Schutza v. Walter E. Fiedler Inc. et al

Filing 43

ORDER Granting Attorney's Fees, Costs, and Post-Judgment Interest re 33 Judgment. Court awards Plaintiff a total of $508.96 in post-judgment costs, fees, and interest. Signed by Judge Cynthia Bashant on 10/18/2019. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No. 18-cv-0257-BAS-LL

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SCOTT SCHUTZA,

ORDER GRANTING PLAINTIFF
ATTORNEYS’ FEES, COSTS,
AND POST-JUDGMENT
INTEREST

Plaintiff,

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v.
WALTER E. FIELDER, INC.;
AVIAN AND EXOTIC ANIMAL
HOSPITAL, Inc., et al.,
Defendants.

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On August 20, 2019, Plaintiff Scott Schutza requested the Court enter

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judgment pursuant to Federal Rule of Civil Procedure 68(a).

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Defendants had provided Plaintiff with an offer to allow judgment on specified terms,

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and Plaintiff accepted the offer. (ECF Nos. 32-1 and 32-2.) The Court entered

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judgment per the terms of Defendants’ offer, (ECF No. 32-1). (ECF No. 33.)

(ECF No. 32.)

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On October 3, 2019, Plaintiff filed an application for writ of execution,

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requesting an additional $721.00 in fees and costs. (ECF No. 35.) Defendants

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objected to the bills and costs, arguing that Defendants’ offer (which Plaintiff had
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accepted) provides that Plaintiff is not entitled to recover costs or attorney fees. (ECF

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No. 36.) Defendants asked the Court to disregard the memorandum of costs or delay

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ruling on it until defense counsel confirmed that the judgment had been satisfied in

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full. The Clerk then issued a writ of execution. (ECF No. 37.) Out of an abundance

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of caution and due to lack of clarity of what the parties were seeking, the Court

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vacated the writ of execution and asked the parties to provide more information.

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Defendants responded and now attest that judgement has been satisfied. A

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check of $5,600 has been delivered to Plaintiff’s counsel and Defendants have also

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satisfied all other conditions of the judgment. (ECF No. 41.) Defendants do not state

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when they sent the check. Plaintiff states that at the time he filed the writ of

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execution, payment had not been made despite Plaintiff’s counsel requesting it two

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times, and “was left with no choice but to seek enforcement of the judgment.”

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Plaintiff requests he be awarded the costs and fees he and his counsel incurred in

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receiving the now-paid judgment. (ECF No. 42.)

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It is clear to the Court that Defendants’ offer, which was accepted by Plaintiff,

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does not allow Plaintiff to receive additional attorney’s fees and costs incurred up to

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that point. (See ECF No. 32-1, at 2 (“Defendants will pay $5,600 to Plaintiff, an

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amount which includes all attorney’s fees and costs which Plaintiff might be entitled

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to recover under any of the causes of action pleaded in his complaint in this action.”).)

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However, Plaintiff is now seeking fees incurred post-judgment. The offer “resolve[d]

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all of Plaintiff’s claims in this action,” (id.) but could not resolve any future costs

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Plaintiff would incur seeking enforcement of the judgment. Therefore, the Court

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rejects Defendants’ argument that Plaintiff may not receive post-judgment fees and

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costs pursuant to the offer.

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I.

LEGAL STANDARD

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In an action involving state law claims, the Court applies the law of the forum

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state to determine whether a party is entitled to attorneys’ fees, unless that law

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conflicts with a valid federal statute or procedural rule. MRO Commc’ns, Inc. v. Am.
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Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999). California’s Enforcement of

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Judgments Law (“ELJ”), codified as California Code of Civil Procedure section

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680.010 et seq., is a comprehensive statutory scheme governing the enforcement of

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all civil judgments in California. Bisno v. Kahn, 225 Cal. App. 4th 1087 (2014). The

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EJL provides that a “judgment creditor is entitled to the reasonable and necessary

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costs of enforcing a judgment.” Cal. Civ. Proc. Code § 685.040.

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Pursuant to California Code of Civil Procedure sections 685.040 and

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1033.5(a)(10) and California Civil Code section 1717, a party may recover attorneys’

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fees incurred in enforcing a judgment when the judgment creditor was entitled to

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attorneys’ fees in the underlying action pursuant to Civil Code section 1717. Carnes

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v. Zamani, 488 F.3d 1057, 1060 (9th Cir. 2007).

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II.

ANALYSIS

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Attorneys’ Fees. Plaintiff’s complaint was brought under the Americans with

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Disabilities Act and California’s Unruh Act. Courts may award attorneys’ fees to a

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prevailing plaintiff under both Acts. See 42 U.S.C. § 12205; Cal. Civ. Code § 52(a).

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Therefore, because Plaintiff was entitled to attorneys’ fees in the underlying action,

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he may seek attorneys’ fees incurred in enforcing judgment.

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The judgment creditor may seek to recover attorneys’ fees incurred in

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enforcing a judgment by either filing a memorandum of costs or by serving a noticed

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motion. Under either section, the judgment creditor must request post-judgment

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attorneys’ fees before the underlying judgment is fully satisfied. Carnes, 488 F.3d

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at 1060; Cal. Civ. Proc. Code §§ 685.070(b); 685.080(a). Here, Plaintiff filed a

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memorandum of costs before Defendants filed a satisfaction of judgment. (See ECF

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Nos. 35-2, 41.)

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Normally, a defendant files a motion to tax costs after the plaintiff files a

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memorandum of costs. “However, there is no statute requiring the filing of a motion

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to tax costs. The filing of objections to a memorandum of costs may be deemed a

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motion to tax costs where the motion was timely, and each item in the objections
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corresponds to each successive line in the other party’s cost memorandum.” William

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Lindsley, California Jurisprudence 3d, 16 Cal. Jur. 3d Costs § 96 (2019). Here,

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because Defendants timely filed an objection which made clear they were objecting

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to the requested $675 in attorney’s fees, the Court will construe the objection as a

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motion to tax costs.

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Plaintiff’s counsel declares he spent 1.5 hours of post-judgment work on this

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matter including preparing the abstract, performing research, and preparing the filing.

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(ECF No. 35-3, ¶ 12.) Counsel declares his hourly rate is $450/hour. (Id. ¶ 13.)

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Therefore, Plaintiff requests $675 in fees. Defendants object, arguing counsel’s

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proposed hourly rate and the time spent on the post-judgment work is not reasonable.

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“District courts must calculate awards for attorneys’ fees using the ‘lodestar

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method,’ and the amount of that fee must be determined on the facts of each case.”

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Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). The reasonable

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hours expended in this litigation must be multiplied by a reasonable hourly rate to

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determine the lodestar amount. To determine the reasonableness of hourly rates

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claimed, the court looks to the “prevailing market rates in the relevant community,”

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Blum v. Stenson, 465 U.S. 886, 895 (1984), for “similar work performed by attorneys

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of comparable skill, experience, and reputation.” Chalmers v. City of Los Angeles,

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796 F.2d 1205, 1210–11 (9th Cir. 1986). The relevant community is generally the

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forum in which the district court sits. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.

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1997).

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Plaintiff’s counsel Mr. Dennis Price provides no explanation as to why his

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hourly rate is reasonable. The Court has no information regarding counsel’s skill or

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experience that would allow the Court to determine whether counsel’s hourly rate is

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commensurate with the rates charged by other attorneys of comparable skill and

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experience practicing in San Diego during the relevant time period. See Jordan v.

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Multnomah Cnty., 815 F.2d 1258, 1261–63 (9th Cir. 1987) (“The fee applicant has

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the burden of producing satisfactory evidence, in addition to the affidavits of its
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counsel, that the requested rates are in line with those prevailing in the community

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for similar services of lawyers of reasonably comparable skill and reputation.”).

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Counsel has frustratingly provided no details and has thus forced the Court to conduct

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its own research to resolve this issue.

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Recently, the Northern District of California found than an hourly rate of $300

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to be appropriate for Mr. Price. See Johnson v. AutoZone, Inc., No. 17-cv-2941-PJH,

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2019 WL 2288111, at *7 (N.D. Cal. May 29, 2019). Further, Mr. Price recently filed

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a declaration in the Central District of California, wherein he stated his hourly rate

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was $350. See Love v. MJV Real Estate, LLC, EDCV 18-975 JGB (SPx), 2019 WL

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3243733, at *6 n.3 (C.D. Cal. April 10, 2019). Counsel’s attempt to receive fees at

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a higher rate here without providing any support for this request is not appreciated.

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The Court is also familiar with hourly rates in this district. After considering this

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information, and given counsel’s own conflicting declarations filed in various cases,

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the Court finds the rate of $300/hour is appropriate for Mr. Price. The Court awards

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a total of $450 in attorney’s fees for the 1.5 hours spent on post-judgment matters.

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Costs. Plaintiff requests $46.00 in costs for “preparing and issuing abstract of

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judgment.” Defendants do not object to these costs. See Chamberlin v. Charat, No.

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13-cv-32-WVG, 2017 WL 3783773, at *3 (S.D. Cal. Aug. 31, 2017 (awarding costs

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for preparing, issuing, and recording an abstract of judgment).) The Court awards

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$46.00 in costs.

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Interest. Interest accrues at the rate of ten percent per annum on the principal

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amount of a money judgment remaining unsatisfied. Cal. Code Civ. Proc. § 685.010.

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Interest begins accruing on the date of entry of the judgment. Cal. Code Civ. Proc. §

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685.020(a). Plaintiff has calculated a rate of $0.27 cents per day, and although it is

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not entirely clear how Plaintiff reached this number, Defendants do not object to

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Plaintiff’s calculation. Judgment was entered on August 21, 2019 and was satisfied

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on October 8, 2019. (ECF No. 41.) Therefore, the Court awards $12.96 in interest

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for the 48 days.
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III.

CONCLUSION
In sum, the Court awards Plaintiff a total of $508.96 in post-judgment costs,

fees, and interest.
IT IS SO ORDERED.

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DATED: October 18, 2019

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