Lafever v. Acosta, Inc.

Filing 194

ORDER by Magistrate Judge Bernard Zimmerman granting 174 Motion for Attorney Fees (bzsec, COURT STAFF) (Filed on 11/8/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIA LAFEVER

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Plaintiff(s),
v.
ACOSTA, INC., a Delaware
Closed Corporation, also
d/b/a ACOSTA TRUEDEMAND,
LLC; and also d/b/a ACOSTA
MILITARY SALES, LLC; and
DOES 1 through 20,
inclusive,
Defendant(s).

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No. C10-01782 BZ
ORDER GRANTING ATTORNEYS’
FEES AND COSTS

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In this action, Plaintiff Maria Lafever (“Plaintiff”)

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sued her former employer, Defendant Acosta, Inc.

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(“Defendant”) for violating several disability discrimination

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provisions of the California Fair Employment and Housing Act

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(“FEHA”) and for wrongfully terminating her.

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settled the Friday before trial, and as part of the

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settlement, Defendant agreed that Plaintiff’s attorneys’ fees

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would be determined by a motion for attorneys’ fees.

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Plaintiff now moves the court for an award of $973,680 in
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The case

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attorneys’ fees.

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to work performed by attorney William Adams and his

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paralegal, Julie Lundgren, and $142,320.00 is attributable to

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work performed by attorney Kirk Boyd.1

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Of this amount, $831,360.00 is attributable

“An award of attorneys’ fees incurred in a suit based on

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state substantive law is generally governed by state law.”

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Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016,

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1024 (9th Cir. 2003).

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to award reasonable attorneys’ fees to “the prevailing party,

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. . . except where the action is filed by a public agency or

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a public official, acting in an official capacity.”

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Gov. Code § 12965(b).

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the FEHA is appropriate, California courts look to federal

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decisions addressing such awards under Title VII.

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City of L.A., 47 Cal. 4th 970, 985 (2010).

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Under the FEHA, courts have discretion

Cal.

To determine whether a fee award under

Chavez v.

For the purposes of attorneys’ fees, Plaintiff prevailed

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in this action, and pursuant to the parties’ settlement

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agreement, Plaintiff is entitled to attorneys’ fees.

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parties’ dispute is over the amount.

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The

To determine reasonable attorneys’ fees, the court must

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first calculate the lodestar by taking the number of hours

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reasonably expended by the litigation and multiplying it by a

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reasonable hourly rate.

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1115, 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461

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

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

A reasonable rate is typically based

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Plaintiff originally sought an additional 50 hours
for work performed by Mr. Boyd’s summer law clerks. Plaintiff
has since eliminated those hours from her request. (See
Supplemental Declaration of Kirk Boyd, Docket No. 188, ¶ 6.)
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upon the prevailing market rate in the community for “similar

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work performed by attorneys of comparable skill, experience,

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and reputation.”

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1210 (9th Cir. 1986);

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1545-46 (9th Cir. 1992); see also Blum v. Stenson, 465 U.S.

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886, 896 n.11 (1984) (“[T]he burden is on the fee applicant

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to produce satisfactory evidence . . . that the requested

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rates are in line with those prevailing in the community.”).

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To support a fee request, the prevailing party may submit

Chalmers v. City of L.A., 796 F.2d 1205,
Davis v. City of S.F., 976 F.2d 1536,

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expert witness testimony regarding attorneys’ fees and

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declarations containing “verifiable information regarding

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rates allowed by courts.”

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Bonta, 97 Cal. App. 4th 740, 782-83 (2002).

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Reasonable Hourly Rate

Children’s Hosp. & Med. Ctr. v.

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Defendant objects that the hourly rates of all of

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Plaintiff’s counsel exceed the average rates of California

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litigators with similar experience.

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attorneys’ reasonable hourly rate, California courts consider

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“the hourly prevailing rate for private attorneys in the

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community conducting noncontingent litigation of the same

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type.”

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“assessing a reasonable hourly rate, the trial court is

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allowed to consider the attorney’s skill as reflected in the

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quality of the work, as well as the attorney’s reputation and

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status.”

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4th Supp. 1, 13 (2006) (citing Ketchum, 24 Cal.4th at 1139

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(2001).

To ascertain an

Ketchum v. Moses, 24 Cal. 4th 1122, 1133 (2001).

In

MBNA America Bank, N.A. v. Gorman, 147 Cal. App.

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William Adams
Plaintiff requests $700.00 as a reasonable hourly rate

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for Mr. Adams.

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warrants reduction because Plaintiff has failed to

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demonstrate it is in line with prevailing rates for general

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commercial or employment litigation in a case such as this,

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one that involves only moderate complexity.

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I find that Mr. Adams’ requested hourly rate

In support of her fee request, Plaintiff submits the
declaration of William M. Hensley, an attorney and

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contributor to a website devoted to summarizing state and

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federal decisions in California dealing with attorneys’ fees

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and hourly rates.

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for Mr. Adams is reasonable because even though it is on the

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“higher end” of hourly rates charged by attorneys in San

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Francisco law firms, it is commensurate with Mr. Adams’ “high

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experience level.”

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(“Henlsey Decl.”) ¶ 17.)

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exclusively on Mr. Adams’ years in practice to justify his

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hourly rate.

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hourly rates found to be reasonable by various courts in this

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district, along with those attorneys’ years of experience, he

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does not indicate those attorneys’ skills or reputation and

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therefore fails to directly compare Mr. Adams to counsel of

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similar skill, experience and reputation for whom a $700

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hourly rate is reasonable.

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demonstrates that he has 36 years of experience litigating

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employment cases.

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$700 as “reasonable” for an attorney of his experience, he

Mr. Hensley opines that a $700 hourly rate

(Declaration of William M. Hensley
Mr. Hensley relies almost

While Mr. Henlsey provides a list of attorneys’

Mr. Adams’ declaration

Although he describes his hourly rate of

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fails to provide evidence that he has ever been awarded that

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rate or that any client has actually paid that rate.

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Camarillo v. City of Maywood, Case No. 07-3469, 2011 U.S.

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Dist. LEXIS 93695, at *7, 2011 WL 3665028 (C.D. Cal. Aug. 22,

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2011) (“The actual rate that an attorney can command in the

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market and customarily charges is itself highly relevant

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proof of the prevailing community rate.”); see also, Velez v.

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Roche, Case No. 02-337, 2004 U.S. Dist. LEXIS 29848, at *25

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(N.D. Cal. Sept. 22, 2004).

See

And while Mr. Hensley’s

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declaration provides a great deal of information on the range

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of hourly rates charged by attorneys with varying years of

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experience, those hourly rates provide no information on the

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background or experience levels of the attorneys, and tend

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only to demonstrate that an attorney’s number of years in

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practice does not necessarily correlate with the appropriate

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hourly rate for that attorney.

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with thirty-three years of experience billed at $775 per

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hour, while attorney with twenty-six years was $905.00 per

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hour).)

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for attorneys with similar levels of experience as Mr. Adams,

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I find that a $600.00 hourly rate is reasonable.2

(Hensley Decl. ¶ 20 (attorney

After reviewing recent fee awards in this district

See, e.g.,

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Moreover, when considering the appropriateness of
counsel’s requested hourly rate, a court may take into account:
(1) the novelty and complexity of the issues; (2) the special
skill and experience of counsel; (3) the quality of
representation; and (4) the results obtained. Campbell v.
Nat’l Passenger R.R. Corp., 718 F. Supp. 2d 1093, 1098 (N.D.
Cal. 2010); Cabrales v. County of Los Angeles, 864 F.2d 1454,
1464 (9th Cir. 1988), vacated on other grounds. I am also
permitted to rely on my own knowledge of customary rates and my
experience concerning reasonable and proper fees. Ingram v.
Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). In considering
each of these factors, I find that this matter did not involve
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Hamed v. Macy’s W. Stores, Case No. 10-2790, 2011 U.S. Dist.

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LEXIS 125838, 2011 WL 5183856 (N.D. Cal. Oct. 31, 2011)

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(awarding attorney with thirty-five years experience with

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“extensive trial experience” and an “excellent reputation”

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$565 per hour in contested FEHA action); White v. Coblentz,

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Patch, Duffy & Bass LLP Long Term Disability Ins. Plan, Case

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No. 10-1855, 2011 U.S. Dist. LEXIS 125657 (N.D. Cal. Oct. 31,

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2011) (awarding attorney with thirty-one years of litigation

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experience $600 per hour in contested ERISA action); Muniz v.

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UPS, Case No. 09-1987, 2011 U.S. Dist. LEXIS 94364, 2011 WL

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3740808 (N.D. Cal. Aug. 23, 2011) (awarding attorney with

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forty years experience $445 per hour in contested FEHA

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action); Mitchel v. City of Santa Rosa, Case No. 09-5004,

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2010 U.S. Dist. LEXIS 80596, 2010 WL 2740069, at *2 (N.D.

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Cal. July 12, 2010) (awarding $420.75 per hour for Bay Area

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law firm partner with thirty-six years of experience in

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defense-side employment law litigation);

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Passenger R.R. Corp., 718 F.Supp.2d 1093 (N.D. Cal. 2010)

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(finding support for “a market rate from $380 to $775 per

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hour for experienced employment and civil rights attorneys in

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the Northern District [of California]” for the years

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2006-2009); Freitag v. Cal. Dep’t of Corr., Case No. 00-2278,

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2008 U.S. Dist. LEXIS 119220 (N.D. Cal. Dec. 8, 2008)

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(awarding $525 and $575 per hour for experienced civil rights

Campbell v. Nat’l

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novel or particularly complex issues and that Mr. Adams’
performance throughout this litigation, discussed below, does
not merit the rate requested, particularly in light of my
knowledge of the prevailing rates in the community for
similarly experienced litigators. For this same reason, I find
no reason to apply a multiplier.
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attorneys).3

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Julie Lundgren
I find that the rate of $175 per hour is reasonable for

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Ms. Lundgren’s paralegal time.4

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graduate of Boston University and is a certified paralegal

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with over 25-years of experience.

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provide any detail about the types of cases Ms. Lundgren

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typically handles and what law firms she previously worked

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for, the going rate for paralegal work in this district is

Ms. Lundgren is a 1982

While Plaintiff fails to

See, e.g., Mitchel, 2010 U.S.

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approximately $150 per hour.

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Dist. LEXIS 80596, 2010 WL 2740069, at *2 (awarding $136.00

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per hour for paralegal at Bay Area law firm who had ten years

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of experience and a degree in paralegal studies); Campbell,

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2010 U.S. Dist. LEXIS 20778, 2010 WL 625362, at *6-7

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(awarding $160 per hour for paralegal services in 2006-2009);

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Faigman v. AT&T Mobility LLC, Case No. 06-4622, 2011 U.S.

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Dist. LEXIS 15825, 2011 WL 672648 (N.D. Cal. Feb. 15, 2011)

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(awarding $150 for paralegal services); Muniz, 2011 U.S.

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Dist. LEXIS 94364, at *29 (awarding $130 per hour for

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certified paralegal).

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experience than the paralegals in the cases cited, and in

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this case, she performed some work more akin to a junior

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level associate.

Ms. Lundgren has significantly more

I therefore find that a $175 hourly rate

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This rate also accounts for the fact that Mr. Adams’
office is located in Pleasanton, where the overhead is lower
than in San Francisco.

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There are inconsistencies in Plaintiff’s motion
regarding what rate Plaintiff seeks for Ms. Lundgren’s time.
(Compare Declaration of William Adams (“Adams Decl.) ¶ 10,
seeking $250 per hour, with ¶ 13, seeking $150 per hour.)
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for her work is reasonable.

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Kirk Boyd

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Plaintiff requests $600.00 as a reasonable hourly rate

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for Mr. Boyd.

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submits Mr. Boyd’a declaration which sets forth his

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educational and professional background.

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states that he is aware that other attorneys with his same

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degree of education, training and skill have hourly rates of

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$700 or higher.

In support of this fee award, Plaintiff

Mr. Boyd also

(Declaration of Kirk Boyd (“Boyd Decl.”) ¶

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11.)

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with any evidence of prior fee awards regarding his hourly

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rate and fails to state that any client has paid him $600 per

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hour.

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Grover, a partner with the law firm of Keller Grover LLP,

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located in San Francisco, who states that he spends

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approximately 95% of his time representing plaintiffs in

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employment matters and that he has a similar background to

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Mr. Boyd (e.g., both graduated law school within three years

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of each other and were trained a large law firms before

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forming their own firms).

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states that his present billing rate is $650 per hour and

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that he was recently awarded fees based on that rate.

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Like Mr. Adams, Mr. Boyd fails to provide the court

Instead, Mr. Boyd submitted a declaration by Eric

Mr. Grover’s declaration further

Mr. Boyd was brought into this case for the specific

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purpose of assisting Mr. Adams with the trial.

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billing entries begin on June 24, 2011, three days before the

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pre-trial conference.

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reasonable that Mr. Adams brought in another attorney to

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assist him with the anticipated trial in this case,

Mr. Boyd’s

As noted during the hearing, I find it

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particularly given the fact that Defendant had at least two

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(and possibly three) attorneys assisting it with its defense.

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While it may not have been necessary for Mr. Adams to bring

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in an attorney with Mr. Boyd’s 25 years of experience, the

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Ninth Circuit has cautioned district courts not to second-

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guess staffing decisions.

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F.3d 1106, 1115 (9th Cir. Cal. 2008).

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think that Mr. Boyd’s requested rate is reasonable.

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reviewed prior fee awards pertaining to Mr. Boyd in this

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district, and in light of these fee awards and Mr. Boyd’s

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background, experience and the level of complexity of this

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case, I find that a $575 hourly rate is reasonable.

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HP Pavilion Mgmt., Case No. 04-00082, 2006 U.S. Dist. LEXIS

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21125, 2006 WL 927332 (N.D. Cal. Apr. 10, 2006) (awarding Mr.

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Boyd $350 per hour for work performed between 2004-2006);

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Hamed, 2011 U.S. Dist. LEXIS 125838 (awarding experienced

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litigation attorney with 35 years of practice $565 per hour

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in contested FEHA action).

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Reasonable Number of Hours

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Moreno v. City of Sacramento, 534
Nevertheless, I do not
I have

Bobol v.

The court has discretion to determine the number of
Chalmers, 796 F.2d

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hours reasonably expended on this case.

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at 1211; Hensley, 461 U.S. at 437 (noting that a district

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court has discretion in determining the amount of a fee

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award, which is “appropriate in view of the district court’s

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superior understanding of the litigation and the desirability

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of avoiding frequent appellate review of what essentially are

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factual matters”).

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hours “where documentation of the hours is inadequate; if the

The court may, in its discretion, reduce

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case was overstaffed and hours are duplicated; [or] if the

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hours expended are deemed excessive or otherwise

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unnecessary.”

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attorney fees, the prevailing party may only be compensated

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for those hours of work that were “reasonably expended.”

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L.H. v. Schwarzenegger, 645 F. Supp. 2d 888, 896 (E.D. Cal.

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2009) (quoting Hensley, 461 U.S. at 433-34)).

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applicant bears the burden of “documenting the appropriate

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hours expended” in the litigation and therefore must “submit

Chalmers, 796 F.2d at 1210.

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evidence supporting the hours worked.”

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When awarding

See

The fee

433, 437.

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Hensley, 461 U.S. at

Moreover, in cases where a voluminous fee application is

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filed, in exercising its billing judgment the district court

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“is not required to set forth an hour-by-hour analysis of the

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fee request.”

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Cir. 1992) (citing Jacobs v. Mancuso, 825 F.2d 559, 562 (1st

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Cir. 1987)).

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the district court has the authority to make across-the-board

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percentage cuts either in the number of hours claimed or in

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the final lodestar figure ‘as a practical means of trimming

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the fat from a fee application.’”

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York State Ass’n for Retarded Children v. Carey, 711 F.2d

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1136, 1146 (2d Cir. 1983)).

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counsels’ records, I find that an across-the-board percentage

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reduction in hours is necessary.

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Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th

“[W]hen faced with a massive fee application

Id. at 1399 (quoting New

Having analyzed Plaintiff’s

To begin, it is worth reiterating that this was a fairly

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routine, single-plaintiff case under FEHA that did not

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proceed through trial.

The legal disputes were not novel;
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nor were the policy implications of the lawsuit.

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stated at the hearing, given the circumstances, it is

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somewhat troubling that the Plaintiff’s fees in this case

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have somehow reached the near million dollar mark.

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v. Macy's W. Stores, Case No. 10-2790, 2011 U.S. Dist. LEXIS

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125838 (N.D. Cal. Oct. 31, 2011) (awarding $463,401 in

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attorneys fees in a contested FEHA action that proceeded

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through trial).5

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was little discovery motion practice, and only one round of

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Thus, as I

Cf Hamed

This is particularly true given that there

summary judgment briefing.6
After reviewing the time records submitted by Mr. Adams,

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I find that an across the board reduction in the requested

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hours is warranted in light of 1) the general level of

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disorganization and inefficiency I witnessed throughout the

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course of the litigation on the part of Mr. Adams; and 2) the

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The only remotely similar employment case involving a
million dollar fee to which Plaintiff could point is Wysinger
v. Automobile Club of Southern California, 157 Cal. App. 4th
413 (2007). Wysinger affirmed a trial court award of
$978,791.00 in attorneys’ fees after the plaintiff had obtained
a jury verdict of $1.284 million, which the trial court
characterized as an excellent result, and for which it awarded
a 1.1 multiplier. Apart from being factually distinguishable
on many grounds, the issue in Wysinger was whether the trial
court erred in not reducing the fee award because the plaintiff
had not prevailed on every claim. The Court of Appeal affirmed
without any discussion about the reasonableness of the award,
which does not otherwise appear to have been challenged.

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Plaintiff makes much of the fact that Defendant
failed to submit a separate statement of facts to accompany its
motion for summary judgment, arguing that this failure somehow
resulted in the necessity of revising and resubmitting a new
opposition brief. I find this argument unpersuasive,
particularly in light of the fact that, as pointed out by
Defendant during the hearing, its moving papers were
substantively unaltered when it re-filed its motion to
incorporate a separate statement, thereby not necessitating any
substantive edits to Plaintiff’s opposition.
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excessiveness of some of Mr. Adams’ billing entries.

With

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respect to the first issue of inefficiency, Mr. Adams often

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engaged in untimely filings and filed “corrected” versions of

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various motions to account for this untimeliness.

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e.g., Docket Nos. 67, 164.)

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record that Mr. Adams was not diligent in responding to

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defense counsel’s telephone calls or telephone calls from the

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court, and that Plaintiff’s counsel failed to comply with

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various court orders, which further supports my overall

(See,

There is also evidence in the

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impression of Mr. Adams’ disorganization.

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(See Docket Nos.

146, 147, 157.)
Defendant also complains of the general level of

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excessive time Plaintiff’s counsel recorded for various

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tasks, such as the nearly 200 hours that Plaintiff’s counsel

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spent opposing Defendant’s summary judgment motion (in

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addition to the 37 hours Plaintiff’s counsel spent filing a

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“corrected” opposition), and the nearly 343 hours spent on

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legal and factual research.7

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authority or evidence to suggest that these hours are

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excessive (for example, the Ninth Circuit has suggested that,

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to demonstrate the excessiveness of hours requested, an

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opposing party could present evidence of how long its

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attorneys spent doing the same task, Democratic Party of

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Wash. v. Reed, 388 F.3d 1281, 1287 (9th Cir. 2004)), I

While Defendant offers no

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The fact that Mr. Adams, who professes to be an
experienced FEHA attorney, spent this much time on legal
research in a case such as this, which did not involve any
novel or particularly complex issues, somewhat belies his
assertions that he should be paid an hourly rate of $700.
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nevertheless find that Mr. Adams’ time should be reduced

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based on the general level of inefficiency that I witnessed

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throughout the course of the litigation of this case– some of

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which is demonstrated in the billing records themselves.

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Stonebrae, L.P. v. Toll Bros., 2011 U.S. Dist. LEXIS 39832,

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2011 WL 1334444 (N.D. Cal. Apr. 7, 2011) (applying a 5%

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reduction in hours billed due to inefficiency); see also

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Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 (9th Cir.

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2001) (across-the-board percentage reduction acceptable when

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accompanied by “clear and concise explanation”).

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example, as I pointed out during the hearing, on February 25,

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2011, Mr. Adams charged 2 hours preparing for a telephonic

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discovery conference with the Court that lasted for a total

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of 8 minutes, and did not involve any novel or complex legal

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issues.

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“noticing” that no separate statement of facts was filed with

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Defendant’s motion for summary judgment, and “researching” my

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standing orders on the need for a separate statement.

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For

On March 3, 2011, Mr. Adams billed 2 hours for

More troubling, despite representing to the court that

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he is an experienced litigator with many matters and clients,

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Mr. Adams routinely billed numbers of hours to this single

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case which strain credibility.

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2011, Mr. Adams billed 14.5 hours; on June 27, 2011, Mr.

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Adams billed 20.3 hours; on July 1, 2011, Mr. Adams billed

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15.8 hours; and on July 5, 2011, Mr. Adams billed exactly 24

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hours to this case, only to turn around on July 6, 2011 and

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bill another 21.4 hours.

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days in which Mr. Adams billed an alarming number of hours to

For example, on June 16,

These are just some examples of the

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this case alone, which is especially troubling given that in

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June and July, he had brought Mr. Boyd in to assist with the

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matter, and that one of the reasons the Court was given when

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it was difficult to reach him, or he was late in meeting a

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deadline, was that he was a sole practitioner who had to deal

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with other matters.

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provide no satisfactory explanation for such entries.

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During the hearing, Mr. Adams could

For these reasons, I find that Mr. Adams’ time must be
reduced, and I exercise my discretion to reduce Mr. Adams’
hours by 40%, for a total of 659.30 hours.
With respect to Mr. Boyd, I also find that his hours are

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subject to reduction.

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organized in such a way that it is impossible to evaluate

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them to exclude “hours that are excessive, redundant, or

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otherwise unnecessary[.]”

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Boyd engages in the practice of “block billing.”

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billing” refers to “the time-keeping method by which each

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lawyer and legal assistant enters the total daily time spent

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working on a case, rather than itemizing the time expended on

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specific tasks.”

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F.3d 1109, 1129 n.2 (9th Cir. 2008) (quoting Welch, 480 F.3d

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at 945 n.2).

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billing records to determine whether there is excessive or

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unnecessary billing — as with block billing — legitimate

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grounds exist to reduce or eliminate claimed hours.

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Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.

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2009).

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how much time was spent on particular activities.”

Mr. Boyd’s billing records are

Hensley, 461 U.S. at 437.

Mr.

“Block

Mendez v. County of San Bernardino, 540

Where courts are unable to properly analyze

See

This is so because it is “more difficult to determine

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Id.

In

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circumstances like these, either line by line or

2

across-the-board percentage cuts are within the discretion of

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the district court to reduce a fee award.

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948-49 (reducing total billable hours by 20% across-the-board

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for billing in 15 minute intervals which the court found too

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imprecise to accurately reflect time expended and citing the

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California State Bar’s Fee Report, which concluded that block

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billing may increase time by 10% to 30%); Lahiri v. Universal

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Music & Video Distrib. Corp., 606 F.3d 1216, 1222-23 (9th

Welch, 480 F.3d at

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Cir. 2010) (finding permissible district court’s

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identification of attorneys and paralegals who were primarily

12

responsible for block billing, and reducing 80% of their

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billable hours by 30%); see also, Cal. Alliance of Child &

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Family Servs. v. Wagner, Case No. 09-4398, 2011 U.S. Dist.

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LEXIS 76730, 2011 WL 2837423 (N.D. Cal. July 15, 2011)

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(reducing hours listed in block billed entries by 20%).

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Block billing is pervasive throughout Mr. Boyd’s time

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records, and as a result, it is impossible to decipher how

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much time was spent on individual tasks and whether the time

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spent was reasonable.8

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case because Mr. Boyd was brought into this case in order to

This is of special concern in this

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For example, in Mr. Boyd’s time records, on 6/27/11,
there is an entry for 11.40 hours for “Preparation of trial
binder; preparation for and attend the pretrial conference with
Judge; preparation of voir dire.” (Docket No. 171 p. 10.)
This entry is troubling for a variety of reasons. First, Mr.
Boyd fails to itemized how much of the 11.40 hours was
designated to each task, which makes it impossible for the
court to determine whether Mr. Boyd spent 5 hours or 30 minutes
“preparing” a trial binder, which may be a clerical task.
Second, the voir dire questions had already been prepared, and
were distributed at the conference, which makes the
reasonableness of this entry suspect.
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assist with trial, and as pointed out during the hearing, his

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time entries– particularly for June 2011– seem duplicative in

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light of work already performed by Mr. Adams.

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on June 25, 2011, Mr. Boyd bills time to “legal research

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regarding disability discrimination.”

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vague, but it is also generic and presumably covers legal

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research already done by Mr. Adams.9

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2011, Mr. Boyd bills time to “legal research re reasonable

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accommodation for jury instructions.”

For example,

This entry is not only

Likewise, on June 27,

Yet the pretrial

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conference in this case occurred on June 27, and it is my

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practice to require the parties to submit proposed jury

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instructions prior to the conference, which means that Mr.

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Adams would have already researched the jury instructions

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submitted by Plaintiff.10

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exercise discretion to reduce the hours listed in Mr. Boyd’s

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billed entries by 20%.

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Miller ex rel. NLRB v. Hotel & Rest. Emples. & Bartenders

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Union, Local 2, 107 F.R.D. 231, 245 (N.D. Cal. 1985)

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(applying a 40% reduction to vague billing entries).

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twenty percent reduction will account for any duplicative

Given this duplication of effort, I

Welch, 480 F.3d at 948; see also,

This

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When questioned about the possibility that some of
the legal research was duplicative, Mr. Boyd responded that in
an effort to be efficient, he had some law student clerks
perform some of the research, and they found some relevant case
law which neither he nor Mr. Adams had. While Mr. Boyd made
much of his decision not to bill for the law students, see fn.1
supra, it is troubling that thousands of dollars were billed
for legal research by the highly experienced Messrs. Adams and
Boyd, which was better done by law students.
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Additional time for researching jury instructions is
also billed on June 28, July 1, July 2, July 5, July 6, July 8,
and July 11.
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entries, such as research conducted by both Mr. Adams and Mr.

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Boyd during the two month trial preparation period, and work

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performed by Mr. Boyd “reviewing” case pleadings and other

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documents in order to get up to speed on the case.

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Defenbaugh v. JBC & Assocs., Case No. 03-651, 2004 U.S. Dist.

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LEXIS 16256, 2004 WL 1874978, at *27 (N.D. Cal. Aug. 10,

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2004) (reducing hours for time spent bringing attorney up-to-

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date on case developments as duplicative).

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Thus, while the majority of hours billed by Mr. Boyd

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appear reasonable, the aforementioned issues make it

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unreasonable for the court to award the full amount

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requested.

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across-the-board reduction of twenty percent to the hours

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billed by Mr. Boyd and across-the-board reduction of forty

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percent to the hours billed by Mr. Adams.

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award is $548,243.00 (659.28 hours x $600 per hour for worked

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performed by Mr. Adams; 248.8 hours x $175 per hour for

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worked performed by Ms. Lundgren; 189.80 hours x $575 per

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hour for work performed by Mr. Boyd), which represents

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attorneys’ fees for the reasonable hours expended pursuing

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this litigation.

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Costs

Accordingly, the court applies an

The resulting

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Plaintiff seeks costs in the amount of $18,815.16.

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These costs include messenger and service costs, filing fees,

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court reporter costs and transcript fees, witness fees,

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document retrieval fees, copy charges, and costs associated

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with the depositions of two witnesses whose depositions were

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taken by attorney Henry Josefsberg. (Adams Decl., ¶4, Ex. A.)
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1

Plaintiff provided itemized billing statements which include

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all of the aforementioned costs. (Id.)

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reasonable and award them to Plaintiff.

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I find these costs

Plaintiff also seeks $17,948.09 in costs for work

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performed by Alvarado Smith for consulting and expert witness

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services “to prepare declarations and perform other work in

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support of the motion for an award of attorneys fees and

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costs.”

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majority of this sum is attributable to the declaration

(Pl.’s Reply Brief p. 5.)

It appears that the

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submitted by William H. Hensley in support of Plaintiff’s

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request for fees.

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by Mr. Hensley to be of little use.

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declaration does not cite to or rely upon the fee awards

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referenced in this order and does not include any examples of

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prior fee awards involving the attorneys in this case (such

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as Mr. Boyd’ prior fee award).

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great deal on a declaration submitted by another expert in a

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different cases, incorporating it by reference.

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Alvarado Smith’s fee is attributable to hours billed by an

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unknown person identified as “MDA” who charged $450 per hour

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to draft largely boilerplate objections to Defendant’s expert

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witness declaration.11

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unreasonable to award Plaintiff the $17,948.09 in additional

24

costs sought in her reply submissions.

The court found the declaration prepared
Mr. Hensley’s

Mr. Hensley also relies a

The rest of

Given these deficiencies, I find it

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The parties also submitted a number of objections to
each side’s respective expert witness declarations. These
objections are overruled in their entirety, as most go to the
weight of the evidence, not to admissibility. In any event,
the court found the declarations of limited use and therefore
assigned little value to the statements made therein.
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1

For the reasons stated above, IT IS ORDERED that

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Plaintiff is awarded $567,058.16 in fees and costs as

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follows:

4

ATTORNEY/PARALEGAL

HOURLY RATE

HOURS

FEE AWARD

5

William Adams

$600

659.28

$395,568.00

6

Julie Lundgren

$175

248.80

$43,540.00

7

Kirk Boyd

$575

189.80

$109,135.00

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Total Fees

$548,243.00

COSTS

$18,815.16

TOTAL AWARD

$567,058.16

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Dated: November 8, 2011

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Bernard Zimmerman
United States Magistrate Judge

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