The National Grange of the Order of Patrons of Husbandry v. California State Grange

Filing 154

ORDER granting 142 Motion for Attorney Fees signed by Senior Judge William B. Shubb on 9/9/16. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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CIV. NO. 2:14-676 WBS AC

THE NATIONAL GRANGE OF THE
ORDER OF PATRONS OF
HUSBANDRY, a District of
Columbia nonprofit
corporation,

MEMORANDUM AND ORDER RE: MOTION
FOR ATTORNEY’S FEES

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Plaintiff,
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v.
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CALIFORNIA STATE GRANGE d/b/a
“CSG,” a California
corporation,

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Defendant.
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----oo0oo---Plaintiff the National Grange of the Order of Patrons

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of Husbandry brought this action against defendant California

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State Grange, currently known as the California State Guild, for

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violations of the Lanham Act.

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plaintiff’s motion for attorney’s fees in the amount of

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$154,230.80 pursuant to the Lanham Act and this court’s Order of

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April 20, 2016.

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///

Presently before the court is

(Docket No. 142.)

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I.

Factual and Procedural Background

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A detailed factual background of this case is set forth

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in the court’s April 20, 2016 Order granting plaintiff’s motion

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for an injunction.

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Husbandry v. Cal. State Grange, Civ. No. 2:14-676 WBS AC, 2016 WL

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1587193 (E.D. Cal. Apr. 20, 2016).

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to repeat that background in full here.

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Nat’l Grange of the Order of Patrons of

It is therefore unnecessary

In July 2015, the court granted summary judgment in
favor of plaintiff on its claims for (1) trademark infringement,

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15 U.S.C. § 1114; and (2) unfair competition and false

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designation of origin, 15 U.S.C. § 1125(a).

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In September 2015, the court entered an Order permanently

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enjoining “[d]efendant and its agents, affiliates, and assigns,

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or any party acting in concert with [them] from using marks

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containing the word ‘Grange.’”

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appealed the court’s July and September 2015 Orders; that appeal

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is currently pending before the United States Court of Appeals

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for the Ninth Circuit.

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2016, this court denied defendant’s motion to stay the September

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2015 permanent injunction pending defendant’s appeal.

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No. 108.)

(Docket No. 60.)1

(Docket No. 86.)

(Docket Nos. 87, 89, 95.)

Defendant

In January

(Docket

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In February 2016, plaintiff moved for an order to show

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cause why defendant should not be held in contempt for violating

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the court’s September 2015 injunction (the “Contempt Motion”).

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(Docket No. 109.)

The court denied that motion without prejudice

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Plaintiff dismissed its remaining two claims against
defendant with prejudice. (Id.)
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to plaintiff filing a motion for further injunctive relief based

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on the issues that were litigated in this case.

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117.)

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clarification of the September 2015 injunction.

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125.)

(Docket No.

The court additionally denied plaintiff’s motion for

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(Docket No.

On April 20, 2016, the court granted in part

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plaintiff’s motion for further injunctive relief based on the

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issues that were litigated in this case (the “Injunction

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Motion”).

(Apr. 20, 2016 Order (Docket No. 138).)

In its April

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20, 2016 Order, the court held that plaintiff was entitled to

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reasonable attorney’s fees under section 1117(a) of the Lanham

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Act in connection with (1) plaintiff’s Injunction Motion; (2)

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plaintiff’s Contempt Motion; (3) Ed Komski’s February 1, 2016

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declaration filed in support of plaintiff’s Contempt Motion,

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(Docket No. 109-1); and (4) Komski’s December 28, 2015

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declaration filed in support of plaintiff’s opposition to

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defendant’s motion to stay the court’s September 2015 injunction

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pending defendant’s appeal, (Docket Nos. 99-2 to 99-43).

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Pursuant to the court’s April 20, 2016 Order, plaintiff now moves

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for attorney’s fees in the amount of $154,230.80.

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No. 142); Mem. at 2 (Docket No. 142-1).)

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II.

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(Mot. (Docket

Discussion
A.

Entitlement to Fees
Section 1117(a) of the Lanham Act authorizes reasonable

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attorney’s fees to the prevailing party in an exceptional case.

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See 15 U.S.C. § 1117(a); Horphag Research Ltd. v. Garcia, 475

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F.3d 1029, 1039 (9th Cir. 2007).

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the court held that plaintiff was the prevailing party on its

In its April 20, 2016 Order,

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Injunction and Contempt Motions for purposes of a fee award

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because it obtained the relief it sought in those motions.

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20, 2016 Order at 32-33.)

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(Apr.

The court also found that this was an “exceptional

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case” within the meaning of § 1117(a) because there was

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“significant evidence” that defendant willfully and deliberately

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continued to infringe plaintiff’s trademark rights and engage in

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unfair competition against plaintiff following the court’s

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September 2015 injunction.

(See id. at 33-36 (“The court is hard

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pressed to find that defendant’s acts were anything other than

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deliberate and willful.”)); see also Fifty-Six Hope Rd. Music,

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Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1078 (9th Cir. 2015)

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(stating that a trademark case is exceptional for purposes of a

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fee award under § 1117(a) where the defendant’s conduct “is

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malicious, fraudulent, deliberate, or willful,” and neither

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egregious conduct nor bad faith is required for such a finding).

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B.

Amount of the Fee Award
The determination of a reasonable fee involves a two-

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step inquiry.

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622 (9th Cir. 1993).

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lodestar method” by “multiplying the number of hours reasonably

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expended by a reasonable hourly rate.”

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Inc., 786 F.3d 754, 763 (9th Cir. 2015) (citing Hensley v.

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Eckerhart, 461 U.S. 424, 433 (1983)).

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frequently called the ‘lodestar’ amount.”

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Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).

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the award should provide documentary evidence to the court

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concerning the number of hours spent, and how it determined the

Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614,
First, “the district court applies the

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Ryan v. Editions Ltd. W.,

“The resulting number is
McCown v. City of
“The party seeking

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hourly rate(s) requested.”

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433).

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Id. (citing Hensley, 461 U.S. at

Second, “in appropriate cases, the district court may

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adjust the ‘presumptively reasonable’ lodestar figure based upon

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the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d

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67, 69-70 (9th Cir. 1975), that have not been subsumed in the

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lodestar calculation.”

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amount presumably reflects the novelty and complexity of the

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issues, the special skill and experience of counsel, the quality

Intel, 6 F.3d at 622.

“The lodestar

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of representation, and the results obtained from the litigation.”

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Id.

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only those called into question by the case at hand and necessary

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to support the reasonableness of the fee award.”

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Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) (citation

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omitted).

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“The court need not consider all [of the Kerr] factors, but

1.

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18

Cairns v.

Reasonable Rate
a.

Prevailing Market Rate

To determine a reasonable hourly rate, the court must

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look to the prevailing rates in the relevant legal community “for

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similar work performed by attorneys of comparable skill,

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experience, and reputation.”

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928 (9th Cir. 2011) (citation omitted).

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community is the forum in which the district court sits.”

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v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).

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that the relevant community in this case is the Eastern District

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of California.

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applicant to produce satisfactory evidence--in addition to the

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attorney’s own affidavits--that the requested [hourly] rates are

Ingram v. Oroudjian, 647 F.3d 925,

See id. at 502.

“Generally, the relevant
Barjon

The parties agree

The “burden is on the fee

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in line with those prevailing in the community for similar

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services by lawyers of reasonably comparable skill, experience

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and reputation.”

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Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984).

Plaintiff requests the following hourly rates here:

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(1) $530 for James Bikoff, a partner at Smith, Gambrell and

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Russell, LLP (“SGR”) with 40 years of experience in trademark

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litigation; (2) $450 for Bruce McDonald, a partner at SGR with 35

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years of experience in intellectual property litigation; (3) $330

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for Holly Lance, an associate at SGR with 5 years of experience

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in intellectual property litigation; and (4) $720 for Michael

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Turrill, a partner at Arent Fox, LLP with 20 years of experience

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in commercial litigation, including intellectual property

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disputes.

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Turrill Decl. ¶ 5 (Docket No. 142-5).)

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dispute the reasonableness of the rates that Bikoff,

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McDonald, or Lance seek and thus the court will award fees at

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those undisputed rates.

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rate of $720 is not reasonable for trademark litigation work

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in Sacramento, and the court agrees.

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Turrill’s rate should be no greater than $550 per hour.

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(Bikoff Decl. ¶¶ 3, 6-8, Exs. D-F (Docket No. 142-2);
Defendant does not

Defendant contends that Turrill’s

Defendant suggests that

Notably, none of the declarations submitted in this

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case state that $720 is the prevailing rate in Sacramento for a

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lawyer of Turrill’s experience.

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plaintiff relies on in support of the requested rates

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establish prevailing rates in Sacramento or support a rate

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$720 for a partner with 20 years of legal experience.

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example, the American Intellectual Property Law Association’s

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2015 Report of the Economic Survey (“AIPLA survey”) provides only

Moreover, none of the sources

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For

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national average billing rates for intellectual property

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attorneys and indicates that the average rate for law firm

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partners with 20 years of experience like Turrill is $475 per

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hour.

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Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (holding

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that “a couple of published surveys of ranges of fees charged by

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various law firms based in Seattle, Washington, and other cities

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across America . . . told the district court nothing about the

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prevailing rate in [the relevant communities of] Portland or

(Bikoff Decl. ¶ 5, Ex. C); see also Schwarz v. Sec’y of

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Phoenix for similarly qualified lawyers working on a similar type

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of case”).

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Plaintiff also relies on the Laffey Matrix, which is

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“an inflation-adjusted grid of hourly rates for lawyers of

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varying levels of experience in Washington, D.C.”

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News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)

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(citations omitted).

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prepared and updated by the Civil Division of the United States

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Attorney’s Office for the District of Columbia and used in fee

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shifting cases, among others.”

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Inc., 694 F. Supp. 2d 1039, 1067 (N.D. Cal. 2010).

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courts have relied on the Laffey Matrix and attempted to adjust

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its rates to account for legal communities outside of Washington,

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D.C., this court has criticized the use of the Laffey Matrix

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without a reliable method to adjust the rates to account for the

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difference between the prevailing market rates in Washington,

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D.C. and Sacramento.

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No. 2:13-1610 WBS, 2014 WL 6634324, at *7 (E.D. Cal. Nov. 21,

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2014).

Prison Legal

“The Laffey matrix has been regularly

Craigslist, Inc. v. Naturemarket,
Although

See Johnson v. Wayside Prop., Inc., Civ.

Nonetheless, even the Laffey Matrix provides that
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attorneys with 20 years of experience like Turrill bill $504 per

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hour in Washington, D.C.

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Turrill also submits a 2014 National Law Journal survey

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of billing rates charged by partners in the nation’s 350

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largest firms (the “NLJ survey”).

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Turrill, who is a partner at Arent Fox, states that his firm “is

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ranked number 117 in the AmLaw 200 and has offices in Washington,

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D.C., New York City, San Francisco, and Los Angeles.”

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Turrill contends that a rate of $720 per hour is reasonable

(Turrill Decl. ¶ 6, Ex. 1.)

(Id. ¶ 4.)

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because it “is consistent with the market rate for partners with

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[20 years] of experience” in “law firms of similar size and

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reputation and which are either based in Los Angeles or have Los

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Angeles offices.”

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rate of $720 per hour is in line with the “prevailing rates in

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Southern California.”

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County Superior Court ruling on a fee motion brought under

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California Government Code section 12965(b) where the Superior

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Court found that “each attorney’s hourly rate ($700 and $400) is

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a reasonable rate for comparable legal services in the L.A. metro

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area for noncontingent employment litigation.”

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Hancock v. Time Warner Cable Servs., LLC, 2015 WL 5923311 (Cal.

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Super. Ct. Sept. 1, 2015).

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the relevant community here is Sacramento, and not Los Angeles or

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Southern California.

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that the district court correctly “appl[ied] the rates of the

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local forum--the Sacramento area--rather than the rates of

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Wallace’s place of business--the San Francisco area” because

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“Sacramento, not San Francisco, was the relevant market”).

(Id. ¶¶ 5-6.)

Turrill also contends that a

(Id. ¶ 7.)

He submits a Los Angeles

(Id. ¶ 7, Ex. 2);

This evidence is unhelpful because

See Barjon, 132 F.3d at 499-500 (holding

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The fee award in Hancock also involved a state law

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employment discrimination action litigated in Los Angeles and the

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fee request there was analyzed under California law.

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Turrill Decl. Ex. 2.)

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claims under the Lanham Act, was litigated in Sacramento, and

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federal law governs the present fee motion pursuant to § 1117(a).

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See Jadwin v. County of Kern, 767 F. Supp. 2d 1069, 1135 n.76

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(E.D. Cal. 2011) (Wanger, J.) (observing that the lodestar

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analysis under federal law is different from that under state

(See

By contrast, this action involves federal

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law); see also 99 Only Stores v. 99 Cent Family Sav., Civ. No.

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1:10-1319 LJO MJS, 2011 WL 2620983, at *3 (E.D. Cal. June 29,

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2011) (“[C]osts of practicing law, and hence legal fees, can be

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significantly higher in Southern California where Plaintiff’s

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firm is located than in the Central Valley of California.”).

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a result, neither the NLJ survey nor the Superior Court’s fee

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award establishes that Turrill’s $720 hourly rate is a reasonable

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rate in Sacramento for comparable trademark litigation services

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performed by attorneys with Turrill’s skill and experience.

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As

In sum, the court is not persuaded that the reasonable

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rate in Sacramento for an attorney of Turrill’s skill and

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experience is $720.

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per hour because defendant does not object to that rate for him.

The court will therefore award Turrill $550

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2.

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“A district court, using the lodestar method to

Reasonable Number of Hours

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determine the amount of attorney’s fees to award, must determine

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a reasonable number of hours for which the prevailing party

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should be compensated.”

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1196, 1202 (9th Cir. 2013).

Gonzalez v. City of Maywood, 729 F.3d
“Ultimately, a ‘reasonable’ number
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of hours equals the number of hours which could reasonably have

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been billed to a private client.”

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marks omitted).

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prevailing party could have reasonably billed the hours they

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claim to their private clients, the district court should begin

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with the billing records the prevailing party has submitted.”

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Id.

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Id. (alterations and quotation

“[T]o determine whether attorneys for the

“The fee applicant bears the burden of documenting the
appropriate hours expended in the litigation and must submit

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evidence in support of those hours worked.”

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987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S. at

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433, 437).

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exclude from a fee request hours that are excessive, redundant,

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or otherwise unnecessary.”

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743 F.2d at 1384-85 (applying this standard to fee requests under

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the Lanham Act).

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to the winning lawyer’s professional judgment as to how much time

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he or she was required to spend on the case.”

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763 (alterations and citation omitted).

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Gates v. Deukmejian,

A fee applicant must “make a good faith effort to

Hensley, 461 U.S. at 434; see Sealy,

“By and large, the district court should defer

Ryan, 786 F.3d at

“The party opposing the fee application has a burden of

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rebuttal that requires submission of evidence to the district

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court challenging the accuracy and reasonableness of the hours

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charged or the facts asserted by the prevailing party in its

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submitted affidavits.”

Gates, 987 F.2d at 1397-98 (citing Blum,

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465 U.S. at 892 n.5).

“The district court may reduce the amount

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of requested fees to reflect a party’s limited degree of success,

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to account for block billing, or to deduct those hours the court

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deems excessive.”

Ryan, 786 F.3d at 763 (citations omitted).
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Although “[t]here is no precise formula or methodology that the

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district court is obligated to follow” when reducing fees, id. at

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765, “a more specific articulation of the court’s reasoning is

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expected” the greater the “disparity between the requested fees

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and the district court’s award,” id. at 764.

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Counsel submitted billing statements indicating the

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following hours spent on the matters for which plaintiff is

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entitled to attorney’s fees here: Bikoff (79.9 hours); McDonald

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(188.7 hours); Lance (68.2 hours); and Turrill (37.4 hours).

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(See Bikoff Decl. ¶ 3, Ex. B; Turrill Decl. ¶ 8, Ex. 3.)

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also proposes a 15% reduction to the total fees billed by Bikoff,

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McDonald, and Lance.

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a.

SGR

(Bikoff Decl. ¶¶ 3-4.)
Fees for Unrelated Matters

The court held in its April 20, 2016 Order that

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plaintiff was entitled to attorney’s fees associated with its

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Injunction Motion, its Contempt Motion, and Komski’s two

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declarations.

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that counsel billed for matters unrelated to those four items

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must be excluded.

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counsel worked on plaintiff’s motion for clarification, which it

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filed on March 11, 2016.

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122); see Opp’n at 7-8 (Docket No. 146).)

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2016 Order did not hold that plaintiff was entitled to attorney’s

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fees associated with its motion for clarification.

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2016 Order at 31-39.)

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hours billed by counsel for working on plaintiff’s motion for

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clarification: Bikoff (1 hour on March 18, 2016); Lance (0.2

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hours on March 8, 2016); and Turrill (4 hours on March 17-18,

(Apr. 20, 2016 Order at 38-39.)

Any attorney time

Plaintiff requests fees for the time that

(Mot. for Clarification (Docket No.
The court’s April 20,

(See Apr. 20,

The court will thus reduce the following

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2016).

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(Bikoff Decl. Ex. B at 30; Turrill Decl. Ex. 3 at 32).
Plaintiff is also not entitled to fees for the 1 hour

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billed by Bikoff for attending a lunch conference on April 6,

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2016 with a University of California representative to discuss

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the University’s rental payments under a 2002 lease agreement

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with defendant.

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Because that issue is unrelated to the four matters for which

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plaintiff was granted fees, the court will reduce Bikoff’s billed

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time by 1 hour.

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(Bikoff Decl. Ex. B at 35; Opp’n at 9-10.)

b.

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Block Billing

Defendant contends that “substantially all time entries

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for each counsel [a]re block-billed.”

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billing is the time-keeping method by which each lawyer . . .

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enters the total daily time spent working on a case, rather than

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itemizing the time expended on specific tasks.”

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at 945 n.2 (citations omitted).

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spent by an attorney on each discrete task is not identified, but

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instead all hours spent during the course of a day on multiple

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tasks are billed together.”

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WBS JFM, 2010 WL 1689225, at *1 (E.D. Cal. Apr. 26, 2010).

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Counsel’s billing statements indeed contain significant block

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billing; over 80% of counsel’s billing entries are in block

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format.

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billing makes it “hopelessly impossible to tell the amount of

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time spent on each task” and thus requests a 40% reduction in

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plaintiff’s fee award.

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28

(Opp’n at 10.)

“Block

Welch, 480 F.3d

As a result, “the amount of time

Yeager v. Bowlin, Civ. No. 2:08-102

Defendant argues that the extent of counsel’s block-

(Opp’n at 10.)

District courts may not account for block billing by
applying an across-the-board reduction to all hours claimed in a
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fee petition; rather, courts may apply a percentage reduction

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only to those hours that are actually block-billed.

3

Potts, Civ. No. 2:06-1283 WBS, 2014 WL 788429, at *4 (E.D. Cal.

4

Feb. 25, 2014).

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thirty percent of the hours that are block-billed.”

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e.g., Welch, 480 F.3d at 948 (affirming district court’s

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authority to reduce block-billed hours by 10% to 30%); Willis v.

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City of Fresno, Civ. No. 1:09-1766 BAM, 2014 WL 3563310, at *18–

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19 (E.D. Cal. July 17, 2014) (reducing impermissibly block-billed

10
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Deocampo v.

“Courts in the Ninth Circuit have reduced up to
Id.; see,

entries by 30%).
“The court also retains discretion not to reduce hours

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that are purportedly block billed if those time entries ‘are

13

detailed enough for the court to assess the reasonableness of the

14

hours billed.’”

15

omitted) (quoting Campbell v. Nat’l Passenger R.R. Corp., 718 F.

16

Supp. 2d 1093, 1103 (N.D. Cal. 2010)); see also Trulock v. Hotel

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Victorville, 92 F. App’x 433, 434 (9th Cir. 2004) (stating that

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the “use of block billing” is only one factor in determining

19

whether the number of hours claimed are reasonable).

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it is true that the fee applicant bears the burden of submitting

21

‘evidence supporting the hours worked and rates claimed,’ the

22

Supreme Court has also stated that plaintiff’s counsel ‘is not

23

required to record in great detail how each minute of his time

24

was expended.’”

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(9th Cir. 2000) (quoting Hensley, 461 U.S. at 433, 437 n.12).

26

“Instead, plaintiff’s counsel can meet [the] burden” of

27

adequately documenting the number of hours billed “by simply

28

listing [the] hours and identifying the general subject matter of

Deocampo, 2014 WL 788429, at *4 (alterations

“Although

Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121

13

1

[the] time expenditures.”

2

omitted).

3

Id. (quotations and alterations

In Fischer, for example, the Ninth Circuit held that

4

counsel’s block-billed time records were sufficient even though

5

they provided summaries of time spent on broad categories of

6

tasks such as pretrial motions and court appearances.

7

Similarly, in Secalt S.A. v. Wuxi Shenxi Construction Machinery,

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668 F.3d 677 (9th Cir. 2012), the Ninth Circuit held in reviewing

9

a fee award under the Lanham Act that even when “billing entries

10

list numerous tasks performed over multi-hour spans, it [is] not

11

an abuse of discretion for the district court to award the

12

associated fees because counsel ‘is not required to record in

13

great detail how each minute of his time was expended.’”

14

690 (quoting Hensley, 461 U.S. at 437 n.12)).

15

entry is only “a problem where it obscures the nature of some of

16

the work claimed.”

17

and alterations omitted).

18

Id.

Id. at

A block-billed

Willis, 2014 WL 3563310, at *18 (quotations

Although a majority of the entries submitted here are

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in block-billed format, the billing entries identify the

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particular tasks performed with great detail and specificity.

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For example, McDonald billed 6.5 hours on December 16, 2015 for

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the following activities:

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24
25
26
27
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Examine documents received from Mr. Komski including
correspondence dated 12/15/2015 from McFarland “Regards,
Boutin Jones Inc. by Robert D. Swanson,” to Annie Waters,
President, Little Lake Grange, Willits, CA; email circa
11/25/2015 from McFarland to Woodbridge Grange Members;
investigation and research re cause of action by National
Grange for contempt of September 30 injunction; new and
independent acts of trademark infringement, unfair
competition, false advertising, trade libel, interference
in contractual relations, copyright infringement, with
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availability of exemplary damages and award of costs and
attorney’s fees, supported by motion for TRO or
preliminary injunction under Federal Rule 65; memorandum
to Mr. Bikoff re above; draft memo to Messrs. Komski,
Jensen, Riordan and Skinner in response to inquiries re
availability of relief; continued work on Komski
Declaration; memorandum to Mr. Komski re terminology and
contents of declaration; memorandum to Ms. Lance with
instructions re Huber Declaration; memorandum to Mr.
Bikoff and Ms. Lance re problems with use of word
“chartered” whereas there is only one California State
Grange, recommending amendment of case caption to avoid
confusing appearance that California State Grange is
defendant; memorandum to Messrs. Bikoff, Komski, Skinner
et al. with final declaration; examine comments from Mr.
Skinner; examine Shaw Declaration and Komski Declarations
filed last week in state court action; conference with
Mr. Komski re same; examine and respond to Mr. Komski re
exhibit used to document McFarland’s statements at
December 8 meeting; add content to declaration re
rearrangement of Ranchito Grange and new evidence for
independent causes of action; memoranda to Mr. Skinner re
new additions to declaration; examine and incorporate
further comments[.]

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(Bikoff Decl. Ex. B at 11.)

The remaining time entries submitted

16

here are similarly detailed and specific.
Counsel’s billing statements here are thus sufficiently

17
18

detailed for the court to assess the reasonableness of the hours

19

billed.

20

Inc. v. Pieta, Civ. No. 04-9626 ABC MCX, 2006 WL 4725707, at *2

21

(C.D. Cal. July 17, 2006).

22

warranted on the ground that the billing entries submitted here

23

are block-billed.

24

c.

25

Accord Willis, 2014 WL 3563310, at *18; Gucci America,

Accordingly, no reduction is

Komski’s December 28, 2015 Declaration

Defendant next argues that the court should exclude any

26

fees associated with Komski’s December 28, 2015 declaration

27

because plaintiff filed the declaration in support of its

28

opposition to defendant’s motion to stay the court’s injunction
15

1

pending appeal.

2

the declaration did not relate to the Contempt or Injunction

3

Motions and should thus be excluded from the fee award.

4

Defendant also argues that any time spent on Komski’s December

5

declaration before defendant filed its motion to stay pending

6

appeal should be excluded because defendant’s motion to stay is

7

what triggered the December declaration.

8
9

(Opp’n at 5-6, 12-14.)

Defendant argues that

These arguments are unavailing.

(Id. at 5.)
Plaintiff submitted

Komski’s December declaration “to describe the public confusion,

10

mistake and deception created by the actions of the Defendant

11

. . . subsequent to this Court’s injunction issued on September

12

30, 2015.”

13

described defendant’s actions from the entry of the September

14

2015 injunction until December 28, 2015.

15

December declaration was relevant to more than just defendant’s

16

motion to stay pending appeal.

17

example, relied on “the Declaration of Ed Komski dated December

18

28, 2015.”

19

Injunction Motion was “based on exhibits and evidence that

20

plaintiff had submitted with its contempt motion,” including

21

Komski’s December declaration.

22

(Komski Decl. ¶ 2, Dec. 28, 2015.)

The declaration

(Id.)

Thus, Komski’s

Plaintiff’s Contempt Motion, for

(Komski Decl. ¶ 2, Feb. 1, 2016.)

Plaintiff’s

(Apr. 20, 2016 Order at 33.)

The court also relied on Komski’s December declaration

23

in its April 20, 2016 Order in finding that the California Grange

24

Foundation was bound by the September 2015 injunction because it

25

was defendant’s agent or affiliate, (id. at 20); that defendant

26

had some control over the contents of its online business

27

directory listings, (id. at 28); and that defendant willfully

28

deceived the public after the September 2015 injunction was
16

1

issued, (id. at 34-36).

2

reduce plaintiff’s attorney’s fees associated with Komski’s

3

December 28, 2015 declaration.

4
5

d.

Accordingly, the court declines to

Time Spent on the Contempt Motion

Defendant argues that time spent on the Contempt Motion

6

should be excluded because counsel started work on the Contempt

7

Motion prematurely and did so while simultaneously communicating

8

with defendant about its compliance with the September 2015

9

injunction.

(Opp’n at 4-6.)

The court declines to reduce

10

plaintiff’s fee award on that ground because “the Court will not

11

second guess attorney efforts to conduct the litigation strategy

12

for the case,” including when to start work on a motion.

13

Techs., Inc. v. 3Com Corp., Civ. No. C-00-2255 DLJ, 2007 WL

14

4170514, at *8 (N.D. Cal. Nov. 14, 2007).

15

E-Pass

Defendant also argues that fees associated with the

16

Contempt Motion should be excluded because the motion was denied.

17

(Opp’n at 11-12.)

18

support this argument.

19

denied without prejudice to plaintiff bringing its subsequent

20

Injunction Motion.

21

plaintiff’s Injunction Motion, the court held that plaintiff was

22

entitled to fees associated with its Contempt Motion because the

23

Injunction Motion was “based on exhibits and evidence that

24

plaintiff had submitted with its contempt motion” and the

25

Contempt Motion “sought much of the same relief the court”

26

granted in the Injunction Motion.

27

apparent to the court that the time expended on the Contempt

28

Motion was utilized in the Injunction Motion.

Defendant does not provide any authority to
Plaintiff’s Contempt Motion here was

(Apr. 20, 2016 Order at 4.)

17

In granting

(Id. at 33:8-14.)

It was

1

Defendant further requests that the court exclude any

2

fees for the Contempt Motion incurred between the Contempt

3

Motion’s filing on February 1, 2016 and plaintiff’s receipt of

4

defendant’s opposition to that motion on February 22, 2016,

5

because counsel had no need to continue working on the Contempt

6

Motion until plaintiff received defendant’s opposition.

7

at 7, Attach. 3.)

8

after plaintiff filed its Contempt Motion, plaintiff’s counsel

9

continued to investigate, analyze, and document new information

(Opp’n

The billing records indicate, however, that

10

regarding defendant’s violations of the September 2015

11

injunction.

12

plaintiff obtained the relief it sought in its Contempt Motion,

13

the court must “defer to the winning lawyer’s professional

14

judgment as to how much time he or she was required to spend on

15

the case.”

16

omitted).

17

requested by counsel on these grounds.

18
19

(Bikoff Decl. Ex. B at 23-24.)

In addition, because

Ryan, 786 F.3d at 763 (citation and alterations
Accordingly, the court declines to reduce the hours

e.

McDonald’s Fees for Attending Hearings

Defendant argues that the court should exclude

20

McDonald’s billed hours for attending the March 7, 2016 Contempt

21

Motion hearing and April 18, 2016 Injunction Motion hearing

22

because McDonald did not argue at those hearings.

23

“[I]t is not uncommon to have co-counsel in litigation, and fees

24

are commonly awarded to multiple counsel.”

25

Toll Bros., Civ. No. C-08-0221 EMC, 2011 WL 1334444, at *12 (N.D.

26

Cal. Apr. 7, 2011), aff’d, 521 F. App’x 592 (9th Cir. 2013).

27

court has direction, however, to reduce a fee award “due to

28

unreasonable inefficiencies and duplicative efforts engendered by
18

(Opp’n at 9.)

Stonebrae, L.P. v.

The

1

multiple counsel and law firms.”

2

Id.

McDonald billed 6.50 and 6 hours, respectively, on

3

March 7 and April 18, 2016 for the following activities:

4

conferring with Bikoff to prepare for the Contempt and Injunction

5

Motion hearings; attending those hearings; conferring with

6

plaintiff, co-counsel, and opposing counsel following the

7

hearings; and drafting follow-up memoranda, reports, and

8

recommendations relating to the motion hearings.

9

Ex. B at 29, 38.)

(Bikoff Decl.

It is not unreasonable “for two attorneys to

10

work together on such activities, especially when they are

11

working on different components of a brief or working together on

12

a motion.”

13

of Omaha Life Ins. Co., Civ. No. 95-0447 MHP, 1999 WL 33227443,

14

at *4 (N.D. Cal. Oct. 12, 1999) (finding it “reasonable that the

15

lead attorneys chose to be present during two pivotal points” in

16

the litigation).

17

“does not prevent two attorneys from working together on certain

18

tasks that are divisible, or conferencing together to determine

19

strategy.”

20

No. 12-668 JMS KSC, 2015 WL 1013834, at *12 (D. Haw. Mar. 9,

21

2015).

22

might contribute to one end product.”

23

at *4.

Garcia, 2012 WL 3778852, at *7; see Chabner v. United

The general rule against overstaffing cases

De-Occupy Honolulu v. City & County of Honolulu, Civ.

“Common sense dictates that . . . a number of people
Chabner, 1999 WL 33227443,

24

Given plaintiff’s ultimate success in obtaining much of

25

the relief that it sought in its Contempt and Injunction Motions,

26

McDonald’s billed time for attending the motion hearings is

27

reasonable.

28

should defer to the winning lawyer’s professional judgment as to

See Ryan, 786 F.3d at 763 (“[T]he district court

19

1

how much time he or she was required to spend on the case.”

2

(alterations and citation omitted)).

3

finds that the hours billed by McDonald for attending the

4

hearings on plaintiff’s Contempt Motion and Injunction Motions

5

are reasonable.

6
7

f.

Accordingly, the court

Travel Time

Defendant also seeks to exclude McDonald’s travel time

8

to the motion hearings.

9

hours on April 17, 2016 for time spent reviewing case files,

(Opp’n at 8-9.)

McDonald billed 4.5

10

conducting research, and conferring with co-counsel in

11

preparation for the hearing on plaintiff’s Injunction Motion and

12

“travel to California with Mr. Bikoff” to attend that hearing.

13

(Bikoff Decl. Ex. B at 37-38.)

14

that mentions travel time in counsel’s billing statements.

15

Plaintiff states that the inclusion of the “travel to California”

16

language in McDonald’s billing entry was a clerical error and no

17

travel time was actually billed to plaintiff.

18

This is the only billing entry

(Reply at 8-9.)

The court finds plaintiff’s explanation credible.

Had

19

McDonald actually billed plaintiff for his travel time, he would

20

have billed at least 6 hours for traveling from Washington, D.C.

21

to Sacramento.

22

April 17, 2016, the court finds that 4.5 hours is a reasonable

23

amount of time for conferring with co-counsel, conducting legal

24

research, and reviewing case files in preparation for the

25

Injunction Motion hearing on April 18, 2016.

26

because counsel did not bill any travel time to plaintiff, the

27

court declines to reduce plaintiff’s fee award on this ground.

28

As for the 4.5 hours that McDonald billed on

g.

Accordingly,

Fees Incurred after April 18, 2016
20

1

Defendant argues that any fees incurred after the

2

Injunction Motion hearing on April 18, 2016 should be excluded

3

because “the briefing and hearing were concluded.”

4

The court’s April 20, 2016 Order, however, granted plaintiff

5

“attorney’s fees associated with its motion for an injunction

6

[and] its motion for an order to show cause why defendant should

7

not be held in contempt.”

8

added).)

9

preparing the Injunction and Contempt Motions, attending the

10

hearings on those motions, conferring with plaintiff and co-

11

counsel after the hearings, and reviewing the court’s subsequent

12

Orders on those motions.

(Opp’n at 8.)

(Apr. 20, 2016 Order at 38 (emphasis

Plaintiff is thus entitled to any fees incurred in

13

Bikoff and McDonald billed 7 and 3 hours, respectively,

14

on April 19 and 20, 2016 on time spent conferring with co-counsel

15

and communicating with plaintiff regarding the Injunction Motion

16

hearing and the court’s subsequent April 20 Order on that motion.

17

(Bikoff Decl. Ex. B at 38.)

18

with” plaintiff’s Injunction Motion and are thus recoverable.

19

The court thus declines to exclude the attorney’s fees that

20

plaintiff incurred after the April 18, 2016 hearing.

These tasks are clearly “associated

21

3.

22

Accordingly, the final lodestar figure for purposes of

23

Lodestar Calculation

this fee motion is $144,715.70, calculated as follows:

24

Bikoff:

$530

x

77.9 =

41,287.00

-15% =

$ 35,093.95

25

McDonald: $450

x

188.7 =

84,915.00

-15% =

$ 72,177.75

26

Lance:

$330

x

68

=

22,440.00

-15% =

$ 19,074.00

27

Turrill:

$550

x

33.4 =

15,030.00

28

$ 18,370.00
TOTAL =

21

$144,715.70

1

C.

2

Adjustments to the Lodestar
A “strong presumption” exists that the lodestar figure

3

represents a “reasonable fee” and should therefore be enhanced or

4

reduced only in “rare and exceptional cases.”

5

Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565

6

(1986) (quotations omitted); see also Gates, 987 F.2d at 1402

7

(stating “a district court may make upward or downward

8

adjustments to the presumptively reasonable lodestar” in “rare

9

cases”); Cunningham v. County of Los Angeles, 879 F.2d 481, 488

Pennsylvania v.

10

(9th Cir. 1988) (“[D]istrict courts [must] treat the lodestar

11

figure as presumptively reasonable and adjust it only in rare or

12

exceptional cases.”).

13

exceptional circumstances warrant an enhancement to the lodestar

14

here.

15

The court does not find that any

Defendant argues that a reduction to the fee award is

16

warranted here because defendant did not willfully violate the

17

court’s September 2015 injunction and because this is not an

18

exceptional case under § 1117(a) of the Lanham Act.

19

at 1-2, 12-14.)

20

entitled to attorney’s fees under § 1117(a).

21

Order at 36 (“[D]efendant has willfully and deliberately

22

continued to deceive the public by infringing plaintiff’s

23

trademark and engaging in unfair competition against

24

plaintiff.”).)

25

court’s April 20, 2016 Order, and not the reasonableness of the

26

fee amount.

27

award on these grounds.

28

(See Opp’n

The court has already found that plaintiff is
(See Apr. 20, 2016

Defendant’s arguments challenge the merits of the

The court thus declines to reduce plaintiff’s fee

IT IS THEREFORE ORDERED that plaintiff’s motion for
22

1

attorney’s fees, (Docket No. 142), be, and the same hereby is,

2

GRANTED; and (2) defendant is directed to pay plaintiff

3

$144,715.70 in attorney’s fees and file an affidavit with the

4

court confirming payment within fourteen (14) business days from

5

the date this Order is signed.

6
7

IT IS SO ORDERED.
Dated:

September 9, 2016

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