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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 NATIONAL GRANGE OF THE ORDER OF PATRONS OF HUSBANDRY, Plaintiff, CIV. NO. 2:14-676 WBS DB ORDER RE: COSTS 14 15 16 17 18 v. CALIFORNIA GUILD, formerly doing business as “California State Grange,” Defendant. 19 20 21 ----oo0oo---On September 12, 2016, the court ordered defendant to 22 pay plaintiff $144,715.70 in attorneys’ fees for willfully 23 violating the court’s September 30, 2015 order requiring that it 24 cease using the “Grange” trademark (“September 2016 order”). 25 (See Sept. 12, 2016 Order at 22-23 (Docket No. 154).) 26 ordered defendant to “file an affidavit with the court confirming 27 [such] payment within fourteen (14) business days.” 28 On September 29, 2016, defendant filed an affidavit with the 1 The court (Id. at 23.) 1 court stating that it was “unable to comply” with the September 2 2016 order due to financial problems. 3 McFarland ¶ 12 (Docket No. 155).) 4 (See Decl. of Robert Plaintiff subsequently undertook various efforts to 5 enforce the September 2016 order, including applying for a writ 6 of execution, requesting issuance of an abstract of judgment, and 7 filing motions to add defendant’s president as a judgment debtor 8 to and for an order assigning defendant’s membership payments 9 toward satisfaction of the September 2016 order. 10 (See Docket Nos. 156, 169, 176, 178.) 11 On March 9, 2017, the court granted plaintiff’s motion 12 for an order assigning defendant’s membership payments toward 13 satisfaction of the September 2016 order. 14 7-8 (Docket No. 189).) 15 plaintiff with a cashier’s check of $145,466.82.1 16 17 18 19 20 21 22 23 24 25 26 27 28 1 (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. 2 1 Serlin (“Serlin Decl.”) ¶ 4 (Docket No. 204-1).) 2 Before the court now is plaintiff’s Memorandum of 3 costs, which requests that the court tax the following costs 4 plaintiff incurred from enforcing the September 2016 order to 5 defendant: (1) $78 for recording and indexing an abstract of 6 judgment, (2) $10 for filing a notice of judgment lien on 7 property belonging to defendant, (3) $195 in levying officer 8 fees, and (4) $50,000 in attorneys’ fees. 9 (Docket No. 193).) 10 (Pl.’s Mem. of Costs Defendant does not object to plaintiff’s request for 11 abstract of judgment, judgment lien, and levying officer costs, 12 which total $283 here. 13 requesting denial of, plaintiff’s request for attorneys’ fees. 14 (See Def.’s Mot. to Deny Pl.’s Req. for Attorneys’ Fees (Docket 15 No. 194).) 16 request for attorneys’ fees should be denied “in its entirety.” 17 (Def.’s Mot. to Deny Pl.’s Req. for Attorneys’ Fees, Mem. 18 (“Def.’s Mem.”) at 6 (Docket No. 194-1).) 19 however, defendant abandoned that position and represented that 20 it was only challenging plaintiff’s request for attorneys’ fees 21 as to the amount sought. 22 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 23 Memorandum may be taxed to defendant, the court must look to 24 Federal Rule of Civil Procedure 69(a), which governs “proceedings 25 supplementary to and in aid of” enforcing money judgments in 26 federal courts. 27 CIV. 2:08-102 WBS, 2015 WL 3795585, at *1 (E.D. Cal. June 17, 28 2015). See Fed. R. Civ. P. 69(a); Yeager v. Bowlin, No. Rule 69(a) directs the court to apply California 3 1 procedural law in such proceedings, unless there is a federal 2 statute that would apply. 3 federal statute applies to plaintiff’s request to tax the costs 4 stated in its Memorandum of costs to defendant, see Carnes v. 5 Zamani, 488 F.3d 1057, 1060 (9th Cir. 2007), the court must apply 6 California procedural law in resolving plaintiff’s request. 7 See Fed. R. Civ. P. 69(a). Because no Relevant to plaintiff’s request to tax abstract of 8 judgment, judgment lien, and levying officer costs to defendant 9 is California Civil Procedure Code section 685.070 (“section 10 685.070”). 11 abstract of judgment, judgment lien, and levying officer costs to 12 a judgment debtor who does not object to such costs. 13 Civ. Proc. Code § 685.070(a)(1)-(2), (4); id. § 685.070(c)-(d). 14 Here, defendant has not objected to plaintiff’s abstract of 15 judgment, judgment lien, and levying officer costs. 16 the court will tax such costs to defendant. 17 Section 685.070 permits a judgment creditor to tax See Cal. Accordingly, Relevant to plaintiff’s request to tax attorneys’ fees 18 to defendant is California Civil Procedure Code section 685.040 19 (“section 685.040”). 20 “to recover postjudgment attorneys’ fees . . . incurred in 21 enforcing [an] underlying judgment” from the judgment debtor, PSM 22 Holding Corp. v. Nat’l Farm Fin. Corp., No. CV 05-08891 MMM 23 (FMOx), 2015 WL 11652518, at *3 (C.D. Cal. May 19, 2015) 24 (paraphrasing Cal. Civ. Proc. Code § 685.040), where such fees 25 are “otherwise provided by law,” Cal. Civ. Proc. Code § 685.040. 26 While plaintiff does not cite a provision of law other than 27 section 685.040 that purports to authorize the attorneys’ fees it 28 requests here, plaintiff appears to suggest in its Opposition to Section 685.040 permits a judgment creditor 4 1 defendant’s Motion that 15 U.S.C. § 1117(a) (“section 1117(a)”), 2 the statute pursuant to which the court issued the September 2016 3 order, authorizes its requested fees. 4 (arguing that a “right to collect attorneys’ fees [incurred from 5 post-judgment enforcement activities] exists when the 6 [underlying] award is made pursuant to a federal statute”) 7 (Docket No. 204).) 8 9 (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 10 cases” of trademark infringement. 11 court has already found that plaintiff is the prevailing party in 12 this case and this case is an “exceptional case” of trademark 13 infringement under section 1117(a). 14 32, 36 (Docket No. 138).) 15 section 1117(a) authorizes prevailing parties to collect 16 attorneys’ fees incurred from post-judgment enforcement 17 activities.2 18 authorize plaintiff to collect attorneys’ fees it reasonably 19 incurred from enforcing the September 2016 order. 20 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 21 plaintiff to recover attorneys’ fees it reasonably incurred from 22 enforcing the September 2016 order, the court next examines 23 whether the attorneys’ fees plaintiff requests here are 24 reasonable. 25 2 26 27 28 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. 5 1 attorneys’ fees are reasonable, the court looks to the lodestar 2 method, see Partners for Health & Home, L.P. v. Seung Wee Yang, 3 488 B.R. 431, 438 (C.D. Cal. 2012), which determines reasonable 4 fees by multiplying “the number of hours reasonably expended on 5 the litigation . . . by a reasonable hourly rate,” Hensley v. 6 Eckerhart, 461 U.S. 424, 433 (1983). 7 Plaintiff requests, in his Memorandum of costs, $50,000 8 in attorneys’ fees. In support of that request, plaintiff has 9 submitted billing records from the firm of Smith, Gambrell, & 10 Russell, LLP (“SGR”), its out-of-state counsel, showing that SGR 11 attorneys James Bikoff, Bruce McDonald, and Holly Lance billed 12 161.6 hours on activities related to enforcing the September 2016 13 order. 14 (Docket No. 204-2).) 15 be multiplied by the following rates: $550 for Bikoff, $450 for 16 McDonald, and $360 for Lance.3 17 has also submitted billing records from Mark Serlin, its local 18 counsel, showing that Serlin billed 10.3 hours on activities 19 related to enforcing the September 2016 order. 20 Ex. D, Serlin Billing Records (Docket No. 204-1).) 21 suggests that Serlin’s hours should be billed at the rate of $380 22 per hour. 23 (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 24 plaintiff for SGR attorneys is $73,754, (SGR Billing Records at 25 21), and the product of the hours and rate submitted by plaintiff 26 27 28 3 The September 2016 order approved the following rates: $530 for Bikoff, $450 for McDonald, and $330 for Lance. (Sept. 12, 2016 Order at 21.) 6 1 for Serlin is $3,914, (Serlin Billing Records at 4). 2 plaintiff’s billing records indicate that plaintiff’s attorneys 3 billed $77,668 in enforcing the September 2016 order. 4 seeks only $50,000 of that amount in its Memorandum of costs. 5 In total, Plaintiff Defendant does not dispute the hourly rate plaintiff 6 submitted for Serlin. (See Def.’s Reply at 9 (“Mr. Serlin should 7 be paid in full, $3,914.”) (Docket No. 210).) 8 dispute the hourly rates plaintiff submitted for SGR attorneys on 9 grounds that SGR attorneys should not be paid at rates higher Defendant does 10 than Serlin’s rate for performing the same “collection work” that 11 Serlin performed in enforcing the September 2016 order. 12 7.) 13 McDonald, and $250 for Lance are more appropriate here. (Id. at Defendant contends that rates of $380 for Bikoff, $380 for (Id.) 14 Having considered the type of work Bikoff, McDonald, 15 and Lance performed in enforcing the September 2016 order, the 16 court finds that hourly rates of $380 for each of them are 17 appropriate here. 18 Admin., 951 F. Supp. 1413, 1426 (C.D. Cal. 1996) (noting that 19 courts should consider the “complexity of the issues presented” 20 and “level of skill required” in determining reasonable 21 attorneys’ fees). 22 in enforcing the September 2016 order did not require a level of 23 skill different from the level of skill required of Serlin in 24 enforcing the September 2016 order. 25 per hour is a reasonable rate for Serlin, and neither party has 26 offered the court sufficient explanation for why Bikoff, 27 McDonald, and Lance should be paid at different rates than Serlin 28 with respect to the hours sought here. See O’Neill, Lysaght & Sun v. Drug Enf’t The work Bikoff, McDonald, and Lance performed 7 Both parties agree that $380 1 With respect to the number of hours sought, defendant 2 contends that a number of entries provided in plaintiff’s billing 3 records appear to have resulted from “excessive” attorney 4 conferences, activities that “do not appear related to 5 enforcement efforts,” and activities that result from 6 “inefficient and duplicative billing.” 7 Defendant flagged such entries for the court to examine. 8 Decl. of Mark Ellis Ex. J, SGR Billing Records - Annotated 9 (Docket No. 210-1).) (Def.’s Reply at 8-9.) (See The court has examined the entries flagged 10 by defendant, and cannot conclude, from their face, that they 11 are, as defendant represents, the result of “inefficient,” 12 “excessive,” or irrelevant activity. 13 in any level of useful specificity, why the flagged entries are 14 deficient. 15 the flagged entries are deficient, and in light of the Ninth 16 Circuit’s admonition that “the court . . . defer to the winning 17 [counsel’s] professional judgment as to how much time . . . to 18 spend on the case,” Moreno v. City of Sacramento, 534 F.3d 1106, 19 1112 (9th Cir. 2008), the court will not strike the entries 20 defendant flagged for “inefficient,” “excessive,” or irrelevant 21 activity. 22 Defendant does not state, In the absence more specific explanation as to why Defendant also flagged a number of plaintiff’s entries 23 for block billing. (See Def.’s Reply at 8-9.) Having reviewed 24 those entries, the court disagrees with defendant’s contention 25 that such entries are impermissibly vague as to the tasks they 26 account for. 27 with sufficient specificity to allow the court to identify the 28 general subject matter of such tasks and assess whether The entries describe the tasks they account for 8 1 plaintiff’s counsel expended a reasonable number of hours on such 2 tasks. 3 respect to such entries. 4 CV-01766 BAM, 2014 WL 3563310, at *17 (E.D. Cal. July 17, 2014) 5 (billing entries need “only identify the general subject matter 6 of . . . time expenditures”); Deocampo v. Potts, No. CIV. 2:06- 7 1283 WBS, 2014 WL 788429, at *4 (E.D. Cal. Feb. 25, 2014) (courts 8 “retain[] discretion not to reduce hours that are purportedly 9 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- 10 court to assess the reasonableness of the hours billed”). 11 Defendant lastly contends that entries for work 12 performed on plaintiff’s motion to add defendant’s president as a 13 judgment debtor to the September 2016 order, which the court 14 denied, should be stricken because plaintiff was not the 15 prevailing party on that motion. 16 court agrees with defendant, see Hensley, 461 U.S. at 440 (noting 17 that courts may exclude “hours spent on . . . unsuccessful 18 claim[s]” in determining reasonable attorneys’ fees), and will 19 strike the entries defendant marked as being relevant to that 20 motion from plaintiff’s billing records. 21 (See Def.’s Reply at 9.) The Taking into account the adjustments discussed above, 22 the court determines the lodestar figure for the hours claimed in 23 plaintiff’s billing records to be as follows: 24 Bikoff: (57.7 - 2.8) x $380 = $20,862.00 25 McDonald: (53.5 - 9.4) x $380 = $16,758.00 26 Lance: 50.4 x $380 = $19,152.00 27 Serlin: 10.3 x $380 = $3,914.00 28 $60,686.00 9 1 Because the lodestar figure for the hours claimed in plaintiff’s 2 billing records exceeds $50,000 after taking into account the 3 adjustments discussed above, the court will award plaintiff the 4 full $50,000 it requests in its Memorandum of costs. 5 IT IS THEREFORE ORDERED that the following costs 6 submitted by plaintiff in its Memorandum of costs (Docket No. 7 193) be, and the same hereby are, TAXED to defendant: 8 (1) $78 for recording and indexing an abstract of judgment, 9 (2) $10 for filing a notice of judgment lien on property 10 belonging to defendant, 11 (3) $195 in levying officer fees, and 12 (4) $50,000 in attorneys’ fees. 13 Defendant’s Motion to deny plaintiff’s request for attorneys’ 14 fees is hereby DENIED. 15 Dated: May 18, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?