonable number of hours, the court must review detailed time records to determine whether the 2 hours claimed by the applicant are adequately documented and whether any of the hours were 3 unnecessary, duplicative or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th 4 Cir. 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). To 5 determine a reasonable rate for each attorney, the court must look to the rate prevailing in the 6 community for similar work performed by attorneys of comparable skill, experience, and 7 reputation. Id. at 1210–11. 8 “The fee applicant has the burden of producing satisfactory evidence, in addition to the 9 affidavits of its counsel, that the requested rates are in line with those prevailing in the community 10 for similar services of lawyers of reasonably comparable skill and reputation.” Jordan, 814 F.2d 11 at 1263. “Affidavits of the plaintiff’s attorney and other attorneys regarding prevailing fees in the 12 community, and rate determinations in other cases, particularly those setting a rate for the 13 plaintiff’s attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 14 of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). 15 In calculating the lodestar, the court should consider any relevant factors listed in Kerr v. 16 Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied 425 U.S. 951 (1976). Jordan, 17 815 F.2d at 1264 n.11 (noting that the Ninth Circuit no longer requires that the district court 18 address every factor listed in Kerr). In Kerr, the Ninth Circuit adopted the 12–factor test 19 articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The court 20 in Kerr looked to the following factors for determining reasonable attorneys’ fees: (1) the time 21 and labor required; (2) the novelty and difficulty of the questions involved; (3) the skilled 22 requisite to perform the legal service properly; (4) the preclusion of other employment by the 23 attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or 24 contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount 25 involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) 26 the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the 27 client; and (12) awards in similar cases. Kerr, 526 F.2d at 70. 28 To the extent that the Kerr factors are not addressed in the calculation of the lodestar, they 3 1 may be considered in determining whether the fee award should be adjusted upward or 2 downward, once the lodestar has been calculated. Chalmers, 796 F.2d at 1212. However, there is 3 a strong presumption that the lodestar figure represents a reasonable fee award. Jordan, 815 F.2d 4 at 1262. An upward adjustment of the lodestar is appropriate only in extraordinary cases, such as 5 when an attorney faced exceptional risks of not prevailing or not recovering any fees. Chalmers, 6 796 F.2d at 1212. A reduced fee award is appropriate where a plaintiff achieves only partial or 7 limited success. Hensley, 461 U.S. at 436. To be compensable, an attorney’s time must be 8 “reasonable in relation to the success achieved.” Id. When accounting for limited success, a 9 court may eliminate specific hours in calculating the lodestar or simply reduce the award. Id. 10 III. ANALYSIS 11 Plaintiffs argue that MCS’s Rule 68 offer of judgment in the amount of $100,002 renders 12 them prevailing parties. (ECF No. 283 at 5.) Plaintiffs submitted an initial lodestar calculation of 13 $139,194, and agreed to a reduction of $24,360 to account for the Loughrey firm’s work related 14 to the counterclaim filed by Valley Mountain Regional Center (“VMRC”). (ECF No. 283 at 9.) 15 Plaintiffs contend they are entitled to a positive lodestar multiplier due to the substantial success 16 and amount achieved by the Rule 68 offer of judgment, but do not ask the Court to apply a 17 positive lodestar multiplier. (ECF No. 283 at 9.) Thus, Plaintiffs’ motion seeks $114,834 in 18 attorneys’ fees and $7,155 in additional attorneys’ fees to bring this motion, for a total of 19 $121,989. (ECF No. 283 at 10.) MCS does not dispute Plaintiffs are entitled to reasonable attorneys’ fees, and agrees to 20 21 the use of the lodestar approach. (ECF No. 288 at 5.) MCS vigorously objects to the reasonable 22 number of hours included in the lodestar. (ECF No. 288 at 5.) First, MCS argues that the 23 lodestar should be reduced to only include hours expended advancing the claims of Plaintiffs L.H. 24 and J.H. against MCS. (ECF No. 288 at 9.) MCS explains that equitable considerations and 25 factors like relative culpability and time spent litigating against each defendant, support a 75% 26 reduction of the hours.1 (ECF No. 288 at 10–11.) Second, MCS objects to the inclusion of non- 27 1 28 Because there are four Defendants in this action, 75% represents the proportional percentage of defendants other than MCS. 4 1 attorney and non-paralegal staff time in the lodestar. (ECF No. 288 at 12.) Third, MCS seeks 2 exclusion of Counsels’ time spent on an unsuccessful class certification motion and defense of 3 VMRC’s counterclaim. (ECF No. 288 at 14–20.) Finally, MCS requests further reduction due to 4 the “ongoing nature of the litigation” and Plaintiffs’ “potential double recovery” should they 5 prevail against the remaining Defendants in this action. (ECF No. 288 at 20–21.) In sum, MCS 6 argues the correct lodestar amount is $29,350, and that a negative lodestar multiplier of 40% 7 should be applied to recognize Plaintiffs’ time spent on the unsuccessful class certification and 8 VMRC counterclaim. (ECF No. 288 at 21.) MCS argues that the final reasonable attorneys’ fee 9 award should be $17,610. (ECF No. 288 at 21.) 10 11 12 A. Calculation of the Lodestar Amount i. Reasonable Hourly Rate The Leigh Law Group requested the following hourly rates (ECF No. 283 at 7–8): 13 Jay T. Jambeck, partner $450 14 Mandy G. Leigh, partner $450 15 Sarah Fairchild, associate $350 16 Mary Ann Kowalchek-Watt, office staff $100 17 The Law Offices of Tamara Loughrey requested the following hourly rates (ECF No. 283 at 8): 18 Tamara Loughrey, partner $450 19 Justin Arnold, associate $350 20 Sante Dewberry, paralegal $90 21 MCS does not object to the hourly rates attributed to the partners and associates. (See 22 generally ECF No. 288.) MCS only objects to the inclusion of Ms. Kowalchek-Watt and Ms. 23 Dewberry. (ECF No. 288 at 12.) Because the Court will exclude Ms. Kowalchek-Watt’s hours 24 below, the Court will not address her rate. 25 Plaintiffs have provided the Court with substantial evidence establishing the 26 reasonableness of their requested hourly rates in this district. Prevailing hourly rates in the 27 Eastern District of California are in the $350-$550/hour range for experienced attorneys with over 28 5 1 15 years of experience in civil rights and class action litigation. See Bond v. Ferguson Enters., 2 No. 1:09-CV-1662-OWW, 2011 WL 2648879, at *12 (E.D. Cal. June 29, 2011); see also Franco 3 v. Ruiz Food Products, Inc., No. 1:10-CV-2354-SKO, 2012 WL 5941801, at *20 (E.D. Cal. Nov. 4 27, 2012); Gong-Chun v. Aetna Inc., No. 1:09-CV-1995-SKO, 2012 2872788, at *21 (E.D. Cal. 5 July 12, 2012). Plaintiffs also submitted declarations of other practitioners with federal special 6 education litigation experience charging similar rates. (Whiteleather Decl., ECF No. 284 at 5.) 7 In accordance with Chalmers, the Court has carefully reviewed Plaintiffs’ evidence of prevailing 8 community rates for Eastern District practitioners and finds the rates of $450 for partners and 9 $350 for associates reasonable. (ECF No. 283 at 6–9; Request for Judicial Notice, ECF No. 287.) 10 Chalmers, 796 F.2d at 1210. Plaintiffs claim that Sante Dewberry’s paralegal rate is $90. (ECF No. 283 at 8.) 11 12 Although not raised in MCS’s opposition, “[a]ccording to the court’s own research, ‘the paralegal 13 rate favored in this district is $75 per hour.’ ” Clark v. Colvin, No. 2:14-CV-0851-DB, 2016 WL 14 4179803, at *4 (E.D. Cal. Aug. 8, 2016); Pehle v. Dufour, No. 2:06-CV-1889-EFB, 2014 WL 15 546115, at *7 (E.D. Cal. Feb. 11, 2014) (quoting Friedman v. Calif. State Employees Assoc., No. 16 CIV. 2:00-101-WBS-DAD, 2010 WL 2880148, at *4 (E.D. Cal. July 21, 2010)); see also Kalani 17 v. Statewide Petroleum, Inc., No. 2:13-CV-2287-KJM-AC, 2014 WL 4230920, at *6 (E.D. Cal. 18 Aug. 25, 2014) (“courts in Sacramento have repeatedly determined in recent years that the 19 prevailing hourly paralegal rate is $75”). Plaintiffs will be awarded compensation for paralegal 20 time at a rate of $75 per hour. Therefore, the rates this Court will adopt are as follows: 21 Jay T. Jambeck, partner $450 22 Mandy G. Leigh, partner $450 23 Sarah Fairchild, associate $350 24 Tamara Loughrey, partner $450 25 Justin Arnold, associate $350 26 Sante Dewberry, paralegal $75 27 // 28 6 1 2 ii. Hours Reasonably Expended The Leigh Law Group requested the following hours (ECF No. 283 at 7–8): 3 Jay T. Jambeck, partner 185 hours 4 Mandy G. Leigh, partner 8.2 hours 5 Sara Fairchild, associate 7 hours 6 Mary Ann Kowalchek-Watt, office staff 20.3 hours 7 The Law Offices of Tamara Loughrey requested the following hours (ECF No. 283 at 8): 8 Tamara Loughrey, partner Justin Arnold, associate 10 11 a. 12 13 14 15 16 17 18 19 22 23 24 25 26 219.42 hours Insufficient documentation or excessive billing Reduction of hours reported is warranted where counsel has provided inadequate documentation. Cunningham, 879 F.2d at 484; see also Chalmers, 796 F.2d at 1219 (“[C]ounsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended.”). Although “[t]he cases do not indicate that every minute of an attorney’s time must be documented; they do, however, require that there be adequate description of how the time was spent, whether it be on research or some other aspect of the litigation …” Pac. W. Cable Co. v. City of Sacramento, 693 F. Supp. 865, 870 (E.D. Cal 1988). Counsel should, at the very least, “identify the general subject matter” of her time expenditures. Hensley, 461 U.S. at 437 n.12. 20 21 68.2 hours Sante Dewberry 9 9.2 hours Although MCS does not object to the documentation provided, the Court is required to review Plaintiffs’ billing records for insufficient documentation or excessive charges. After careful review, the Court finds that Plaintiffs’ records adequately reflected the work product’s general subject matter and noted how the time was spent with descriptors like “attended Plaintiffs’ deposition” and “responded to Ripon motion to dismiss.” Accordingly, the Court finds that Plaintiffs’ documentation is sufficient and the hours are not excessive. // 27 2 28 Plaintiffs’ calculated Sante Dewberry’s hours at 219.6 because they failed to deduct the .2 hours not charged on page 4 of ECF No. 286-3. The correct number of hours for Ms. Dewberry is 219.4 hours. 7 1 2 b. Attorney Hours Requested i. Apportionment 3 MCS argues that the number of hours Plaintiff claims is unreasonable because they 4 include work done against the other Defendants in this action. (ECF No. 288 at 11.) MCS would 5 like the lodestar to “only include the hours expended advancing the claims of Plaintiffs L.H and 6 J.H against Defendant MCS.” (ECF No. 288 at 10.) Specifically, MCS requests at least a 75% 7 reduction of the lodestar hours. (ECF No. 288 at 11.) Plaintiffs counter that the claims against 8 MCS are “related to and intertwined with” the claims against the other defendants. (Reply, ECF 9 No. 289 at 5.) Plaintiffs point out that they have pursued all defendants equally due to the 10 11 “overlapping and supportive nature” of the allegations. (ECF No. 289 at 7.) Attorneys’ fees are not awarded to punish defendants, but instead “encourage meritorious 12 civil rights actions” by ensuring reasonable compensation for victorious plaintiff’s attorneys. 13 Corder v. Gates, 947 F.2d 374, 383 (9th Cir. 1991) (citing Blanchard, 489 U.S. at 96; Hensley, 14 461 U.S. at 429). “Under both federal and California law, liability among defendants for a 15 successful plaintiff’s attorney fees is generally joint and several.” Blackwell v. Foley, 724 F. 16 Supp. 2d 1068, 1075 (N.D. Cal. 2010) (citing Turner v. District of Columbia Bd. of Elections & 17 Ethics, 354 F.3d 890 (D.C. Cir. 2004); California Trout, Inc. v. Super. Ct., 218 Cal. App. 3d 187, 18 212 (1990); Corder, 947 F.2d at 383). It has also been held proper for a court to award attorneys’ 19 fees against one defendant for time spent litigating against another. Blackwell, 724 F. Supp. 2d at 20 1075 (citing Californians for Responsible Toxics Mgmt. v. Kizer, 211 Cal. App. 3d 961, 976 21 (1989)). Apportionment is proper where a plaintiff has spent a disproportional amount of time 22 pursuing a certain defendant or defendants. Agster v. Maricopa Cty., 486 F. Supp. 2d 1005, 1022 23 (D. Ariz. 2007) (citing Corder, 947 F.2d at 383). If claims are not attributable to all defendants 24 and are not “centered on a set of common issues,” i.e., claims that are “truly fractionable,” then 25 fees should be apportioned. Jones v. Espy, 10 F.3d 690, 691 (9th Cir. 1993). 26 The Court finds that application of joint and several fee liability is proper here. Plaintiffs 27 have not disproportionately pursued the other Defendants over MCS in this matter. The 28 individual Defendants, VMRC, MCS, and Ripon Unified School District (“Ripon”) have all filed 8 1 separate motions to dismiss against Plaintiffs. (ECF Nos. 24, 36, 42, 119, 121.) Ripon, MCS, 2 VMRC, and the individual Defendants similarly opposed Plaintiffs’ class certification motion. 3 (ECF Nos. 171, 173, 174, 177.) The concurrent motions and oppositions demonstrate the 4 overlapping nature of these claims attributable to all Defendants. Additionally, the claims are all 5 “centered on a set of common issues,” namely unreasonable barriers to Plaintiffs’ disability 6 services collectively created by Defendants. Thus, the claims in this action are not “truly 7 fractionable.” The Court finds persuasive Plaintiff’s argument that the liability here is hopelessly 8 overlapping and wrought by MCS’s intertwined actions which led to an indivisible injury. See 9 also Rudelson v. United States, 602 F.2d 1326, 1332 n.2 (9th Cir. 1979). 10 MCS does not provide convincing case law supporting their apportionment request, and 11 only cites to an Eastern District of Pennsylvania case recognizing that “in cases with roughly 12 equal wrongdoers in which the court does not want to impose joint and several liability for 13 attorney’s fees, the fees can be divided equally among defendants.” (ECF No. 288 at 10.) 14 Halderman v. Pennhurst State School and Hospital, 725 F. Supp. 861, 865 (E.D. Pa. 1989). MCS 15 omitted that the court in Halderman did not want to impose joint and several liability because it 16 would almost certainly result in the plaintiff’s double recovery. Id. (Adoption of their proposed 17 fee allocation method “virtually guarantees that they will receive at least some redundant 18 payments[.]”) That is not the case here, for Plaintiffs have not received any prior payments from 19 other Defendants and will not “almost certainly” result in double recovery. Therefore, the Court 20 concludes that joint and several liability is proper, and denies Defendant’s apportionment request. 21 22 ii. Class action MCS contends that Plaintiffs’ time spent on a class certification motion should not be 23 compensated, for it “did nothing to further” Plaintiffs’ claims and was ultimately unsuccessful. 24 (ECF No. 288 at 16.) The motion “provided no benefit to J.H or L.H. but rather, sought to 25 provide benefit for unnamed potential plaintiffs.” (ECF No. 288 at 16–17.) Plaintiffs counter 26 that the class certification motion was “merely a procedural option” available, and possessed 27 “common elements between the issues raised in that motion and the merits of the claims against 28 [MCS].” (ECF No. 289 at 9.) 9 1 2 The Supreme Court has clearly outlined the test for relatedness in Hensley v. Eckerhart, 461 U.S. 424, 434–35 (1983) (emphasis added): “Many civil rights cases will present only a single claim. In other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claimby-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation…. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. (citation omitted). Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.” 3 4 5 6 7 8 9 10 11 Both parties agree that the Ninth Circuit has “generously applied Hensley’s test of relatedness.” 12 (ECF No. 288 at 15; ECF No. 289 at 9.) See Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003). 13 The Ninth Circuit has articulated a two-part test in evaluating claim relatedness: (1) whether the 14 unsuccessful claims were related to the successful claims, and if related, the court must (2) 15 16 17 18 19 evaluate the “significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 901–02 (9th Cir. 1995) (citations omitted). “If the plaintiff obtained ‘excellent results,’ full compensation may be appropriate, but if only ‘partial or limited success’ was obtained, full compensation may be excessive. Such decisions are within the district court’s discretion.” Id. at 20 902. 21 Applying the first part of the Hensley test, the Court finds that the unsuccessful class 22 certification motion was related to Plaintiffs’ successful claims. The class certification motion 23 was based on common issues and facts relating to the litigation as a whole and cannot be properly 24 25 26 27 viewed as separate. The class certification motion is more properly viewed as “alternative legal grounds for a desired outcome” brought in good faith, and the Court cannot rely on its ultimate denial as grounds for attorneys’ fee reduction. Hensley, 461 U.S. at 435. We thus proceed to Hensley’s second part and focus on the “significance of the overall 28 10 1 relief obtained” by Plaintiffs in relation to the hours reasonably expended. Plaintiffs support their 2 contention that the $100,002 Rule 68 offer of judgment was a substantial victory and excellent 3 result with Doe v. Keala, 361 F. Supp. 2d 1171 (D. Haw. Feb. 11, 2005) (ECF No. 283 at 9.) In 4 Keala, the plaintiffs received a $3,625 judgment that still garnered a $98,582.34 award in 5 attorneys’ fees. Id. at 1177, 1191. MCS claims that Plaintiffs mischaracterized Keala, where the 6 court upheld a 55% reduction in hours (not the total lodestar) due to the plaintiffs’ limited 7 success. (ECF No. 288 at 11.) 8 The Court acknowledges that MCS is correct, but this distinction is irrelevant for Keala’s 9 usefulness here. Plaintiffs were merely using Keala for illustrative purposes: the prevailing civil 10 rights plaintiffs’ obtained a $3,625 judgment against only one defendant and the court found their 11 success limited. Keala, 361 F. Supp. 2d at 1180. Yet the Keala plaintiffs were still awarded 12 $98,582.34 in fees after a 55% reduction. Id. at 1191. Here, Plaintiffs successfully obtained a 13 $100,002 judgment from MCS, an award substantially larger than in Keala. The Court finds that 14 Plaintiffs’ success here is significant and an “excellent result” deserving full compensation. 15 Therefore, the Court does not find a reduction is warranted based on lack of success. 16 17 iii. Counterclaim It is undisputed that Plaintiffs’ work on the VMRC counterclaim and related motions are 18 to be excluded. (ECF No. 288 at 17.) However, the parties dispute the amount of money that 19 should be attributed to these matters. (ECF No. 289 at 10.) Because the differing dollar amounts 20 provided by Plaintiffs and MCS used the unacceptable $90/hour paralegal rate, the Court cannot 21 rely on either party’s number and conducts its own review with the adopted $75/hour paralegal 22 rate. The Court independently reviewed Plaintiffs’ billing records and identified counterclaim 23 hours appropriate for exclusion. (Jambeck Declaration, ECF No. 286-3 at 3–11). The following 24 table summarizes the counterclaim hours the Court will exclude: 25 6/19/2010 Loughrey 0.5 26 6/21/2010 Arnold 3.3 27 6/21/2010 Arnold 0.5 28 11 1 6/23/2010 Arnold 0.5 6/25/2010 Arnold 0.4 6/28/2010 Loughrey 0.2 6/28/2010 Dewberry 0.1 7/13/2010 Loughrey 1.2 7/13/2010 Loughrey 1.5 7/22/2010 Arnold 0.4 7/27/2010 Arnold 0.3 7/30/2010 Arnold 3.5 7/31/2010 Arnold 4.9 8/2/2010 Arnold 6.3 8/2/2010 Dewberry 5.8 8/4/2010 Arnold 0.5 8/4/2010 Dewberry 6.8 8/4/2010 Dewberry 6.3 8/5/2010 Dewberry 6.6 18 8/5/2010 Dewberry 7.9 19 8/6/2010 Dewberry 5.6 20 8/10/2010 Dewberry 6.4 21 8/10/2010 Dewberry 1.3 22 8/11/2010 Dewberry 3.3 23 8/11/2010 Dewberry 3.2 24 8/12/2010 Dewberry 3.8 25 8/12/2010 Dewberry 5.7 26 8/13/2010 Dewberry 3.5 27 8/18/2010 Dewberry 7 28 8/19/2010 Dewberry 6.7 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 12 1 8/24/2010 Dewberry 6.8 9/7/2010 Arnold 2.5 9/8/2010 Dewberry 0.1 9/10/2010 Dewberry 2.5 9/29/2010 Dewberry 5.7 9/30/2010 Dewberry 1.4 9/30/2010 Arnold 0.5 10/1/2010 Dewberry 1.6 10/1/2010 Dewberry 2.2 10/1/2010 Dewberry 2.9 10/4/2010 Dewberry 13.4 10/4/2010 Arnold 0.8 10/5/2010 Dewberry 14.7 10/5/2010 Arnold 12.4 10/13/2010 Loughrey 0.1 10/15/2010 Dewberry 1.2 18 10/15/2010 Dewberry 2.1 19 10/15/2010 Dewberry 5.7 20 10/18/2010 Dewberry 2.3 21 10/18/2010 Loughrey 1.4 22 11/15/2010 Dewberry 1.8 23 Total: 24 Total: Arnold 36.8 25 Total: Loughrey 4.9 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 26 Dewberry 144.4 For the foregoing reasons, this Court will not apportion the reasonable number of attorney 27 hours spent by Plaintiffs and impose joint and several liability on MCS. Further, this Court will 28 include time spent on the unsuccessful class certification motion and exclude counterclaim work. 13 1 c. Non-Attorney Hours Requested 2 MCS objects to the inclusion of secretarial and paralegal work hours because Plaintiffs 3 have not established the reasonability of including non-attorney staff fees. (ECF No. 288 at 12.) 4 Plaintiffs contend that “the work of legal assistants is directly attributable to the litigation” and 5 provide substantial case law demonstrating inclusion as proper. (ECF No. 289 at 8.) The phrase “reasonable attorney’s fee” cannot have been meant to compensate only work 6 7 performed personally by an attorney, but rather the work product of an attorney. Missouri v. 8 Jenkins by Agyei, 491 U.S. 274, 285 (1989). The term “attorney’s fees” thus embraces the fees of 9 paralegals as well as attorneys. Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 581 (2008) 10 (citing Jenkins, 491 U.S. at 285). Attorneys and paralegals may not legitimately bill for clerical 11 or secretarial work. Lema v. Comfort Inn Merced, No. 1:10-CV-01131-SMS, 2014 WL 1577042, 12 at *6 (E.D. Cal. 2014) (citing Jenkins, 491 U.S. at 288 n.10). “It is appropriate to distinguish 13 between legal work, in the strict sense, and investigation, clerical work, compilation of facts and 14 statistics and other work which can often be accomplished by nonlawyers[.]” Id. 15 MCS disputes that Ms. Dewberry is a certified paralegal. (ECF No. 288 at 12.) Indeed, 16 Plaintiffs did not submit documentation establishing Ms. Dewberry as a certified paralegal. 17 However, the Court takes judicial notice of Ms. Loughrey’s declaration that Ms. Dewberry is her 18 paralegal.3 (Request for Judicial Notice, Exhibit D – Loughrey Declaration, at 4.) Additionally, 19 Ms. Dewberry’s billing describes paralegal work in nature: Westlaw legal research and review of 20 statutes and case law, review of counterclaims, revision of memorandums, and preparations of 21 various motions. (ECF No. 286-3.) This is work that cannot be done by a secretary and is not 22 clerical in nature. See Davis v. Hollins Law, 25 F. Supp. 3d 1292, 1301 (E.D. Cal June 12, 2014) 23 (preparing courtesy copies of documents and booking flights is administrative or secretarial in 24 3 25 26 27 28 Plaintiffs request the Court take judicial notice of Mark E. Merin’s Declaration in Jones v. Cty. of Sacramento, Eastern District of California case No. 2:09-cv-1025-DAD, Linda M. Dardarian’s Declaration in Moeller v. Taco Bell Corp., Northern District of California case No. 4:02-cv-05849-PJH, and the Declarations of Bob Varma, Tamara Loughrey, and Justin Arnold in J.A.A.H. v. Modesto City Schools, Eastern District of California case No. 1:08-cv01465-LJO-DLB. (Req. for Judicial Notice, ECF No. 287.) Under Federal Rule of Evidence 201 a court can take judicial notice of a document when the subject “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” For the reasons stated in Plaintiffs’ request and noting no opposition by Defendant to the request, the Court GRANTS Plaintiffs’ request, and takes judicial notice of the attached exhibits pursuant to Federal Rule of Evidence 201 (ECF No. 287 at 4–67.) 14 1 nature); see also Rafanan v. Focus Receivables Mgmt., LLC, No. 09-CV-2715-JAM, 2010 WL 2 2923284, at *2 (E.D. Cal. July 26, 2010) (paralegals cannot be billed for secretarial tasks like 3 filing proofs of service, serving a complaint, preparing a civil case cover sheet). Thus, the Court 4 is satisfied that Ms. Dewberry is a paralegal and will include her work hours as such. 5 The Court exercises its discretion and excludes Ms. Kowalchek-Watt’s secretarial work. 6 Nowhere is there mention that Ms. Kowalchek-Watt is a paralegal. A review of the submitted 7 billing records reveals her work product as clerical in nature: table of documents creation, and 8 email confirmation of client attendance at depositions. (ECF No. 286-1 at 5.) Thus, the Court 9 will not include Ms. Kowalchek-Watt’s secretarial hours. 10 In conclusion, the Court finds that Plaintiffs’ reasonable number of lodestar hours to be: 11 Person Hours Granted (counterclaims excluded) 12 Jay T. Jambeck, partner 185 hours 13 Mandy G. Leigh, partner 8.2 hours 14 Sara Fairchild, associate 7 hours 15 Tamara Loughrey, partner 4.3 hours Justin Arnold, associate 31.4 hours Sante Dewberry, paralegal 75 hours Total 310.9 hours 16 17 18 19 20 Accordingly, the Court adopts the following table to calculate the lodestar: 23 24 Rate Hours Total Jay T. Jambeck, partner $450 185 hours $83,250 Mandy G. Leigh, partner $450 8.2 hours $3,690 Sarah Fairchild, associate $350 7 hours $2,450 Tamara Loughrey, partner $450 4.3 hours $1,935 $350 31.4 hours $10,990 Sante Dewberry, paralegal 22 Person Justin Arnold, associate 21 $75 75 hours $5,625 310.9 hours $107,940 25 26 27 Total 28 15 1 2 3 4 5 Thus, after careful review of the billing records, motion briefs, and supporting evidence, the Court finds that the appropriate reasonable lodestar amount is $107,940. B. Adjustment of the Lodestar Amount Based on Factors Not Subsumed in the Initial Calculation The Court has considered the equitable considerations outlined in Kerr in its lodestar 6 calculations and whether further adjustment is needed. In doing so, the Court was mindful of 7 precedent establishing the “strong presumption that the lodestar figure represents a reasonable 8 fee.” Jordan, 815 F.2d at 1262. An upward adjustment of the lodestar is appropriate only in 9 extraordinary cases, such as when an attorney faced exceptional risks of not prevailing or not 10 recovering any fees. Chalmers, 796 F.2d at 1212. A reduced fee award is appropriate where a 11 plaintiff achieves only partial or limited success. Hensley, 461 U.S. at 436. To be compensable, 12 an attorney’s time must be “reasonable in relation to the success achieved.” Id. 13 MCS raises the possibility of Plaintiffs’ future or double recovery if they prevail against 14 the remaining defendants. (ECF No. 288 at 20.) The Court dismisses this as speculative. If 15 Plaintiffs do prevail further, then the Court can consider their recovery today to prevent 16 undeserving windfalls. 17 Finally, the Court considers Plaintiffs’ requested $7,155 in additional motion fees. (ECF 18 No. 289 at 19.) Generally, “time spent in establishing an amount of fees awardable under [42 19 U.S.C.] section 1988 is compensable.” Guerro v. Cummings, 70 F.3d 1111, 1113 (9th Cir. 1995) 20 (Section 1988 provides for prevailing parties in civil rights actions to recover reasonable 21 attorneys’ fees.) Defendant did not respond to Plaintiffs’ request for additional attorneys’ fees. 22 However, Plaintiffs have not provided the Court with any billing or documentation showing how 23 they calculated $7,155 in additional motion fees. Plaintiffs similarly failed to justify why it is 24 reasonable. Plaintiffs noted that they initially anticipated 3.5 hours of motion work, but in fact 25 expended 7 hours with their reply. (ECF No. 289, at 10 n.2.) Because Plaintiffs failed to provide 26 documentation of this time expended or explain how they reached their dollar amount, they have 27 not met their burden of production. Therefore, the Court DENIES Plaintiffs’ requested $7,155 in 28 16 1 additional motion fees. 2 IV. CONCLUSION 3 The Court awards Plaintiffs the $107,940 lodestar for reasonable attorneys’ fees. 4 IT IS SO ORDERED. 5 6 Dated: March 20, 2017 7 8 9 10 Troy L. Nunley United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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