Song et al v. County of Santa Clara et al, No. 5:2011cv04450 - Document 191 (N.D. Cal. 2015)
Court Description: ORDER granting in part and denying in part 154 Plaintiffs' Motion for Attorneys' Fees and Costs. Signed by Judge Edward J. Davila on 12/15/2015. (ejdlc4S, COURT STAFF) (Filed on 12/15/2015)
Download PDF
<![CDATA[
Song et al v. County of Santa Clara et al Doc. 191 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 HUIMIN SONG, et al., Case No. 5:11-cv-04450-EJD Plaintiffs, 9 v. 10 11 COUNTY OF SANTA CLARA, et al., United States District Court Northern District of California Defendants. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS Re: Dkt. No. 154 12 Plaintiffs Huimin Song (“Plaintiff Song”) and Andy Xie (“Plaintiff Xie”) (collectively, 13 14 “Plaintiffs”) filed this 42 U.S.C. § 1983 action against Defendants County of Santa Clara, Santa 15 Clara Valley Medical Center, and various county employees (collectively, “the County”), alleging 16 the violation of their due process rights under the Fourteenth Amendment and other state-related 17 claims. This case proceeded to a jury trial in January 2015. The jury returned a verdict for 18 Plaintiffs. Plaintiffs now move for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 as the 19 prevailing parties. See Dkt. No. 154. Having carefully considered the parties’ briefing along with 20 oral argument, the court GRANTS IN PART AND DENIES IN PART Plaintiffs’ motion for the 21 reasons explained below. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 While the factual background of this case was more extensively discussed in the Order 24 Denying Defendants’ Renewed Motion for Judgment as a Matter of Law or, in the Alternative, 25 Motion for a New Trial also filed this date, only the facts relevant to this motion will be discussed 26 here. 27 28 1 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS Dockets.Justia.com Plaintiffs worked as ultrasonographers at Santa Clara Valley Medical Center, which is 1 2 operated by the County. As ultrasonographers, Plaintiffs were members of the Service Employees 3 International Union 715 (the “Union”). Between February 2009 and November 2010, the County 4 implemented a policy concerning the manner in which ultrasonographers who were “on call” 5 would report to work. After November 2010, the County realized that as a result of the policy, 6 they may have overpaid Plaintiffs. The County sought to collect the overpaid wages by deducting 7 the overpaid amount from Plaintiffs’ paychecks. After Plaintiffs unsuccessfully tried to resolve 8 this issue through their Union, they filed the instant action. Plaintiffs filed their complaint on September 7, 2011, alleging various claims for the 9 violation of § 1983, nonpayment of wages, intentional infliction of emotional distress, and other 11 United States District Court Northern District of California 10 state-related claims. See Dkt. No. 1. On December 19, 2011, Plaintiffs filed an amended 12 complaint, which is the operative complaint, asserting ten claims against the County: (1) violation 13 of § 1983; (2) violation of § 1983—retaliation; (3) negligent misrepresentation; (4) negligent 14 hiring, training, retention; (5) intentional infliction of emotional distress; (6) nonpayment of 15 wages; (7) supervisory liability under § 1983; (8) public entity liability for failure to perform 16 mandatory duties; (9) common count services had and received; and (10) injunctive relief. See 17 Dkt. No. 8. After two rounds of summary judgment motions, the only claim that survived for trial 18 was a § 1983 claim alleging the violation of Plaintiffs’ due process rights under the Fourteenth 19 Amendment. See Dkt. Nos. 46, 77.1 20 Jury trial commenced on January 13, 2015, and concluded on January 27, 2015. The jury 21 found that Plaintiffs proved by a preponderance of the evidence that the County deprived them of 22 their rights under the Fourteenth Amendment by failing to provide adequate due process in regards 23 to their collection of wages overpaid to them by the County. See Dkt. Nos. 147, 148. Moreover, 24 25 26 27 28 The County’s request for judicial notice is GRANTED. See Dkt. No. 162. Therefore, the court takes judicial notice of the following documents: (1) Plaintiffs’ amended complaint (Dkt. No. 8); (2) order granting in part and denying in part motion for summary judgment (Dkt. No. 46); and (3) order granting in part and denying in part motion for summary judgment (Dkt. No. 77). 2 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 1 the jury awarded the following damages: 2 3 4 damages; and To Plaintiff Xie, $17,216.22 in economic damages, and $40,000 in non-economic damages. 5 6 To Plaintiff Song, $33,056.91 in economic damages, and $60,000 in non-economic See id. Judgment was entered on January 28, 2015. Plaintiffs subsequently filed the instant motion on February 4, 2015. See Mot., Dkt. No. 7 154. The County filed an opposition brief, and Plaintiffs filed a reply brief. See Opp’n, Dkt. No. 9 161; Reply, Dkt. No. 163. After Plaintiffs’ counsel failed to appear in person at the motion 10 hearing scheduled for February 19, 2015, the hearing was continued to April 30, 2015. All 11 United States District Court Northern District of California 8 counsel were present at the April 30th hearing. 12 II. LEGAL STANDARD Pursuant to 42 U.S.C. § 1988, “[a] party who prevails on a claim under § 1983 is entitled 13 14 to reasonable attorneys’ fees unless special circumstances would render such an award unjust.” 15 Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014). Congress passed the 16 statute “to attract competent counsel to prosecute civil rights cases,” thus “fee awards should be 17 the rule rather than the exception.” Barnard v. Theobald, 721 F.3d 1069, 1077 (9th Cir. 2013). 18 The reasonableness of attorneys’ fees and costs is matter left to the discretion of the court. 19 Chaudhry, 751 F.3d at 1110. In the context of civil rights litigation, “the district court must strike 20 a balance between granting sufficient fees to attract qualified counsel to civil rights cases and 21 avoiding a windfall to counsel.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 22 2008). The district court, however, must provide a clear and concise explanation of its reasons for 23 the fee award. Chaudhry, 751 F.3d at 1110. 24 III. 25 26 27 28 DISCUSSION In their motion, Plaintiffs seek attorneys’ fees, reimbursement of costs, and pre and post- judgment interest. Each of these requests will be addressed in turn. 3 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS Request for Attorneys’ Fees 1 A. 2 Plaintiffs seek $585,282.65 in attorneys’ fees for the work performed by trial counsel 3 Charles A. Bonner (“Mr. C. Bonner”), A. Cabral Bonner (“Mr. A. Bonner”), and their legal 4 assistants. See Mot. at 21, Appx. A. Upon examining Plaintiffs’ calculations, however, there 5 appears to be certain calculation errors and some figures that are inconsistent with the 6 timekeepers’ declarations. According to the court’s calculations, it appears that Plaintiffs are 7 actually seeking $516,486.02. Plaintiffs’ updated appendix is as follows: Title Name Billing Hours on Hours on Rate Case Attorneys’ Fees Motion2 Attorney Charles A. Bonner $700 312.90 37.50 Attorney A. Cabral Bonner $450 385.2 32 Legal Assistant Calvin Bonner $200 7 3 Legal Assistant Ilse Wolf $175 99.75 4.75 Legal Assistant Cynthia Osborne $125 107.5 19.5 Legal Assistant Sandra Beltran $125 134 27.5 Legal Assistant Eric Seifert $150 32.5 0 8 9 10 United States District Court Northern District of California 11 12 13 14 TOTAL 5% Reduction in Billing Adjustment 15 1,078.85 124.25 16 1.1 Multiplier TOTAL 17 18 Total Lodestar $245,280 $187,740 $2,000 $18,287.50 $15,875 $20,187.50 $4,875 $494,245 - $24,712.25 $469,532.75 + $46,953.27 $516,486.02 See id. On the issue of reasonableness, the Ninth Ciruict has instructed the district courts to “start 19 20 by calculating the lodestar amount, which is the number of hours reasonably expended on the 21 litigation multiplied by a reasonable hourly rate.” Chaudhry, 751 F.3d at 1110 (internal quotations 22 omitted). The court may then adjust the lodestar according to the results obtained. 23 i. Reasonable Billing Rates 24 “Fee applicants have the burden of producing evidence that their requested fees are in line 25 with those prevailing in the community for similar services by lawyers of reasonably comparable 26 27 28 2 These hours do not include the additional hours spent on the reply brief. 4 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 skill, experience and reputation.” Id. (internal quotations omitted). The relevant community is the 2 district court’s forum, and affidavits regarding prevailing fees are satisfactory evidence of the 3 prevailing market rate. Id. “Once a fee applicant presents such evidence, the opposing party has a 4 burden of rebuttal that requires submission of evidence challenging the accuracy and 5 reasonableness of the facts asserted by the prevailing party in its submitted affidavits.” Id. at 6 1110-11 (internal quotations omitted). 7 The relevant community for this motion is the Northern District of California. A 8 reasonable hourly rate for civil rights attorneys in this community is up to $700 for partners, $350 9 for associates, and $200 for paralegals and law clerks. See, e.g., Campbell v. Nat’l Passenger R.R. Corp., 718 F. Supp. 2d 1093, 1099-1103 (N.D. Cal. 2010); Californians for Disability Rights v. 11 United States District Court Northern District of California 10 Cal. Dep’t of Transp., 2010 WL 8746910, at *13 (N.D. Cal. Dec. 13, 2010); Simon v. Toshiba 12 Am., 2010 WL 1757956, at *4 (N.D. Cal. Apr. 30, 2010). Here, the County challenges the billing 13 rate for Mr. C. Bonner, Mr. A. Bonner, and their legal assistants. 14 a. Counsel Charles A. Bonner 15 Mr. C. Bonner seeks a billing rate of $700 per hour. See Decl. of Charles A. Bonner, Dkt. 16 No. 155 at ¶¶ 7. Mr. C. Bonner has been licensed to practice law in California since 1979, has 17 been focusing on civil rights litigation in the San Francisco Bay Area, and is a partner in the Law 18 Offices of Bonner & Bonner. Id. at ¶¶ 1, 4, 7. In support of his requested billing rate, Mr. C. 19 Bonner provided two declarations from civil rights lawyers in the area attesting that a $700 billing 20 rate is reasonable. See Decl. of John Houston Scott (“Scott Decl.”), Dkt. No. 155-16 at ¶¶ 6, 8; 21 Decl. of Howard Moore, Jr. (“Moore, Jr. Decl.”), Dkt. No. 155-17 at ¶ 18. 22 The County contends a billing rate of $700 is excessive. Opp’n at 4. It argues this case 23 was not factually complicated, it was not document intensive, and the lawyers did not wrestle with 24 intricate legal theories. Id. The County further argues that Mr. C. Bonner did not litigate this case 25 in the manner of an attorney earning $700 per hour, given that he did not comply with Federal 26 Rule of Civil Procedure 26 regarding disclosure of witnesses. Id. Thus, the County suggests the 27 28 5 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 hourly rate be reduced to $450. Id. 2 The court agrees that a $700 billing rate in this case is excessive for two reasons. First, 3 even though Plaintiffs commenced this action asserting various claims, only one constitutional 4 violation claim was tried. Given that the trial addressed only one claim, this case was less 5 complex and work intensive than other cases warranting a higher billing rate. Second, Mr. C. 6 Bonner did not conduct any depositions, did not comply with Rule 26 initial disclosures, and did 7 not disclose certain evidence and witnesses until the eve of trial, which were excluded from trial 8 because they were inadmissible. Given Counsel Bonner’s handling of the trial, a more reasonable 9 billing rate would be $550 per hour. 10 b. Counsel A. Cabral Bonner Mr. A. Bonner seeks a billing rate of $450 per hour. See Decl. of A. Cabral Bonner, Dkt. United States District Court Northern District of California 11 12 No. 156 at ¶ 7. Mr. A. Bonner has been licensed to practice law in California since 2006, has been 13 focusing on civil rights and employment discrimination cases, and is a partner in the Law Offices 14 of Bonner & Bonner. Id. at ¶¶ 4-5. In support of his requested billing rate, Mr. A. Bonner 15 provided two declarations from civil rights lawyers in the area attesting that a billing rate in the 16 range of $300-$450 per hour is reasonable. See Scott Decl., Dkt. No. 155-16 at ¶ 8; Moore, Jr. 17 Decl., Dkt. No. 155-17 at ¶ 19. The County contends a billing rate of $400 is reasonable. Opp’n 18 at 4. 19 For the same reasons discussed with respect to Mr. C. Bonner’s fees, the requested billing 20 rate of $450 per hour is slightly high for Mr. A. Bonner. The court finds that a more reasonable 21 billing rate would be $400 per hour. 22 23 c. Legal Assistants Calvin Bonner has been a legal assistant in the Law Offices of Bonner & Bonner for 24 24 years, and seeks a billing rate of $200 per hour. See Decl. of Calvin Bonner, Dkt. No. 155-11 at 25 ¶¶ 3-4. His work in this case included drafting documents, processing discovery, service of 26 process, and communications. Id. at ¶ 8. The County challenges Calvin Bonner’s billing rate, 27 28 6 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 arguing that it is excessive since the tasks he performed do not warrant an hourly rate of $200. 2 Opp’n at 7. The court agrees with the County. As it pertains to this case, Calvin Bonner’s work 3 appears to be administrative and clerical in nature. Thus, Calving Bonner’s billing rate will be 4 reduced to $50 per hour. See Trustees of Constr. Indus. & Laborers Health & Welfare Trust v. 5 Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir. 2006) (noting that purely clerical or secretarial 6 work should not be billed at the paralegal rate). 7 Ilse Wolf has been a legal assistant in the Law Offices of Bonner & Bonner for 8 years, 8 and seeks a billing rate of $175 per hour. See Decl. of Ilse Wolf, Dkt. No. 155-12 at ¶¶ 1, 5, 11. 9 Her work in this case included taking intake of the clients, working on the complaint and amended complaints, working on summary judgment, preparing clients for deposition, and preparing for 11 United States District Court Northern District of California 10 mediation and trial. Id. at ¶ 7. To the extent the County challenges Ms. Wolf’s billing rate, the 12 court believes such a challenge is misplaced. See Opp’n at 7. Given Ms. Wolf’s substantive legal 13 work in this case, the court finds her billing rate of $175 per hour to be reasonable. 14 15 ii. Reasonable Number of Hours Generally “the district court should defer to the winning lawyer’s professional judgment as 16 to how much time he was required to spend on the case.” Chaudhry, 751 F.3d at 1111. The 17 number of hours can be reduced for duplicative or unnecessary work, and the district court can 18 impose up to a ten percent reduction without explanation. Id. “However, where the disparity is 19 larger, a more specific articulation of the court’s reasoning is expected.” Id. (internal quotations 20 omitted). Here, the County challenges the number of hours reported by Mr. C. Bonner, Mr. A. 21 Bonner, and their legal assistants. 22 23 a. Counsel Charles A. Bonner Mr. C. Bonner claims 312.90 hours of work performed on this case, and an additional 24 37.50 hours of work on the instant motion. See Mot. at 21, Appx. A. The County argues that the 25 number of hours claimed is excessive, and specifically challenges Mr. C. Bonner’s reported 96 26 hours of driving time between Sausalito and San Jose, 37.50 hours of work on the instant motion, 27 28 7 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 and 16.4 hours spent in unsuccessfully opposing the County’s summary judgment motion. Opp’n 2 at 5-6, 11. 3 As to travel time during trial days, Plaintiffs argue that it was not time wasted since Mr. C. 4 Bonner used the time to discuss strategy and prepare for trial. Reply at 6. Nonetheless, billing at 5 a rate of $700 per hour for a four-hour round trip, amounting to a billing of $2,800 per day in 6 travel time, is excessive. As such, Mr. C. Bonner’s 96 hours of driving time will be deducted. As 7 for the amount of time spent on the instant motion, that too is excessive, particularly when Mr. A. 8 Bonner and their legal assistants also spent significant time working on the instant motion. As 9 such, Mr. C. Bonner’s 37.50 hours of work on this motion will be deducted. As to Mr. C. Bonner’s work in opposition to the County’s summary judgment motion, there is no reason to 11 United States District Court Northern District of California 10 make a deduction because that is work performed in advocating for his clients. Upon reviewing 12 Mr. C. Bonner’s itemized billings, the court will also make a deduction of 20 hours related to 13 discovery-related matters since Mr. C. Bonner failed to comply with Rule 26 initial disclosures 14 and other discovery rules. See Dkt. No. 155-9 at 2-11. 15 16 17 Therefore, Mr. C. Bonner’s hours will be reduced from the reported sum of 350.4 hours to 196.9 hours. b. Counsel A. Cabral Bonner 18 Mr. A. Bonner claims 385.2 hours of work performed on this case, and an additional 32 19 hours of work on the instant motion. See Mot. at 21, Appx. A. The County challenges Mr. A. 20 Bonner’s reported 32 hours of work on the instant motion and 28.5 hours spent in unsuccessfully 21 opposing the County’s summary judgment motion. Opp’n at 6, 11. 22 As for the amount of time spent on the instant motion, the reported time is high. As such, 23 22 hours will be deducted. As to Mr. A. Bonner’s work in opposition to the County’s summary 24 judgment motion, as with Mr. C. Bonner, an unsuccessful opposition does not take away from the 25 time invested in advocating for one’s clients. Thus, no deductions will be made there. However, 26 upon reviewing Mr. A. Bonner’s itemized billings, the court will make a deduction of 20 hours 27 28 8 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 related to discovery-related matters since Mr. A. Bonner failed to comply with Rule 26 initial 2 disclosures and other discovery rules. See Dkt. No. 156-1. 3 4 5 6 Therefore, Mr. A. Bonner’s hours will be reduced from the reported sum of 417.2 hours to 375.2 hours. c. Legal Assistants Ms. Wolf is reported to have performed 104.5 hours of work on this case. See Mot. at 21, 7 Appx. A. The County challenges four hours billed for preparing Plaintiffs for their deposition, 8 eight hours billed for attending mediation, and 50 hours billed for observing trial. Opp’n at 7-8. 9 Ms. Wolf’s presence in preparing Plaintiffs for their deposition and attending mediation is not unreasonable since her role as a legal assistant may be helpful in those circumstances. However, 11 United States District Court Northern District of California 10 upon reviewing her itemized billings, the 50 hours billed for merely observing trial is 12 unreasonable. Thus, these hours will be deducted. See Dkt. No. 155-12 at 5-6. Therefore, Ms. 13 Wolf’s hours will be reduced from the reported sum of 104.5 hours to 54.5 hours. 14 Sandra Beltran has been a legal assistant in the Law Offices of Bonner & Bonner for over 15 one year, but has four years of experience as an administrative assistant. See Decl. of Sandra 16 Beltran, Dkt. No. 155-14 at ¶¶ 1, 4. Ms. Beltran’s work in this case includes gathering and 17 organizing all trial exhibits, finalizing a deposition, tracking trial testimony, and reviewing trial 18 transcripts. Id. at ¶ 7. She reports to have performed 136 hours of work on this case, and 27.5 19 hours of work in the instant motion. See Mot. at 21, Appx. A. The County challenges 76.5 hours 20 Ms. Beltran spent observing the trial, and the hours spent working on the instant motion. Opp’n at 21 8, 11. Upon reviewing Ms. Beltran’s itemized billings, the court agrees that certain hours reported 22 are excessive. See Dkt. No. 155-14 at 4-7. As such, 72 hours for merely observing trial will be 23 deducted, as well as 5 hours of work on the instant motion. Therefore, Ms. Beltran’s hours will be 24 reduced from the reported sum of 163.5 hours to 86.5 hours. 25 26 27 28 In sum, considering the billing rate and time adjustments discussed above, the lodestar breakdown is as follows: 9 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 2 3 4 5 6 Title Attorney Attorney Legal Assistant Legal Assistant Legal Assistant Legal Assistant Legal Assistant Name Charles A. Bonner A. Cabral Bonner Calvin Bonner Ilse Wolf Cynthia Osborne Sandra Beltran Eric Seifert Billing Rate $550 $400 $50 $175 $125 $125 $150 Hours on Case 196.9 375.2 10 54.5 127 86.5 32.5 Total Lodestar $108,295 $150,080 $500 $9,537.50 $15,875 $10,812.50 $4,875 882.6 $299,975 7 TOTAL 8 9 The adjusted total lodestar amounts to $299,975, which represents $216,511.02 reduction from Plaintiffs’ request. The court finds that the adjusted lodestar amount of $299,975 is 11 United States District Court Northern District of California 10 reasonable. 12 13 iii. Enhancement of Lodestar Plaintiffs further seek an enhancement to the lodestar of 1.1. Mot. at 16. After calculating 14 the lodestar amount, the court may adjust the lodestar based on the degree of success achieved by 15 the prevailing party. Chaudhry, 751 F.3d at 1110. “[T]he district court should focus on the 16 significance of the overall relief obtained by the plaintiff in relation to the hours reasonably 17 expended on the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). 18 Here, Plaintiffs argue that an enhancement of the lodestar amount is warranted for five 19 reasons. First, since this action was filed in September 2011, Plaintiffs’ counsel have spent 20 significant time and labor working on this case. Mot. at 16. Second, this case presented a novel 21 issue because Plaintiffs challenged not only the County, but also their labor union. Id. Third, due 22 to the mediation-focused litigation path taken by the parties, Plaintiffs did not depose Defendants’ 23 witnesses prior to trial, thus placing Plaintiffs at a disadvantage at trial. Id. Plaintiffs further 24 argue that their victory at trial is a testament to their counsel’s skill and abilities given that they 25 were precluded from calling all of their witnesses and from introducing many key documents, and 26 were able to effectively explain the concept of due process. Id. at 16-17. Fourth, this case was 27 28 10 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 undesirable because Plaintiffs were challenging both the County and their labor union, and many 2 attorneys would have been concerned about prejudice against Plaintiffs because of their national 3 origin. Id. at 17. Fifth, counsel took this case on a contingency fee basis, thus noting the risk 4 assumed by counsel. Id. 5 The County challenges Plaintiffs’ request for a lodestar enhancement and, instead, requests a downward adjustment of 50% of the lodestar. Opp’n at 8, 10. The County argues that a 7 downward adjustment is justified because only one legal issue was tried, which was not a novel 8 issue of law, there were no liability experts or complex medical testimony, and this case was not 9 “undesirable” given that Plaintiffs were affluent medical professionals. Id. at 9. It further argues 10 that Plaintiffs achieved a limited degree of success since this case began with nine claims asserted 11 United States District Court Northern District of California 6 against five defendants, and by the time of trial, only one claim was asserted against one 12 defendant. Id. Moreover, the County argues that the verdict is modest when compared to the 13 scope of the litigation and Plaintiffs’ requested attorneys’ fees. Id. at 10. 14 The record shows that this case began with ten claims asserted against six defendants. See 15 Dkt. No. 1. After two rounds of summary judgment motions, the issues were narrowed to one 16 claim asserted against one defendant. See Dkt. Nos. 46, 77. After an eight-day trial, the jury 17 returned a verdict for Plaintiffs and awarded Plaintiff Song the sum of $93,056.91 in damages, and 18 Plaintiff Xie the sum of $57,216.22 in damages. See Dkt. Nos. 147, 148. This amounts to a total 19 verdict of $150,273.13. In evaluating the results obtained, the court recognizes that Plaintiffs 20 prevailed at trial and obtained a favorable verdict, but this alone is insufficient to justify an 21 enhancement in the lodestar figure. 22 The court finds Plaintiffs’ arguments to be unpersuasive. While Plaintiffs’ counsel have 23 litigated this case since September 2011, time and labor invested in the case is inherent in any 24 litigation and is awarded through the lodestar amount; this is insufficient for an enhancement. As 25 to the due process claim tried, the court recognizes that Plaintiffs’ counsel were skilled in 26 explaining the legal concept of due process and, consequently, reached a favorable verdict. 27 28 11 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 However, the due process claim alone did not constitute a novel or complex issue for trial 2 deserving of an enhancement. Plaintiffs also boast that counsel were skilled at trial despite of their 3 “disadvantage” since they did not take any depositions prior to trial and many of their witnesses 4 and evidence was excluded. This, however, is not a disadvantage. Plaintiffs’ counsel made a 5 strategic decision not to take any depositions and failed to comply with discovery rules, thus any 6 disadvantage Plaintiffs could have suffered were derived from their counsel’s own actions. Lastly, 7 it is difficult to conceive that Plaintiffs’ national origin and challenging a labor union makes this 8 case “undesirable,” thus that argument is unpersuasive. While Plaintiffs’ counsel did take this 9 case on a contingency fee arrangement, this alone is not sufficient to warrant an enhancement of 10 the lodestar. Therefore, the court will not approve a lodestar enhancement nor will it reduce the fee United States District Court Northern District of California 11 12 amount further. The adjusted lodestar amount of $299,975, without enhancement, is a reasonable 13 amount of attorneys’ fees for this case. 14 B. 15 Plaintiffs seek reimbursement of litigation costs in the amount of $7,151.34. Mot. at 18. Request for Reimbursement of Costs 16 The breakdown is as follows: 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 28 12 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 12 Expense Dr. Lau’s Testimony at Trial Deposition of Dr. Lau Deposition of Dr. Johnson Hilton San Jose – one night during trial Includes: 1. Guest Room ($334) 2. Taxes ($49.34) 3. Affinity Restaurant ($115.53) The Fairmont in San Jose – one night during trial Includes: 1. Guest Room ($331) 2. Taxes ($49.46) 3. In Room Dining ($160.82) 4. Fountain Restaurant ($32.19) Mediation Costs Parking for Trial for Charles A. Bonner Parking for Trial for A. Cabral Bonner TOTAL 13 See Dkt. No. 155, Exhs. 3-8; Am. Bill of Costs, Dkt. No. 159. 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 14 Amount $1,800 $450 $450 $498.87 $573.47 $3,125 $191 $63 $7,151.34 The prevailing party may seek “fees and expenses under 42 U.S.C. § 1988, which allows 15 for recovery of reasonable out-of-pocket expenses that would normally be charged to a fee paying 16 client.” Woods v. Carey, 722 F.3d 1177, 1179 n.1 (9th Cir. 2013). “Expenses normally charged 17 to fee-paying clients include photocopying, paralegal expenses, and travel and telephone costs.” 18 Id. Here, the County challenges various costs claimed by Plaintiffs. 19 First, the County argues that Plaintiffs’ request of $1,800 for Dr. Lau’s testimony is 20 improper because Plaintiffs are not entitled to recover expert fees in a § 1983 case. Opp’n at 12. 21 In this instance, however, Dr. Lau did not testify as an expert witness. Instead, Dr. Lau, as 22 Plaintiffs’ treating physician, testified as a fact witness regarding Plaintiffs’ health condition. See 23 Tr., Dkt. No. 127 at 577-91. Moreover, Plaintiffs submitted documentation showing that when 24 they requested Dr. Lau’s appearance, it was contemplated he would testify as a “witness” rather 25 than “expert witness.” See Dkt. No. 155-3 at 2-3 (email exchange with Kaiser Permanente’s 26 medical-legal department, arranging for Dr. Lau’s personal appearance at trial); id. at 4 (check 27 28 13 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 made payable to The Permanente Medical Group, Inc.); Dkt. No. 159 at 3 (bill of costs); id. at 12 2 (subpoena for Dr. Lau to testify at a deposition). Since Dr. Lau testified as a fact witness, 3 reimbursement for his appearance is appropriate. 4 Second, the County argues that Plaintiffs’ request for $1,875 in mediation fees are not 5 recoverable because they are not considered taxable costs. Opp’n at 12. Pursuant to § 1988, 6 however, mediation fees could be considered expenses normally charged to a fee-paying client. 7 Thus, the court approves Plaintiffs’ request for mediation fees. 8 Third, the County argues that Plaintiffs’ request for $191 in parking reimbursement is not recoverable because they are non-taxable. Opp’n at 12. As stated above, however, pursuant to 10 § 1988, parking costs could be considered an expense normally charged to a fee-paying client. 11 United States District Court Northern District of California 9 Thus, the court approves Plaintiff’s request for parking reimbursement. 12 Fourth, the County argues that Plaintiffs’ request for $1,242.84 in subpoenas should not be 13 recoverable because certain individuals were not served with a subpoena or were subpoenaed even 14 though they were serving as the County’s witness. Opp’n at 12-13. This expense, however, does 15 not appear to be included in the $7,151.34 requested costs, as shown on the table above. 16 Fifth, the County argues that Plaintiffs’ request of $1,278 for daily copies of trial 17 transcripts should be stricken because, in this case, it was not necessary to order daily transcripts. 18 Opp’n at 13. The County, however, acknowledges that transcripts are an administrative cost that 19 is entitled to reimbursement. Id. Moreover, this expense does not appear to be included in the 20 $7,151.34 requested costs, as shown on the table above. 21 Sixth, the County disputes the following charges: (1) $173 for a Rescue Delivery charge 22 that is not related to this lawsuit; (2) $64.85 for the purchase of an easel and marking pens at 23 Office Depot; (3) $104.91 for printing and other purchases at FedEx Office; and (4) $29.27 for 24 gasoline at an ARCO station. Opp’n at 13-14. These expenses, however, do not appear to be 25 included in the $7,151.34 requested costs, as shown on the table above. 26 27 28 14 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS Seventh, the County challenges the food and lodging expenses of Plaintiffs’ counsel, 1 2 amounting to $1,072.34 for two nights. Opp’n at 5-6, 14. The court agrees that this expense is 3 excessive, particularly the amount charged for meals at the hotels. As such, half of this amount-- 4 $536.17—will be deducted. In sum, of the requested $7,151.34 in costs, this court approves reimbursement of 5 6 $6,615.17 in costs. 7 C. 8 i. Section 1961 provides: United States District Court Northern District of California 11 Interest shall be allowed on any money judgment in a civil case recovered in a district court . . . . Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment. 12 13 14 28 U.S.C. § 1961 Plaintiffs seek pre- and post-judgment interest pursuant to 28 U.S.C. § 1961. Mot. at 18. 9 10 Pre-Judgment and Post-Judgment Interest 28 U.S.C. § 1961(a). “Under [§ 1961], the award of post judgment interest on a district court 15 judgment is mandatory.” Barnard v. Theobald, 721 F.3d 1069, 1078 (9th Cir. 2013). As to pre16 judgment interest, while the district court has discretion to award pre-judgment interest, the 17 decision must be based upon a balance of the equities. Id. If pre-judgment interest is awarded, it 18 can be applied to both economic and non-economic damages, and can be awarded on a prorated 19 portion of the damages award that was likely given to the plaintiff in order to compensate for past 20 pain and suffering and medical expenses. Id. Further, “the interest rate prescribed for post- 21 judgment interest under [§ 1961] is appropriate for fixing the rate of pre-judgment interest unless 22 the trial judge finds, on substantial evidence, that the equities of that particular case require a 23 different rate.” Nelson v. EG&G Energy Measurements Grp., Inc., 37 F.3d 1384, 1391 (9th Cir. 24 1994). 25 Here, the County does not oppose the motion on the issue of interest. Plaintiffs’ request 26 will therefore be granted. 27 28 15 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS ii. 1 Plaintiffs further seek interest pursuant to California Labor Code § 218.6. Mot. at 19. 2 3 California Labor Code § 218.6 Section 218.6 provides: 4 6 In any action brought for the nonpayment of wages, the court shall award interest on all due and unpaid wages at the rate of interest specified in [the California Civil Code § 3289(b)], which shall accrue from the date that the wages were due and payable as provided [in § 200]. 7 Cal. Lab. Code § 218.6. The Labor Code “provide[s] specific standards governing when and how 8 employers must pay wages and provide meal and rest breaks to their employees” and “provides 9 specific remedies designed to encourage employees to bring civil actions to enforce those rights,” 10 including the remedy provided by § 218.6. Verdugo v. Alliantgroup, L.P., 237 Cal. App. 4th 141, 11 156-57 (2015). United States District Court Northern District of California 5 In opposition, the County argues that Plaintiffs may not recover interest under § 218.6 12 13 because no issue concerning the violation of the Labor Code was tried at trial. Opp’n at 11. 14 Instead, Plaintiffs’ claims concerning Labor Code violations were dismissed on summary 15 adjudication, thus there is no basis for recovering such interest. Id. The court agrees with the 16 County. While this case is, at its core, a dispute between an employer and employees, it did not 17 involve traditional wage-and-hour issues or any other type of Labor Code violation in the end. 18 Instead, the only issue that was tried was a due process constitutional claim. See Zavala v. Scott 19 Bros. Dairy, Inc., 143 Cal. App. 4th 585, 596 (2006) (noting that § 218.6 is one of the remedies 20 provided to individual employees who vindicate California’s laws protecting rest periods and 21 wage-stub itemization). As such, there is no basis for the recovery of interest based on § 218.6. 22 Plaintiffs’ request is denied. 23 IV. 24 25 CONCLUSION Based on the foregoing, Plaintiffs’ Motion for Attorneys’ Fees and Costs is GRANTED IN PART AND DENIED IN PART. The court orders that Plaintiffs are entitled to the following: 26 27 28 16 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS 1 (1) $299,975 in attorneys’ fees, (2) $6,615.17 in reimbursement of costs, and (3) pre- and post- 2 judgment interest pursuant to 28 U.S.C. § 1961. 3 4 5 6 7 IT IS SO ORDERED. Dated: December 15, 2015 ______________________________________ EDWARD J. DAVILA United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Case No.: 5:11-cv-04450-EJD ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
