California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc. et al

Filing 253

ORDER signed by Judge Garland E. Burrell, Jr. on 01/07/16 ORDERING that plaitiff's 230 Motion for Interim Attorney Fees is DENIED; plaintiff's 245 Motion to Strike defendant's Errata is DENIED as moot. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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Plaintiff,
v.

No. 2:10-cv-01207-GEB-AC

ORDER REGARDING PLAINTIFF’S
MOTION FOR INTERIM ATTORNEY FEES

CHICO SCRAP METAL, INC., a
California corporation;
GEORGE W. SCOTT, SR.,
individually and as trustee
of GEORGE W. SCOTT, SR.
REVOCABLE INTER VIVOS TRUST
DATED SEPTEMBER 25, 1995,

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Defendants.

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Plaintiff California Sportfishing Protection Alliance

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(“Plaintiff”) seeks an interim award of $1,270,064.97 in attorney

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fees and costs under 33 U.S.C. § 1365(d), contending it is the

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prevailing party following this Court’s Order that granted in

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part and denied in part each party’s summary judgment motion.

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Additionally, Plaintiff seeks attorney fees for its work on the

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instant motion. Plaintiff also moves to strike Defendants’ errata

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to their Opposition brief, filed in opposition to the motion sub

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judice.

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I.

LEGAL STANDARD

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Section 1365(d) states:

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The court, in issuing any final order in any
action brought pursuant to this section, may
award
costs
of
litigation
(including
reasonable attorney and expert witness fees)
to any prevailing or substantially prevailing
party, whenever the court determines such
award is appropriate.

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The

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Ninth

Circuit

has

held:

“A

district

court’s

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decision to award attorney fees under . . . the [federal Clean

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Water Act (]CWA[)] must rest on two findings. First, [the court]

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must

find

that

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substantially prevailing party.’ Second, it must find that an

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award of attorney fees is ‘appropriate.’ An award of attorney

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fees may not be appropriate where ‘special circumstances’ [that

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would

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Resurrection Bay Conservation All. v. City of Seward, Alaska, 640

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F.3d 1087, 1091 (9th Cir. 2011) (first alteration in original)

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(footnote,

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Further, “the usual approach to evaluating the reasonableness of

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an attorney fee award requires application of the lodestar method

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and Kerr[1] factors,” the most critical of which “is the degree

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of success obtained.” Id. at 1095 (citations omitted).

render

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the

the

award

citations,

Under

fee

the

of

and

applicant

attorney

internal

lodestar

is

fees

a

unjust]

quotation

method,

‘prevailing

the

are

marks

or

found.”

omitted).

district

court

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“multiplies the number of hours the prevailing party reasonably

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expended

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calculate the lodestar figure. Ballen v. City of Redmond, 466

on

the

litigation

by

a

reasonable

hourly

rate”

to

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1

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) (adopting
factors to be considered in determining the reasonableness of attorney fees).

2

1

F.3d 736, 746 (9th Cir. 2006) (citation and internal quotation

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marks omitted).

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II.

MOTION FOR INTERIM ATTORNEY FEES

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Defendants agree that Plaintiff is a prevailing party.

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(Mem. of P. & A. in Opp’n to Mot. (“Opp’n”) 6:11–13, ECF No.

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242.) Further, they do not argue that a special circumstance

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exists. (Opp’n 6:4–13.)

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A.

Relevant Community

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Plaintiff
Bay

rates

market

“based

prevailing

counsel, and the prevailing market rates in Quincy, California

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for” Plaintiff’s Quincy counsel, Robert Tuerck. (Mem. of P. & A.

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ISO Pl.’s Mot. (“Mot.”) 14:12–14, ECF No. 231.) Specifically,

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Plaintiff

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Andrew Packard: $595; Erik Roper: $350; Emily Brand: $333; Laurie

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Mikkelson: $350; Megan Truxillo: $333; John Prager: $283; Jackson

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& Tuerck: $250; and Lozeau Drury LLP: $700. (Ex. A, ECF No. 233-

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1.)

hourly

[Plaintiff]’s

rates

for

Bay

San

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following

for

the

Francisco

the

rates

on

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seeks

Area

seeks

its

Area

counsel:

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Defendants do not challenge these rates.

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The reasonable hourly rate is “calculated according to

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the

prevailing

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[Blum v. Stenson, 465 U.S. 886, 895 (1984)], and the general rule

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is that the rates of attorneys practicing in the forum district,

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here the Eastern District of California-Sacramento, are used.”

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Gates

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(citation

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employed if [Sacramento] counsel was unavailable, either because

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they are unwilling or unable to perform because they lack the

v.

market

Deukmejian,
omitted).

rates

987

in

F.2d

However,

the

relevant

1392,

1405

out-of-forum

3

legal

(9th

community,

Cir.

“rates . . .

1992)
may

be

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degree of experience, expertise, or specialization required to

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handle

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“[P]laintiffs

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within the local forum in order to justify the use of outside

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counsel.” Barjon v. Dalton, 132 F.3d 496, 501 (9th Cir. 1997).

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“Gates allows proof of either unwillingness or inability due to

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lack of experience, expertise, or specialization.” Id.

properly

the

case.”

must . . .

Id.

prove

at
the

1405

(citations

unavailability

omitted).

of

counsel

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Plaintiff’s Executive Director Bill Jennings declares:

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Over the past fifteen years, I have tried to
contact attorneys in the Sacramento area to
see if they were interested in representing
[Plaintiff] CSPA on a contingent basis in
enforcing the Clean Water Act. After multiple
discussions, I was unable to retain attorneys
in Sacramento or the greater Sacramento area
that were willing to take this kind of case
on a contingent basis. I made similar
inquiries in the Stockton area and was
unsuccessful there as well. I then contacted
several firms in the San Francisco Bay Area
to see if they would take the case on a
contingent
basis.
Of
the
attorneys
I
contacted, only Mr. Packard’s firm, with
Lozeau Drury LLP and Jackson & Tuerck
agreeing to be co-counsel, were willing and
able to do so.

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(Jennings Decl. ¶ 12, ECF No. 232.)

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This conclusory statement does not support a finding

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that Sacramento counsel was unavailable to represent Plaintiff in

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this

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determining a reasonable hourly rate is Sacramento.

case.

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Therefore,

“[T]he

the

burden

is

on

community

the

fee

addition

to

for

applicant

to

of

produce

satisfactory

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affidavits—that

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prevailing in the [relevant] community for similar services by

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lawyers

the

requested

reasonably

rates

comparable
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are

the

purposes

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of

evidence—in

relevant

in

skill,

attorney’s
line

with

experience

own
those

and

1

reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980

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(9th Cir. 2008) (quoting Blum, 465 U.S. at 896 n.11). “Affidavits

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of

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prevailing

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other

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plaintiffs’ attorney, are satisfactory evidence of the prevailing

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market rate.” United Steelworkers of Am. v. Phelps Dodge Corp.,

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896 F.2d 403, 407 (9th Cir. 1990).

the

plaintiffs’

cases,

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fees

The

in

attorney
the

community,

particularly

only

and

evidence

those

other
and

attorneys

rate

setting

Plaintiff

regarding

determinations
a

presented

rate

for

on

in
the

Sacramento

attorney fee rates follows.

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Environmental lawyer Frederic Evenson declares:

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I believe Mr. Packard’s firm’s market rates
of $595/hour for his work, and $333–350/hour
for the work of his associates with four to
six years of experience and specialized
environmental training, are well within the
range of market rates charged by attorneys
with similar experience and skill in both the
San Francisco and the Sacramento areas.

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(Evenson ¶ 12, ECF No. 239.) The fact Evenson uses the “words ‘I

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believe,’ however, does not automatically render [his] testimony

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inadmissible. Rather, the question is whether [his] statements

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lack[] the requisite proof of personal knowledge.” Edwards v.

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Toys

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(citation

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however, does not assert he has personal knowledge of Sacramento

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rates, and instead outlines his personal knowledge concerning San

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Francisco

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¶ 9.) Therefore, Evenson’s belief is not “satisfactory evidence

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of the prevailing market rate.” United Steelworkers of Am., 896

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F.2d at 407; see also Jordan v. Multnomah Cty., 815 F.2d 1258,

“R”

Us,

527

and

rates

F.

Supp.

internal

and

2d

1197,

quotation

“across

the

5

1201

marks

state”

(C.D.

Cal.

omitted).

rates.

(E.g.,

2007)

Evenson,

Evenson

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1264 n.9 (9th Cir. 1987) (noting that affiant “did not indicate

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that the rates sought were comparable to [affiant’s] rates, and

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that plaintiffs did not submit evidence to support [his] belief,”

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where affiant stated in support of an hourly rate: “I believe

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that these hourly rates are reasonable and consistent with those

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being charged by attorneys of comparable skill and experience on

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comparable matters in this community,”).2

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Environmental lawyer Donald B. Mooney declares: “It is

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my experience that current market rates for attorneys in the

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Sacramento area with 21 years of experience is $450/hour, and

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attorneys with 4–6 years of experience is in the range of $245-

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$320/hour.”

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declaration

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qualifies him to opine “about the prevailing rate in [Sacramento]

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for similarly qualified lawyers working on a similar [Clean Water

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Act] case.” Schwarz v. Sec’y of Health & Human Servs., 73 F.3d

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895, 908 (9th Cir. 1995).

(Mooney
does

not

Decl.
show

¶ 13,
that

ECF
his

No.

238.)

referenced

Mooney’s

“experience”

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Lozeau declares: “I am aware that the prevailing market

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rate for associates with comparable experience as associates who

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worked

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Sacramento area.” (Lozeau Decl. ¶ 11.)

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on

this

These

case

range . . .

declarants

have

from

not

$225

to

pointedly

$475

in

stated

the

the

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prevailing rate in this community for a comparable Clean Water

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2

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Similarly, Lozeau asserts in his declaration: “Based on my research and
my discussions with other attorneys, I have become familiar with the
commercial rates charged by attorneys of my experience and skill in
Sacramento, which I believe are currently in the range of $400 to $700.”
(Lozeau Decl. ¶ 10, ECF No. 234 (emphasis added).) He also declares: “I also
believe Mr. Packard’s firm’s market rates of $595/hour for his work, and $283350/hour for his associates’ work, are well within the range of market rates
charged by attorneys with similar experience and skill in both the San
Francisco and the Sacramento areas.” (Lozeau Decl. ¶ 13 (emphasis added).)

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Act litigator. Therefore, Plaintiff fails to carry its burden to

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demonstrate

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motion for attorney fees is denied.

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B.

that

the

requested

rates

are

reasonable,

and

its

Expert Witness Fees

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Plaintiff “seek[s] reimbursement of its expert [witness

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fees] in the amount of $116,952.13.” (Mot. 15:17–18.) It argues

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its expert witness fees for certified geologist John Lane are

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warranted since he “provide[d] expert testimony regarding the

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connectivity

of

the

Facility’s

discharges

to

‘waters

of

the

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United States’ within the meaning of the C[WA].” (Mot. 21:16–18.)

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It also argues its expert witness fees for certified geologist

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Steven Bond are warranted since his testimony was important “to

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all

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judgment and . . . [defeated] most of the arguments presented by

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Defendants

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23:9–10.)

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reasonable and necessary to [Plaintiff]’s diligent prosecution of

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this action.” (Packard Decl. ¶¶ 61–62.)

claims

on

in

which

the

Packard

Plaintiff

cross-motions
further

[was

for

declares

granted] . . .

summary
these

summary

judgment.”

expert

costs

(Mot.
“were

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Defendants do not oppose this portion of the motion.

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Section 1365(d) permits an award of reasonable expert

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witness

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fees

“to

any

prevailing

or

substantially

prevailing

party.”

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However, the reasonableness of the sought-after expert

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witness fees cannot be confirmed, since “[P]laintiff ha[s] failed

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to provide adequate documentation to assess the reasonableness of

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the claimed amounts.” Cabrales v. Cty. of Los Angeles, 864 F.2d

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1454, 1466–67 (9th Cir. 1988) cert. granted, judgment vacated,

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490 U.S. 1087 (1989) and opinion reinstated, 886 F.2d 235 (9th
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Cir. 1989) (“We hold that the court’s denial of these fees on

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these

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submitted in support of Plaintiff’s request for expert costs,

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merely lists the experts’ names and total costs. (Ex. I, ECF No.

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233-8.)

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reasonable and describes the topics on which the two experts

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provided testimony, (Packard Decl. ¶¶ 60–63), Plaintiff “does not

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explain in any real detail how the experts divided their time

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between various tasks: there are no time entries or invoices from

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the experts, for example.” Banas v. Volcano Corp., 47 F. Supp. 3d

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957, 978–79 (N.D. Cal. 2014). Therefore, Plaintiff’s request for

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expert witness fees is denied.

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grounds

C.

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was

Although

not

an

Packard

abuse

of

asserts

discretion.”).

that

the

Exhibit

expert

costs

I,

are

Litigation Expenses (Taxation of Costs)
Plaintiff
billed

seeks

to

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normally

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reporters,

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client

(such

in

“litigation

transcript,

as

copies,

filing

expenses

travel).” (Packard Decl. ¶ 60.)

deposition

a

$27,523.33

fees,

postage,

court

courier,

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Local Rule 292 contemplates that a bill of costs is not

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filed until final judgment is entered, and therefore, the request

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for litigation expenses (costs) is premature and denied on this

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basis.

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D.

Fee Motion

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Plaintiff seeks an additional $37,050.20 in fees for

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time spent on this motion. (Mot. 15:19–20.) Both Packard and

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Truxillo worked on the fee motion and billed twenty-two and four

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hours, respectively. (Ex. A.) However, since Plaintiff has not

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sustained its attorney fee rate request, this portion of the

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motion is also denied.
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III.

CONCLUSION

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Plaintiff’s motion for interim attorney fees is denied.

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Further, Plaintiff’s motion to strike Defendant’s errata to their

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Opposition brief is denied as moot in light of this decision.

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Dated:

January 7, 2016

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