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

Filing 218

ORDER signed by Senior Judge William B. Shubb on 5/18/2017 ORDERING 193 the costs submitted by plaintiff in its Memorandum of costs be, and the same hereby are, TAXED to defendant; and Defendant's Motion to deny plaintiff's request for attorneys' fees is hereby DENIED. 194 (Reader, L)

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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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NATIONAL GRANGE OF THE ORDER
OF PATRONS OF HUSBANDRY,
Plaintiff,

CIV. NO. 2:14-676 WBS DB
ORDER RE: COSTS

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v.
CALIFORNIA GUILD, formerly
doing business as “California
State Grange,”
Defendant.

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----oo0oo---On September 12, 2016, the court ordered defendant to

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pay plaintiff $144,715.70 in attorneys’ fees for willfully

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violating the court’s September 30, 2015 order requiring that it

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cease using the “Grange” trademark (“September 2016 order”).

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(See Sept. 12, 2016 Order at 22-23 (Docket No. 154).)

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ordered defendant to “file an affidavit with the court confirming

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[such] payment within fourteen (14) business days.”

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On September 29, 2016, defendant filed an affidavit with the
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The court

(Id. at 23.)

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court stating that it was “unable to comply” with the September

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2016 order due to financial problems.

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McFarland ¶ 12 (Docket No. 155).)

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(See Decl. of Robert

Plaintiff subsequently undertook various efforts to

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enforce the September 2016 order, including applying for a writ

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of execution, requesting issuance of an abstract of judgment, and

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filing motions to add defendant’s president as a judgment debtor

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to and for an order assigning defendant’s membership payments

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toward satisfaction of the September 2016 order.

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(See Docket

Nos. 156, 169, 176, 178.)

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On March 9, 2017, the court granted plaintiff’s motion

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for an order assigning defendant’s membership payments toward

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satisfaction of the September 2016 order.

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7-8 (Docket No. 189).)

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plaintiff with a cashier’s check of $145,466.82.1

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(Mar. 9, 2017 Order at

On March 27, 2017, defendant provided
(Decl. of Mark

Defendant requests that the court note in this Order
that its payment of $145,466.82 to plaintiff on March 27, 2017
“fully satisfied the September 12, 2016 judgment,” (Def.’s Reply
at 9 (Docket No. 210)), which plaintiff refuses to acknowledge,
(see Acknowledgment of Partial Satisfaction of Judgment (Docket
No. 196)). The issue raised in that request appears to be
whether the enforcement costs plaintiff now seeks and which, as
explained below, the court will grant, are to be treated, along
with the September 2016 order, as one judgment, or constitute a
separate judgment apart from the September 2016 order.
California law appears to be clear on this point. Under
California Civil Procedure Code section 685.090(a), “[c]osts are
added to and become a part of the judgment . . . [u]pon the
filing of an order allowing the costs.” Cal. Civ. Proc. Code §
685.090(a); see also Lucky United Properties Investments, Inc. v.
Lee, 213 Cal. App. 4th 635, 651 (1st Dist. 2013) (“[A]wards of
fees and costs incurred in postjudgment enforcement efforts are
incorporated into the principal amount of the judgment.”).
Because the costs awarded in this Order are added to the
September 2016 judgment, and because defendant has yet to pay the
costs awarded in this Order, the court will not state in this
Order that defendant has satisfied the September 2016 judgment.
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Serlin (“Serlin Decl.”) ¶ 4 (Docket No. 204-1).)

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Before the court now is plaintiff’s Memorandum of

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costs, which requests that the court tax the following costs

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plaintiff incurred from enforcing the September 2016 order to

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defendant: (1) $78 for recording and indexing an abstract of

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judgment, (2) $10 for filing a notice of judgment lien on

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property belonging to defendant, (3) $195 in levying officer

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fees, and (4) $50,000 in attorneys’ fees.

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(Docket No. 193).)

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(Pl.’s Mem. of Costs

Defendant does not object to plaintiff’s request for

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abstract of judgment, judgment lien, and levying officer costs,

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which total $283 here.

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requesting denial of, plaintiff’s request for attorneys’ fees.

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(See Def.’s Mot. to Deny Pl.’s Req. for Attorneys’ Fees (Docket

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No. 194).)

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request for attorneys’ fees should be denied “in its entirety.”

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(Def.’s Mot. to Deny Pl.’s Req. for Attorneys’ Fees, Mem.

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(“Def.’s Mem.”) at 6 (Docket No. 194-1).)

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however, defendant abandoned that position and represented that

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it was only challenging plaintiff’s request for attorneys’ fees

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as to the amount sought.

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It does object to, and has filed a Motion

Defendant argued in its Motion that plaintiff’s

At oral argument,

In determining whether the costs sought in plaintiff’s

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Memorandum may be taxed to defendant, the court must look to

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Federal Rule of Civil Procedure 69(a), which governs “proceedings

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supplementary to and in aid of” enforcing money judgments in

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federal courts.

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CIV. 2:08-102 WBS, 2015 WL 3795585, at *1 (E.D. Cal. June 17,

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2015).

See Fed. R. Civ. P. 69(a); Yeager v. Bowlin, No.

Rule 69(a) directs the court to apply California
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procedural law in such proceedings, unless there is a federal

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statute that would apply.

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federal statute applies to plaintiff’s request to tax the costs

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stated in its Memorandum of costs to defendant, see Carnes v.

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Zamani, 488 F.3d 1057, 1060 (9th Cir. 2007), the court must apply

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California procedural law in resolving plaintiff’s request.

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See Fed. R. Civ. P. 69(a).

Because no

Relevant to plaintiff’s request to tax abstract of

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judgment, judgment lien, and levying officer costs to defendant

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is California Civil Procedure Code section 685.070 (“section

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685.070”).

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abstract of judgment, judgment lien, and levying officer costs to

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a judgment debtor who does not object to such costs.

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Civ. Proc. Code § 685.070(a)(1)-(2), (4); id. § 685.070(c)-(d).

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Here, defendant has not objected to plaintiff’s abstract of

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judgment, judgment lien, and levying officer costs.

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the court will tax such costs to defendant.

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Section 685.070 permits a judgment creditor to tax

See Cal.

Accordingly,

Relevant to plaintiff’s request to tax attorneys’ fees

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to defendant is California Civil Procedure Code section 685.040

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(“section 685.040”).

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“to recover postjudgment attorneys’ fees . . . incurred in

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enforcing [an] underlying judgment” from the judgment debtor, PSM

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Holding Corp. v. Nat’l Farm Fin. Corp., No. CV 05-08891 MMM

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(FMOx), 2015 WL 11652518, at *3 (C.D. Cal. May 19, 2015)

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(paraphrasing Cal. Civ. Proc. Code § 685.040), where such fees

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are “otherwise provided by law,” Cal. Civ. Proc. Code § 685.040.

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While plaintiff does not cite a provision of law other than

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section 685.040 that purports to authorize the attorneys’ fees it

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requests here, plaintiff appears to suggest in its Opposition to

Section 685.040 permits a judgment creditor

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defendant’s Motion that 15 U.S.C. § 1117(a) (“section 1117(a)”),

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the statute pursuant to which the court issued the September 2016

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order, authorizes its requested fees.

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(arguing that a “right to collect attorneys’ fees [incurred from

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post-judgment enforcement activities] exists when the

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[underlying] award is made pursuant to a federal statute”)

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(Docket No. 204).)

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(See Pl.’s Opp’n at 3

Section 1117(a) provides that a court “may award
reasonable attorney fees to the prevailing party” in “exceptional

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cases” of trademark infringement.

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court has already found that plaintiff is the prevailing party in

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this case and this case is an “exceptional case” of trademark

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infringement under section 1117(a).

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32, 36 (Docket No. 138).)

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section 1117(a) authorizes prevailing parties to collect

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attorneys’ fees incurred from post-judgment enforcement

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activities.2

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authorize plaintiff to collect attorneys’ fees it reasonably

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incurred from enforcing the September 2016 order.

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15 U.S.C. § 1117(a).

The

(See Apr. 20, 2016 Order at

Defendant does not dispute that

Accordingly, the court will read section 1117(a) to

Having determined that section 1117(a) authorizes

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plaintiff to recover attorneys’ fees it reasonably incurred from

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enforcing the September 2016 order, the court next examines

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whether the attorneys’ fees plaintiff requests here are

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reasonable.

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In determining whether plaintiff’s requested

Defendant disputed whether section 1117(a) authorizes
prevailing parties to collect attorneys’ fees incurred from postjudgment enforcement activities in its Motion. (See Def.’s Mem.
at 5.) However, defendant waived that argument when it conceded
at oral argument that plaintiff was entitled to attorneys’ fees
incurred from post-judgment enforcement activities here.
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attorneys’ fees are reasonable, the court looks to the lodestar

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method, see Partners for Health & Home, L.P. v. Seung Wee Yang,

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488 B.R. 431, 438 (C.D. Cal. 2012), which determines reasonable

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fees by multiplying “the number of hours reasonably expended on

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the litigation . . . by a reasonable hourly rate,” Hensley v.

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

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Plaintiff requests, in his Memorandum of costs, $50,000

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in attorneys’ fees.

In support of that request, plaintiff has

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submitted billing records from the firm of Smith, Gambrell, &

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Russell, LLP (“SGR”), its out-of-state counsel, showing that SGR

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attorneys James Bikoff, Bruce McDonald, and Holly Lance billed

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161.6 hours on activities related to enforcing the September 2016

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order.

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(Docket No. 204-2).)

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be multiplied by the following rates: $550 for Bikoff, $450 for

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McDonald, and $360 for Lance.3

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has also submitted billing records from Mark Serlin, its local

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counsel, showing that Serlin billed 10.3 hours on activities

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related to enforcing the September 2016 order.

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Ex. D, Serlin Billing Records (Docket No. 204-1).)

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suggests that Serlin’s hours should be billed at the rate of $380

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per hour.

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(See Decl. of Holly Lance Ex. A, SGR Billing Records
Plaintiff suggests that such hours should

(See id. at 1, 6, 18.)

Plaintiff

(See Serlin Decl.
Plaintiff

(See id.)
The product of the hours and rates submitted by

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plaintiff for SGR attorneys is $73,754, (SGR Billing Records at

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21), and the product of the hours and rate submitted by plaintiff

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The September 2016 order approved the following rates:
$530 for Bikoff, $450 for McDonald, and $330 for Lance. (Sept.
12, 2016 Order at 21.)
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for Serlin is $3,914, (Serlin Billing Records at 4).

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plaintiff’s billing records indicate that plaintiff’s attorneys

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billed $77,668 in enforcing the September 2016 order.

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seeks only $50,000 of that amount in its Memorandum of costs.

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In total,

Plaintiff

Defendant does not dispute the hourly rate plaintiff

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submitted for Serlin.

(See Def.’s Reply at 9 (“Mr. Serlin should

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be paid in full, $3,914.”) (Docket No. 210).)

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dispute the hourly rates plaintiff submitted for SGR attorneys on

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grounds that SGR attorneys should not be paid at rates higher

Defendant does

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than Serlin’s rate for performing the same “collection work” that

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Serlin performed in enforcing the September 2016 order.

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7.)

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McDonald, and $250 for Lance are more appropriate here.

(Id. at

Defendant contends that rates of $380 for Bikoff, $380 for
(Id.)

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Having considered the type of work Bikoff, McDonald,

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and Lance performed in enforcing the September 2016 order, the

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court finds that hourly rates of $380 for each of them are

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appropriate here.

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Admin., 951 F. Supp. 1413, 1426 (C.D. Cal. 1996) (noting that

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courts should consider the “complexity of the issues presented”

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and “level of skill required” in determining reasonable

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attorneys’ fees).

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in enforcing the September 2016 order did not require a level of

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skill different from the level of skill required of Serlin in

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enforcing the September 2016 order.

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per hour is a reasonable rate for Serlin, and neither party has

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offered the court sufficient explanation for why Bikoff,

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McDonald, and Lance should be paid at different rates than Serlin

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with respect to the hours sought here.

See O’Neill, Lysaght & Sun v. Drug Enf’t

The work Bikoff, McDonald, and Lance performed

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Both parties agree that $380

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With respect to the number of hours sought, defendant

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contends that a number of entries provided in plaintiff’s billing

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records appear to have resulted from “excessive” attorney

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conferences, activities that “do not appear related to

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enforcement efforts,” and activities that result from

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“inefficient and duplicative billing.”

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Defendant flagged such entries for the court to examine.

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Decl. of Mark Ellis Ex. J, SGR Billing Records - Annotated

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(Docket No. 210-1).)

(Def.’s Reply at 8-9.)
(See

The court has examined the entries flagged

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by defendant, and cannot conclude, from their face, that they

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are, as defendant represents, the result of “inefficient,”

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“excessive,” or irrelevant activity.

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in any level of useful specificity, why the flagged entries are

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deficient.

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the flagged entries are deficient, and in light of the Ninth

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Circuit’s admonition that “the court . . . defer to the winning

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[counsel’s] professional judgment as to how much time . . . to

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spend on the case,” Moreno v. City of Sacramento, 534 F.3d 1106,

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1112 (9th Cir. 2008), the court will not strike the entries

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defendant flagged for “inefficient,” “excessive,” or irrelevant

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activity.

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Defendant does not state,

In the absence more specific explanation as to why

Defendant also flagged a number of plaintiff’s entries

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for block billing.

(See Def.’s Reply at 8-9.)

Having reviewed

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those entries, the court disagrees with defendant’s contention

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that such entries are impermissibly vague as to the tasks they

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account for.

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with sufficient specificity to allow the court to identify the

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general subject matter of such tasks and assess whether

The entries describe the tasks they account for

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plaintiff’s counsel expended a reasonable number of hours on such

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tasks.

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respect to such entries.

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CV-01766 BAM, 2014 WL 3563310, at *17 (E.D. Cal. July 17, 2014)

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(billing entries need “only identify the general subject matter

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of . . . time expenditures”); Deocampo v. Potts, No. CIV. 2:06-

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1283 WBS, 2014 WL 788429, at *4 (E.D. Cal. Feb. 25, 2014) (courts

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“retain[] discretion not to reduce hours that are purportedly

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block billed if those time entries are detailed enough for the

Accordingly, the court will not apply a reduction with
See Willis v. City of Fresno, No. 1:09-

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court to assess the reasonableness of the hours billed”).

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Defendant lastly contends that entries for work

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performed on plaintiff’s motion to add defendant’s president as a

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judgment debtor to the September 2016 order, which the court

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denied, should be stricken because plaintiff was not the

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prevailing party on that motion.

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court agrees with defendant, see Hensley, 461 U.S. at 440 (noting

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that courts may exclude “hours spent on . . . unsuccessful

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claim[s]” in determining reasonable attorneys’ fees), and will

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strike the entries defendant marked as being relevant to that

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motion from plaintiff’s billing records.

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(See Def.’s Reply at 9.)

The

Taking into account the adjustments discussed above,

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the court determines the lodestar figure for the hours claimed in

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plaintiff’s billing records to be as follows:

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Bikoff: (57.7 - 2.8) x $380 =

$20,862.00

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McDonald: (53.5 - 9.4) x $380 =

$16,758.00

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Lance: 50.4 x $380 =

$19,152.00

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Serlin: 10.3 x $380 =

$3,914.00

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$60,686.00
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Because the lodestar figure for the hours claimed in plaintiff’s

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billing records exceeds $50,000 after taking into account the

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adjustments discussed above, the court will award plaintiff the

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full $50,000 it requests in its Memorandum of costs.

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IT IS THEREFORE ORDERED that the following costs

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submitted by plaintiff in its Memorandum of costs (Docket No.

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193) be, and the same hereby are, TAXED to defendant:

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(1)

$78 for recording and indexing an abstract of judgment,

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(2)

$10 for filing a notice of judgment lien on property

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belonging to defendant,

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(3)

$195 in levying officer fees, and

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(4)

$50,000 in attorneys’ fees.

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Defendant’s Motion to deny plaintiff’s request for attorneys’

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fees is hereby DENIED.

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Dated:

May 18, 2017

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