Kinder v. Woodbolt Distribution, LLC
Filing
57
ORDER Granting In Part and Denying In Part 48 Plaintiff's Motion for Attorneys' Fees, Cists and Expenses, and Incentive Award. Signed by Chief District Judge Dana M. Sabraw on 4/1/2021. (mme)
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.879 Page 1 of 17
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9
10
11
JOSEPH KINDER, individually, and on
behalf of other members of the general
public similarly situated,
12
13
14
15
Case No.: 3:18-CV-2713-DMS-AGS
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES,
COSTS AND EXPENSES, AND
INCENTIVE AWARD
Plaintiff,
v.
WOODBOLT DISTRIBUTION, LLC, a
Delaware limited liability company,
Defendant.
16
17
18
19
20
Before the Court is Plaintiff’s motion for attorneys’ fees, costs and expenses, and
21
incentive award. Defendant Woodbolt Distribution, LLC (“Defendant” or “Woodbolt”)
22
filed a response to the motion, and Plaintiff filed a reply. Defendant filed a response to the
23
reply, to which Plaintiff objected. For the following reasons, Plaintiff’s motion is granted
24
in part and denied in part.
25
I.
26
BACKGROUND
27
On November 21, 2018, Plaintiff sent a demand letter to Defendant alleging “a 13.8-
28
ounce container of Cellucor C4 Pre-Workout powder (‘C4 Pre-Workout’) sold in an
1
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.880 Page 2 of 17
1
opaque container significantly comprised of empty space.” (ECF No. 52-5, at 2.) Shortly
2
thereafter, on November 30, 2018, Plaintiff filed a Complaint in this Court alleging four
3
causes of action arising under California law: (1) violation of the Consumers Legal
4
Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.; (2) violation of the False
5
Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.; (3) violation of the
6
Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; and (4) unjust
7
enrichment. (ECF No. 1.) Plaintiff’s allegations were based on Defendant’s “misleading
8
business practices with respect to the packaging and sale of Cellucor C4 Pre-Workout
9
powders[.]” (Id. at 2.) He alleged that Defendant’s packaging was misleading because
10
each “container was significantly under-filled and contained a large amount of empty space
11
rather than powder.” (Id. at 3.) Plaintiff sought injunctive and declaratory relief, and
12
attorneys’ fees and costs. (Id. at 24.)
13
These allegations mirrored claims brought by Plaintiff in a previous case: Lopez v.
14
Woodbolt Distribution, LLC, No. 2:18-cv-05963-JFW-KS, ECF No. 1 (C.D. Cal. July 9,
15
2018) (the “Lopez action”). There, Plaintiff’s counsel sent a demand letter to Defendant
16
on behalf of Gustavo Lopez, alleging that Lopez purchased a “container of Cellucor C4
17
Pre-Workout Powder (‘C4 Pre-Workout’) sold in an opaque container significantly
18
comprised of empty space.” (ECF No. 53-3, at 3.) On April 30, 2018, Plaintiff’s counsel
19
filed a complaint on behalf of Mr. Lopez in Los Angeles County Superior Court alleging
20
Defendant’s “misleading business practices with respect to the packaging and sale of the
21
Cellucor C4 Pre-Workout powders[.]” (See ECF No. 52-2.) Upon removal to the United
22
States District Court for the Central District of California, the Lopez action was voluntarily
23
dismissed. (See ECF No. 22-6.)
24
After Plaintiff filed the Complaint in the present action, the parties filed four joint
25
motions to extend time to respond to the Complaint “so as to allow the Parties additional
26
time to discuss and engage in resolution of this action without concurrently increasing the
27
costs of litigation.” (ECF No. 4; see also ECF Nos. 9, 11, 16.) Defendant claims that it
28
informed Plaintiff of deficiencies in his Complaint on numerous occasions, such as alleging
2
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.881 Page 3 of 17
1
violations under the wrong statute. (ECF No. 52, at 10; ECF No. 22, at 3–4.) After
2
attending an informal conference with the Court, Defendant filed a motion to dismiss the
3
case. (ECF No 20.) Plaintiff filed an opposition. (ECF No. 21.) The Court granted
4
Defendant’s motion and granted Plaintiff leave to amend his complaint to plead his claims
5
under the correct statute. (ECF No. 24.)
6
On July 12, 2019, Plaintiff filed his First Amended Complaint (“FAC”). (ECF No.
7
25.) Defendant filed another motion to dismiss. (ECF No. 28.) On December 10, 2019,
8
the Court issued an order dismissing Plaintiff’s claim for injunctive relief and allowing his
9
other claims to proceed. (ECF No. 35.)
10
On January 6, 2020, Magistrate Judge Schopler issued an order setting a telephonic
11
Early Neutral Evaluation (“ENE”) and Case Management Conference for February 6,
12
2020, and requiring Plaintiff and a representative for Defendant to participate. (ECF No.
13
37.) Plaintiff did not appear at the ENE, telephonically or otherwise. (See ECF No. 51-2,
14
at 4; see also ECF No. 53-1, at 2.) On February 20, 2020, Defendant filed a motion to
15
certify for interlocutory appeal the Court’s denial of Defendant’s motion to dismiss. (ECF
16
No. 43.) A week later, Magistrate Judge Schopler entered an order continuing the ENE to
17
March 20, 2020. (ECF No. 44.) It appears the attorneys present for Plaintiff at that ENE
18
initially lacked full settlement authority.1 (See ECF No. 51-2, at 4.) The case resolved at
19
the conference after counsel obtained necessary settlement authority. (Id.) In light of the
20
21
22
23
24
25
26
27
28
1
At no point does Plaintiff contest the assertion that the attorneys representing him at the
March ENE lacked settlement authority. Rather, Plaintiff’s counsel asserts that “while
Judge Schopler did ask Plaintiff’s Counsel to confirm that they had authority to settle,
Plaintiff’s Counsel promptly confirmed.” (ECF No. 53-1, at 3.) The Court does not
construe this statement to be a denial of Defendant’s allegation, as Plaintiff’s counsel may
have acted to secure full settlement authority after prompting by the Magistrate Judge. At
no point in the briefing or in any declaration does Plaintiff’s counsel affirmatively state
that the attorneys present at the ENEs had full settlement authority during the entirety of
the second ENE.
3
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.882 Page 4 of 17
1
settlement, Defendant withdrew its motion for interlocutory appeal before Plaintiff filed an
2
opposition. (See ECF No. 46.)
3
The settlement agreement provides that Defendant will add a “fill line” to its
4
“Cellucor C4 Pre-Workout powders sold in 30- and 60-serving size containers” and pay
5
Plaintiff’s reasonable attorneys’ fees, and costs and expenses as determined by the Court,
6
as well as an incentive award. (See ECF No. 48, at 11; see also ECF No. 52, at 12.) Plaintiff
7
thereafter filed the present motion. The matter has been fully briefed. As noted, Defendant
8
also filed a sur-reply, and Plaintiff filed an objection to the sur-reply. (See ECF Nos. 54,
9
56.) Sur-replies are not permitted under the Local Rules, and Defendant did not request
10
permission to file additional briefing. Accordingly, the Court declines to consider
11
Defendant’s unauthorized filing.
12
II.
13
DISCUSSION
14
A. Motion for Attorney’s Fees
15
State law governs attorneys’ fees in cases arising under diversity jurisdiction.
16
Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir. 2009) (“In a
17
diversity case, the law of the state in which the district court sits determines whether a party
18
is entitled to attorney fees, and the procedure for requesting an award of attorney fees is
19
governed by federal law.”) Where state law governs a claim, state law also governs the
20
calculation of attorneys' fees. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th
21
Cir. 2002). However, the Court may still look to federal authority for guidance in awarding
22
attorneys' fees. See Apple Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253, 1264
23
n.4 (2005) (“California courts may look to federal authority for guidance on matters
24
involving class action procedures”).
25
Under California law, the general rule is that each party bears their own fees. See
26
Essex Ins. Co. v. Five Star Dye House, Inc., 38 Cal. 4th 1252, 1257 (2006). In the present
27
case, however, the parties’ settlement agreement provides that Defendant shall pay Plaintiff
28
4
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.883 Page 5 of 17
1
reasonable attorneys’ fees, costs and expenses, and an incentive award. (See ECF No. 48,
2
at 11; see also ECF No. 52, at 12.)
3
The parties agree that the lodestar method of calculating fees is appropriate in this
4
case. A lodestar calculation is “based on careful compilation of the time spent and
5
reasonable hourly compensation of each attorney.” Ketchum v. Moses, 24 Cal. 4th 1122,
6
1131–32 (2001) (internal quotation marks and citations omitted). After determining the
7
correct lodestar, a court may adjust the number upwards or downwards depending on
8
factors including “(1) the novelty or difficulty of the questions involved, (2) the skill
9
displayed in presenting them, (3) the extent to which the nature of the litigation precluded
10
other employment by the attorneys, [and] (4) the contingent nature of the fee award.” Id.
11
at 1132. The initial lodestar figure also may be adjusted upward in contingency cases to
12
compensate attorneys for the risk of taking a case in which they may not be compensated.
13
Id. at 1132–33.
14
Here, while Defendant does not dispute that Plaintiff is entitled to fees under the
15
settlement agreement, it challenges the reasonableness of the fees requested. Plaintiff
16
submitted the following rates and hours to arrive at a lodestar calculation of $214,014.00
17
for 348 hours of work at hourly rates ranging from $345–775. (ECF No. 48-1, at 6.)
18
19
20
21
22
23
Name
Mark Ozzello
Robert Friedl
Steven Weinmann
Eduardo Santos
Cody Padgett
Trisha Monesi
Position
Partner
Associate
Associate
Associate
Associate
Associate
Avg/Hour
$775.00
$745.00
$745.00
$545.00
$420.00
$345.00
Hours
14.4
157.8
51.9
16.2
8.1
99.7
Amount
$11,160.00
$117,561.00
$38,665.50
$8,829.00
$3,402.00
$34,396.50
24
In addition, Plaintiff requests a lodestar enhancement multiplier of approximately
25
1.35, bringing the enhanced fee total to $290,000. (ECF No. 48, at 15.) Plaintiff’s
26
counsel’s rates, hours billed, and lodestar multiplier are evaluated in turn.
27
///
28
///
5
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.884 Page 6 of 17
1
1. Reasonable Hourly Rate
2
A reasonable hourly rate is the rate prevailing in the community for similar work.
3
See Gonzales v. City of Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013) (“[T]he court must
4
compute the fee award using an hourly rate that is based on the prevailing market in the
5
relevant community.”) To determine what is reasonable, courts look to the prevailing
6
market rates in the community served. Schwarz v. Sec’y of Health & Human Servs., 73
7
F.3d 895, 908 (9th Cir. 1995). The prevailing market rate for attorneys of comparable
8
experience, skill, and reputation controls this determination; however, “[t]hat a lawyer
9
charges a particular hourly rate, and gets it, is evidence bearing on what the market rate is,
10
because the lawyer and his clients are part of the market.” Carson v. Billings Police Dep’t,
11
470 F.3d 889, 892 (9th Cir. 2006). “If the party seeking attorneys’ fees fails to meet its
12
burden, the court may exercise discretion to determine reasonable hourly rates based on its
13
experience and knowledge of prevailing rates in the community.” Arias v. Ford Motor Co.,
14
Case No. EDCV 18-1928 PSG (SPx), 2020 WL 1940843, at *3 (C.D. Cal. Jan. 27, 2020).
15
Here, Plaintiff’s counsel seeks hourly rates ranging between $345 and $775. (See
16
ECF No. 48-1, at 6.) To justify these rates, Plaintiff filed a supporting declaration from
17
Raul Perez, a Capstone Law partner, providing decisions from California state courts and
18
federal courts approving comparable fee awards for the firm’s attorneys, including many
19
of the same attorneys who litigated this case, and describing the professional experience of
20
the attorneys who worked on the matter. (See id., at 9–13, 19–29.) Plaintiff also provides
21
declarations from Richard M. Pearl, an expert in California attorneys’ fees, and William B.
22
Rubenstein, a professor specializing in class actions, which analyze the rates of attorneys
23
practicing in Southern California. (See id. at 59–133, 135.) Defendant does not contest
24
the reasonableness of these rates. The Court therefore finds Plaintiff’s attorneys’ hourly
25
rates to be reasonable.
26
2. Reasonable Hours Expended
27
An attorneys’ fee award includes compensation for all hours reasonably expended
28
on a matter, but “hours that are excessive, redundant, or otherwise unnecessary” should be
6
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.885 Page 7 of 17
1
excluded. Costa v. Comm’r of Soc. Sec. Admin, 690 F.3d 1132, 1135 (9th Cir. 2012).
2
Further, “absent circumstances rendering the award unjust, an attorney fee award should
3
ordinarily include compensation for all the hours reasonably spent.” Ketchum, 24 Cal. 4th
4
at 1133 (citing Serrano v. Unruh, 32 Cal.3d 621, 625 (1982)). “[T]he standard is whether
5
a reasonable attorney would have believed the work to be reasonably expended in pursuit
6
of success at the point in time when the work was performed.” Moore v. Jas. H. Matthews
7
& Co., 682 F.2d 830, 839 (9th Cir. 1982). However, the attorneys seeking the award bear
8
the burden of presenting the appropriate fee documentation to the Court. In re Wash. Pub.
9
Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1306 (9th Cir. 1994).
10
Plaintiff contends the fees requested are reasonable. (ECF No. 48, at 14–15.)
11
Defendant disagrees, alleging multiple instances of excessive, redundant, and unnecessary
12
billing. (ECF No. 52, at 13–20.) Each allegation of improper billing is addressed.
13
First, Defendant argues that time spent on preparing a demand letter and complaint
14
was excessive because those documents were substantially recycled from the earlier filed
15
Lopez litigation, which involved the same product. (ECF No. 52, at 13; ECF No. 52-2
16
(Entry Nos. 1–22).) In support of this argument, Defendant attaches copies of the letters
17
from both cases and the Lopez complaint. (See ECF No. 52-3, 52-4, 52-5; see also ECF
18
No. 1.) Defendant argues the Court should reduce Plaintiff’s hours for these repeat-tasks
19
from 27 to 2 hours. (ECF No. 53, at 13.)
20
Noting his counsel only spent 25.4 hours drafting the initial Complaint, FAC, and
21
demand letter, and arguing that those documents are markedly different from those filed in
22
Lopez, Plaintiff claims the time spent preparing the documents was reasonable. (ECF No.
23
53, at 7–9.) Plaintiff attaches a redline comparing the two complaints. (ECF No 53-1, at
24
5–29.) Plaintiff further argues that even if the pleading is found to be recycled, the work
25
from the earlier proceeding in Lopez is still compensable because it was “both useful and
26
necessary and directly contributed to the resolution of the [present] action.” (ECF No. 53,
27
at 8 (citing Ramon v. County of Santa Clara, 173 Cal. App. 4th 915, 924 (2009).)
28
7
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.886 Page 8 of 17
1
The Court finds that a reduction of hours is warranted. Plaintiff’s time entries
2
numbered 1 through 22 are related to the research, drafting, and editing of the demand letter
3
and complaint at issue. (See ECF No. 48-1, Ex. A (Entry Nos. 1–22).) These entries total
4
27 hours. While hours billed to collateral proceedings that are “closely related” and
5
“useful” to a litigation may be compensated, Children’s Hosp. & Med. Ctr. v. Bonta, 97
6
Cal. App. 4th 740, 779-80 (2002), not all of the hours Plaintiff submitted fall into that
7
category. Billing entries 1 and 2 may be covered by this rule as they occurred before the
8
Lopez complaint was filed, but entries 3 through 22 do not fall into that category. The
9
Court finds the 4.6 hours billed in entries 1 and 2 are reasonable and compensable as related
10
and useful work. However, the two demand letters are practically identical, aside from
11
some minor changes to factual details. (Compare ECF No. 52-3, with ECF No. 52-5.) Yet,
12
Plaintiff’s counsel billed 3.7 hours for drafting the letter in this case. (See ECF No. 48-1,
13
Ex. A (Entry Nos. 13–14, 16–17, 19).) That amount of time is not necessary to change
14
names in an exemplar letter and set out the facts of Plaintiff’s transaction. The Court
15
therefore reduces this amount to 0.5 hours. The Complaint here is also substantially similar
16
to the complaint filed in Lopez. Large portions of the complaints are identical, though
17
Plaintiff’s Complaint contains jurisdictional analysis and factual information not present
18
in the Lopez complaint. (See ECF No. 53-1, at 7–10, 15–16.) The Complaint here also
19
alleges an additional sub-class and an additional cause of action for unjust enrichment.
20
(See id. at 20, 27–28.) Defendant asks the Court to reduce counsel’s time for drafting the
21
Complaint to 1.5 hours. (See ECF No. 52, at 13.) The Court finds the time requested for
22
work on the Complaint to be excessive and reduces the compensable time for entries 3–12,
23
15, 18, and 20–22 from 18.7 to 8 hours. This adjustment results in a reduction from 27
24
hours to 13.1 compensable hours at a billing rate of $345.
25
Second, Defendant asserts that Plaintiff’s request for compensation for 41.3 hours
26
for propounding 24 discovery requests is excessive. (ECF No. 52, at 13–14.) Defendant
27
argues the billing is doubly troubling because portions of it were billed by not one, but two
28
experienced senior attorneys and it was block billed. Defendant urges the Court to reduce
8
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.887 Page 9 of 17
1
the time to four hours total. Plaintiff argues that Defendant mischaracterizes the work
2
product at issue. Plaintiff contends his counsel drafted: “(1) Plaintiff’s discovery requests
3
to Woodbolt, (2) Plaintiff’s responses to Woodbolt’s discovery requests (including time
4
spent conferring with [Plaintiff] on the responses), (3) the discovery plan and ENE
5
statement, and (4) the ESI protocols” during the time cited by Defendant. (ECF No. 53, at
6
9.)
7
The Court agrees with Plaintiff. The entries reflect time spent on activities other
8
than drafting discovery requests. (See ECF No. 48-1, Ex. A (Entry Nos. 41-45, 124-25,
9
139, 143, 147, 150, 153, 158, 161, 163-64, 166, 169-171, 173.) Further, that senior
10
attorneys worked on discovery is not, standing alone, inappropriate.
11
important, and from time-to-time it is appropriate that experienced attorneys work together
12
to respond accurately and fully. Lastly, the Court was unable to locate instances of block
13
billing among the cited time entries. “Block billing is the time-keeping method by which
14
each lawyer and legal assistant enters the total daily time spent working on a case, rather
15
than itemizing the time expended on specific tasks.” Welch v. Metro Life Ins. Co., 480
16
F.3d 942, 945 n. 2 (9th Cir. 2007) (quoting Harolds Stores, Inc. v. Dillard Dep’t Stores,
17
Inc., 82 F.3d 1533, 1554 n. 15 (10th Cir. 1996) (internal quotation marks omitted)). The
18
entries at issue reflect “time expended on specific tasks,” rather than “the total daily time
19
spent working on a case.” See Welch, 480 F.3d at 945 n.2. Accordingly, the Court declines
20
to reduce fees based on alleged block-billing and declines to reduce counsels’ hours for
21
work on discovery-related matters.
Discovery is
22
Third, Defendant argues that the 67.6 hours claimed for drafting a never-filed
23
opposition to Defendant’s motion for interlocutory appeal should be reduced. (ECF No.
24
52, at 14–16; ECF No. 52-2 (Entry Nos. 140–42, 144–146, 148–49, 151–52, 154–55, 159,
25
162, 165, 167, 177–78, 180, 185–86, 188, 191).) Defendant argues that the recoverable
26
hours for this task should be reduced because the work was inefficient and duplicative.
27
Defendant contends that because its motion was only 19 pages long, an attorney as
28
experienced as Plaintiff’s counsel “ought to be able to draft such an opposition, which
9
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.888 Page 10 of 17
1
involved reviewing zero discovery, in far fewer hours.” (Id. at 15 (citing Lee-Tzu Lin v.
2
Dignity Health-Methodist Hosp. of Sacramento, S–14–0666 KJM CKD, 2014 WL
3
5698448, at *6-7 (E.D. Cal. Nov. 4, 2014) (reducing hours for inefficiency where an
4
experienced attorney spent 44 hours on two motions)).) Defendant further argues that
5
because multiple senior attorneys worked on the motion, the work is duplicative and
6
subject to reduction. (Id. (citing Lee-Tzu Lin, 2014 WL 5698448, at *6–7 (reducing hours
7
for duplication where multiple attorneys engaged work on a motion)).)
8
Plaintiff argues that the length of Defendant’s motion is not an adequate indicator of
9
the amount of time necessary to oppose it. (ECF No. 53 at 10–11 (citing Inst. For Wildlife
10
Prot. v. U.S. Fish & Wildlife Serv., No. 07-CV-358-PK, 2008 WL 4866063, at *12 (D. Or.
11
Nov. 5, 2008) (“Defendants are overly blithe in suggesting that the reasonableness of
12
[counsel]’s time expenditures can be determined by reference to the length of his brief”)).)
13
Plaintiff further argues that Defendant’s own briefing acknowledges the complex issues
14
underlying the motion. (Id. at 11 (citing ECF No. 43-1, at 11 (arguing that the Court should
15
grant the motion because “[a] substantial ground for difference of opinion traditionally
16
exists where [as here] novel and difficult questions of first impression are presented, on
17
which fair-minded jurists might reach contradictory conclusions.”)).) Finally, Plaintiff
18
argues that his counsel’s expenditure of time opposing the motion was reasonable in light
19
of the stakes at issue. Had the motion been granted, Plaintiff’s counsel would have spent
20
many more hours addressing an appeal.
21
“[T]rial courts must carefully review attorney documentation of hours expended;
22
‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.”
23
Ketchum v. Moses, 24 Cal.4th at 1132. Having done so, the Court does not find any
24
inefficiency or duplicative work on the part of Plaintiff’s counsel. It was reasonable for
25
counsel to involve multiple experienced lawyers to avoid further delays and an unfavorable
26
outcome. See Charlebois v. Angels Baseball LP, 993 F. Supp. 2d 1109, 1125 (C.D. Cal
27
2012) (listing cases to show that “extensive authority supports awarding fees for time spent
28
on unfiled motions”). A “reasonable attorney would have believed the work to be
10
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.889 Page 11 of 17
1
reasonably expended in pursuit of success at the point in time when the work was
2
performed.” Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982). The
3
Court therefore declines to reduce the hours devoted by Plaintiff’s counsel to oppose
4
Defendant’s motion for interlocutory appeal.
5
Fourth, Defendant argues that Plaintiff’s counsel spent too much time drafting
6
oppositions to its motions to dismiss. Plaintiff’s attorneys spent 49.6 hours on the first
7
opposition and 46.8 hours on the second opposition. Defendant argues that, considering
8
counsel’s experience, the amount of time spent on these oppositions was unreasonable.
9
(ECF No. 52, at 16–17.) Plaintiff argues that it would be inequitable to allow Defendant
10
to “litigate tenaciously and then be heard to complain about the time necessarily spent by
11
the plaintiff in response.” (ECF No. 53, at 12 (quoting Serrano v. Unruh, 32 Cal.3d 621,
12
638 (1982)).) Plaintiff further argues that the Court “should defer to the winning lawyer’s
13
professional judgement as to how much time he is required to spend” litigating a case. (Id.
14
(quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).) The Court
15
finds the time devoted by Plaintiff’s counsel to respond to Defendant’s motions is
16
reasonable and declines to reduce the fees.
17
Fifth, Defendant argues that the 2.1 hours Plaintiff’s counsel spent to research and
18
prepare a motion to appear telephonically should be reduced to 0.1 hours for inefficiency.
19
(ECF No. 52, at 18; ECF No. 52-2 (Entry Nos. 68–69).) Facing a similar situation, defense
20
counsel contends he simply called the Court to arrange for a telephonic appearance. (ECF
21
No. 52-1, at 3.) Plaintiff does not address Defendant’s argument on this point. The time
22
spent here was not well invested. Accordingly, the Court reduces the time for this task to
23
0.5 hours.
24
Sixth, Defendant argues that Plaintiff’s counsel should not be compensated for 8
25
hours drafting the FAC because the original complaint alleged violations under the wrong
26
statute. (ECF No. 52, at 18; ECF No. 52-2 (Entry Nos. 76–80, 83–85).) Defendant points
27
out that it informed Plaintiff’s counsel about their citation to an incorrect statute on five
28
occasions before Defendant filed its first motion to dismiss. Defendant further argues that
11
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.890 Page 12 of 17
1
even if the Court finds the time to be compensable, it should award no more than 0.5 hours
2
because the changes to the FAC were minimal. The Court finds Plaintiff’s counsel’s billing
3
for this minor task, while compensable in part, is unreasonable. The Court reduces the
4
recoverable time for work on the FAC to 0.5 hours at the rate of $345.
5
Seventh, Defendant argues that the 39.1 hours billed for the ENE conferences should
6
be reduced on account of Plaintiff’s alleged violations of the Court’s order.2 (See ECF No.
7
52-2 (Entry Nos. 86, 111, 116, 125, 127–28, 132–38, 157, 160, 179, 181, 184, 188–90,
8
192–93).) The Court’s ENE order reads in relevant part: “All parties and lead attorneys
9
must appear in person at the ENE. [. . .] In addition, anyone else needed to authorize full
10
settlement must appear in person.” (ECF No. 37, at 1–2 (bold emphasis original; italics
11
and underlining added.) Defendant alleges Plaintiff did not attend the first ENE. Plaintiff
12
does not contest that fact, but claims that while he was “not able to attend the first ENE in
13
person due to an illness, he was in contact with Plaintiff’s Counsel by phone.” (ECF No.
14
53, at 12; see also ECF No. 53-1, at 2.) Plaintiff is a party and was not excused from
15
attending the ENE. Defendant further alleges that the attorneys present for Plaintiff at the
16
second ENE lacked full settlement authority, and that “Plaintiff has failed to provide any
17
evidence to refute the reasonable inference from the continued ENE that the same counsel
18
who appeared at initial ENE (Mr. Wienmann and Ms. Monesi) had no full settlement
19
authority then either.” (ECF No. 52, at 19; see also ECF No. 52-1, at 4.) Plaintiff does not
20
explicitly contest this point, and instead challenges Defendant’s ancillary assertion that the
21
ENE was delayed by hours as a result of this lack of authority. (ECF No. 53 at 12–13; see
22
also ECF No. 53-1, at 2–3.) Plaintiff also argues that the parties’ failure to settle at the first
23
24
25
26
27
28
2
Having reviewed the contested time entries, the Court finds that Defendant challenges
40.4 hours relating to the ENEs. The 39.1-hour figure seems to result from the fact that
Defendant challenges 1.3 hours as both inefficient billing on discovery and as time related
to the ENE that should be reduced due to violations of the Court’s order. (See ECF No. 522, Ex. A (Entry No. 125).) Because the Court declines to reduce the number of hours
Plaintiff’s counsel spent on discovery, that entry will be evaluated here.
12
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.891 Page 13 of 17
1
ENE was not due to Plaintiff’s absence or any lack of settlement authority, but instead was
2
caused by the parties’ inability to agree on the terms of a settlement. (ECF No. 53, at 12–
3
13; ECF No. 53-1, at 2.) Defendant argues that the claimed hours should be reduced by
4
80% percent for Plaintiff’s repeated violation of the ENE order.
5
Plaintiff’s repeated failure to comply with the Court’s order justifies a reduction of
6
the hours related to the ENE conferences. See Owaidah v. Mazzei, EDCV 18-246-KK,
7
2020 WL 2405277, at *6–8 (C.D. Cal. Apr. 9, 2020) (reducing a party’s compensable hours
8
to account in part for “counsel’s repeated violation of Court orders”). Though Plaintiff
9
argues that no settlement was reached at the first ENE because it regarded Defendant’s
10
offer as inadequate, Plaintiff’s absence at the conference and his counsel’s apparent lack
11
of settlement authority put any settlement out of reach. This non-compliance necessitated
12
a second ENE conference and wasted time. That counsel lacked full settlement authority
13
for the entirety of the second conference also wasted time. Because Plaintiff and his
14
counsel were solely responsible for their own non-compliance and the accompanying
15
inefficiency, Plaintiff’s counsel’s 40.4 claimed hours will be reduced by 80%.
16
3. Lodestar Multiplier
17
Finally, Plaintiff argues that the Court should apply a lodestar multiplier of 1.35.
18
(ECF No. 48 at 15–16.) To determine whether a lodestar multiplier should be awarded,
19
courts consider, among other factors: “(1) the novelty and difficulty of the questions
20
involved, and the skill displayed in presenting them; (2) the extent to which the nature of
21
the litigation precluded other employment by the attorneys; (3) the contingent nature of the
22
fee award[.]” Serrano v. Priest, 20 Cal. 3d 25, 49 (1977).
23
Plaintiff argues that the contingent nature of the case, the risk of delayed payment,
24
and the success his counsel achieved by obtaining an injunction that addressed the heart of
25
the issues at stake in the litigation renders a multiplier of 1.35 appropriate in this case.
26
(ECF No. 48, at 15–18.) Plaintiff cites various cases where California courts have awarded
27
multipliers (Id. at 15–16 (citing e.g., City of Oakland v. Oakland Raiders, 203 Cal. App.
28
3d 78 (1988) (affirming a 2.34 multiplier for “extremely complex and notorious
13
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.892 Page 14 of 17
1
litigation”)).) Defendant counters that the reduced lodestar amount already represents a
2
reasonable fee. (ECF No. 52, at 20–21 (citing Forouzan v. BMW of N. Am., CV 17-3875-
3
DMG (GJSx), 2019 WL 856395, at *7 (C.D. Cal. Jan. 11, 2019) (declining to apply a
4
multiplier because “[t]he lodestar, with the . . . reduction for block-billed entries and other
5
inefficiencies and the other individual reductions described above, reflects the reasonable
6
amount of attorneys’ fees Plaintiff should recover”)).) Defendant further argues that the
7
contingent nature of the case alone does not warrant a multiplier, and that the risk of
8
delayed payment was diminished by the fact that the lodestar is based on the present hourly
9
rate and relatively short duration of the litigation. (ECF No. 52, at 20–21.) Finally,
10
Defendant argues that its agreement to add a fill line does not constitute extraordinary
11
success on the part of Plaintiff that justifies a multiplier. (Id. at 22.)
12
The Court declines Plaintiff’s request to apply an upward multiplier. The lodestar
13
amount, minus the reductions described above, represents a reasonable fee. The issues in
14
the case were generally straightforward and the litigation was routine. A 16-month delay
15
of payment is relatively short, especially when charging current hourly rates. While the
16
case was taken on a contingency basis, this risk was largely offset by the structure of
17
Plaintiff’s counsel’s contingency practice generally. See Forouzan, 2019 WL 856395, at
18
*7 (“[a]n attorney operating on a contingency-fee basis pools the risks presented by his
19
various cases: cases that turn out to be successful pay for the time he gambled on those that
20
did not. To award a contingency enhancement . . . would in effect pay for the attorney’s
21
time. . . in cases where his client does not prevail.”) (quoting City of Burlington v. Dague,
22
505 U.S. 557, 565 (1992)). Furthermore, “the risk to counsel for taking the case on
23
contingency was reduced because of the possibility of recovering statutory fees” and there
24
is “no evidence that the litigation precluded other work opportunities for counsel.” Aispuro
25
v. Ford Motor Co., 18-CV-2045 DMS (KSC), 2020 WL 4582677, at *6 (S.D. Cal. Aug.
26
10, 2020). Because these factors weigh in favor of Defendant, Plaintiff’s request for a
27
lodestar multiplier is denied.
28
///
14
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.893 Page 15 of 17
1
B. Litigation Costs
2
Plaintiff moves for $3,277.42 in litigation costs. While Defendant does not dispute
3
that those costs are partially recoverable, it challenges two portions of that amount. First,
4
Defendant disputes $1,832.51 of the costs because Plaintiff allegedly failed to provide
5
invoices for that amount. Second, Defendant claims that $801.56 in travel expenses is
6
unrecoverable. The Court declines to reduce these costs, and awards Plaintiff’s counsel
7
$3,277.42 for out-of-pocket expenses.
8
Civil Local Rule 54.1(a) provides that a “bill of costs . . . must be supported by . . .
9
copies of the invoices for requested costs. L.R. 54.1(a). Defendant argues that because the
10
costs represented by invoices in Exhibit 7 to Plaintiff’s motion only total $1,444.91, the
11
remaining claimed $1,832.51 is not recoverable. (ECF No. 52, at 22 (citing ECF No. 48-
12
1, at 229–244).) However, not all costs require an external invoice. For example, copies
13
produced in-house at a law firm would not create such invoices. In this context, the Court
14
construes “invoices” broadly to include an itemized list of costs not likely to create discrete
15
externally produced invoices. Plaintiff provides the Court with such a list. (See ECF No.
16
48-1, at 14–17.) The Court therefore finds Local Rule 54.1(a) to be satisfied and declines
17
to reduce costs on the basis of a failure to provide invoices. Defendant also cites Zuniga
18
v. Western Apartments for the proposition that travel expenses should not be awarded
19
because “it was unnecessary [for Plaintiff] to retain a San [Francisco] attorney for a [San
20
Diego] case.” (ECF No. 52, at 23 (citing CV 13–04637–JFW (JCx), 2014 WL 6655997, at
21
*4 (C.D. Cal. Nov. 24, 2014)).) However, the court in Zuniga did not deny awarding travel
22
costs, it reduced them. This Court, by contrast, has awarded full costs for reasonable travel
23
expenses. See Shalaby v. Bernzomatic, CV 13–04637–JFW (JCx), 2021 WL 120898, at
24
*2 (S.D. Cal. 2021); see also Carl Zeiss Vision Int'l GMBH v. Signet Armorlite, Inc., 07–
25
cv–0894–DMS (POR), 2010 WL 1687788, at *2 (S.D. Cal. Apr. 26, 2010). The travel
26
costs in this case are relatively minor and they fall in line with the costs of standard business
27
travel. The Court finds these costs to be reasonable, and therefore awards them without
28
reduction.
15
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.894 Page 16 of 17
1
C. Incentive Award
2
“Incentive awards are designed to ‘compensate class representatives for work done
3
on behalf of the class[.]’” Low v. Trump University, LLC, 246 F.Supp.3d 1295, 1313 (S.D.
4
Cal. 2017) (quoting Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009)).
5
Such awards are “‘fairly typical in class action cases,’ but are ultimately ‘discretionary.’”
6
Id. In the present case, the parties agree that a $7,500 award is appropriate. (See ECF No.
7
52, at 9; see also ECF No. 35, at 5.) The Court agrees and grants Plaintiff a $7,500
8
incentive award.
9
III.
10
CONCLUSION AND ORDER
11
12
13
After adjusting the hours expended and denying a lodestar multiplier, the Court
orders payment of attorneys’ fees to Plaintiff totaling $184,171.60, as follows:
Name
Position
Mark
Ozzello
Robert
Friedl
Steven
Weinmann
Eduardo
Santos
Cody
Padgett
Trisha
Monesi
Partner
14
15
16
17
18
19
20
21
22
23
Hourly
Rate
$775.00
Claimed Adjusted Claimed
Hours
Hours
Total
14.4
10.3
$11,160.00
Adjusted
Total
$7,982.50
Associate $745.00
157.8
153
$117,561.00 $113,985.00
Associate $745.00
51.9
34.86
$38,665.50
$25,970.70
Associate $545.00
16.2
16.2
$8,829.00
$8,829.00
Associate $420.00
8.1
6.5
$3,402.00
$2,730.00
Associate $345.00
99.7
71.52
$34,396.50
$24,674.40
24
In addition, Plaintiff is awarded costs and expenses totaling $3,277.42 and an
25
26
incentive award of $7,500.
27
///
28
///
16
3:18-CV-2713-DMS-AGS
Case 3:18-cv-02713-DMS-AGS Document 57 Filed 04/01/21 PageID.895 Page 17 of 17
1
IT IS SO ORDERED.
2
3
4
5
Dated: April 1, 2021
____________________________
Hon. Dana M. Sabraw
United States Chief District Judge
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
3:18-CV-2713-DMS-AGS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?