Sustainable Pavement Technologies, LLC v. Holiday et al

Filing 99

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/7/2020 RECOMMENDING that 84 Motion for Attorney Fees be granted. And Plaintiff be awarded a total of $36,593.30 in Attorneys' Fees and costs. These Findings and Recommendations are submitted to U.S. District Judge Judge William B. Shubb; Objections to these F&Rs due within fourteen (14) days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SUSTAINABLE PAVEMENT
TECHNOLOGIES, LLC,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
v.

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No. 2:17-cv-02687-WBS-KJN

(ECF No. 84)
RICH HOLIDAY, et al.,
Defendants.

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INTRODUCTION
Presently pending before the court is plaintiff Sustainable Pavement Technologies, LLC’s

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motion for attorneys’ fees and costs against defendant Rich Holiday.1 (ECF No. 84.) Following

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the hearing on this matter, which Holiday did not attend, the court ordered plaintiff to review its

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request for attorneys’ fees and costs to “ensure they are properly attributable to prosecuting the

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case against this particular defendant” and explain how the attorneys’ fees that plaintiff is

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requesting are associated with defendant Holiday. (ECF No. 92 at 2.) Plaintiff filed a

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supplemental declaration and second supplemental declaration, further explaining its request for

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attorneys’ fees and costs. (ECF Nos. 90, 93.) For the reasons set forth below, the court

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The motion was referred to the undersigned for findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(B). (ECF No. 88.)
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recommends granting plaintiff’s motion and awarding plaintiff $36,593.30 in fees and costs.

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BACKGROUND

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On December 26, 2017, Plaintiff initiated this diversity action against Defendant Rich

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Holiday, an independent contractor who previously performed work for Plaintiff. (ECF No. 1 at

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2.) Plaintiff alleged that Holiday embezzled at least $200,000 by forging documents and sought

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treble damages pursuant to California Penal Code § 496(c). (Id. at 2-3.) Plaintiff’s complaint

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also named J.P. Morgan Chase Bank (“Chase”) and Bank of America, two banks that Holiday

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allegedly used to embezzle the money. (See ECF No. 1.) On March 8, 2018, Bank of America

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was dismissed from the case. (ECF Nos. 18, 19.) On February 19, 2019, Chase was dismissed

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following a settlement agreement between the parties. (ECF No. 68.)

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On February 16, 2018, the court entered default against Holiday. (ECF No. 15.) On May

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21, 2018, Holiday moved to set aside the default, which the court denied. (ECF Nos. 28, 35.) On

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March 13, 2019, plaintiff filed a motion for entry of default judgment against Holiday, asserting

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actual damages in the amount of $304,727 and seeking treble damages under § 496(c), totaling

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$914,181. (ECF No. 70 at 5.)

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On September 23, 2019, the court granted plaintiff’s motion for a default judgment. (ECF

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No. 80.) On September 24, 2019, plaintiff filed the instant motion for attorneys’ fees and costs.

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(ECF No. 84).

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DISCUSSION

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Generally, attorneys’ fees and costs may not be awarded unless the fees are provided for

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by contract or where a statute allows for their recovery. Galt G/S v. JSS Scandinavia, 142 F.3d

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1150, 1155 (9th Cir. 1998). Under California Penal Code § 496(c), “reasonable” attorneys’ fees

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may be awarded to a prevailing plaintiff. Sweeteners Plus Inc. v. Myers, 2013 WL 12132037, at

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*6 (C.D. Cal. Feb. 4, 2013).

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“[D]istrict courts have considerable discretion in determining attorney’s fees.” Corder v.

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Gates, 947 F.2d 374, 380 (9th Cir. 1991). A court may reduce “attorney’s fees when work

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associated with claims against multiple defendants [fall] upon the only defendant to survive

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dismissal.” Cook Productions, LLC v. Szerlip, 2017 WL 4883220, at * 5–6, (D. Haw. Oct. 30,
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2017) (reducing fees “to reflect the amount of time that is fairly attributable to the claims against”

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the only remaining defendant). However, apportionment of fees and costs is not necessary where

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claims involve a common core of facts or are based on related legal theories. Bagdasaryan v.

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Bayview Loan Servicing, LLC, 2017 WL 6520591, at *6 (C.D. Cal. Aug. 25, 2017) (internal

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citation and quotations omitted).

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Here, it is evident that plaintiff prevailed (ECF No. 80), and is therefore entitled to

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attorneys’ fees and costs pursuant to California Penal Code § 496(c). Additionally, the court

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finds that counsel’s rate of $380/hour reasonable for an experienced attorney practicing

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commercial litigation. See Monterrubio v. Best Buy Stores, L.P., 291 F.R.D. 443, 460–61 (E.D.

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Cal. 2013) (finding $400/hour for partners an appropriate rate).

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Finally, the number of hours expended by plaintiff is reasonable under the circumstances.

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Plaintiff’s argument is well taken that its efforts to secure a judgment against Chase were so

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intertwined with its efforts to pursue its case against defendant Holiday that apportionment would

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be impractical. As plaintiff notes, its settlement with Chase directly reduced Holiday’s own

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liability, and plaintiff’s claims against Chase only came into existence as a result of Holiday’s

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embezzlement of plaintiff’s money. (ECF No. 93 at 3.) Therefore, most if not all of the time

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pursuing its claim against Chase had a direct effect on plaintiff’s claim against Holiday.
Plaintiff is therefore entitled to $34,025.20 in attorneys’ fees2 and $2,568.10 in costs it is

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requesting, totaling $36,593.30.

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CONCLUSION

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Accordingly, it is hereby RECOMMENDED that:

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Plaintiff’s motion for attorneys’ fees and costs (ECF No. 84) be GRANTED; and

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Plaintiff be awarded a total of $36,593.30 in attorneys’ fees and costs.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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This number is reached by multiplying the hours expended, less the hours consented to be
reduced by plaintiff, (89.54) (ECF No. 93 ¶ 3) by the rate ($380/hour).
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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO RECOMMENDED
Dated: January 7, 2020

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