Yeager et al v. Bowlin et al, No. 2:2008cv00102 - Document 169 (E.D. Cal. 2010)
Court Description: ORDER granting 163 Motion for Attorney Fees and Costs in the amount of $275,596.58 signed by Judge William B. Shubb on 6/3/10. (Kaminski, H)
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Yeager et al v. Bowlin et al Doc. 169 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 13 NO. CIV. 2:08-102 WBS JFM GENERAL CHARLES “CHUCK” YEAGER, (RET.), and GENERAL CHUCK YEAGER FOUNDATION, 14 MEMORANDUM AND ORDER RE: MOTION FOR ATTORNEY’S FEES AND COSTS Plaintiffs, 15 v. 16 17 18 19 20 21 CONNIE BOWLIN, ED BOWLIN, DAVID MCFARLAND, AVIATION AUTOGRAPHS, a non-incorporated Georgia business entity, BOWLIN & ASSOCIATES, INC., a Georgia corporation, INTERNATIONAL ASSOCIATION OF EAGLES, INC., an Alabama corporation, SPALDING SERVICES, INC., and DOES 1 through 100, inclusive, 22 Defendants. 23 / 24 25 ----oo0oo---- 26 Having prevailed on their motion for summary judgment 27 (See Docket No. 135), defendants Connie and Ed Bowlin, Aviation 28 Autographs, and Bowlin and Associates, Inc. now move for an award 1 Dockets.Justia.com 1 of attorney’s fees and costs pursuant to California Civil Code 2 section 3344(a) and section 35(a) of the Lanham Act, 15 U.S.C. 3 1117(a). 4 I. 5 Factual and Procedural Background Plaintiffs General Charles Yeager and the General Chuck 6 Yeager Foundation filed suit against defendants on January 14, 7 2008, for violations of California Civil Code section 3344 8 (statutory right of publicity); the Lanham Act, 15 U.S.C. §§ 9 1051-1129; California’s Unfair Competition Law (“UCL”), Cal. Bus. 10 & Prof. Code §§ 17200-17210; and the California False Advertising 11 Act, id. § 17500; as well as common law claims for breach of 12 right to privacy, fraud, breach of contract, unjust enrichment, 13 accounting, and equitable rescission. 14 Defendants filed a motion to dismiss the original complaint, 15 which was granted with leave to amend. 16 Plaintiffs then filed a First and Second Amended Complaint. 17 (Docket No. 1.) (Docket No. 17). On November 16, 2009, defendants Connie and Ed Bowlin, 18 Aviation Autographs, and Bowlin and Associates, Inc. moved for 19 summary judgment. 20 motion in its entirety and entered judgment in favor of 21 defendants. 22 recover their attorney’s fees and costs on February 2, 2010. 23 (Docket No. 141.) 24 defendants’ initial billing statement, on April 23, 2010, the 25 court ordered defendants to submit an amended motion for 26 attorney’s fees that did not use block billing. 27 162.) 28 and amended billing statement that allocated time for each task (Docket No. 103.) (Docket No. 135.) The court granted that Defendants filed a motion to In response to pervasive block billing in (Docket No. Defendants submitted an amended motion for attorney’s fees 2 1 performed on May 3, 2010. 2 II. 3 (Docket No. 163.) Discussion Jurisdiction in this action is based on 28 U.S.C. § 4 1331 (federal question jurisdiction). “In an action where a 5 district court is exercising its subject matter jurisdiction over 6 a state law claim, so long as ‘state law does not run counter to 7 a valid federal statute or rule of court, and usually it will 8 not, state law denying the right to attorney’s fees or giving a 9 right thereto, which reflects a substantial policy of the state, MRO Commc’ns, Inc. v. AT & T Corp., 197 10 should be followed.’” 11 F.3d 1276, 1281 (9th Cir. 1999) (citing Alyeska Pipeline Serv. 12 Co. v. Wilderness Soc’y, 421 U.S. 240, 259 n.31 (1975)). 13 when a federal court has federal question jurisdiction and 14 exercises supplemental jurisdiction over a state law claim, the 15 court may award attorney’s fees under the applicable statute. 16 See MRO Commc’ns, 197 F.3d at 1281-83. 17 Thus, Defendants request attorney’s fees and costs under both 18 California Civil Code section 3344(a) and section 35(a) of the 19 Lanham Act. 20 mandatory award of attorney’s fees and costs to the prevailing 21 party on a section 3344 statutory right of publicity claim. 22 Civ. Code § 3344(a) (“The prevailing party in any action under 23 this section shall also be entitled to attorney’s fees and 24 costs.”); Bonner v. Fuji Photo Film, No. Civ. 06-4372 CRB, 2008 25 WL 410260, at *2 (N.D. Cal. Feb. 12, 2008) (citing Kirby v. Sega 26 of Am., Inc., 144 Cal. App. 4th 47, 62 (2006)). 27 28 California Civil Code section 3344(a) provides for a Cal. “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably 3 1 expended multiplied by the reasonable hourly rate.” PLCM Group 2 v. Drexler, 22 Cal. 4th 1084, 1095 (2000). 3 hourly rate is that prevailing in the community for similar 4 work.” 5 App. 3d 999, 1004 (1982)). 6 upward or downward “by the court based on factors including . . . 7 (1) the novelty and difficulty of the questions involved, (2) the 8 skill displayed in presenting them, (3) the extent to which the 9 nature of the litigation precluded other employment by the “The reasonable Id. (citing Margolin v. Reg’l Planning Comm’n, 134 Cal. The lodestar may then by adjusted 10 attorneys, (4) the contingent nature of the fee award.” 11 v. Moses, 24 Cal. 4th 1122, 1132 (2001). 12 adjusting the lodestar is to fix the fee for the action in 13 question at fair market value. 14 Ketchum The purpose of Id. A similar approach is applied under federal law. The 15 court first calculates the lodestar by taking the number of hours 16 reasonably expended by the litigation and multiplying it by a 17 reasonable hourly rate. 18 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 19 433 (1983)). 20 evaluation of the factors articulated in Kerr v. Screen Extras 21 Guild, Inc., 536 F.2d 67 (9th Cir. 1975) that are not subsumed 22 under the lodestar calculation.1 Fisher v. SJB-P.D. Inc., 214 F.3d 1115, The court may then adjust the lodestar based on an Id. 23 24 25 26 27 28 1 The factors articulated by the Ninth Circuit in Kerr are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill required 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 4 1 Federal law, unlike California law, does not allow for 2 contingency multipliers. 3 505 U.S. 557, 567 (1992) with Serano v. Priest, 20 Cal. 3d 25, 4 48-49 (1977). 5 in this case, the court’s analysis of the reasonableness of 6 defendants’ attorneys’ fee award under either law will largely be 7 identical. 8 mandatory nature, the court will begin its analysis of 9 defendants’ fee award under California law. 10 11 A. Compare City of Burlington v. Dague, As a contingency multiplier is not being asked for Given defendants’ emphasis on section 3344(a) and its Lodestar Calculation Defendants propose a lodestar figure of $296,673.50. 12 This amount accounts for the hours principally expended by Todd 13 M. Noonan, a partner of the law firm of Stevens, O’Connell & 14 Jacobs LLP (“Stevens O’Connell”), although certain fees generated 15 by other partners, associates, and paralegals are also included. 16 (See Noonan Decl. (Docket No. 145) ¶¶ 7, 14-15; Am. Mot. 17 Attorney’s Fees (Docket No. 163) at 3.) 18 include approximately $33,745 worth of charges written off by 19 Stevens O’Connell in their bills to defendants. 20 figure also includes an additional $1,200 for services provided 21 by defendants’ Georgia-based counsel, Donald Taliaferro and 22 $12,440 in attorney’s fees incurred in connection with the Bill 23 of Costs and defendant’s reply brief to plaintiffs’ opposition to 24 the motion. 25 This amount does not (Id. ¶ 14.) The (Id. ¶ 58; Am. Mot. Attorney’s Fees at 3.) Plaintiffs object to defendants’ request for attorneys’ 26 27 28 “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. 5 1 fees and costs on numerous grounds. Plaintiffs primarily contend 2 that: (1) defendants’ amended billing statements should be 3 rejected because they do not have sufficient evidence to support 4 them, (2) Stevens O’Connell’s billing rates were unreasonable, 5 (3) much of the work done by Noonan could have done by 6 associates, paralegals, or secretaries at a cheaper cost, and (4) 7 defendants should be denied compensation and have their lodestar 8 amount reduced for billing related to attacks on the Yeagers’ 9 character. 10 1. Adequacy of Amended Billing Statements 11 Plaintiffs argue that defendants’ amended billing 12 statements do not meet defendants’ burden of proof because the 13 amended billing statements were not made contemporaneously and 14 lack adequate foundation as to their validity. 15 Ninth Circuit has “expressed a ‘preference’ for contemporaneous 16 records,” it has “never held that they are absolutely necessary.” 17 Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1121 (9th Cir. 2000); 18 see also United States v. $12,248 U.S. Currency, 957 F.2d 1513, 19 1521 (9th Cir. 1991); United States v. City & County of San 20 Francisco, 748 F. Supp. 1416, 1420 (N.D. Cal. 1990) (noting that 21 the use of reconstructed billing records “is an established 22 practice in this circuit”). 23 part on reconstructed records developed by reference to 24 litigation files and other records is not an abuse of 25 discretion.” 26 1536, 1542 (9th Cir. 1992) (citing Bonnette v. Cal. Health & 27 Welfare Agency, 704 F.2d 1465, 1473 (9th Cir. 1983)) rev’d in 28 part on other grounds by Davis v. City & County of Sacramento, Although the “Basing the attorneys’ fee award in Davis v. City & County of Sacramento, 976 F.2d 6 1 984 F.2d 345 (9th Cir. 1993). 2 Defendants’ amended billing statements, which list the 3 amount of time expended on each identified task instead of block 4 billing for all time for a given day, are sufficiently reliable.2 5 Noonan, Stevens O’Connell associate Daniel J. Croxall, and 6 paralegal Lucy Kellogg created the amended billing statements by 7 reviewing the original billing statements and then using their 8 personal recollections, customs and practices, and review of the 9 documents and correspondence created on each day to reconstruct 10 the amount of time spent on each task. 11 No. 166) ¶¶ 3-6.; Croxall Decl. (Docket No. 164) ¶¶ 3, 6; Kellogg 12 Decl. (Docket No. 165) ¶¶ 3, 5-6.) 13 must reconstruct its billing records from scratch, defendants’ 14 counsel had the assistance of contemporaneously created block 15 billed records when creating the amended billing statements, 16 thereby increasing the reliability of the reconstructed records. 17 The declarations submitted by defendants’ counsel indicate that 18 the amended billing statements were created with reference to 19 defendants’ litigation file, the previous bills, and with (Am. Noonan Decl. (Docket Unlike cases where a party 20 2 21 22 23 24 25 26 27 28 Plaintiffs object to Noonan, Croxall, and Kellogg’s declarations, as well as the amended billing statements themselves. Noonan, Croxall, and Kellogg’s declarations are all based on their personal knowledge, and describe the methodology used to create the amended billing statements. Noonan also states that he has personal knowledge that the statements are reliable. Noonan, Croxall, and Kellogg utilized documents which were either available to plaintiffs as part of defendants’ legal file or privileged to construct the amended billing statements. These documents are properly submitted in support of defendants’ fee request. See Fischer, 214 F.3d at 1121 (noting that fee requests based on reconstructed billing statements can be proper). Accordingly, plaintiffs’ evidentiary objections on the grounds of lack of foundation, lack of personal knowledge, hearsay, lack of access to documents refreshing recollection, and best evidence are overruled. 7 1 information within counsel’s personal knowledge. In light of the 2 foregoing facts, the court finds that the amended billing 3 statements are sufficiently reliable and adequate. 4 976 F.2d at 1542; Fleming v. Coverstone, No. 08cv355 WQH (NLS), 5 2009 WL 764940, at *4 (S.D. Cal. Mar. 18, 2009). See Davis, 6 2. 7 A reasonable rate is typically based upon the Reasonable Rate 8 prevailing market rate in the community for “similar work 9 performed by attorneys of comparable skill, experience, and 10 reputation.” 11 1210 (9th Cir. 1986); see also Blum v. Stenson, 465 U.S. 886, 12 895-96 n.11 (1984) (“[T]he burden is on the fee applicant to 13 produce satisfactory evidence . . . that the requested rates are 14 in line with those prevailing in the community.”); Drexler, 22 15 Cal. 4th at 1095. 16 in which the court sits. 17 (9th Cir. 1997). 18 Chalmers v. City of Los Angeles, 796 F.2d 1205, The relevant community is generally the forum Barjon v. Dalton, 132 F.3d 496, 500 Noonan seeks an hourly rate of $400 per hour for his 19 work and the work of fellow partner Brad Benbrook, $305 per hour 20 for associate Dan Croxall’s work, and $135 per hour and $155 per 21 hour for the work of paralegals Lucy Kellogg and Greg Nelson, 22 respectively. 23 Noonan submits the declaration of Glenn W. Peterson, a partner at 24 the firm of Millstone, Peterson & Watts LLP and practicing 25 attorney in Sacramento since the late 1980s. 26 (Docket No. 142) ¶ 2.) 27 complex litigation with a “strong focus on intellectual property, 28 including trademark/copyright infringement and business torts.” (Id.) In support of his requested fee rate, (Peterson Decl. Mr. Peterson’s practice focuses on 8 1 (Id. ¶ 3.) 2 publicity/Lanham Act case such as this in federal court . . . a 3 rate of $400 is at the lower end of the market, if not [] below 4 market rate” and that “many lawyers in Sacramento would bill $450 5 to $500 per hour or more for matters such as this.” 6 Mr. Peterson declares that “[f]or a complex right of (Id. ¶ 4.) Noonan also submits the declaration of Tory Griffin, a 7 partner of the law firm of Downey Brand LLP in Sacramento whose 8 practice includes intellectual property litigation and complex 9 commercial litigation. (Griffin Decl. (Docket No. 143) ¶ 2.) 10 Mr. Griffin declares that “[t]he hourly rates for partners in 11 [his] firm have been established in light of the prevailing rates 12 in the Sacramento area for attorneys with [Downey Brand LLP’s] 13 background and experience . . . and general range from $325 to 14 550 per hour for partner level lawyers.” 15 concludes that in his opinion, for a matter such as this that 16 “was complex, involved a high profile plaintiff, and numerous 17 state and federal claims . . . an hourly rate of $400 for a 18 lawyer of Mr. Noonan’s background and experience represents a 19 reasonable rate.” 20 (Id. ¶ 3.) Mr. Griffin (Id. ¶ 4.) Noonan lastly submits a declaration from Wesley C.J. 21 Ehlers, a partner at Pillsbury Winthrop Shaw Pittman LLP, who has 22 litigated antitrust, unfair competition, and intellectual 23 property disputes in the Sacramento area. 24 No. 144) ¶¶ 2-3.) 25 right of publicity/Lanham Act case such as this in federal court 26 . . . a rate of $400 is at the lower end of the market, if not 27 below market rate.” 28 $400 per hour rate “is below the customary rate that Pillsbury (Ehlers Decl. (Docket Mr. Ehlers declares that “[f]or a complex (Id. ¶ 5.) Mr. Ehlers further states that a 9 1 would charge on an hourly basis for an attorney of Mr. Noonan’s 2 background and experience for a matter such as this” and that 3 “many lawyers in Sacramento would bill $450 to $500 per hour or 4 more” for this case. 5 (Id.) Plaintiffs argue that the rates proposed for Noonan, 6 Croxall, and the paralegals are unreasonable because they are 7 higher than the rates accepted as the prevailing hourly rate in 8 Sacramento by courts in this district. 9 many cases, “[j]udges in this district have consistently found Plaintiffs note that in 10 $250 per hour to be a reasonable rate for an experienced attorney 11 working in this community.” 12 Civ. 2:05-1175 GEB DAD, 2007 WL 1660999, at *4 (E.D. Cal. June 6, 13 2007); see also Eiden v. Thrifty Payless Inc., 407 F. Supp. 2d 14 1165, 1171 (E.D. Cal. 2005) (Americans With Disabilities Act 15 case); Cummings v. Connell, 177 F. Supp. 2d 1079, 1088-89 (E.D. 16 Cal. 2001) (civil rights case), rev’d on other grounds, 316 F.3d 17 886 (9th Cir. 2003). Belliveau v. Thomson Fin., Inc., No. 18 However, “in determining the prevailing market rate a 19 district court abuses its discretion to the extent it relies on 20 cases decided years before the attorneys actually rendered their 21 services.” 22 (9th Cir. 2008) (citing 23 869 (9th Cir. 2003) (holding it was an abuse of discretion to 24 apply market rates more than two years before the work was 25 performed)). 26 that reflect economic conditions in the district; it is not to 27 ‘hold the line’ at a particular rate . . . .” 28 Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 Bell v. Clackamas County, 341 F.3d 858, “The district court’s function is to award fees 10 Moreno v. City of Accordingly, 1 while the court can consider fees awarded by judges in this 2 district, those fees are by no means dispositive. See id. Moreover, the cases cited by plaintiffs for the 3 4 proposition that $250 per hour is a reasonable rate for Noonan’s 5 work in this action are inapposite. 6 involved relatively simple civil rights or Americans with 7 Disabilities Act claims, litigation of this action required 8 specialized knowledge of the complexities of intellectual 9 property law in a suit involving a high profile plaintiff. Unlike those cases, which 10 Defendants’ counsel may accordingly be entitled to higher hourly 11 compensation than attorneys who litigate cases that do not 12 require such special skill or expertise. The cases cited by plaintiffs also for the most part 13 14 involved attorneys for prevailing plaintiffs who were entitled by 15 statute to recover their fees from the opposing party, but never 16 expected to collect them from their own clients. 17 Eiden, 407 F. Supp. 2d at 1165; 18 1088-89. 19 contingent fee contract in which the client is obligated to pay 20 only if he or she prevails, and then, of course, it is the 21 opposing party rather than the client who pays the fee. 22 cases, a plaintiff’s attorney cannot represent that the hourly 23 rate proposed to the court is the actual fee that the client 24 would pay. 25 2006 WL 947768, at *2-3 (E.D. Cal. Apr. 12, 2006). 26 See, e.g., Cummings, 177 F. Supp. 2d at In those cases, the attorneys typically have a In those See White v. GMRI, Inc., No. Civ. 04-0620 WBS KJM, In contrast, in a case such as this the hourly rate 27 billed by the attorney is a rate which the client has agreed to 28 pay, and would in fact pay if it did not prevail. 11 It is also a 1 rate which the attorney regularly bills and collects from his 2 other clients for similar work. 3 attorney’s representation of the going rate for his services is 4 entitled to greater credibility. 5 willingness to pay Noonan’s $400 hourly rate is a strong 6 indication that his rate was a reasonable market rate for this 7 case. 8 F.3d 1332, 1337 (11th Cir. 2001). 9 In cases like this the Accordingly, defendants’ See Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 Defendants have also presented substantial evidence in 10 the form of declarations from experienced litigators in the 11 Sacramento community indicating that partners with comparable 12 levels of experience to Noonan generally charge between $325 and 13 $500 per hour in the Sacramento area for intellectual property 14 disputes and actions under the Lanham Act. 15 3; Peterson Decl. ¶ 4; Ehlers Decl. ¶ 5.) 16 aver that a case involving a high profile plaintiff, multiple 17 state and federal claims, and the Lanham Act has a higher level 18 of complexity than an average case in the community, which the 19 court agrees is the case. 20 ¶ 4; Ehlers Decl. ¶ 5.) 21 (See Griffin Decl. ¶ The declarations also (See Griffin Decl. ¶ 3; Peterson Decl. Although the Peterson and Ehlers declarations do not 22 use the exact phrase “prevailing rate” when describing the rates 23 employed by partners with experience levels comparable to Noonan 24 in Sacramento, both declarations indicate that a $400 per hour 25 rate is at the lower end of the Sacramento market, if not below 26 market for a case similar to this one. 27 Ehlers Decl. ¶ 5.) 28 that Downey Brand LLP’s rate of $325 to $500 per hour for a (Peterson Decl. ¶ 4; Furthermore, the Griffin declaration states 12 1 partner’s work is set based on the prevailing rates in 2 Sacramento. 3 contrary. 4 Plaintiffs have presented no evidence to the In the light of the findings of other courts in this 5 district, the briefs, and the declarations submitted, the court 6 finds that an hourly rate of $400 per hour is an appropriate rate 7 for similar work performed by attorneys of similar experience and 8 skill to Noonan and Benbrook in the Sacramento area. 9 However, defendants have not provided any evidence to 10 the court to establish what a reasonable rate is for associate 11 attorneys or paralegals in this community. 12 district have repeatedly found that [a] reasonable rate[ ] in 13 this district [is] . . . $150 for associates.” 14 Supp. 2d at 1171; see also Belliveau, 2007 WL 1660999, at *4. 15 Additionally, the paralegal rate “favored in this district” is 16 $75 per hour. 17 v. Chand, No. Civ. 2:05-1080 DFL DAD, 2007 WL 1300450, at *2 18 (E.D. Cal. May 2, 2007)). 19 conclusions and given that defendants have presented no evidence 20 to the contrary, will limit recovery of associates’ fees to a 21 rate of $150 per hour and paralegals’ fees to $75 per hour. 22 Plaintiffs also object to the rates charged for a “Judges in this Eiden, 407 F. Faerfers, 2008 WL 1970325, at *5 (quoting Robinson The court agrees with these 23 number of hours billed by Noonan, arguing that many tasks billed 24 at Noonan’s partner rate should have been delegated to an 25 associate, paralegal, or secretary. 26 ‘billing judgment’ is an important component in fee setting. 27 is no less important here. 28 one’s client also are not properly billed to one’s adversary “In the private sector, It Hours that are not properly billed to 13 1 pursuant to statutory authority.” 2 Accordingly, the court should “not approve of ‘[t]he wasteful use 3 of highly skilled and highly priced talent for matters easily 4 delegable to non-professionals or less experienced associates.’” 5 MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d 1101, 1105 (N.D. 6 Cal. 1999) (citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 7 (3rd Cir. 1983)). 8 rates for various tasks, the court, 9 However, when looking at appropriate billing may not attempt to impose its own judgment regarding the best way to operate a law firm, nor to determine if different staffing decisions might have led to different fee requests. The difficulty and skill level of the work performed, and the result achieved--not whether it would have been cheaper to delegate the work to other attorneys--must drive the district court’s decision. 10 11 12 13 Hensley, 461 U.S. at 434. Moreno, 523 F.3d at 1115. 14 In support of their claim of overbilling, plaintiffs 15 submit a declaration from Gary A. Bresee, a partner of the law 16 firm of Barger & Wollen LLP, who has been involved in litigation 17 for twenty-one years, including litigation and consulting over 18 attorney fee disputes. 19 2.) 20 would normally be undertaken by an associate and reviewed by a 21 partner, and accordingly that Noonan’s fees should be reduced to 22 an associate rate for two-thirds of the 57.2 hours expended on 23 this work. 24 researching venue and personal jurisdiction issues on the motion 25 to dismiss; researching statute of limitations issues; drafting 26 joint status reports, stipulations to extend time, a motion for 27 sanctions, a stipulated protective order, and a motion to strike; 28 drafting discovery documents such as document requests, requests (See Bresee Decl. (Docket No. 157) ¶¶ 1- Mr. Bresee contends that many tasks undertaken by Noonan (Id. ¶¶ 16-20, 22.) Such work includes: personally 14 1 for admission, and interrogatories; and spending four hours at an 2 off-site document production. (Id. ¶¶ 6-8). The court is skeptical that the firm model imposed by 3 4 Mr. Bresee would necessarily have saved defendants any money. 5 Noonan wrote off a substantial number of the hours he performed 6 on tasks for them. 7 the matter may very well have been more efficient than billing an 8 associate to familiarize themselves with the facts, do the same 9 work over a lengthier amount of time, and then have Noonan review Noonan’s expertise and independent work on 10 their work. See Moreno, 534 F.3d at 1114-15 (“The district court 11 may have been right that a larger firm would employ junior 12 associates who bill at a lower rate than plaintiff’s counsel, but 13 a larger firm would also employ a partner-likely billing at a 14 higher rate than plaintiff’s counsel-to supervise them . . . lead 15 counsel can doubtless complete the job more quickly, being better 16 informed as to which documents are likely to be irrelevant, and 17 which need to be examined closely. 18 drifts far afield of the Hensley calculus . . . .”). 19 does not believe any of the aforementioned work performed by 20 Noonan is below his skill level or necessitated the use of an 21 associate to keep costs down, even if other firms would not have 22 billed that way and accordingly will not change the billing rate 23 for these tasks. Modeling law firm economics The court Plaintiffs further contend that Noonan billed several 24 25 tasks that could be performed by a paralegal at partner rates. 26 “[P]aralegal work should be billed at an appropriate rate, 27 regardless of the status of the person actually undertaking the 28 work.” Robinson, 2007 WL 1300450, at *2. 15 Several tasks 1 undertaken by Noonan should be billed at a paralegal rate, 2 including his preparation of a discovery timetable (7/22/08), 3 case scheduling with the courtroom deputy (8/21/08), document 4 organization (2/6/09), and correspondence over deposition dates 5 (8/21/09). 6 filing documents, . . . scheduling matters, . . . preparing 7 boilerplate documents, and organizing case files” as paralegal 8 tasks). 9 on these tasks to a $75 per hour rate. 10 See id. (including “preparing cover sheets, . . . e- Accordingly, the court will reduce the 3.6 hours spent Plaintiffs finally argue that the court should 11 eliminate tasks billed by paralegals that are purely secretarial 12 or clerical from its lodestar calculation. 13 previously explained, secretarial tasks are generally not 14 recoverable as attorney’s fees because “the salaries and benefits 15 paid to support staff are a part of the usual and ordinary 16 expenses of an attorney in his practice, and are properly 17 classified as overhead.” 18 (internal quotation marks omitted); see also Ketih v. Volpe, 644 19 F. Supp. 1312, 1316 (C.D. Cal. 1986). 20 performed by defendants’ paralegals appear to have been clerical 21 or secretarial in nature, such as copying (5/22/08), Bates 22 labeling (5/22/08), and scanning documents (8/5/09). 23 Accordingly, the court will deduct 4.6 hours of paralegal work 24 from its lodestar calculation. As this court has Eiden, 407 F. Supp. 2d at 1171 A number of tasks 25 3. Hours Reasonably Expended 26 Plaintiffs also object to some of the hours expended by 27 defendants’ counsel. Plaintiffs first object to defendants 28 billing for time spent by Noonan consulting with fellow partner 16 1 Brad Benbrook. While excessive conferencing with other attorneys 2 can be prone to abuse, the amount of conferencing in this case is 3 quite small; only 8.3 hours were billed for conferences over case 4 strategy between Benbrook and Noonan. 5 41.) 6 especially in a case staffed as leanly as this one, where Noonan 7 did a substantial portion of the work without assistance of other 8 attorneys to try to minimize costs. 9 level of consultation between Benbrook and Noonan unreasonable, (See Noonan Decl. ¶¶ 39- Consultation between lawyers can be an invaluable resource, The court does not find the 10 and accordingly will not eliminate Benbrook’s hours from the 11 lodestar. 12 Plaintiffs also object to defendants’ request for 13 $1,200 in fees for defendants’ Georgia counsel, Donald Taliaferro 14 and for defendants’ additional request for $16,440 worth of work 15 filing this fee motion and responding to plaintiffs’ opposition. 16 Defendants have not indicated what work Mr. Taliaferro performed 17 for this case, how long he worked, or any billing documentation 18 to that effect. 19 burden such that the court may grant them attorney’s fees for Mr. 20 Taliafero’s work. 21 reason for the court to deny defendants’ request for attorney’s 22 fees incurred in filing the motion and responding to plaintiffs’ 23 opposition. 24 the response required by plaintiffs’ vigorous opposition to the 25 original fee motion, the additional work performed by defendants’ 26 counsel is not unreasonable. 27 defendants their request for fees incurred in preparing their 28 original motion and responding to plaintiffs’ opposition Accordingly, defendants have not met their However, plaintiffs have not supplied a valid Given the protracted nature of the litigation and Accordingly, the court will grant 17 1 2 thereto.3 B. 3 Adjusting the Lodestar Calculation After calculating the lodestar, the court must decide 4 whether to enhance or reduce the award in the light of particular 5 factors, including the novelty and difficulty of the case, the 6 skill displayed in presenting them, the extent the litigation 7 precluded other employment by the attorneys, and the contingent 8 nature of the fee award. 9 “[t]here is no hard-and-fast rule limiting the factors that may Ketchum, 24 Cal. 4th at 1132. However, 10 justify an exercise of judicial discretion to increase or 11 decrease a lodestar calculation.” 12 N.A., 92 Cal. App. 4th 819, 834 (2001). 13 that no adjustments are necessary, plaintiffs contend that the 14 lodestar calculation should be reduced because defendants’ 15 billings include work on claims that are not eligible for 16 attorney’s fees and irrelevant attacks on the Yeagers’ character. 17 Thayer v. Wells Fargo Bank, While defendants urge While some of the claims worked on by defendant are 18 non-fee bearing claims, under California law a prevailing party 19 may recover attorney’s fees on a claim for which attorney’s fees 20 are not available if it occurs in a case where a statutory claim 21 that allows for fees is present and the claims are so 22 interrelated that a separate accounting for them is impossible. 23 See Akins v. Enter. Rent-a-Car, 79 Cal. App. 4th 1127, 1133 24 (2000). This rule has explicitly been applied to section 3344(a) 25 claims. See, e.g. Kriby, 144 Cal. App. 4th at 62 n.7; Love v. 26 27 28 3 While the court will award defendants these attorney’s fees, it will reduce them in accordance with the hours supplied in the amended billing statements and appropriate prevailing rates identified in this Order. 18 1 Mail on Sunday, No. Civ. 05-2298 ABC(PJWX), 2007 WL 2709975, at 2 *3 (C.D. Cal. Sept. 7, 2007). 3 intertwined that apportionment between the claims would be nearly 4 impossible. 5 facts--namely that defendants allegedly used Yeager’s name and 6 likeliness without his permission. 7 of the common law right to privacy, unfair business practices, 8 and violations of section 3344, the Lanham Act, and the 9 California False Advertising Act were all based upon the same 10 11 The issues in this action were so Plaintiffs’ claims all related to the same set of Plaintiffs’ claims for breach alleged misconduct by the Bowlins. Plaintiffs’ subsequent common law claims for fraud, 12 breach of contract, accounting, unjust enrichment, and equitable 13 rescission were also all intertwined with defendants’ defenses to 14 plaintiffs’ misappropriation of likeness based claims. 15 the elements for a claim for violation of section 3344 is a lack 16 of consent. 17 under section 3344 were premised on plaintiffs’ lack of consent 18 to sell items with General Yeagers’ name and likeness because of 19 contract breaches and fraud on the part of defendants. 20 Plaintiffs could not prove their case without proving that 21 defendants either engaged in the fraudulent conduct or breached 22 an agreement with plaintiffs. 23 unjust enrichment, and equitable rescission were similarly all 24 based upon defendants’ alleged misappropriation, breach of 25 contract, and fraud. 26 reimbursement for any attorney’s fees relating to research on any 27 counterclaims defendants may have had. 28 will not reduce the lodestar amount because plaintiffs’ claims Cal. Civ. Code § 3344. One of Plaintiffs’ allegations Plaintiffs’ claims for accounting, Finally, defendants are not requesting 19 Accordingly, the court 1 were so intertwined that apportionment between them by defendants 2 is not required. 3 Plaintiffs also contend that the lodestar should be 4 reduced because defendants’ motion for summary judgment contained 5 a number of allegedly irrelevant facts in an attempt to undermine 6 the character of General Yeager and Victoria Yeager and prejudice 7 the court. 8 judgment were irrelevant, the suggestion that defendants were 9 attempting to prejudice the court are unfounded. While some facts in defendants’ motion for summary Such concerns 10 may be valid if defendants’ statements were made at trial in 11 front of a jury; however, the court has both the obligation and 12 experience to dismiss irrelevant statements and objectively 13 decide the law at summary judgment. 14 of witnesses is not irrelevant for trial and accordingly was a 15 relevant area of research for defendants. 16 on other court actions involving General Yeager also proved 17 relevant for defendants’ statute of limitations defense, since it 18 helped prove that plaintiffs were on notice of claims they had 19 against defendants. 20 The court does not believe that defendants have attempted to “use 21 the court processes for an improper purpose” and therefore 22 declines to reduce the lodestar amount on that ground. Research on the credibility Defendants’ research (See Order re: Mot. Summary Judgment at 27.) After reviewing the briefs, depositions, and other 23 24 evidence before the court, the court finds that given the 25 complexity of the case and defendants’ good-faith efforts to 26 avoid and write off costs that the lodestar amount need not be 27 increased or reduced. 28 C. Costs 20 1 Defendants also ask for a number of costs not 2 previously included in their Bill of Costs. 3 and expenses incurred by an attorney that would normally be 4 charged to a fee-paying client are recoverable as attorney’s 5 fees. 6 403, 407 (9th Cir. 1990). 7 defendants’ request for reimbursement of $1,586.58 for costs 8 associated with counsel’s travel to depositions. 9 accordingly award these costs. 10 Out-of-pocket costs United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d Plaintiffs do not object to The court will See Foothill-De Anza Cmty. College Dist. v. Emerich, 158 Cal. App. 4th 11, 30 (2007). 11 Plaintiffs do object, however, to defendants’ request 12 for $2,610.50 in Westlaw charges associated with legal research 13 in the case. 14 research to be charged as attorney’s fees. 15 Const. Indus. & Laborers Health & Welfare Trust v. Redland Ins. 16 Co., 460 F.3d 1253, 1258-59 (9th Cir, 2006); Cal. Common Cause v. 17 Duffy, 200 Cal. App. 3d 730, 753 (1987). 18 submitted to the court indicate the amount defendants’ were 19 charged for research at each billing date. 20 also indicates that each client has an individualized billing 21 number so that the firm can separate Westlaw costs among clients. 22 (Noonan Decl. ¶ 59.) 23 concern that defendants’ counsel may be receiving more money than 24 they pay for the service unfounded and will award the Westlaw 25 charges to defendants. 26 A number of courts have allowed electronic legal See Trustees of The billing statements Noonan’s declaration Accordingly, the court finds plaintiffs’ Defendants finally request that $2,740 in costs 27 initially denied by the court as part of their bill of costs be 28 awarded as attorney’s fees. Costs rejected as taxable costs in a 21 1 bill of costs may be awarded as attorney’s fees may be recovered 2 as attorney’s fees. 3 407. 4 the court should deny defendants’ request. 5 court will award the costs previously denied by the court in 6 defendants’ bill of costs as attorney’s fees. 7 III. Conclusion Plaintiffs have not objected to or provided any reason why Accordingly, the Based on the foregoing discussion, defendants will be 8 9 See United Steelworkers of Am., 896 F.2d at awarded the following: 10 A. Fees 11 Lodestar Calculation 12 Person Rate Hours = 13 Noonan $400 630.2 $252,080.00 14 Benbrook $400 8.3 $3,320.00 15 Croxall $150 32.0 $4,800.00 16 Kellogg/Nelson $75 131.9 $9,892.50 17 _______________ 18 $270,092.50 19 Deductions: 20 A. -$1,170.00 21 22 Partner Doing Paralegal Work B. Paralegals Doing Clerical Work 23 -$345.00 24 __________________ 25 Total: $268,677.50 26 27 B. Costs 28 Item Amount 22 1 Deposition Travel $1,568.58 2 Westlaw fees $2,610.50 3 Previously Denied Costs $2,740.00 4 __________________ 5 Total: $6,919.08 6 7 IT IS THEREFORE ORDERED that defendants’ motion for 8 attorney’s fees and costs be, and the same hereby is, GRANTED in 9 the amount of $275,596.58. 10 DATED: June 3, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
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