Ulin v. Lovell's Antique Gallery et al
Filing
171
ORDER by Judge Laporte granting in part and denying in part 150 Motion for Attorney Fees (edllc1, COURT STAFF) (Filed on 10/19/2011)
1
2
3
4
5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE NORTHERN DISTRICT OF CALIFORNIA
7
8
JUAN BONIFACIO ULIN,
Plaintiff,
9
v.
United States District Court
For the Northern District of California
10
11
No. 09-3160-EDL
ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES
ALAEA-72, INC. et al.,
Defendants.
12
/
13
Background
14
This was a wage and hour action brought by Plaintiff Juan Bonefacio Ulin against his former
15
16
employer ALEA-72 Inc. dba Lovell’s Antique Gallery and its owner/manager Abraham Magidish.
17
Plaintiff brought claims for violation of state and federal overtime law; failure to provide meal
18
periods or proper pay statements, failure to pay wages due and “waiting time” penalties under
19
California law, and violation of California Business & Professions Code § 17200. The amount of
20
damages sought was unclear from the complaint, but at the time of trial Plaintiff sought $101,017.94
21
for all of his claims based on his contention that he worked seven days a week, twelve hours a day,
22
for most of his employment. Following a bench trial in December 2010, this Court issued Findings
23
of Fact and Conclusions of Law and a Judgment awarding Plaintiff $28,032.21 in damages. The
24
Judgment was for the following categories of damages:
25
•
$9,870.98 in overtime, $3,731.65 in missed meal periods, $4,621.62 in interest, and $4,000 in
inadequate pay statement penalties on Plaintiff’s California state law claims; and
•
$4,807.01 in overtime and $1,000.95 in interest on Plaintiff’s Fair Labor Standards Act
(“FLSA”) claim.
26
27
28
1
Thereafter, the Court issued an Amended Judgment clarifying that individual defendant Mr.
2
Magadish is liable only for the FLSA portion of the judgment, or $5807.96.
3
Plaintiff has moved for an award of $147,829 in attorneys fees1 and $13,768.06 in costs.
4
Plaintiff contends that, while high, these costs and fees are warranted because Defendants
5
unreasonably refused to admit any liability for overtime, Defendants’ litigation tactics required
6
multiple discovery and other motions, and Plaintiff had to address novel issues of law relating to
7
Plaintiff’s presentation of false employment documents to his employer and the calculation of
8
damages. Defendants counter that Plaintiff over-litigated the case and should not recover such high
9
fees. For the reasons discussed below, Plaintiff’s motion is granted in part, and Plaintiff is awarded
United States District Court
For the Northern District of California
10
$81,526.77 in fees and $13,768.06 in costs.
11
Legal Standard
12
Plaintiff is entitled to attorney’s fees under the FLSA and California law. See 29 U.S.C. §
13
216(b) (court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a
14
reasonable attorney’s fee to be paid by the defendant, and costs of the action”); Cal. Lab. Code §§
15
218 .5, 1194; see also Newhouse v. Robert's IlimaRE Tours, Inc., 708 F.2d 436, 441 (9th Cir.1983)
16
(“The FLSA grants prevailing plaintiffs a reasonable attorney’s fee.”); Drumm v. Morningstar, Inc.,
17
695 F. Supp. 2d 1014, 1018 (N.D. Cal. 2010) (noting that under California law, awarding attorney’s
18
fees is “mandatory” in unpaid wage claims).
19
Courts in the Ninth Circuit calculate an award of attorney’s fees using the lodestar method,
20
whereby the court multiplies “the number of hours the prevailing party reasonably expended on the
21
litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th
22
Cir. 2008). A party seeking attorney’s fees bears the burden of demonstrating that the rates
23
requested are “in line with the prevailing market rate of the relevant community.” Carson v. Billings
24
Police Dep’t, 470 F.3d 889, 891 (9th Cir. 2006). Generally, “the relevant community is the forum in
25
which the district court sits.” Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496, 500
26
(9th Cir.1997)). Typically, “affidavits of the plaintiffs’ attorney and other attorneys regarding
27
1
28
Plaintiff’s Motion initially sought $146,044, and he seeks an additional $1,785 for 4.25 hours
of attorney time spent on the Reply at a rate of $420 per hour.
2
1
prevailing fees in the community and rate determinations in other cases . . . are satisfactory evidence
2
of the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403,
3
407 (9th Cir.1990).
4
“Although in most cases, the lodestar figure is presumptively a reasonable fee award, the
district court may, if circumstances warrant, adjust the lodestar to account for other factors which are
6
not subsumed within it.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001).
7
Courts may consider: the time and labor required; the novelty and difficulty of the questions
8
involved; the skill requisite to perform the legal service properly; whether the fee is fixed or
9
contingent; the amount involved and the results obtained; the experience, reputation, and ability of
10
United States District Court
For the Northern District of California
5
the attorneys; and awards in similar cases. See Ballen v. City of Redmond, 466 F.3d 736, 746 (9th
11
Cir.2006) (internal citations and quotations omitted). Of particular relevance here, the Court may
12
consider the results obtained when considering whether to adjust a fee award upward or downward.
13
See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Hensley Court stated:
14
This [results obtained] factor is particularly crucial where a plaintiff is deemed
“prevailing” even though he succeeded on only some of his claims for relief. In this
situation two questions must be addressed. First, did the plaintiff fail to prevail on
claims that were unrelated to the claims on which he succeeded? Second, did the
plaintiff achieve a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award?
15
16
17
18
Hensley, 461 U.S. at 434-35. As to the second question, “a reduced fee award is appropriate if the
19
relief, however significant, is limited in comparison to the scope of the litigation as a whole.” Id. at
20
440.
21
“The party opposing the fee application has a burden of rebuttal that requires submission of
22
evidence to the district court challenging the accuracy and reasonableness of the . . . facts asserted
23
by the prevailing party in its submitted affidavits.” Camacho, 523 F.3d at 980 (citing Gates v.
24
Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir.1992)).
25
Analysis
26
1.
Reasonable Hourly Rate
27
A.
Attorneys
28
Plaintiff’s counsel seeks compensation at rates based on the “Laffey matrix” used in the
3
1
District of Columbia. Plaintiff contends that, under this matrix: (1) all of attorney Adam Wang’s
2
work should be compensated at a rate of $420 per hour; and (2) all of attorney Adam Pederson’s
3
work should be compensated at a rate of $230 per hour. See Wang Decl. Ex. 5 (Laffey matrix for
4
2010-2011). The Laffey matrix has been used by other courts in this district in determining
5
reasonable fee rates. See Rivera v. Rivera, 2011 WL 3667486 (N.D.Cal. Aug. 22, 2011) (awarding
6
Adam Pederson $230 per hour in a default judgment wage and hour case based on Laffey matrix);
7
Theme Promotions, Inc. v. News America Marketing FSI, Inc., 731 F.Supp.2d 937, 948 (N.D.Cal.
8
2010)(using Laffey matrix to calculate fees in complex antitrust case).
9
This Court does not necessarily endorse the use of the Laffey matrix as an appropriate
United States District Court
For the Northern District of California
10
measure of reasonable fees in this district, and the $420 rate is not necessarily warranted given the
11
quality of the work performed. As the Ninth Circuit has explained:
12
13
14
15
16
just because the Laffey matrix has been accepted in the District of Columbia does
not mean that it is a sound basis for determining rates elsewhere, let alone in a
legal market 3,000 miles away. It is questionable whether the matrix is a reliable
measure of rates even in Alexandria, Virginia, just across the river from the
nation's capital. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 245 (4th
Cir.2009); see also Grissom v. Mills Corp., 549 F.3d 313, 323 (4th Cir.2008)
(noting that the plaintiff provided “no evidence” that the Laffey matrix was “a
reliable indicator of the hourly rates of litigation attorneys in Reston, Virginia, a
suburb of Washington, D.C.”). We thus cannot fault the district court for
declining to use the Laffey matrix.
17
18
Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 -455 (9th Cir. 2010). However,
19
Defendants did not challenge the use of the Laffey matrix or the reasonableness of Plaintiff’s
20
attorneys’ claimed rates in their opposition or during oral argument. Without any opposing evidence
21
or argument presented by Defendants, the Court applies the Laffey matrix rates of $420 and $230 to
22
attorneys Adam Wang and Adam Pederson, respectively.
23
B.
Support Staff
24
Plaintiff’s motion initially sought compensation for clerical work performed by
25
administrative assistants Jennifer Zheng (a scientist with no claimed legal experience who performed
26
“various office administrative tasks”) and Rosita Natush (a legal secretary awarded a Bolivian law
27
license in 2007 who was responsible for “monitoring docket activities” and “calendaring the Court
28
appearances, deadlines and appointments”). See Zheng Decl. ¶ 1-2; Natusch Decl. ¶ 1-2. However,
4
1
during oral argument Plaintiff agreed to waive his claim for compensation of these individuals’ time.
2
Plaintiff has subsequently filed a “Statement of Non-Paralegal Fees To Be Deducted From Fee
3
Requests,” agreeing that the time spent by these two individuals should be deducted from the
4
amount sought. Therefore, $2,339 shall be deducted from the requested fee award.
5
2.
6
Number of Attorney Hours Reasonably Expended
Despite a judgment of less than $30,000, Plaintiff’ motion seeks $147,829 for 484.25 hours
7
that two attorneys worked on the case (less time spent by support staff which he has subsequently
8
agreed not to seek compensation for). See Wang Decl. Exs. 1-3. To arrive at this amount, Plaintiff
9
states that he excluded $8,345 for duplicative work, non-productive hours, and attorney time spent
United States District Court
For the Northern District of California
10
on administrative tasks. Wang Decl. ¶¶ 4-8. Declarations from Mr. Wang and Mr. Pederson confirm
11
that they kept contemporaneous time records and that Exhibit 2 to the Declaration of Adam Wang
12
accurately reflects the hours they worked.
13
Defendants’ opposition generally challenges the reasonableness of the time spent on the case,
14
and notes that Defendants were able to litigate the case for one-fifth the amount that Plaintiff is
15
claiming. Buchannan Decl. ¶ 2. Defendants correctly point out that Plaintiff’s counsel was often
16
ineffective and failed to follow basic procedural rules, which wasted time and thwarted the “just,
17
speedy, and inexpensive” conduct of this case. See Fed. R. Civ. P. 1. Defendants have specifically
18
identified examples of unreasonable charges. First, Defendants challenge an award of fees claimed
19
to oppose the motion to amend the judgment when no hearing was held and Plaintiff did not actually
20
oppose a large portion of the motion. See Opp. at n.1. The Court agrees that most of the amount of
21
time spent on this “opposition” was unreasonable, and deducts $787.50 for 1.875 hours (75%) of the
22
work done on the opposition on July 28, 2011. During oral argument, Defendants also pointed to
23
time spent on Plaintiff’s meritless motion to depose Defendants’ former attorney, and the Court
24
agrees that time spent on this motion was unreasonable. See Dkt. # 59, 74. The Court deducts an
25
additional $2,626 for all of the attorney time spent on this motion (7.7 hours) between August 5 and
26
August 9, 2010. Finally, Defendants point to Plaintiff’s motion to re-open discovery to take the
27
deposition of Pedro Hernandez. See Dkt. # 79. In granting in part and denying it in part the motion,
28
the Court noted that Plaintiff never timely subpoenaed Mr. Hernandez prior to the initial discovery
5
1
cutoff and failed to pay required witness fees, which is what necessitated the motion in the first
2
place. See Dkt. # 93. Since the motion was necessitated by Plaintiff’s procedural failures, the Court
3
deducts as unreasonable $2,714.50 for 10.15 hours of attorney time associated with this motion and
4
the related issue of failure to pay witness fees between August 13 and September 7, 2010.
Additionally, the Court reduces the total remaining attorney time by 10% to account for
5
6
billing by the quarter-hour, as opposed to by the tenth-of-an-hour. Quarter-hour billing has been
7
held to be deficient “because it does not reasonably reflect the number of hours actually worked.”
8
See Lopez v. San Francisco Unified School Dist., 385 F.Supp.2d 981, 993 (N.D.Cal.2005) (quoting
9
Zucker v. Occidental Petroleum Corp., 968 F.Supp. 1396, 1403 (C.D.Cal.1997)) (reducing all
United States District Court
For the Northern District of California
10
quarter-hour billing by 10%).
11
3.
Adjustment of Lodestar Based on Other Factors
12
As discussed above, the Court may adjust the lodestar amount to account for other factors
13
such as the time and labor required; the limited level of success compared to the hours spent; the
14
novelty and difficulty of the questions involved; the skill requisite to perform the legal service
15
properly; whether the fee is fixed or contingent; the amount involved and the results obtained; the
16
experience, reputation, and ability of the attorneys; and awards in similar cases. See Hensley v.
17
Eckerhart, 461 U.S. 424, 434 (1983); Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006).
18
Defendants argue that Plaintiff’s award should be reduced in light of these factors, especially the
19
modest result obtained. Plaintiff responds that there is no “rule of proportionality” mandating
20
reduction of fees based on a small damage award. See City of Riverside v. Rivera, 477 U.S. 561,
21
581 (1986) (no rule that attorneys fees must be proportional to recovery in civil rights cases).
22
Though there is no rule of proportionality, considerations including the amount involved and
23
the results obtained in this action, as well as the performance and reputation of Plaintiff’s lead
24
attorney, warrant a further reduction of fees. First, Plaintiff’s initial contention that he worked
25
twelve hours a day seven days a week was demonstrably false, and not even he stuck to this story
26
during trial. Therefore, Plaintiff’s claim that he was entitled to approximately $100,000 was highly
27
overblown from the beginning, as his counsel should have known. It was unreasonable for counsel
28
to incur approximately $150,000 in fees on a simple individual wage and hour case in which
6
1
Plaintiff claimed only $100,000, especially given that his claim was significantly inflated and
2
ultimately reduced to an award of approximately $30,000 based on the evidence at trial. Second,
3
Plaintiff’s counsel routinely failed to follow basic procedural and other rules which unnecessarily
4
multiplied the proceedings. Based on these considerations, the Court reduces the lodestar amount,
5
after eliminating fees on hours unreasonably spent as discussed above, by an additional 35%.
Based on the foregoing, Plaintiff is awarded $81,526.77 in attorneys fees.
6
7
4.
Plaintiff seeks $13,768.06 in costs and has attached a detailed statement of costs as well as
8
9
Costs
various invoices and receipts. Defendants have not challenged any item of costs, and the costs
United States District Court
For the Northern District of California
10
sought appear to have been reasonably incurred. Therefore this portion of the motion is granted in
11
full.
12
13
IT IS SO ORDERED.
14
15
Dated: October 19, 2011
16
17
ELIZABETH D. LAPORTE
United States Magistrate Judge
18
19
20
21
22
23
24
25
26
27
28
7
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?