Linlor v. The National Rifle Association of America

Filing 22

ORDER Granting in Part and Denying in Part Defendant's 20 Request for Attorneys' Fees and Costs Pursuant to California Civil Code § 3344. Signed by Judge Michael M. Anello on 5/25/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
JAMES LINLOR, an individual,
v.
THE NATIONAL RIFLE
ASSOCIATION OF AMERICA,
Defendant.

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
REQUEST FOR ATTORNEYS’ FEES
AND COSTS PURSUANT TO
CALIFORNIA CIVIL CODE § 3344

Plaintiff,

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Case No.: 17cv203-MMA (JMA)

Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action
against Defendant the National Rifle Association of America (“NRA” or “Defendant”)
alleging Defendant violated California Civil Code Section 3344 by addressing and
mailing membership renewal notices and other marketing material to Plaintiff and his
minor child. See Doc. No. 1. On May 8, 2017, the Court dismissed Plaintiff’s First
Amended Complaint with prejudice. See Doc. No. 17. The Court deferred ruling on
Defendant’s request for attorneys’ fees and costs to give Plaintiff an opportunity to
respond. See id. On May 18, 20171, Plaintiff filed a response in opposition to

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The Court notes that Plaintiff filed his opposition to Defendant’s request for attorneys’ fees
and costs one day after the applicable May 17, 2017 deadline. See Doc. No. 17 at 15. However, in the
interests of justice, and in light of Plaintiff’s status as a pro se litigant, the Court deems Plaintiff’s
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17cv203-MMA (JMA)

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Defendant’s request for attorneys’ fees and costs. See Doc. No. 20. For the reasons set

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forth below, the Court GRANTS IN PART and DENIES IN PART Defendant’s request

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for attorneys’ fees and costs.

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DISCUSSION

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In diversity cases, as is the case here, “the availability of attorney’s fees is

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governed by state law.” Bonner v. Fuji Photo Film, 2008 WL 410260, at *2 (N.D. Cal.

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Feb. 12, 2008). California Civil Code Section 3344 provides that “[t]he prevailing party

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in any action under this section shall also be entitled to attorney’s fees and costs.” Cal.

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Civ. Code § 3344(a) (emphasis added). Thus, attorney’s fees and costs are mandatory

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under Section 3344. See Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 607, 618 (Cal. Ct. App.

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2006) (“The mandatory fee provision of section 3344, subdivision (a) leaves no room for

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ambiguity.”). Defendant requests $18,255.00 in attorneys’ fees and $545.61 in costs.

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See Doc. No. 9 at 2. Plaintiff opposes Defendant’s request for fees and costs asserting

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that Defendant “actively worked to increase [its] alleged costs,” and that as a result,

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“[Defendant] should bear the costs of [its] own decisions, which Plaintiff dutifully

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attempted to avoid and/or mitigate.” Doc. No. 20 at 3. Plaintiff requests the Court deny

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Defendant’s request for attorneys’ fees and costs “and to permit the parties to leave each

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other alone going forward.” Id.

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California courts utilize the lodestar method to calculate an award of attorneys’

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fees. Ketchum v. Moses, 17 P.3d 735, 742 (Cal. 2001). The Court calculates the lodestar

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by multiplying the number of hours reasonably expended by the reasonable hourly rate

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prevailing in the community for similar work. See id. at 741. The Court may then adjust

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the lodestar figure in light of a number of relevant factors specific to the case. See

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Serrano v. Priest, 569 P.2d 1303, 1316-17 (Cal. 1977).

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response as timely. See Minor v. FedEx Office & Print Servs., Inc., 205 F. Supp. 3d 1081, 1086 (N.D.
Cal. 2016) (declining to strike the pro se plaintiff’s opposition as untimely noting that the plaintiff is
“representing himself pro se, which entitles him to a certain degree of leniency[.]”).

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Defendant’s submissions are insufficient to support an award of attorneys’ fees.

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First, defense counsel does not support their request for attorneys’ fees with

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contemporaneous billing records. See J & J Sports Prods., Inc. v. Napuri, 2013 WL

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4428573, at *2 (N.D. Cal. Aug. 15, 2013) (“Absent the submission of detailed

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contemporaneous time records justifying the hours claimed to have been expended on

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this case, the Court gives little weight to the figures provided by Plaintiff.”); see also

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Zynga Game Network, Inc. v. Erkan, 2010 WL 3463630, at *2 (N.D. Cal. Aug. 31, 2010)

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(denying motion for attorney’s fees where the plaintiff failed to attach “actual billing

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records.”). Second, defense counsel does not demonstrate that the hourly rates requested

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are reasonable vis-à-vis the rates charged in “the forum in which the district court sits.”

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Gonzalez v. City of Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013). Defendant

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provides only the unsupported declarations of attorneys Mr. Michel and Mr. Dale in

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support of its request for fees. However, “the fee applicant bears the burden of

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establishing entitlement to an award and documenting the appropriate hours expended

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and hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Finally, Defendant

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does not submit any evidence of hourly rate determination in other similar cases in the

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Southern District of California setting the rate for the three attorneys seeking fees in this

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case. As such, Defendant has not met its burden and is therefore not entitled to an award

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of attorneys’ fees.

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With respect to costs, Defendant requests $545.61, consisting of service of process,

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legal research, postage and delivery, and filing fees, in addition to fees incurred for

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making copies of public records. See Doc. No. 9-2, Exh. A. “Under California law,

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where a statute such as § 3344 authorizes an award of costs but is silent as to which costs

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are to be awarded, the Court must look to Code of Civil Procedure § 1033.5, which sets

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forth those costs that may or may not be recovered in a civil action.” Bonner, 2008 WL

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410260, at *7. Section 1033.5 provides for recovery of certain costs, including filing

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fees, expenses associated with travel for depositions, service of process, and photocopies

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of exhibits that “were reasonably helpful to aid the trier of fact.” Cal. Code Civ. P.
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1033.5(a). Section 1033.5, however, precludes recovery of other expenses including

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postage, telephone, and photocopying charges for non-exhibits. Cal. Code Civ. P.

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1033.5(b). The Court declines to award Defendant costs for postage and copying fees, as

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both charges are for non-exhibits. Further, the Court declines to award Defendant costs

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for legal research, as legal research is not mentioned in § 1033.5. See Cal. Code Civ. P.

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1033.5(c)(4) (“Items not mentioned in this section and items assessed upon application

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may be allowed or denied in the court’s discretion.”). Accordingly, the Court will award

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Defendant costs in the amount of $493.90, representing Defendant’s service of process

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and filing costs.

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CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART

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Defendant’s request for attorneys’ fees and costs. The Court awards Defendant $493.90

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in costs.

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IT IS SO ORDERED.

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Dated: May 25, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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