G&G Closed Circuit Events, LLC v. Zarazua

Filing 15

ORDER granting in part and denying in part 12 Motion for Attorney Fees and Costs. Signed by Judge Larry Alan Burns on 7/29/2022. (jms)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 G&G CLOSED CIRCUIT EVENTS, LLC, v. 16 AMERICA ZAMORA ZARAZUA, individually and doing business as El Comal, 17 Defendant. 15 18 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS [Dkt. 12] Plaintiff, 13 14 Case No. 20cv00816–LAB–MSB On January 7, 2021, Plaintiff G & G Closed Circuit Events, LLC (“Plaintiff”) 19 sought 20 (“Defendant”), d/b/a El Comal Antojitos Mexicanos Restaurant (“El Comal”). 21 (Dkt. 6). Plaintiff claims that Defendant unlawfully “intercepted, received and 22 published” a boxing fight that was displayed on Defendant’s televisions in El Comal 23 without first obtaining the sublicensing rights for it. The Court granted default 24 judgment on September 30, 2021, (Dkt. 10), and awarded a total judgment of 25 $2,625.00, representing $1,750.00 in statutory damages and $875.00 in 26 conversion fees. 27 28 default judgment against Defendant America Zamora Zarazua Plaintiff now seeks attorneys’ fees and costs incurred in connection with this action. For the reasons stated below, Plaintiff’s motion is GRANTED IN PART. 1 20cv00816–LAB–MSB 1 2 I. ATTORNEYS’ FEES A. Legal Standard 3 Reasonable attorneys’ fees are recoverable under both 47 U.S.C. 4 § 553(c)(2)(C) and § 605(e)(3)(B)(iii) for an “aggrieved party who prevails,” 5 including any person with proprietary rights in an intercepted communication by 6 wire, radio, or cable operator, including wholesale or retail distributors of satellite 7 cable programming. 47 U.S.C. § 553(a)(1) and 605(d)(6). This would include “a 8 program distributor with exclusive distribution rights.” J&J Sports Prods., Inc. v. 9 Nguyen, No. 13–CV–02008–LHK, 2014 WL 60014, at *5 (N.D. Cal. Jan. 7, 2014). 10 “Once a party is found eligible for fees, the district court must then determine 11 what fees are reasonable.” Roberts v. City of Honolulu, 938 F.3d 1020, 1023 (9th 12 Cir. 2019) (quoting Klein v. City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 13 2016)). The presumptive method to calculate this is the “lodestar method,” which 14 “provides an objective basis on which to make an initial estimate of the value of a 15 lawyer’s services.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Using this 16 method, courts calculate “the number of hours reasonably expended on the 17 litigation and then multiply that number by a reasonable hourly rate.” Id.; Vargas v. 18 Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (quoting Blum v. Stenson, 465 U.S. 19 886, 888 (1984)). 20 The party seeking attorneys’ fees “bears the burden of establishing 21 entitlement to an award and documenting the appropriate hours expended and 22 hourly rate.” Hensley, 461 U.S. at 437. This includes “submitting evidence of the 23 hours worked, the rate charged, and that the rate charged is in line with the 24 prevailing market rate of the relevant community.” G&G Closed Circuit Events, LLC 25 v. Parker, No. 3:20–cv–00801–BEN–RBB, 2018 WL 164998, at *2 (S.D. Cal. Jan. 26 19, 2021) (quoting Carson v. Billings Police Dep’t, 470 F.3d 889, 891 (9th Cir. 27 2006)). The relevant community is “the forum in which the district court sits.” 28 Gonzalez v. City of Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013) (quoting 2 20cv00816–LAB–MSB 1 Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)); see 2 also Jordan v. Multnomah Cnty., 815 F.2d 1258, 1261–63 (9th Cir. 1987) (“The fee 3 applicant has the burden of producing satisfactory evidence, in addition to the 4 affidavits of its counsel, that the requested rates are in line with those prevailing in 5 the community for similar services of lawyers of reasonably comparable skill and 6 reputation.”). If the moving party in a fee motion “satisfies its burden of showing 7 that the claimed rate and number of hours are reasonable, the resulting product is 8 presumed to be the reasonable fee.” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 9 622–23 (9th Cir. 1993). Furthermore, the Court has discretion to exclude those 10 hours for which it would be unreasonable to compensate the prevailing party 11 because, for example, they are “excessive, redundant, or otherwise unnecessary.” 12 G&G Closed Circuit Events, LLC v. Pacheco, No. 18–cv–00462–BTM–AGS, 2019 13 WL 3388362, at *2 (S.D. Cal. Jul. 25, 2019) (quoting Gonzalez, 729 F.3d at 1203). 14 15 B. Discussion i. Thomas Riley 16 Counsel for Plaintiff, Thomas Riley (“Mr. Riley” or “Plaintiff’s Counsel”), 17 demonstrates that his hourly rate of $550 is reasonable. Mr. Riley is a licensed 18 attorney and member in good standing in three states: Pennsylvania, New Jersey, 19 and California. (Dkt. 12-1, Declaration of Thomas Riley (“Riley Decl.”), ¶ 3). He has 20 been practicing law for approximately twenty-eight years, and his firm has 21 specialized in the civil prosecution of commercial signal piracy claims since 22 December 1994. (Id. at ¶¶ 3–4). 23 This District has held a range of rates from $450–750 per hour to be 24 reasonable for a senior partner. See Gallagher v. Philipps, No. 20cv00993–LL– 25 BLM, 2022 WL 848329, at *3 (S.D. Cal. Mar. 22, 2022); Youngevity Int’l Corp. v. 26 Smith, No. 16–cv–0070–BTM–JLB, 2018 WL 2113238, at *5 (S.D. Cal. May 7, 27 2018) (“Courts in this district have held a range of rates from $450-750 per hour 28 reasonable for a senior partner in a variety of litigation contexts and specialties.”). 3 20cv00816–LAB–MSB 1 Mr. Riley’s hourly rate of $550 falls within this range and is reasonable. 2 Having determined the hourly rate is reasonable, the Court must next 3 determine whether the number of hours billed by Mr. Riley on this case—2.61 4 hours—is reasonable. Mr. Riley provides a billing statement with block-billed time 5 entries, reflecting the time he expended on various tasks. (Riley Decl., Ex. 1). Mr. 6 Riley worked a total of 2.61 hours, (id.), and in his supporting declaration, he 7 explains that “[b]illable hours for legal services rendered are reconstructed by way 8 of a thorough review of the files themselves.” (Id. ¶ 7). But as with what appears to 9 be Mr. Riley’s usual practice, these “reconstructed” records are not 10 contemporaneous and therefore less reliable and more likely to be inaccurate. See 11 G & G Closed Cir. Events, LLC v. Hernandez, No. 20-CV-2112-MMA (RBB), 2021 12 WL 3290422, at *2 (S.D. Cal. Aug. 2, 2021) (“Thus, the ‘reconstructed’ billing 13 records are not contemporaneous. This appears to be Mr. Riley’s standard 14 practice.”). Moreover, many of his time entries appear duplicative of tasks 15 completed by either his research attorney or administrative assistant. (See Riley 16 Decl., Ex. 1). But because his time entries are in block-billed format, it’s difficult for 17 the Court to ascertain exactly how much time he billed on these duplicative tasks. 18 Courts may reduce an award of attorneys’ fees where the documentation of 19 the hours is inadequate, the hours are duplicated, or the hours expended are 20 excessive or otherwise unnecessary. See Hensley, 461 U.S. at 438 n.13; 21 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (citation 22 omitted). The Court therefore finds that a one-third reduction of Mr. Riley’s total 23 hours is appropriate to mitigate against the risks associated with his duplicative 24 and non-contemporaneous billing. Of the 2.61 billed by Mr. Riley, the number of 25 hours reasonably expended by him is 1.75, and the Court thus awards a total of 26 $962.50 in attorney’s fees to Mr. Riley. 27 28 ii. Research Attorney Plaintiff additionally requests $1,800.00 in attorneys’ fees for an unnamed 4 20cv00816–LAB–MSB 1 research attorney, for 6.00 billable hours at a rate of $300 per hour. (Riley Decl. 2 ¶ 3). Plaintiff supports its motion for fees by providing cursory information about 3 the research attorney’s academic credentials, bar admission status, and 4 employment at Mr. Riley’s firm. (Id.). But the motion and accompanying declaration 5 don’t even identify who this research attorney is by name, nor do they provide any 6 information to substantiate that $300 is a reasonable hourly rate for a like attorney 7 in this forum—a necessary component of the lodestar method. See Jordan, 815 8 F.2d at 1263 (“The fee applicant has the burden of producing satisfactory 9 evidence, in addition to the affidavits of its counsel, that the requested rates are in 10 line with those prevailing in the community for similar services of lawyers of 11 reasonably comparable skill and reputation.”). Plaintiff fails to include the type of 12 details required for the Court to adequately assess the reasonableness of the fees 13 requested. 14 Despite previous courts repeatedly raising this issue with him, Plaintiff’s 15 Counsel again neglects to provide relevant information about this research 16 attorney. See, e.g., G & G Closed Cir. Events, LLC v. Hernandez, No. 20-CV-2112- 17 MMA (RBB), 2021 WL 3290422, at *3 (S.D. Cal. Aug. 2, 2021) (“However, the 18 research attorney is not given a name, and there is no supporting information that 19 demonstrates that his $300 hourly rate is reasonable in this forum.”); G & G Closed 20 Cir. Events, LLC v. Garcia, No. CV-19-05134-PHX-SPL, 2020 WL 5535758, at *4 21 (D. Ariz. Sept. 15, 2020) (finding insufficient the brief description of the unnamed 22 research attorney’s qualifications); G & G Closed Cir. Events LLC v. Espinoza, No. 23 CV-18-08216-PCT-JAT, 2020 WL 1703630, at *4 (D. Ariz. Apr. 8, 2020) (“Mr. 24 Riley’s research attorney also poses a problem because (as is his usual practice) 25 Mr. Riley has provided only scant information about this unidentified attorney, 26 namely that he has practiced law for 25 years and worked with Mr. Riley for 10 of 27 those.”). 28 Because Plaintiff again fails to meet its burden of proving that the $300 hourly 5 20cv00816–LAB–MSB 1 rate is reasonable, the Court does not award attorneys’ fees for the unnamed 2 research attorney. See Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th 3 Cir. 2018) (“In a case in which a defendant fails to appear or otherwise defend 4 itself, however, the burden of scrutinizing an attorney's fee request—like other 5 burdens—necessarily shifts to the court.”); see also Hernandez, 2021 WL 6 3290422, at *3 (declining to award attorneys’ fees to an unnamed research 7 attorney); J&J Sports Prods., Inc. v. Segura, No. 4:17–cv–05335–YGR (KAW), 8 2018 WL 1868271, at *8 (N.D. Cal. Apr. 19, 2018) (recommending denial of fees 9 for the “unsubstantiated work” of Riley’s unnamed research attorney). 10 iii. Administrative Assistant 11 Plaintiff also requests $713.90 in fees for an unidentified administrative 12 assistant, for 6.49 billable hours at a rate of $110 per hour. (Riley Decl. ¶ 6, Ex. 1 13 at 3). The billing invoice provided to the Court reflects block-billed entries for the 14 administrative assistant’s tasks, many of which are duplicative of tasks billed for 15 by Riley and the research attorney, including review of court filings, preparation of 16 motions, and execution of proofs of service. (Id., Ex. 1). 17 But courts in this Circuit have routinely “declined to award fees for clerical 18 work by administrative assistants, particularly where there is a lack of specificity in 19 such billing and the billing is duplicative of attorney time.” J & J Sports Prods. Inc. 20 v. Cervantes, No. 116CV00485DADJLT, 2019 WL 935387, at *4 (E.D. Cal. Feb. 21 26, 2019) (providing list of example cases); see also J & J Sports Prods., Inc. v. 22 Medoza-Lopez, No. 17CV06421YGRJSC, 2018 WL 5099262, at *2 (N.D. Cal. Aug. 23 13, 2018) (declining to award administrative fees “where, as here, counsel has 24 block-billed time for himself and the administrative assistant for performing the 25 same tasks”); J&J Sports Prods., Inc. v. Marini, No. 1:16–cv–0477–AWI–JLT, 2018 26 WL 2155710, at *2 (E.D. Cal. May 10, 2018) (declining to award fees for tasks 27 completed by the administrative assistant). And where, as here, the work 28 conducted by the administrative assistant is purely clerical in nature, including 6 20cv00816–LAB–MSB 1 reviewing and preparing files, filing and serving motions, and executing proofs of 2 service, it “should be absorbed into a firm’s overhead rather than billed at a set 3 rate.” Hernandez, 2021 WL 3290422, at *3 (citing Nadarajah v. Holder, 569 F.3d 4 906, 921 (9th Cir. 2009)); see also Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 5 847 (9th Cir. 2012) (“We find that the district court did not abuse its discretion in 6 declining to award [the plaintiff’s] attorney’s fees for purely clerical tasks such as 7 filing documents and preparing and serving summons.”). Accordingly, the Court declines to award fees for the work performed by the 8 9 administrative assistant. iv. Conclusion 10 The Court awards a total of $962.50 in attorneys’ fees. 11 12 II. COSTS 13 In addition to reasonable attorneys’ fees, Plaintiff also requests $2,411.77 in 14 pre-filing investigative expenses, courier and photocopy charges, and filing fees. 15 (See Riley Decl., Ex. 1 at 3). Plaintiff provides documentation for the investigative 16 charges in the form of three invoices, although none provide any information about 17 the investigators’ qualifications or the extent of the investigators’ services. (See id., 18 Ex. 2). 19 In line with other courts in this Circuit, the Court declines to award pre-filing 20 investigative costs, particularly given Plaintiff’s lack of properly documented 21 invoices. See G & G Closed Cir. Events, LLC v. Velasquez, No. 1:20-CV-1736 JLT 22 SAB, 2022 WL 348165, at *6 (E.D. Cal. Feb. 4, 2022) (“Because investigative 23 expenses are not generally recoverable costs, denial of Plaintiff's request for the 24 investigation costs is appropriate.”); G&G Closed Circuit Events, LLC v. Miranda, 25 No. 20–cv–07684–CRB, 2022 WL 35602, at *3 (N.D. Cal. Jan. 4, 2022) (“Pre-filing 26 investigative costs are not costs incurred in prosecuting the lawsuit and thus not 27 recoverable.”); G&G Closed Cir. Events, LLC v. Barajas-Quijada, No. 1:19-CV- 28 1259 AWI JLT, 2020 WL 1640005, at *3 (E.D. Cal. Apr. 2, 2020) (requiring 7 20cv00816–LAB–MSB 1 documentation “beyond the submission of a bare invoice to be provided to support 2 an award of investigative costs”); Joe Hand Promotions, Inc. v. Beltran, 2019 WL 3 3501451, at *4 (S.D. Cal. Jul. 31, 2019) (“pre-filing investigative costs are not 4 typically awarded by courts in this circuit”). 5 6 7 The Court awards costs in the amount of $511.77 for reimbursement of filing fees, courier charges, and photocopy charges. III. CONCLUSION 8 The Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion for 9 attorneys’ fees and costs. The Court AWARDS Plaintiff a total of $1,474.27, 10 11 12 13 14 representing $962.50 in attorneys’ fees and $511.77 in costs. IT IS SO ORDERED. Dated: July 29, 2022 Honorable Larry Alan Burns United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 20cv00816–LAB–MSB

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