Smith v. Aetna Life Insurance Company et al

Filing 39

ORDER Granting in Part and Denying in Part 30 Plaintiff's Motion for Attorneys' Fees, Interest and Costs; (2) Overruling Defendant's Evidentiary Objections; (3) Granting in Part and Denying in Part Plaintiff's Requests for Judicial Notice; and (4) Granting Defendant's Request for Judicial Notice. Signed by Judge Janis L. Sammartino on 10/14/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ONA SMITH,

Case No.: 18-cv-1463 JLS (WVG)
Plaintiff,

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ORDER (1) GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES, INTEREST
AND COSTS; (2) OVERRULING
DEFENDANT’S EVIDENTIARY
OBJECTIONS; (3) GRANTING IN
PART AND DENYING IN PART
PLAINTIFF’S REQUESTS FOR
JUDICIAL NOTICE; AND (4)
GRANTING DEFENDANT’S
REQUEST FOR JUDICIAL NOTICE

v.
AETNA LIFE INSURANCE
COMPANY, et al.,

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Defendants.

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(ECF No. 30)

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Presently before the Court is Plaintiff Ona Smith’s (“Plaintiff”) Motion for

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Attorneys’ Fees, Interest and Costs (“Mot.,” ECF No. 30), as well as Defendant Aetna Life

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Insurance Company’s (“Defendant”) Opposition thereto (“Opp’n,” ECF No. 33) and

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Plaintiff’s Reply in support thereof (“Reply,” ECF No. 38). Also before the Court are

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Defendant’s Evidentiary Objections to the Declarations of Nicolas West (“West Evid.
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Objs.,” ECF No. 34) and Robert J. McKennon (“McKennon Evid. Objs.,” ECF No. 35)

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and Plaintiff’s Response thereto (“Resp. to Evid. Objs.,” ECF No. 38-1); Defendant’s

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Request for Judicial Notice (“Def.’s RJN,” ECF No. 36); and Plaintiff’s Requests for

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Judicial Notice (“Pl.’s RJNs,” ECF Nos. 30-20, & 38-6). The Court vacated the hearing

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on Plaintiff’s Motion and took it under submission without oral argument pursuant to Civil

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Local Rule 7.1(d)(1). See ECF No. 37.

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Having carefully considered the underlying record, the Parties’ arguments, and the

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relevant law, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion,

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awarding $182,869.82 in fees ($178,562.25) and costs ($4,307.57) and denying pre-

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judgment interest. The Court further OVERRULES Defendant’s Evidentiary Objections,

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GRANTS IN PART AND DENIES IN PART Plaintiff’s Requests for Judicial Notice,

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and GRANTS Defendant’s Request for Judicial Notice.

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BACKGROUND

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On June 26, 2018, Plaintiff filed a Complaint pursuant to the Employee Retirement

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Income Security Act of 1974 (“ERISA”), 29 U.S.C. Section 1002 et seq., alleging that

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Defendant improperly terminated her disability benefits. See generally ECF No. 1. On

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January 7, 2019, the Parties appeared for an Early Neutral Evaluation and Case

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Management Conference before Magistrate Judge Gallo. See ECF No. 20. “At that time,

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the underlying claims had been resolved and all that remained was a dispute regarding

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attorney’s fees.” ECF No. 24 at 1–2.

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On January 28, 2019, Defendant filed a motion to compel production of Plaintiff’s

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fee agreement with her counsel. ECF No. 22. Plaintiff opposed. ECF No. 23. On March

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25, 2019, Magistrate Judge Gallo issued an order denying Defendant’s motion. ECF No.

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24. Magistrate Judge Gallo found that controlling Ninth Circuit law prohibits a court from

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relying on a contingency fee agreement to increase or decrease the reasonable fees to be

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awarded on a motion for attorneys’ fees. Id. at 3–4 (citing Van Gerwen v. Guarantee Mut.

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Life Co., 214 F.3d 1041, 1048 (9th Cir. 2000)).

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On April 8, 2019, Defendant filed objections to Magistrate Judge Gallo’s order

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denying its motion to compel. ECF No. 25. Following a full briefing of Defendant’s

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objections, this Court issued an order finding Magistrate Judge Gallo’s order neither clearly

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erroneous nor contrary to the law and overruling Defendant’s objections. ECF No. 29.

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On September 9, 2019, Plaintiff filed the instant Motion. ECF No. 30.

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LEGAL STANDARD

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“In any [ERISA] action . . . by a participant, . . . the court in its discretion may allow

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a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1).

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“This fee award, however, applies solely to fees incurred in the judicial proceeding; fees

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incurred during ‘the administrative phase of the claims process’ are not recoverable under

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§ 1132(g).” Castillo v. Metro. Life Ins. Co., 970 F.3d 1224, 1228 (9th Cir. 2020) (citations

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omitted).

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“[A] fees claimant must show ‘some degree of success on the merits’ before a court

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may award attorney’s fees under § 1132(g)(1).” Hardt v. Reliance Standard Life Ins. Co.,

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560 U.S. 242, 255 (2010) (citation omitted). If the party seeking a recovery of fees in an

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ERISA case has shown “some degree of success on the merits,” the court considers five

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factors in deciding whether a fee award is appropriate:

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(1) the degree of the opposing parties' culpability or bad faith; (2)
the ability of the opposing parties to satisfy an award of fees; (3)
whether an award of fees would deter others from acting under
similar circumstances; (4) whether the parties requesting fees
sought to benefit all plan participants or resolve a significant
legal question; and (5) the relative merits of the parties' positions.

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McElwaine v. US West, Inc., 176 F.3d 1167, 1172 (9th Cir. 1999). These factors are often

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called the “Hummell factors,” as they were first articulated in Hummell v. S. E. Rykoff &

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Co., 634 F.2d 446 (9th Cir. 1980). In applying the Hummell factors, the court “must keep

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at the forefront ERISA's remedial purposes that ‘should be liberally construed in favor of

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protecting participants in employee benefit plans.’” McElwaine, 176 F.3d at 1172 (citing

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Smith v. CMTA–IAM Pension Trust, 746 F.2d 587, 589 (9th Cir. 1983)).
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If the court determines that it is appropriate to award fees, the court calculates a

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reasonable fee award using a two-step process. See Fischer v. SJB-P.D. Inc., 214 F.3d

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1115, 1119 (9th Cir. 2000). “First, the court must calculate the ‘lodestar figure’ by taking

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the number of hours reasonably expended on the litigation and multiplying it by a

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reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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“Second, the court must decide whether to enhance or reduce the lodestar figure based on

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an evaluation of the Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975),

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abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992), factors

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that are not already subsumed in the initial lodestar calculation.” Fischer, 214 F.3d at 1119

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(citing Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000);

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Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996)).

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ANALYSIS
I.

Attorneys’ Fees

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Plaintiff requests attorneys’ fees in the amount of $225,630, reflecting 405 hours of

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work completed through the preparation of the fee motion for a total of $203,730, plus an

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additional $21,900 for 47.60 hours of work completed since the filing of the Motion. Decl.

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of Robert J. McKennon in Support of Pl. Ona Smith’s Mot. for Attorneys’ Fees, Interest

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and Costs (“McKennon Decl.,” ECF No. 30-5) ¶ 31; Supp. Decl. of Robert J. McKennon

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in Support of Pl. Ona Smith’s Mot. for Attorneys’ Fees, Interest and Costs (“Supp.

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McKennon Decl.,” ECF No. 38-2) ¶ 7. 1

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As an initial matter, Defendants contend that Plaintiff is not entitled to fees at all.

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Opp’n at 6. However, to the extent the Court is inclined to award fees, Defendant counters

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that Plaintiff’s counsels’ hourly rates are unreasonable and the hours unreasonably

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expended. Id. at 9. Defendant argues that both the hourly rates and hours worked should

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be reduced drastically, resulting in a total fee award of $45,250. Id. at 25.

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Originally, Plaintiff had estimated that the fees for preparing her Reply would total $9,000, see Suppl.
McKennon Decl. ¶ 6, but Plaintiff provided an itemized list of actual hours worked as an exhibit thereto.
See id. Ex. 16.
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“Some Degree of Success on the Merits”

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A.

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In order for Plaintiff to be entitled to fees, she must first establish that she has

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achieved “some degree of success on the merits.” See Hardt, 560 U.S. at 255. Plaintiff

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argues that “[t]he fact that Aetna reinstated Smith’s disability benefits because she filed

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suit and it did not want to face the trial that would occur unequivocally qualifies as ‘some

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degree of success on the merits’ under the Supreme Court’s low threshold in Hardt.” Mot.

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at 10. Defendant, on the other hand, argues that because it voluntarily reinstated Plaintiff’s

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benefits, and therefore “Plaintiff did not even get any kind of determination on her claim

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from the Court,” Plaintiff did not achieve “success on the merits.” Opp’n at 6.

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In essence, Plaintiff is asserting a “catalyst theory of success,” i.e., “that, for

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purposes of determining an award of attorneys’ fees, a plaintiff prevails if he achieves the

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desired outcome of litigation even if it results from a voluntary change in the defendant’s

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conduct.” Dmuchowsky v. Sky Chefs, Inc., No. 18CV01559HSGDMR, 2019 WL 1934480,

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at *3 (N.D. Cal. May 1, 2019), amended, 2019 WL 2612715 (June 26, 2019), report and

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recommendation adopted, 2019 WL 3037599 (July 11, 2019). Although the case law

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assessing whether a catalyst theory of success is viable in ERISA actions is somewhat

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mixed—compare, e.g., Barnes v. AT & T Pension Benefit Plan-Nonbargained Program,

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963 F. Supp. 2d 950, 963–66 (N.D. Cal. 2013) (applying catalyst theory in awarding fees

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in ERISA action), Harrison v. Metro. Life Ins. Co., No. 13-CV-05585-VC, 2016 WL

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4414851, at *1 (N.D. Cal. June 21, 2016) (same), and Dmuchowsky, 2019 WL 1934480,

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at *2–6 (same), with Culbertson-Chavira v. Life Ins. Co. of N. Am., No. 2:17-CV-01702-

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JAM-AC, 2018 WL 3532907, at *1–4 (E.D. Cal. July 23, 2018) (refusing to award ERISA

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fees where Court had not issued any rulings on the merits)—the Court finds the reasoning

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of cases adopting the catalyst theory to be more persuasive and in-line with the spirit of

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ERISA.

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Ultimately, Plaintiff obtained the very relief she sought in her Complaint, not merely

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“trivial success on the merits or a purely procedural victory.” Hardt, 560 U.S. at 255

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(internal citations and alterations omitted) (quoting Ruckelshaus v. Sierra Club, 463 U.S.
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680, 688 n.9 (1983)). And it seems likely that Plaintiff’s lawsuit was at least one factor

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that caused Defendant to reverse its denial of Plaintiff’s benefits. Accordingly, the Court

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finds Plaintiff has shown “some success on the merits.”

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B.

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Because the Court finds that Plaintiff has shown “some success on the merits,” the

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Court now analyzes the five Hummell factors to determine whether, in its discretion, it

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should award Plaintiff’s fees.

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The Hummell Factors

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Factor 1: Defendant’s Culpability/Bad Faith

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The first factor is Defendant’s degree of “culpability or bad faith.” McElwaine, 176

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F.3d at 1172. Plaintiff argues that this factor weighs in favor of fees because Defendant

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“‘cherry-picked’ opinions from among its multiple experts . . . in order to dictate a ‘not

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disabled’ result; this constitutes culpable and bad-faith conduct.” Mot. at 13. Furthermore,

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Plaintiff argues that the fact that Defendant “denied Smith’s benefits incorrectly, as

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evidenced by the fact that it has now reinstated them,” evidences Defendant’s culpability.

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Id. Defendant, on the other hand, argues that this factor weighs against granting fees,

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because its initial denial of Plaintiff’s benefits was made in good faith based on the

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information it had at the time. Opp’n at 7.

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Having considered the Parties’ arguments and the limited evidence before it, the

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Court believes this factor weighs slightly against a fee award. There is no evidence that

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Defendant denied Plaintiff’s benefits in bad faith. Moreover, while Defendant may have

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reversed its decision because it determined its denial of benefits to Plaintiff was wrongful,

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Defendant may have simply desired to avoid the cost of prolonged litigation. Accordingly,

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the Court does not view Defendant’s mere reversal of its initial position, made voluntarily

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before the Court issued any rulings on the merits concerning the wrongfulness of

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Defendant’s behavior, to be definitive evidence of Defendant’s culpability. See Mogck v.

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Unum Life Ins. Co. of Am., 289 F. Supp. 2d 1181, 1188 (S.D. Cal. 2003) (finding first

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Hummell factor weighed against fee award where parties never litigated the merits of

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plaintiff’s claim).
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2.

Factor 2: Defendant’s Ability to Satisfy a Fee Award

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The second factor is the degree to which Defendant would be able to pay an award

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of fees. McElwaine, 176 F.3d at 1172. Plaintiff asserts that “there is no reason to believe

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that Aetna cannot satisfy an award of attorneys’ fees in this case because it is a huge

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insurance company,” and that the Ninth Circuit has stated that “a court should accord great

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weight” to this factor. Mot. at 13 (citing Smith v. CMTA-IAM Pension Tr., 746 F.2d 587,

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590 (9th Cir. 1984)). Defendant does not contest that it is capable of paying an award of

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fees, but does argue that this factor “is not decisive,” particularly where “other factors . . .

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demonstrate such recovery would be inappropriate.” Opp’n at 7.

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While the Court agrees that “no one of the Hummell factors . . . is necessarily

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decisive,” Carpenters S. Cal. Admin. Corp. v. Russell, 726 F.2d 1410, 1416 (9th Cir. 1984)

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(citation omitted), the Court finds that this factor weighs heavily in favor of a fee award.

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The Ninth Circuit has stated: “Based on this factor alone, absent special circumstances, a

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prevailing ERISA employee plaintiff should ordinarily receive attorney’s fees from the

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defendant.” Smith, 746 F.2d at 590. Defendant does not claim to be incapable of paying

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an award of fees and has raised no persuasive special circumstances here justifying a denial

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of Plaintiff’s fee request.

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3.

Factor 3: Deterrence of Others

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The third factor is whether an award of fees would deter similar misconduct by

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others. McElwaine, 176 F.3d at 1172. Plaintiff argues that awarding her full fees “would

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tend to deter Aetna, and other ERISA administrators, from similar poor conduct, such as

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improperly terminating disability benefits and then forcing the insured to pursue extensive

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litigation in order to secure the benefits.” Mot. at 13–14. Defendant, on the other hand,

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argues that fees are not justified to deter future bad conduct, because there was substantial

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evidence to support its denial of Plaintiff’s benefits in this case. Opp’n at 7.

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As with the first factor, without the Court having made any legal conclusions on the

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merits that Defendant’s initial denial of Plaintiff’s benefits was wrongful, the Court is

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hesitant affirmatively to find that Defendant’s initial denial constitutes misconduct that
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requires deterrence in the future. Accordingly, the Court concludes this factor is neutral.

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See Mogck, 289 F. Supp. 2d at 1189.

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4.

Factor 4: Whether Plaintiff Sought to Benefit Others

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The fourth Hummell factor is “whether the parties requesting fees sought to benefit

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all plan participants or resolve a significant legal question.” McElwaine, 176 F.3d at 1172.

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Plaintiff claims this factor supports her fee request, as “the result in this case will serve the

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purpose of benefitting all the participants of Pricesmart’s employee benefit plan, as well as

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beneficiaries of other ERISA plans administered by Aetna,” because “Aetna will

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presumably be more thorough in examining the claims before it.” Mot. at 14. Defendant,

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on the other hand, claims this factor is inapplicable, as Plaintiff did not seek benefits for

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anyone other than herself in her lawsuit. Opp’n at 7.

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The Court agrees with Defendant that this factor is neutral. Plaintiff only sought to

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challenge Defendant’s adjudication of her own claim for benefits. Accordingly, this factor

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weighs neither in favor of nor against awarding fees. See, e.g., Fleming v. Kemper Nat.

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Servs., Inc., 373 F. Supp. 2d 1000, 1006 (N.D. Cal. 2005) (finding factor not to support fee

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award where “plaintiff sought only to obtain benefits for herself”).

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5.

Factor 5: Relative Merits of the Parties’ Positions

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The fifth and final factor is the relative merits of the Parties’ positions. McElwaine,

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176 F.3d at 1172. Plaintiff claims this factor also supports an award of fees because

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Defendant voluntarily decided to award Plaintiff the relief she sought, demonstrating the

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merit of Plaintiff’s position. Mot. at 14. Defendant counters that its decision to deny

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benefits based on the information it had before it at the time had substantial merit. Opp’n

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at 8.

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The Court finds this factor supports an award of fees. The Ninth Circuit has stated

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that the fifth factor “is, in the final analysis, the result obtained by the plaintiff.” Smith v.

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CMTA-IAM Pension Tr., 746 F.2d 587, 590 (9th Cir. 1984). While it may be that

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Defendant’s denial of Plaintiff’s claim was supported by the evidence available to

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Defendant at the time, ultimately, Defendant voluntarily reversed its decision, suggesting

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that Defendant viewed the merits of Plaintiff’s position to be stronger than its own.

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Balancing

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“The Hummell factors ‘reflect a balancing’ and not all factors need to weigh in favor

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of a fee award.” Mogck, 289 F. Supp. 2d at 1188 (citing McElwaine, 176 F.3d at 1173).

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After balancing the Hummell factors and bearing in mind that the Ninth Circuit “ha[s]

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stressed that our application of the Hummell factors must recognize the remedial purpose

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of ERISA in favor of participants and beneficiaries,” Honolulu Joint Apprenticeship &

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Training Comm. of United Ass’n Local Union No. 675 v. Foster, 332 F.3d 1234, 1239 (9th

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Cir. 2003), the Court finds it appropriate to exercise its discretion to award fees to Plaintiff

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in this case.

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C.

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Having determined that it is appropriate to award fees, the Court must now calculate

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the “lodestar figure” and assess whether to enhance or reduce it based on the circumstances

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of this case.

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Fee Calculation

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Reasonableness of Hourly Rates

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“[T]he burden is on the fee applicant to produce satisfactory evidence—in addition

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to the attorney’s own affidavits—that the requested rates are in line with those prevailing

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in the community for similar services by lawyers of reasonably comparable skill,

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experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.

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2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).

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community is the forum in which the district court sits.” Id. (citing Barjon v. Dalton, 132

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F.2d 496, 500 (9th Cir. 1997)). “[A]ffidavits of the plaintiffs’ attorney[s] and other

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attorneys regarding prevailing fees in the community, and rate determinations in other

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cases . . . are satisfactory evidence of the prevailing market rate.” Id. at 980 (second and

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third alterations in original) (quoting United Steelworkers of Am. v. Phelps Dodge Corp.,

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896 F.2d 403, 407 (9th Cir. 1990)). The Court may also consider cases setting reasonable

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rates during the time period in which the fees in the present action were incurred, see

“[T]he relevant

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Camacho, 523 F.3d 973, 981 (9th Cir. 2008) (citing Bell v. Clackamas Cty., 341 F.3d 858,

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869 (9th Cir. 2003)), which—in this case—is between 2017 and 2019. See generally

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McKennon Decl. Ex. 6; see also Bell, 341 F.3d at 869 (holding that district court abused

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its discretion in applying “market rates in effect more than two years before the work was

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performed”) (emphasis in original). “Once the fee applicant has proffered such evidence,

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the opposing party must produce its own affidavits or other evidence to rebut the proposed

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rate.” Cortes v. Metro Life Ins. Co., 380 F. Supp. 2d 1125, 1129 (C.D. Cal. 2005) (citing

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United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)).

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Plaintiff seeks hourly rates of (1) $700 per hour for Mr. Robert J. McKennon for his

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time before September 1, 2018, and $750 per hour thereafter; (2) $375 per hour for Mr.

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Nicolas A. West; and (3) $400 per hour for Mr. David S. Rankin for his time before May

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24, 2018, and $450 per hour thereafter. Mot. at 21. Plaintiff argues that these rates are in

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line with the prevailing market rates for attorneys of similar experience and reflect the risk

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assumed and experience of her counsel. Id. (citing McKennon Decl. ¶¶ 12, 30).

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It appears undisputed that Mr. McKennon is highly experienced in ERISA cases,

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having handled hundreds of ERISA cases in his more than 33 years as a practicing lawyer,

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and that he has received a fair amount of recognition for his work. Mot. at 22, McKennon

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Decl. ¶¶ 1–10. Plaintiff points to Reddick v. Metropolitan Life Insurance Company, Case

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No. 3:15-cv-02326-L-WVG, 2018 WL 637938 (S.D. Cal. Jan. 31, 2018), in which Judge

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Lorenz approved hourly rates of $700 for Mr. McKennon, as proof of the reasonableness

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of Mr. McKennon’s hourly rates. Mot. at 23–24; McKennon Decl. ¶ 21.

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Plaintiff also cites to numerous other cases in which courts have approved similar

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rates as reasonable, although these all appear to be cases in the Northern and Central

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Districts of California. See Mot. at 24–28; McKennon Decl. ¶¶ 14–20. However, “the

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relevant community is the Southern District of California because it is ‘the forum in which

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the district court sits.’” Joe Hand Promotions, Inc. v. Maldonado, 2010 WL 3504858, at

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*1 (S.D. Cal. Sept. 3, 2010) (Sammartino, J.) (quoting Camacho, 523 F.3d at 979).

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Accordingly, the Court accords minimal weight to these authorities from outside the

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Southern District of California.2

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Further, Plaintiff supports her fee request by claiming that Aetna and other insurance

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companies have agreed to pay her counsels’ hourly rates pursuant to a number of settlement

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agreements entered into to resolve ERISA cases, all filed in the Central District of

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California.

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McKennon’s] interpretation of settlement agreements not provided is not the best evidence

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of those written contracts,” and that Defendant would be unable to respond to Defendant’s

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statements without breaching confidentiality.

Mot. at 25; McKennon Decl. ¶¶ 22–29.

Defendant argues that “[Mr.

Opp’n at 13.

The Court agrees that

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Plaintiff’s statements about fees purportedly paid as part of the settlement of litigation is

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evidence of limited probative value. Much as, in patent cases, settlement agreements are

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generally viewed as having limited value in determining the reasonable royalty for a patent,

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given that other considerations, such as the desire to avoid further litigation, likely factor

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into the settlement sum—see, e.g., LaserDynamics, Inc. v. Quanta Comp., Inc., 694 F.3d

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51, 77–78 (Fed. Cir. 2012)—the Court finds that, even accepting that the insurers paid the

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McKennon firm’s rates without objection as part of settlement agreements, that fact is not

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proof that those rates are the reasonable rates clients would necessarily pay for counsel’s

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services, as other factors, like the desire to conclude the litigation, may have pushed those

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rates either upward or downward. Thus, the Court accords limited weight to the rates

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purportedly paid to Plaintiff’s counsel pursuant to settlement.

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While Plaintiff argues for a “‘national’ rate for ERISA practitioners,” citing an unpublished case from
the Northern District of Iowa, McKennon Decl. ¶ 14, n.2 (citing Torgeson v. Unum Life Ins. Co., No. C053052-MWB, 2007 WL 433540, at *6 (N.D. Iowa Feb. 5, 2007)), the Court is not convinced. Although
the Court recognizes that Mr. McKennon’s practice may span cases in different jurisdictions, the fact is
that many practitioners in a variety of practice areas represent clients in actions outside of the jurisdiction
in which they are physically located. Nonetheless, in the Ninth Circuit, the jurisdiction in which the action
is brought is the standard by which reasonable rates are assessed, unless an exception to the general rule
applies. Camacho, 523 F.3d at 979. This Court is not convinced, based on the evidence before it, that
this case represents an exception to the general rule, and accordingly sees no principled reason to treat
ERISA attorneys differently.
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Finally, Plaintiff relies on the declarations of Mr. McKennon, Mr. West, and several

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other attorneys to support the requested rates. See generally McKennon Decl., West Decl.,3

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Decl. of Scott E. Calvert in Support of Mot. for Attorneys’ Fees, Interest and Costs

4

(“Calvert Decl.,” ECF No. 30-19), Decl. of Glenn R. Kantor in Support of Pl.’s Mot. for

5

Attorneys’ Fees and Costs (“Kantor Decl.,” ECF No. 30-21).4

6

acknowledges that the declarations of Plaintiff’s counsel and of other ERISA practitioners

7

may be “self-serving and self-perpetuating,” Opp’n at 14, the Court notes that its decision

8

in Kochenderfer v. Reliance Standard Life Insurance Company, No. 06-CV-620

9

JLS(NLS), 2010 WL 1912867 (S.D. Cal. Apr. 21, 2010), cited by Defendant, see Opp’n at

10

14, is distinguishable, as it was issued during the height of an economic recession and

11

major disruption of the legal market. In general, the Court is inclined to find that “judicial

12

standards—such as those embodied in Rule 11(b) of the Federal Rules of Civil Procedure—

13

should mitigate the risks that attorneys will submit affidavits that attest to artificially high

14

rates,” particularly given that the Ninth Circuit has approved the use of such affidavits as

15

satisfactory evidence to support a fee motion. Kroll v. Kaiser Found. Health Plan Long

16

Term Disability Plan, No. C 09-01404 LB, 2011 WL 13240371, at *7 (N.D. Cal. Aug. 25,

17

2011), report and recommendation adopted, No. C 09-01404 JSW, 2011 WL 13244861

18

(N.D. Cal. Oct. 26, 2011) (citing Phelps Dodge Corp., 896 F.2d at 407).

Although the Court

19
20

3

22

The Court notes that Defendant submitted Evidentiary Objections to both the declarations of Mr. West
(ECF No. 34) and Mr. McKennon (ECF No. 35). The Court has placed appropriate weight on the
statements to which Defendant objects, as reflected throughout this Opinion. Accordingly, the Court
OVERRULES Defendant’s Evidentiary Objections.

23

4

21

24
25
26
27
28

Plaintiff requests that the Court take judicial notice of the Kantor Declaration. See Pl.’s RJN (ECF No.
30-20) at 2. “While . . . filings and orders in other court proceedings[] are judicially noticeable for certain
purposes, such as to demonstrate the existence of other court proceedings, they are not judicially
noticeable for [Plaintiff’s] purpose, which is to demonstrate that his arguments and allegations against
Defendant[] are true.” Missud v. Nevada, 861 F. Supp. 2d 1044, 1054 (N.D. Cal. 2012), aff’d, 520 F.
App’x 534 (9th Cir. 2013) (citing Fed. R. Evid. 201). Thus, while the Court GRANTS Plaintiff’s Request
for Judicial Notice, the Court only takes notice of the facts that the Kantor Declaration was filed in Reddick
v. Metropolitan Life Insurance Company, Case No. 3:15-cv-02326-L-WVG, on June 22, 2017, and that it
contains certain statements about attorneys’ fees. The Court declines to judicially notice the veracity of
the statements contained within the Kantor Declaration, which Defendant contests.
12
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1

Weighing all of the evidence submitted by Plaintiff, the Court finds that the $700

2

per hour fee for Mr. McKennon is reasonable in light of Mr. McKennon’s undisputed

3

experience, the Court’s own knowledge of the rates in this District, the supporting

4

declarations, and Judge Lorenz’s decision in Reddick, supra. However, the Court is not

5

inclined to grant the $50 per hour increase requested for all work completed by Mr.

6

McKennon on or after September 1, 2018. The Court is perplexed by the fact that a rate

7

increase is requested for Mr. Rankin as of May 24, 2018, and for Mr. McKennon as of

8

September 1, 2018. The Court does not believe Plaintiff has carried her burden of

9

establishing that such seemingly arbitrary fee increases would have been paid by clients in

10

the relevant community during the relevant timeframe.5

11

The Court finds the supporting evidence for the requested rates for Messrs. West and

12

Reddick to be less compelling, but ultimately, weighing all of the evidence, the Court finds

13

$400 per hour for Mr. Rankin and $375 per hour for Mr. West to be at the upper limit of

14

what a client would have paid during the relevant time in the Southern District of

15

California, and therefore reasonable. During the relevant time frame, the only ERISA case

16

in this District addressing the reasonableness of associates’ hourly rates is Reddick, supra,

17

in which Judge Lorenz approved a rate of $290 per hour, which was not contested. 2018

18

WL 637938, at *4. However, based on the supporting declarations and the Court’s own

19

knowledge of rates in this District, rates of $375 to $400 per hour do not appear to be

20

unreasonable for associates with between two and ten years of legal experience during the

21

relevant period. Again, however, the Court finds that Plaintiff has failed to offer sufficient

22
23
24
25
26
27
28

Plaintiff argues that “Hartford, which is really Aetna via its 2017 acquisition of Aetna, conceded Mr.
McKennon’s hourly rate of $750 in Ibarra [v. Hartford Life & Acc. Ins. Co., Case No. 8:19-cv-00333DOC],” Reply at 4, and asks the Court to judicially notice Defendant Hartford Life and Accident Insurance
Company’s Opposition to Plaintiff’s Motion for Attorneys’ Fees and Costs in that matter. See generally
Pl.’s RJN (ECF No. 38-6). The Court DENIES Plaintiff’s Request for Judicial Notice as the Court is not
convinced that Hartford’s (assuming Aetna and Hartford really are the same entity—which Plaintiff does
not establish) supposed non-opposition to Mr. McKennon’s fees is “a fact that is not subject to reasonable
dispute,” Fed. R. Evid. 201(b), where Hartford strenuously objected to the fee request and decried
“McKennon’s self-proclaimed ERISA expertise, which he argues commands premium hourly rates of up
to $750.” See ECF No. 38-7 at 2.
5

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1

evidence to justify the requested increase of $50 per hour for Mr. Rankin’s time as of the

2

seemingly arbitrary date of May 24, 2018.

3

Accordingly, the Court finds, in its discretion and based on the evidence offered by

4

both Plaintiff and Defendant, that hourly rates of $700 for Mr. McKennon, $400 for Mr.

5

Rankin, and $375 for Mr. West are reasonable for purposes of this Motion.6

6

2.

Reasonableness of the Hours Expended

7

“The party seeking an award of fees should submit evidence supporting the hours

8

worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . hours that

9

were not ‘reasonably expended’” and “hours that are excessive, redundant, or otherwise

10

unnecessary.” Id. “[T]he [opposing party] bears the burden of providing specific evidence

11

to challenge the accuracy and reasonableness of the hours charged.” McGrath, 67 F.3d at

12

255 (citing Blum, 465 U.S. at 892 n.5; Gates v. Gomez, 60 F.3d 525, 534–35 (9th Cir.

13

1995)). “Overlitigation deemed excessive does not count towards the reasonable time

14

component of a lodestar calculation,” Puccio v. Love, No. 16-CV-02890 W (BGS), 2020

15

WL 434481, at *6 (S.D. Cal. Jan. 28, 2020) (citing Tomovich v. Wolpoff & Abramson, LLP,

16

No. 08cv1428-JM (BLM), 2009 WL 2447710, at *4–5 (S.D. Cal. Aug. 7, 2009)), although

17

the Ninth Circuit has also instructed that, “[b]y and large, the court should defer to the

18

winning lawyer’s professional judgment as to how much time he was required to spend on

19

the case; after all, he won, and might not have, had he been more of a slacker.” Moreno v.

20

City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

21
22

Plaintiff claims that the hours worked were reasonable given the work necessary to
litigate the case, including:
investigat[ing] the facts; review[ing] Aetna’s large, 2,300-page
administrative record multiple times at different stages of the

23
24
25
26
27
28

Defendant argues that Plaintiff’s contingency fee arrangement with her counsel, evidenced by a time
entry referencing a “35% offset,” “inflates” counsels’ requested rates. Opp’n at 12–13 (citing McKennon
Decl. Ex. 6 at 9). However, given the prior orders by both Magistrate Judge Gallo (ECF No. 24) and this
Court (ECF No. 29) finding consideration of the contingency fee agreement improper in this case and
denying discovery of the same, the Court declines to consider this time entry (which, at any rate, is not
clear on its face) in determining whether counsels’ requested rates are “inflated.”
6

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11

litigation; obtain[ing] and evaluat[ing] Smith’s client documents;
perform[ing] legal and Web research; prepar[ing] a detailed 60page Complaint early in the litigation that allowed counsel to
draft the mediation briefs more efficiently and put Aetna on
notice that Smith had a strong case; attend[ing] the Scheduling
Conference; prepar[ing] a mediation brief and attend[ing] a
mediation in San Diego; prepar[ing] an ENE conference
statement and attend[ing] an ENE conference in San Diego;
valu[ing] damages (multiple times); prepar[ing] a detailed
settlement demand; engag[ing] in protracted settlement
negotiations; prepar[ing] multiple oppositions to Aetna’s
attempts to obtain a copy of Smith’s fee agreement; successfully
challeng[ing] Aetna’s improper attempts to offset portions of
Smith’s worker’s compensation payments from her benefits; and
this motion for attorneys’ fees and costs, among numerous other
tasks.

12

Mot. at 16–17 (citing McKennon Decl. ¶¶ 31–32 & Ex. 6). Defendant, on the other hand,

13

strongly disputes the reasonableness of the hours spent on this case on a multitude of

14

grounds.

1
2
3
4
5
6
7
8
9
10

15

First, Defendant argues the hours are unreasonable for a case that “resolved in the

16

formative stage of litigation,” “just three months after Aetna filed its answer.” Opp’n at 1.

17

The Court is admittedly skeptical of the number of hours expended in a case in which only

18

matters related to attorneys’ fees were ever briefed in court, and in which the only court

19

appearance was for an Early Neutral Evaluation Conference focused on the fee issues. See

20

generally Docket. However, the Court addresses this issue infra at 19–21.

21

Second, Defendant claims that the hours expended in each of five phases of the

22

litigation, as identified by Defendant, are excessive for various reasons. For example,

23

Defendant claims that all 65.9 hours billed from December 11, 2017, through March 29,

24

2018, are unrecoverable because that work was performed in the “Administrative Phase”

25

of the case. Opp’n at 16–18. Plaintiff counters that this work “was part of getting ready

26

to file the litigation,” and that Defendant, who refused to consider the documents submitted

27

on the ground that the administrative phase was closed, “cannot have it both ways.” Reply

28

at 7–8. It is well established that “ERISA does not ‘allow[ ] for attorneys’ fees for the
15
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1

administrative phase of the claims process.’” Dishman v. UNUM Life Ins. Co. of Am., 269

2

F.3d 974, 987 (9th Cir. 2001) (citation omitted). However, having reviewed the March 21,

3

2018 letter from Plaintiff’s counsel to Defendant, see ECF No. 30-16, the Court finds

4

Plaintiff’s position that this letter was part of the litigation, rather than a continuation of

5

the administrative process, to be persuasive, and accordingly finds that Defendant has not

6

met its burden of proving the unreasonableness of those hours. The letter is essentially a

7

demand letter, stating, “should Aetna decide to maintain its position, . . . we will

8

immediately file litigation against Aetna on Ms. Smith’s behalf.” Id. at 13. Accordingly,

9

the Court is not of the view that the hours spent reviewing the Administrative Record,

10

preparing the demand letter, and preparing the supporting documents thereto are

11

unrecoverable as part of the “administrative phase.”

12

Defendant argues that Plaintiff’s hours on nearly all other tasks—including re-

13

reviews of the Administrative Record, drafting of the Complaint, drafting of the various

14

motions related to fees, and preparation for the mediation and Early Neutral Evaluation

15

Conference—through the other four “phases” of the litigation are also excessive. Opp’n at

16

18–23. Having reviewed the detailed time records submitted with Mr. McKennon’s

17

Declaration, see generally McKennon Decl. Ex. 6, the Court does not believe Defendant

18

has adequately supported its claim that counsels’ hours are unreasonable. Given that the

19

Administrative Record spanned nearly 2,300 pages, 73.1 hours spent reviewing that

20

voluminous Record, approximately 30 hours spent preparing a 60-page Complaint, and

21

50.2 hours spent preparing for mediation is not per se unreasonable. However, the Court

22

does agree that the hours expended by Plaintiff’s counsel on joint motions prepared by

23

Defendant are unreasonable. As requested by Defendant, the Court reduces the 2.7 hours

24

devoted to joint motions to extend the time to respond to the Complaint to 0.5 hours (from

25

0.7 to 0.1 hours for Mr. McKennon and from 2.0 to 0.4 for Mr. Rankin) and the 3.3 hours

26

devoted to issues concerning the joint motion to continue the Early Neutral Evaluation

27

Conference to 0.5 hours (from 1.5 to 0.2 hours for Mr. McKennon and from 1.8 to 0.3

28

hours for Mr. Rankin). See Opp’n at 19; Decl. of Karen T. Tsui in Support of Def. Aetna’s
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1

Opp’n to Pl.’s Mot. for Attorneys’ Fees and Costs (“Tsui Decl.,” ECF No. 33-1) Exs. 17

2

& 22.

3

Third, Defendant argues that time entries for timekeepers not specifically identified

4

and justified in the Motion should be stricken. Opp’n at 12. The Court agrees. While it

5

seems clear “AFF” is a paralegal or other support staff based on the rate of $120 per hour,

6

Plaintiff did not provide any evidence to support the reasonableness of “AFF’s” rate or

7

hours spent on this matter, even on reply. Accordingly, the Court declines to award 15

8

hours, totaling $1,800, for “AFF’s” work in this case. Similarly, “RRT” billed 0.9 hours

9

at $375 per hour on a letter concerning attorneys’ fees in the case. Since, again, Plaintiff

10

presented no evidence to support the reasonableness of this fee or the hours expended by

11

“RRT,” the Court declines to award the requested $337.50 for this particular timekeeper.

12

Fourth, Defendant argues that Plaintiff has block-billed, particularly with regard to

13

preparation of the instant Motion and its supporting documents, and that this has made it

14

“impossible for [Defendant] to determine how much time was spent preparing Mr.

15

McKennon’s declaration.” Opp’n at 23. Although it is true that most of the time entries

16

for the instant Motion are for the “motion . . . and supporting documents,” see generally

17

McKennon Decl. Ex. 6, the Court does not find this objectionable, especially as Defendant

18

argues that significant portions of both the Motion and Mr. McKennon’s declaration were

19

recycled from prior court submissions, making distinguishing between the two unnecessary

20

for purposes of Defendant’s argument. The Court does not find that Defendant has

21

established that Plaintiff block-billed in an unreasonable way.

22

Finally, Defendant takes issue with Plaintiff “preemptively demand[ing] $9,000 for

23

a reply brief that has not even been written yet,” as “[a]nticipated time is . . . not actual

24

time.” Opp’n at 23. Defendant cites to GemCap Lending I, LLC v. Unity Bank Minn., No.

25

18-CV-05979-YGR, 2019 WL 3842010 (N.D. Cal. Aug. 15, 2019), in support of this

26

argument. However, GemCap is inapposite, as there, “Hower’s counsel only estimated the

27

hours they would spend on the reply, and never supplemented the record to substantiate

28

the actual hours.” Id. at *4 (emphasis in original). Here, Plaintiff submitted both the
17
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1

Supplemental McKennon Declaration and an exhibit thereto, see ECF No. 38-5, containing

2

the time records themselves, which show that the McKennon Law Group PC spent 47.6

3

hours, for a total of $21,900, on the reply brief for this Motion. The Supplemental

4

McKennon Declaration explains this significant increase between the estimate and the

5

actual hours expended as follows: “In light of Aetna’s submission of 432 pages in support

6

of its Opposition pleadings, including substantial objections to the evidence in support of

7

the Motion, numerous exhibits, [and] a 25 page legal memorandum, we underestimated the

8

amount of time it would take to respond to Aetna’s submission.” Supp. McKennon Decl.

9

¶ 6. The Court finds the initial 20 hours estimated reasonable, but declines to award the

10

additional $12,900 requested for the reply brief. See Mogck, 289 F. Supp. 2d at 1194

11

(internal citations omitted) (“With respect to the time spent by Plaintiff’s counsel on

12

preparation of the reply brief for the instant motion, the initial eight hours estimated by

13

Plaintiff’s counsel appears reasonable to the Court. The Court disagrees, however, with

14

Horner’s argument that her work in preparing a reply brief was ‘increased due to the nature

15

of the type of Opposition’ received, and thus declines Plaintiff’s request for additional fees

16

for approximately two days’ work.”). Plaintiff’s experienced counsel should have been

17

able to accurately estimate the likely complexity of Defendant’s Opposition and the time

18

required to respond to it.

19

Accordingly, the Court finds minor adjustments to the hours expended to be

20

required, but largely finds that the hours expended were reasonable for purposes of

21

calculating the lodestar.

22
23
24

3.

Lodestar Summary

In short, the Court finds hourly rates of $375 per hour for Mr. West, $400 per hour
for Mr. Rankin, and $700 per hour for Mr. McKennon reasonable.

25

Plaintiff appears to claim 123.5 hours worked by Mr. West, 127.0 hours worked by

26

Mr. Rankin, 135.8 hours worked for Mr. McKennon, and 15.9 hours worked by two other

27

timekeepers. See generally McKennon Decl. Ex. 6. Because Plaintiff provides no support

28

regarding the 15.9 hours worked by unidentified timekeepers, the Court declines to award
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1

those fees. The Court also reduces Mr. Rankin’s time by 3.1 hours and Mr. McKennon’s

2

time by 1.9 hours to make the hours expended on joint motions drafted by Defendant

3

reasonable. Finally, the Court approves 16 hours of Mr. West’s time and 4 hours of Mr.

4

McKennon’s time spent drafting the reply brief.

5

Accordingly, the Court calculates the lodestar as follows:

6

Attorney

7

Mr. McKennon

137.9

$700

$96,530.00

8

Mr. Rankin

123.9

$400

$49,560.00

9

Mr. West

139.5

$375

$52,312.50

Total

401.3

10

Reasonable Hours

Reasonable Rate

Total

$198,402.50

11
12

4.

Fee Calculation

13

“[I]n appropriate cases, the district court may adjust the ‘presumptively reasonable’

14

lodestar figure based upon the factors listed in Kerr . . . .” Intel Corp. v. Terabyte Int’l,

15

Inc., 6 F.3d 614, 622 (9th Cir. 1993) (citing D’Emmanuele v. Montgomery Ward & Co.,

16

904 F.2d 1379, 1383 (9th Cir. 1990), overruled on other grounds by Dague, 505 U.S. 557).

17

The Kerr factors are:

18
19
20
21
22
23
24

(1) the time and labor required[;] (2) the novelty and difficulty of
the questions involved[;] (3) the skill requisite to perform the
legal service properly[;] (4) the preclusion of other employment
by the attorney due to acceptance of the case[;] (5) the customary
fee[;] (6) whether the fee is fixed or contingent[;] (7) time
limitations imposed by the client or the circumstances[;] (8) the
amount involved and the results obtained[;] (9) the experience,
reputation, and ability of the attorneys[;] (10) the ‘undesirability’
of the case[;] (11) the nature and length of the professional
relationship with the client[;] and (12) awards in similar cases.

25
26

526 F.2d at 70. “The lodestar amount presumably reflects the novelty and complexity of

27

the issues, the special skill and experience of counsel, the quality of representation, and the

28

results obtained from the litigation.” Intel Corp., 6 F.3d at 622 (citing D’Emanuele, 904
19
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1

F.3d at 1383). While the court may rely on any of these factors to increase or decrease the

2

lodestar figure, there is a “‘strong presumption’ that the lodestar is the reasonable fee.”

3

Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting City of Burlington, 505

4

U.S. at 562); accord Harman v. City & Cnty. of San Francisco, 158 Cal. App. 4th 407, 416

5

(2007).
Defendant does not explicitly seek any adjustment to Plaintiff’s counsels’ fees based

6
7

on the Kerr factors.

8

“exorbitant” given that the case “resolved in the formative stage of litigation,” Opp’n at 1;

9

that this was “a garden-variety ERISA case that did not even make it to trial briefing,” id.

10

at 4; and that counsel “cut-and-paste a significant majority of the subject fee motion and

11

supporting declaration from other cases,”7 Opp’n at 5, Tsui Decl. Exs. 30–34, and copy-

12

and-pasted significant passages in the Complaint from letters to Defendant dated

13

September 7, 2017, and March 21, 2018, Opp’n at 4–5, Tsui Decl. Exs. 3–5.

Nonetheless, Defendant does argue that the requested sum is

The Court finds that Defendant’s arguments have merit.

14

Although Plaintiff’s

15

counsel had to review a voluminous Administrative Record, the only filing in this case to

16

address the merits was the Complaint (itself largely recycled from prior letters), and the

17

instant Motion was relatively uncomplicated and modeled on fee requests previously made

18

by Plaintiff’s counsel. Accordingly, the Court believes a reduction of 10% to the requested

19

fees is appropriate in light of the Kerr factors, particularly the lack of novel or difficult

20

issues in the case. See Moreno, 534 F.3d at 1112 (“The district court can impose a small

21

reduction, no greater than 10 percent—a ‘haircut’—based on its exercise of discretion and

22

without a more specific explanation”); see also Klein v. Gordon, No. 8:17-cv-00123-AB

23

(JPRx), 2019 WL 1751839, at *4 (C.D. Cal. Feb. 12, 2019) (exercising discretion to impose

24

a ten percent “haircut” reduction for clerical work, conferences calls, conversations

25
26
27
28

7

Defendant requests the Court take judicial notice of three prior fee motions filed by the McKennon Group
in other cases. See generally Def.’s RJN, Tsui Decl. Exs. 30–32. Because Defendant does not ask the
Court to accept the truth of the statements within these court filings, but only to acknowledge the existence
of certain language therein, which is not subject to dispute, the Court GRANTS Defendant’s Request for
Judicial Notice.
20
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1

amongst co-counsel, and preparation of submissions); Rosenfeld v. U.S. Dep’t of Justice,

2

904 F. Supp. 2d 988, 1008 (N.D. Cal. 2012) (reducing the plaintiff’s lodestar amount by

3

ten percent after factoring in all of the other deductions); Parkinson v. Hyundai Motor Am.,

4

796 F. Supp. 2d 1160, 1173 (C.D. Cal. 2010) (reducing the plaintiff’s final fees with a ten

5

percent “haircut” to the lodestar amount, taking into account the defendant’s objections

6

regarding excessive hours and rates).

7

Thus, having considered the Kerr factors, the Court concludes in its discretion that

8

the lodestar amount of $198,402.50 should be reduced by ten percent to account for the

9

relative simplicity of the underlying proceedings. The Court therefore reduces the lodestar

10

figure by $19,840.25 to $178,562.25.

11

II.

Costs

12

“A prevailing ERISA Plaintiff is entitled to the categories of costs enumerated under

13

28 U.S.C. § 1920 as well as reasonable out of pocket litigation expenses that lawyers in the

14

community typically bill to clients separately from their hourly rates.” Reddick, 2018 WL

15

637938, at *5 (citing Trustees of Constr. Ind. & Laborers Health & Welfare Trust v.

16

Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006)).

17

Plaintiff requests costs totaling $4,307.57, including $400 of filing fees as well as

18

more than $3,900 in other costs such as “travel, postage, service/messenger fees, copying,

19

phone, fax, and electronic research.” Mot. at 28–29. Defendant argues that only the $400

20

in filing fees are recoverable, as Plaintiff’s counsel “has not submitted evidence showing

21

that billing plaintiffs for these other costs is the custom and practice of the ERISA

22

practitioner community.” Opp’n at 24.

23

Mr. McKennon’s statement that it is customary in this region for attorneys to charge

24

such expenses to paying clients separate from their hourly rates, see McKennon Decl. ¶ 46,

25

is consistent with the Court’s experience, as well as prior orders in this District addressing

26

the issue of awardable non-statutory costs. See, e.g., Left Coast Wrestling, LLC v.

27

Dearborn Int’l LLC, No. 317CV00466LABNLS, 2018 WL 2948532, at *2 (S.D. Cal. June

28

12, 2018), report and recommendation adopted, No. 17CV466-LAB (NLS), 2018 WL
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1

3032585 (S.D. Cal. June 19, 2018) (“Copy, courier, and legal research fees have been

2

awarded by the Ninth Circuit.”) (citations omitted); Thalheimer v. City of San Diego, No.

3

09CV2862-IEG BGS, 2012 WL 1463635, at *9 (S.D. Cal. Apr. 26, 2012) (awarding costs

4

for “telephone charges, copies, filing fees, courier and mailing fees, and internet research”);

5

Ford v. CEC Entm't Inc., No. 14CV677 JLS (JLB), 2015 WL 11439033, at *6 (S.D. Cal.

6

Dec. 14, 2015) (Sammartino, J.) (finding costs such as “court fees, court reporter charges,

7

delivery and messenger charges, investigators, and travel expenses” would be billed

8

separately from hourly fees and awarding requested $7,888.92); Matlink, Inc. v. Home

9

Depot U.S.A., Inc., No. 07CV1994-DMS BLM, 2008 WL 8504767, at *6-7 (S.D. Cal. Oct.

10

27, 2008) (allowing delivery fees and electronic research costs as expenses recoverable on

11

attorneys’ fees motion); see also In re PETCO Corp. Sec. Litig., No. 05-CV-0823 H (RBB),

12

2008 WL 11508458, at *4 (S.D. Cal. Sept. 2, 2008) (finding mediation costs to be “the

13

type of costs typically billed by attorneys to fee paying clients in the marketplace”).

14

Accordingly, the Court finds the $4,307.57 in costs included by Plaintiff as part of

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her fee request reasonable. Further, given that these costs are not affected by the Kerr

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factors the Court found to justify a reduction of the lodestar figure, the Court does not apply

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the ten percent reduction to these costs.

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III.

Pre-Judgment Interest

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Finally, Plaintiff requests prejudgment interest on her ERISA benefits, at the post-

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judgment interest rate, pursuant to Blankenship v. Liberty Life Assurance Co. of Bos., 486

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F.3d 620, 627 (9th Cir. 2007). Mot. at 29–30. Defendant argues that, because Plaintiff did

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not win a court award of her past benefits, which Defendant voluntarily paid in December

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2018, Plaintiff should not be awarded pre-judgment interest. Opp’n at 24–25.

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The Court agrees with Defendant that the equities here do not warrant an award of

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pre-judgment interest. “Whether interest will be awarded [in an ERISA case] is a question

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of fairness, lying within the court’s sound discretion, to be answered by balancing the

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equities.” Day v. AT & T Disability Income Plan, 608 F. App'x 454, 458 (9th Cir. 2015)

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(quoting Shaw v. Int’l Ass’n of Machinists & Aerospace Workers Pension Plan, 750 F.2d
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1458, 1465 (9th Cir.1985)) (internal quotation marks omitted). Plaintiff did not obtain a

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ruling on the merits from this, or any other, Court, ordering Defendant to pay the denied

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benefits. Rather, Defendant voluntarily reversed its denial decision. Accordingly, the

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Court, in its discretion, finds that the equities weigh against an award of pre-judgment

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interest to Plaintiff on her ERISA benefits. See id. at 459 (upholding district court’s

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decision to award pre-judgment interest on STD benefits, which were awarded by the

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district court, but not LTD benefits, on which the plaintiff never obtained any favorable

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court order).

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CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

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Plaintiff’s Motion, awarding $182,869.82 in fees ($178,562.25) and costs ($4,307.57) and

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denying pre-judgment interest. The Court further OVERRULES Defendant’s Evidentiary

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Objections, GRANTS IN PART AND DENIES IN PART Plaintiff’s Requests for

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Judicial Notice, and GRANTS Defendant’s Request for Judicial Notice.

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IT IS SO ORDERED.
Dated: October 14, 2020

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18-cv-1463 JLS (WVG)