Hernandez v. Taqueria El Grullense et al

Filing 96

AMENDED ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. The 95 Order on Motion for Reconsideration is amended to make clear that while the initial Order referred to reconsideration under Civil Local Rule 7-9(b)(3), the same result applies under Federal Rule of Civil Procedure 60, which governs relief from final judgments and orders. Signed by Judge William H. Orrick on 06/11/2014. (jmdS, COURT STAFF) (Filed on 6/11/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GERARDO HERNANDEZ,

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Case No. 12-cv-03257-WHO

Plaintiff,
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v.
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TAQUERIA EL GRULLENSE, et al.,

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Defendants.

AMENDED ORDER DENYING
PLAINTIFF’S MOTION FOR LEAVE
TO FILE MOTION FOR
RECONSIDERATION
Re: Dkt. No. 92

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United States District Court
Northern District of California

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INTRODUCTION

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Parties are often unhappy with the dispositive decisions of trial court judges. Instead of

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appealing, some parties seek permission to file a motion to have the trial court reconsider the

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decision. But under Civil Local Rule 7-9(b)(3), a party seeking leave to file a motion for

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reconsideration must show “[a] manifest failure by the Court to consider material facts or

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dispositive legal arguments which were presented to the Court before such interlocutory order.”

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Civil L.R. 7-9(b)(3). Plaintiff Gerardo Hernandez, or more accurately his counsel, seeks leave to

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file a motion for reconsideration of my 27-page Order On Motion for Attorneys’ Fees, Dkt No. 91

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(“the Order”), because I awarded $62,003.68 instead of the $102,013 that he requested. Because

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plaintiff has not shown that I failed to consider material facts or dispositive legal arguments in that

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order, and also fails to meet the requisites of Federal Rule of Civil Procedure 60(b), plaintiff’s

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motion is DENIED.1

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This Order amends the Order Denying Motion for Reconsideration issued on June 9, 2014, Dkt.
No. 95, to make clear that while the initial Order referred to reconsideration under Civil Local
Rule 7-9(b)(3) because that is the standard under which plaintiff moved for reconsideration, the
same result applies under Federal Rule of Civil Procedure 60, which governs relief from final
judgments and orders. For the reasons discussed, reconsideration is not warranted under Rule 60
or under Civil Local Rule 7-9.

DISCUSSION

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The Order sets forth the relevant background. Plaintiff’s motion is premised on his

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displeasure with my order; not on any failure to consider material facts or dispositive legal

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arguments that were presented to me or on any basis allowed by Federal Rule of Civil Procedure

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60(b).2 It is not necessary to repeat what the Order already says. For example, plaintiff argues

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that it was unreasonable to deduct time for two attorneys to attend the mediation; to reduce time

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billed for various discrete tasks; and to reduce time billed in .1 hour increments. My reasoning is

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described in the Order if further review is sought. Plaintiff disagrees, but his disagreement does

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not provide the basis for a motion for reconsideration.
Plaintiff’s motion makes four points not previously addressed, so I will discuss them

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United States District Court
Northern District of California

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below. None has merit.

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I.

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THE COURT’S ORDER WAS NOT CONTRARY TO CONTROLLING
PRECEDENT
Plaintiff argues that I failed to consider Moreno v. City of Sacramento, 534 F.3d 1106 (9th

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Cir. 2008) regarding plaintiff’s staffing decisions and that “[m]ost of the Court’s criticisms of
plaintiff’s billing practices are based on the improper premise that defendants’ standards or ‘big
firm’ staffing practices can structure all of plaintiff’s decisions, as to whether a task ‘should’ have
been done by someone ‘less experienced,’ or in fewer hours, than declared by the prevailing
attorneys in their time sheets and declarations under penalty of perjury.” Mot. at 6 (emphasis in

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original). This complaint is unfounded.
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The Order’s criticisms of Rein Law’s staffing decisions are not based on defendants’
standards or “big firm” staffing practices, or on comparisons to how other firms may have staffed

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the matter. They are based on my duty, as commanded by the United States Supreme Court, to
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Federal Rule of Civil Procedure 60(b) provides that “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.”
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exclude from the fee award any hours not “reasonably expended,” including where a case is

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“overstaffed” or where hours are “excessive, redundant, or otherwise unnecessary.” Hensley v.

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Eckerhart, 461 U.S. 424, 434 (1983). The criticisms were guided by the Supreme Court’s

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admonition that “[h]ours that are not properly billed to one’s client also are not properly billed to

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one’s adversary pursuant to statutory authority.” Id. (emphasis in original) (citations omitted).

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Plaintiff relies heavily on this passage in Moreno:

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The district court’s inquiry must be limited to determining whether
the fees requested by this particular legal team are justified for the
particular work performed and the results achieved in this particular
case. The court may permissibly look to the hourly rates charged by
comparable attorneys for similar work, but may not attempt to
impose its own judgment regarding the best way to operate a law
firm, nor to determine if different staffing decisions might have led
to different fee requests. The difficulty and skill level of the work
performed, and the result achieved-not whether it would have been
cheaper to delegate the work to other attorneys-must drive the
district court’s decision.”

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United States District Court
Northern District of California

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Id. at 1115. This discussion relates to the district court’s reduction of the requested hourly rates

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from $300 to $250 an hour “because it thought that other firms could have staffed the case

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differently.” Id. at 1114. The Ninth Circuit found that this reduction was improper because “the

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district court may not set the fee based on speculation as to how other firms would have staffed the

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case.” Id.

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Unlike the district court in Moreno, I did not reduce the claimed hourly fees of the various

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Rein Law attorneys and paralegals, much less based on a determination that another firm would

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have been cheaper. Rather, I reduced the hours claimed by Rein Law which were not “reasonably

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expended,” including, in some instances, where highly skilled attorneys billed excessive hours for

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routine and duplicative work. That is my duty under Hensley, 461 U.S. at 434.

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Moreno is not to the contrary. It states that “[a] district court thus awards only the fee that

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it deems reasonable” and that “[t]he number of hours to be compensated is calculated by

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considering whether, in light of the circumstances, the time could reasonably have been billed to a

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private client.” Moreno, 534 F.3d at 1111 (citing Hensley, 461 U.S. at 433-34). As Moreno

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instructs, my determination in this matter was “limited to determining whether the fees requested

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by this particular legal team are justified for the particular work performed and the results
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achieved in this particular case.” Moreno, 534 F.3d at 1115. Indeed, since Moreno, various courts

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in the Ninth Circuit have found that hours are not reasonably expended when routine tasks are

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billed by highly experienced attorneys, rather than being delegated to colleagues with appropriate

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levels of experience. See, e.g., Stonebrae, L.P. v. Toll Bros., Inc., 08-cv-0221-EMC, 2011 WL

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1334444 (N.D. Cal. Apr. 7, 2011) (“Overstaffing can include the failure to appropriately delegate

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tasks to staff or attorneys with lower billing rates.”) (citations omitted), aff’d, 521 F. App’x 592

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(9th Cir. 2013); Gold v. NCO Fin. Sys., Inc., 2010 WL 3339498, *1 (S.D. Cal. Aug. 23, 2010)

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(same); Washington Shoe Co. v. A-Z Sporting Goods, Inc., 2013 WL 4094697 (W.D. Wash. Aug.

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12, 2013) (“Plaintiff cannot have it both ways: one cannot claim expertise as justification for high
hourly rates and then spend significant amounts of time on procedural, simple, and/or threshold

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United States District Court
Northern District of California

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matters.”); Fisher v. City of San Diego, 2013 WL 4401387, *2 (S.D. Cal. Aug. 14, 2013) (“While

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delegation of more routine tasks is not required, an attorney who does everything himself would

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typically bill at a lower hourly rate than one who does only the most difficult work. This avoids

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‘top-heavy’ billing.”).

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II.

THE COURT DID NOT RELY ON DISCREDITED OR VACATED OPINIONS

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Plaintiff argues that I improperly “resurrected a discredited 15 year old opinion,”

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MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d 1101 (N.D. Cal. 1999), where Judge Jenkins

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criticized the “wasteful use of highly skilled and highly priced talent for matters easily delegable

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to non-professionals or less experienced associates.” MacDougal, 58 F. Supp. 2d at 1105 (quoting

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Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir.1983)); Mot. at 16. MacDougal has not

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been overturned. While Judge Patel declined to follow it in an unrelated case, Blackwell v. Foley,

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724 F. Supp. 2d 1068, 1080 (N.D. Cal. 2010), Blackwell does not limit the persuasiveness of

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MacDougal. Nor does Blackwell fairly stand for the proposition that, in appropriate

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circumstances, a district court should not reduce hours unreasonably charged by highly

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experienced attorneys for routine matters. Indeed, after Blackwell, judges in the Northern District

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of California have repeatedly criticized Rein Law’s practice of billing for highly experienced

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attorneys to perform excessive routine and duplicative work. See, e.g., Cruz v. Starbucks Corp.,

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2013 WL 2447862, *9 (N.D. Cal. June 5, 2013); Delson v. CYCT Mgmt. Grp., Inc., 2013 WL
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1819265, *8 (N.D. Cal. Apr. 30, 2013).
Plaintiff contends that I erred in citing White v. Ming R. Shen, 09-cv-0989-BZ, 2011 WL

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31187 (N.D. Cal. Jan. 5, 2011) as precedent because that opinion was vacated by Judge

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Zimmerman as part of a settlement while the action was on appeal. Mot. at 16. Contrary to that

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contention, I did not cite White for any legal proposition. Nor did I rely on White in determining

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the reasonableness of the fees claimed by Rein Law in this case. Rather, I referred to White as one

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of several opinions critical of Rein Law’s billing practices. The ultimate vacatur of White, in

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accordance with the parties’ settlement agreement, did not lessen those criticisms. As noted in the

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fees order, in vacating White and a related order, Judge Zimmerman noted that:

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The public interest in the Orders remains the same as when I issued
them. Therefore, I want to make it clear that although vacatur seems
to be the appropriate course of action based on the weighing of the
equitable factors, I have not changed my mind regarding the
substance of the vacated Orders.

United States District Court
Northern District of California

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White, 2011 WL 2790475, at *1 (emphasis added); Order at 11 n.12.

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III.

THE COURT DID NOT FAIL TO CONSIDER CIVIL CODE § 55.55
California Civil Code Section 55.55 provides, in relevant part, that “in determining an

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award of reasonable attorney’s fees and recoverable costs with respect to any construction-related

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accessibility claim, the court may consider, along with other relevant information, written

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settlement offers made and rejected by the parties.” Plaintiff contends that I did not “consider[ ]

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Civil Code § 55.55 when evaluating the reasonableness of plaintiff’s negotiations.” Mot. at 18.

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But as plaintiff concedes, I discussed plaintiff’s various settlement offers in the fees order. Mot. at

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17-18. In fact, I expressly declined to reduce plaintiffs’ fees for unreasonably protracting the

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litigation because the defendants delayed in making a Rule 68 offer in response to the plaintiff’s

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settlement offer. Order at 26-27. Civil Code Section 55.55 does not warrant reconsideration of

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the Order.3

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In any event, by its language, Civil Code Section 55.55 is discretionary, not mandatory. Civil
Code Section 55.55 (“the court may consider, along with other relevant information, written
settlement offers made and rejected by the parties”) (emphasis added).
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IV.

THE COURT DID NOT ERR IN REDUCING THE PLAINTIFF’S CLAIMED
CONSULTANT FEES
Plaintiff argues that I erred in striking eight of ten hours claimed by his consultant for

travel. Mot. at 19. Plaintiff misreads the Order. The reduction was not based solely on the

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consultant’s travel costs. Rather, after noting that the consultant claimed 10 hours in travel time

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and that the claimed fees were more than double those requested by the same consultant in similar

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cases, I reduced the requested fees by $1,920 (eight hours), totaling approximately 16% of the

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$12,100 fees requested by the consultant. Order at 25-26.

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CONCLUSION

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The Order speaks for itself. Because plaintiff has not shown that I failed to consider

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material facts or dispositive legal arguments in the order on the motion for attorneys’ fees, and has

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United States District Court
Northern District of California

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not identified any basis for relief under Federal Rule of Civil Procedure 60, plaintiff’s motion for

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leave to seek reconsideration is DENIED.

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IT IS SO ORDERED.
Dated: June 11, 2014
______________________________________
WILLIAM H. ORRICK
United States District Judge

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