Kries et al v. San Diego, City of et al, No. 3:2017cv01464 - Document 598 (S.D. Cal. 2021)
Court Description: ORDER Granting in Part and Denying in Part 580 Motion for Attorney Fees and Costs. Signed by Judge Gonzalo P. Curiel on 1/13/21. (All non-registered users served via U.S. Mail Service)(dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DAVID K. KRIES, and GARY MONDESIR, on behalf of themselves and all other employees similarly situated, 13 14 15 16 Case No.: 17-cv-1464-GPC-BGS ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY’S FEES AND COSTS Plaintiffs, v. CITY OF SAN DIEGO; and DOES 1 through 10, inclusive, [ECF No. 580] Defendants. 17 18 19 20 22 CANDACE MITCHELL, et al., on behalf of themselves and all other employees similarly situated, 23 Plaintiffs, 21 24 25 26 27 28 Case No. 17-cv-2014-GPC-BGS (Consolidated with 17-cv-1464-GPCBGS) v. CITY OF SAN DIEGO, Defendant. 1 17-cv-1464-GPC-BGS 1 2 3 4 5 ______________________________ ALBERTO ARELLANO, MAICO ALEJO, and GARY OLLISON, on behalf of themselves and all other employees similarly situated, 6 Case No. 18-cv-0229-GPC-BGS (Consolidated with 17-cv-2014-GPCBGS) Plaintiffs, 7 8 9 vs. CITY OF SAN DIEGO, 10 Defendant. 11 12 13 Before the Court is a joint motion for attorney’s fees and costs filed by Plaintiffs in 14 the consolidated actions Kries et al. v. City of San Diego, Case No. 17-cv-1464 (“Kries”); 15 Mitchell et al. v. City of San Diego, Case No. 17-cv-2014 (“Mitchell”); and Arellano et 16 al. v. City of San Diego, Case No. 18-cv-0229 (“Arellano”). ECF No. 580. Defendants 17 oppose. ECF No. 588. The motion has been fully briefed. ECF Nos. 580, 588, 591, 595, 18 596. For the reasons set forth below, the Court GRANTS in part and DENIES in part the 19 motion for attorney’s fees and costs, and awards the Kries Plaintiffs $565,655.81 in 20 attorney’s fees and $5,976.20 in costs, the Mitchell Plaintiffs $641,650.78 in attorney’s 21 fees and $10,856.45 in costs, and the Arellano Plaintiffs $342,232.06 in attorney’s fees 22 and $5,942.62 in costs. 23 24 I. Background This consolidated case involves three collective Fair Labor Standard Act (“FLSA”) 25 actions filed against the City of San Diego (“City”). Kries Plaintiffs filed their action on 26 June 19, 2017, Mitchell Plaintiffs filed their action on September 29, 2017, and Arellano 27 28 2 17-cv-1464-GPC-BGS 1 Plaintiffs filed their action on January 31, 2018. ECF No. 1; Case No. 17-cv-2014, ECF 2 No. 1; Case No. 18-cv-0229, ECF No. 1. Plaintiffs, employees of the City, alleged that 3 the City failed to pay them proper overtime premiums under the FLSA, as interpreted by 4 the Ninth Circuit in Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016). 5 Specifically, Plaintiffs alleged that Plaintiffs improperly excluded from the regular rate of 6 pay (1) payouts of unused portions of the City’s flexible benefit plan (“FBP”) dollars paid 7 as cash, sometimes referred to as “cash-in-lieu” (“CIL”) payments, and (2) the full value 8 of the Plaintiffs’ FBP flex dollars or credits. Plaintiffs also alleged that the City violated 9 the FLSA by: (1) failing to “cash out” compensatory time off accrued under FLSA using 10 a regular rate of pay that included CIL and Full FBP Credits, and (2) using a divisor and 11 multiplier methodology which underpaid FLSA overtime by failing to allocate FBP 12 Credits to the regular rate earned during a standard 40-hour, non-overtime workweek. 13 On July 10, 2019, the Court ordered the Kries, Mitchell, and Arellano cases be 14 consolidated for the purposes of discovery and cross-motions for summary judgment. 15 ECF No. 547. Although the cases were consolidated, Plaintiffs elected to opt-in to their 16 specific case and agreed to representation by the attorneys representing the Plaintiffs in 17 that case. On April 29, 2020, the parties jointly moved for approval of a settlement 18 resolving the claims of all Plaintiffs who had opted-in to the Kries, Mitchell, and Arellano 19 actions and had not yet settled.1 ECF No. 571. The settlement agreement provided that 20 the City will pay a total amount of no more than $6,199,997.98 to settle all of the 2,537 21 Plaintiffs’ FBP-related FLSA claims raised in the action. ECF No. 575 at 4. The 22 settlement agreement further provided that the City would pay Plaintiffs’ reasonable 23 24 1 25 26 27 28 In late 2017 and early 2018, 19 of the Kries Plaintiffs accepted settlement offers made by the City under Federal Rule of Civil Procedure 68. ECF Nos. 120, 121, 127, 128, 129, 130. The Court has already awarded attorney’s fees for the 67.3 hours of work reasonably expended to achieve the settlement as to those 19 Plaintiffs. ECF No. 147. Kries Plaintiffs do not seek compensation for work already recovered in the previous fee motion related to those 19 Plaintiffs in the instant motion. 3 17-cv-1464-GPC-BGS 1 attorney’s fees and costs as determined by the Court. Id. at 13. On July 2, 2020, the 2 Court approved the settlement. Id. On August 17, 2020, the Court approved a settlement 3 concerning the claims of a group of 35 lifeguards who inadvertently had not been mailed 4 notices about the Mitchell action after the Court’s conditional certification of the action. 5 ECF No. 579. 6 The Court directed the parties to file a motion for attorney’s fees and costs on or 7 before October 16, 2020. ECF No. 575. On October 16, 2020 the Kries, Mitchell, and 8 Arellano Plaintiffs filed the present motion, seeking a total of $1,691,987.50 in attorney’s 9 fees and $22,775.27 in costs. ECF No. 580. On December 7, 2020, the City filed an 10 opposition to the Plaintiffs’ calculation of attorney’s fees, arguing that Plaintiffs are 11 entitled to only $1,210,268.00 at most, and did not oppose the costs Plaintiffs seek to 12 recover. ECF No. 588. On December 11, 2020, Plaintiffs filed a reply along with an 13 objection to the declaration of Jacqueline S. Vinaccia filed by the City in support of its 14 opposition, and sought an additional $70,220.00 in attorney’s fees for work on the reply, 15 objection to evidence, and the anticipated hearing on attorney’s fees. ECF Nos. 591, 591- 16 1. The Court granted leave for the City to file a sur-reply and a response to the 17 evidentiary objection, both of which the City filed on January 8, 2021. ECF Nos. 595, 18 596. 19 20 II. Legal Standard The FLSA provides that in an action asserting failure to pay proper overtime, the 21 Court shall “in addition to any judgment awarded to the plaintiff or plaintiffs, allow a 22 reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. 23 § 216(b). A court addressing such a fee motion begins with a “lodestar” calculation, 24 25 26 27 28 4 17-cv-1464-GPC-BGS 1 which entails multiplying the hours reasonably expended by a reasonable hourly fee.2 2 Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018). In determining 3 the reasonable hourly rate to use in the lodestar calculation, a district court must look to 4 the “prevailing market rates in the relevant community,” which is generally “the forum in 5 which the district court sits,” “for similar services by lawyers of reasonably comparable 6 skill, experience and reputation.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205–06 7 (9th Cir. 2013) (quoting Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th 8 Cir.2010); Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)) (internal quotation marks 9 omitted); see also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). 10 The party seeking the fee has the burden to produce satisfactory evidence that the 11 requested rate is warranted under this standard. Gonzalez, 729 F.3d at 1206. 12 Additionally, the party seeking the fee has the burden of proving that the proposed 13 number of hours to use in the lodestar calculation is reasonable. Id. at 1202. Hours 14 should not be counted if they are excessive, redundant, or otherwise unnecessary. 15 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). “Although in most cases, the lodestar figure is presumptively a reasonable fee 16 17 award, the district court may, if circumstances warrant, adjust the lodestar to account for 18 other factors which are not subsumed within it.” Ferland v. Conrad Credit Corp., 244 19 F.3d 1145, 1149 n.4 (9th Cir. 2001). Before applying any such adjustment, the Court 20 must be sure that it is not doing so based on a consideration that was already incorporated 21 into the lodestar amount. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). 22 \\\ 23 24 2 25 26 27 28 Fee requests under the FLSA are governed by the same legal standards that apply to fee requests under all statutorily-authorized fee provisions, such as 42 U.S.C. § 1988. Hensley v. Eckerhart, 461 U.S. 424, 432 n.7 (1983) (“The standards set forth in this opinion [which address fees requests under § 1988] are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’”). 5 17-cv-1464-GPC-BGS 1 2 III. Discussion A. Evidentiary Objections 3 The Court first turns to Plaintiffs’ evidentiary objections to the declaration of 4 Jacqueline S. Vinaccia, ECF No. 588-2 (“Vinaccia Decl.”), relied on by the City to 5 support its lodestar calculation. Plaintiffs argue that the Court should find the Vinaccia 6 Declaration’s opinions regarding hourly rates and compensable hours inadmissible under 7 Federal Rule of Evidence 702 because they lack foundation or are not supported by 8 underlying evidence. 9 Declarations of other attorneys may serve as evidence supporting or opposing the 10 elements of the lodestar calculation proposed by the party seeking attorney’s fees. See 11 Camacho, 523 F.3d at 980 (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 12 896 F.2d 403, 407 (9th Cir. 1990)) (“[A]ffidavits of the plaintiffs’ attorney[s] and other 13 attorneys regarding prevailing fees in the community, and rate determinations in other 14 cases . . . are satisfactory evidence of the prevailing market rate.”). Likewise, the 15 opinions of attorney’s fee experts and auditors are regularly considered by district courts. 16 E.g., Hall v. City of Fairfield, No. 2:10-CV-0508 DAD, 2014 WL 1286001, at *7 (E.D. 17 Cal. Mar. 31, 2014); Garcia v. Resurgent Capital Servs., L.P., No. C-11-1253 EMC, 18 2012 WL 3778852, at *2 (N.D. Cal. Aug. 30, 2012). 19 Ms. Vinaccia explains her experience analyzing attorney’s fees in various cases, 20 authoring publications and presenting on the subject of appropriate billing, litigating 21 labor and employment claims, as well as her use of the rates listed in the Wolters 22 Kluwer’s Real Rate Report. Vinaccia Decl. ¶¶ 28, 31, 33; ECF No. 588-3; ECF No. 595- 23 2 (“Suppl. Vinaccia Decl.”) ¶¶ 2, 3. The Court finds that Ms. Vinaccia’s declaration lays 24 a foundation for her opinion on the reasonable hourly fees and the reasonable hours 25 expended in this case by virtue of her general background in legal fee analysis in San 26 Diego as well as her review of the documents filed in support of Plaintiffs’ motion and 27 28 6 17-cv-1464-GPC-BGS 1 the Real Rate Report, even if she herself has not litigated FLSA cases. The Court also 2 finds that Ms. Vinaccia’s opinions are based on sufficient evidence, including the billing 3 entries and declarations provided by Plaintiffs’ counsel and discussions with the City 4 Attorney’s Office, to render the declaration admissible, even if the parties disagree as to 5 the import of such evidence. Vinaccia Decl. ¶¶ 7, 8; Suppl. Vinnccia Decl. ¶¶ 5, 6. 6 Overall, under the flexible standard set out by Federal Rule of Evidence 702, the Court 7 finds Ms. Vinaccia’s declaration is helpful to the Court in determining reasonable 8 attorney’s fees and is reliably based on sufficient facts and data, even as the Court 9 recognizes that Ms. Vinaccia may be unable to opine on certain particularities of FLSA 10 practice. Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 11 594 (1993). Ms. Vinaccia’s declaration does not, for the most part, stray beyond her 12 general expertise relating to San Diego market rates and appropriate billing.3 The cases 13 cited by Plaintiffs are therefore distinguishable. See Rodriguez v. Cty. of Los Angeles, 96 14 F. Supp. 3d 1012, 1027 (C.D. Cal. 2014), aff’d, 891 F.3d 776 (9th Cir. 2018) (finding 15 expert, who had no experience in civil rights litigation or the PLRA, qualified to opine on 16 attorney’s fees generally but not on attorney’s fees in the civil rights context); Johnson v. 17 Progreso Dev., LLC, No. 5:20-CV-02167-EJD, 2020 WL 6136093, at *3 (N.D. Cal. Oct. 18 19, 2020) (rejecting attorney’s fee declaration that consisted mostly of review of case law 19 as improper legal argument). Ms. Vinaccia’s background may affect the weight that the 20 Court gives to her expert opinion, but it does not serve as grounds to reject the 21 declaration altogether. See Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 22 F.3d 77, 85 (1st Cir. 1998) (“Daubert does not require that a party who proffers expert 23 testimony carry the burden of proving to the judge that the expert’s assessment of the 24 25 26 27 28 3 The Court does not find paragraph 43, which discusses the Flores case, to be a proper subject for expert opinion, particularly give Ms. Vinaccia’s lack of background in FLSA cases, and therefore does not consider this portion of the declaration. Vinaccia Decl. ¶¶ 43, 44. 7 17-cv-1464-GPC-BGS 1 situation is correct” as a prerequisite for admission of evidence). Accordingly, the Court overrules Plaintiffs’ objections to the Vinaccia 2 3 Declaration.4 To the extent any part of the declaration verges on improper legal 4 argument, the Court does not consider it. Cf. Lauderdale v. City of Long Beach, No. CV 5 08-979 ABC (JWJX), 2010 WL 11570514, at *5 (C.D. Cal. Jan. 11, 2010) (admitting 6 attorney’s fees expert’s declaration for permissible purposes only). 7 B. Lodestar Calculation 8 9 10 The City contests both the hourly rate and number of hours used for the lodestar calculation proposed by the Plaintiffs. The Court will accordingly consider both elements of the lodestar in turn. 11 i. Reasonable Hourly Rate 12 13 Plaintiffs propose the following hourly rates for the attorneys, paralegal, and law clerks who performed work on the three cases: 14 Case Kries Name Michael Conger Experience 30+ years 17 Kries Mitchell Patti Messner (paralegal) Ann Smith 28 years 30+ years 18 Mitchell Dyland Griffith 3 years Arellano Eli Naduris-Weissman 14 years 15 16 19 20 Hourly rate (by year) $600 2017–2018 $650 2019–2020 $95 $600 2017–2018 $650 2019–2020 $175 2017 (law clerk) $275 2017–2018 $350 2019–2020 $500 21 22 27 Plaintiffs also object to paragraph 39 the declaration of Alison P. Adema, ECF No. 588-1 (“Adema Decl.), regarding the City’s prior litigation in Pappas v. City of San Diego, Case No. 37-201700033953-CU-OE-CTL (Cal. Super. Ct. San Diego Cty.), on the grounds that Ms. Adema lacks personal knowledge of the Pappas litigation. The City appears to concede that Ms. Adema, who was not involved in the Pappas litigation, ECF No. 595 at 8, did not have personal knowledge of the City’s position on Mr. Conger’s claimed rate in that litigation. The Court therefore sustains Plaintiffs’ objection to this paragraph and will not consider the statement in Ms. Adema’s initial declaration that the City did not take a position on Mr. Conger’s rate in the Pappas case. 28 17-cv-1464-GPC-BGS 23 24 25 26 4 8 1 Arellano Arellano Arellano 2 3 4 7 8 9 10 11 12 13 14 15 16 17 6 years 4 years N/A $400 $350 $150 The City opposes the hourly rate sought for Plaintiffs’ attorneys, but does not oppose the hourly rate sought for law clerks or the paralegal. 5 6 Hannah Weinstein Juhyung Harold Lee Law clerks Plaintiffs contend that the hourly rates sought by its attorneys are reasonable based on the fees they regularly charge and on fees awarded to them and similarly experienced lawyers in other cases in the Southern District of California, particularly given the breakdown of the work between the attorneys and the case’s novelty and outcome.5 Plaintiffs also argue the rates are reasonable because they are consistent with the Laffey Matrix, a “well-established source for rates in the District of Columbia,” Ramirez v. Escondido Unified Sch. Dist., Cas No. 11-cv-1823, 2014 WL 12675859, at *2–3 (S.D. Cal. April 17, 2014), and with the common fund framework, even though this is not a common fund case.6 The City argues that the cases relied upon by Plaintiffs do not demonstrate that Plaintiffs’ requested rates are reasonable because they involved uncontested motions and fees for attorneys’ services that are not comparable to the instant case. The City also contends that Plaintiffs’ arguments regarding the Laffey Matrix and common fund cases are irrelevant and should be disregarded, and that the 18 19 20 5 21 22 23 Plaintiffs include the declarations of several employment attorneys as attachments to their reply brief. ECF Nos. 591-13, 591-14, 591-22. The Court shares the City’s concern that these declarations were not included with Plaintiffs’ initial fee motion, and in any case finds them of little additional help given the lack of detail included in the declarations. At most, the declaration of Benjamin C. Bunn is helpful to establish that another highly experienced employment attorney in San Diego charges a rate of $750 per hour. ECF No. 591-14 ¶ 5. 24 6 27 Plaintiffs also contend that the City has conceded or is estopped from arguing against the reasonableness of Plaintiffs’ requested rates. See, e.g., ECF No. 580-2 (“Conger Decl.”) ¶ 10; ECF No. 591-2 (“Conger Reply Decl.”) ¶ 8. As Plaintiffs have not attempted to explain how the City’s prior statements meet the requirements of judicial estoppel, see New Hampshire v. Maine, 532 U.S. 742, 750 (2001), the Court rejects Plaintiffs’ contention that the City is bound by positions it has taken in the past. 28 17-cv-1464-GPC-BGS 25 26 9 1 Court should consider Wolters Kluwer’s Real Rate Report (“Real Rate Report”) and Ms. 2 Vinaccia’s analysis to determine reasonable rates. 3 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition 4 to the attorney’s own affidavits—that the requested rates are in line with those prevailing 5 in the community for similar services by lawyers of reasonably comparable skill, 6 experience and reputation.” Camacho, 523 F.3d at 980 (quoting Blum, 465 U.S. at 895 n. 7 11). The opposing party can then meet its burden of rebuttal by “submission of evidence 8 to the district court challenging the accuracy and reasonableness of the . . . facts asserted 9 by the [moving] party in its submitted affidavits.” Id. (quoting Gates v. Deukmejian, 987 10 F.2d 1392, 1398 (9th Cir. 1992)). 11 Neither party contests that San Diego, the location of the forum, is the relevant 12 community. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). 13 The Laffey Matrix, cited by Plaintiffs in a footnote, is therefore entitled to limited weight, 14 if any, as it reflects market rates for attorneys in the Washington, D.C. area. See Prison 15 Legal News, 608 F.3d at 454 (“[J]ust because the Laffey matrix has been accepted in the 16 District of Columbia does not mean that it is a sound basis for determining rates 17 elsewhere, let alone in a legal market 3,000 miles away.”). Plaintiffs cite a number of cases in support of the requested rates.7 Of these cases, 18 19 several awarded fees for “similar services by lawyers of reasonably comparable skill, 20 experience and reputation” to the more senior attorneys who participated in this case. 21 Gonzalez, 729 F.3d at 1205–06 (quoting Prison Legal News, 608 F.3d at 454. In Vasquez 22 23 27 Plaintiffs cite the prior order of this Court awarding Kries Plaintiffs attorney’s fees for Mr. Conger’s work related to the 19 then-settling Plaintiffs. ECF No. 147. Although the Court did calculate the lodestar based on the rate offered by the Plaintiffs, it recognized in that order that the City did not intend to waive future opposition to Plaintiffs’ fee requests. The Court will therefore consider the City’s opposition to Mr. Conger’s rates despite its previous order, as it did not then have the benefit of the parties’ briefing on the reasonableness of Mr. Conger’s rates. 28 17-cv-1464-GPC-BGS 24 25 26 7 10 1 v. Kraft Heinz Foods Co., a class action alleging, inter alia, claims under California labor 2 law for underpaid hourly and overtime wages that resulted in settlement, the Court found 3 the rates requested by counsel reasonable and awarded attorney’s fees based on the 4 common fund approach, resulting in an award lower than the lodestar calculation. 5 Vasquez v. Kraft Heinz Foods Co., No. 3:16-CV-2749-WQH-BLM, 2020 WL 1550234, 6 at *1–2, 7 (S.D. Cal. Apr. 1, 2020). Like this consolidated FLSA collective action, 7 plaintiffs’ attorneys in Vasquez also negotiated a settlement in the consolidated class 8 action prior to summary judgment or trial. Id. at *1–2. Attorneys in Vasquez requested 9 rates similar to, or greater than, attorneys with comparable experience and reputations to 10 the attorneys in this case. For instance, the Court found reasonable the requested hourly 11 rates of $725 for Diana M. Khoury, a lawyer practicing for 33 years with significant 12 experience negotiating wage and hour class action settlements, and $700 for Sahag 13 Majarian II, a lawyer practicing for 29 years who served as co-counsel for plaintiffs in 50 14 or more wage and hour class actions. Case No. 3:16-CV-2749-WQH-BLM, ECF Nos. 15 111-3, 111-4. Here, Mr. Conger and Ms. Smith each have at least 30 years of experience, 16 have received accolades over the years, and have served as counsel in dozens of certified 17 class actions and other cases representing employees, and request rates between $600 and 18 $650 per hour. ECF No. 580-2 (“Conger Decl.”) ¶¶ 3–5, 6–8; ECF No. 580-9 (“Smith 19 Decl.”) ¶ 5. The Court in Vasquez also found reasonable an hourly rate of $550 for Marta 20 Manus, an attorney with 12 years of experience and an employment law background, 21 experience comparable to Mr. Naduris-Weissman, who has 14 years of experience mostly 22 in the labor and employment law field and seeks an hourly fee of $500.8 ECF No. 580-16 23 24 8 27 An attorney with 28 years of experience and some employment law background also requested a rate of $550 per hour. Case No. 3:16-CV-2749-WQH-BLM, ECF Nos. 111-3. The Vasquez court also found reasonable rates of $650 for an attorney with 13 years of experience, $550 for attorneys with 10 years of experience, $400 for attorneys with 4 years of experience, and $325 for an attorney with 2 years of experience. Vasquez, 2020 WL 1550234, at *7. Because the declarations filed in Vasquez did not 28 17-cv-1464-GPC-BGS 25 26 11 1 (“Naduris-Weissman Decl.”) ¶¶ 2, 6; Case No. 3:16-CV-2749-WQH-BLM, ECF Nos. 2 111-3. Another class action alleging claims for failure to pay overtime wages under 3 California law, Lopez v. Mgmt. & Training Corp., also provides support for some of 4 Plaintiffs’ requested hourly rates. Lopez v. Mgmt. & Training Corp., No. 17CV1624 5 JM(RBM), 2020 WL 1911571, at *1 (S.D. Cal. Apr. 20, 2020). That case, resulting in 6 settlement while “in its relative infancy,” was litigated by attorneys with comparable 7 experience, and although the court noted it “need not engage in a full-blown lodestar 8 analysis” given that it applied the common fund approach, it found that the attorneys’ 9 rates were reasonable. Id. at *8–9 (approving of rates including $500 for an associate 10 with nine years of experience and $725/$875 for attorneys with over thirty years of 11 experience). 12 In Murphy v. City of El Cajon, also an FLSA case resulting in settlement, the court 13 performed the lodestar calculation as a cross-check on the percentage award of the 14 common fund and found Mr. Conger’s $650 rate to be “appropriate given plaintiffs’ 15 counsel’s experience litigating wage and hour and employment matters.” Murphy v. City 16 of El Cajon, No. 18CV0698 JM(NLS), 2019 WL 3936143, at *7 (S.D. Cal. Aug. 19, 17 2019); see also ECF No. 580-4 (Minute Ord. in Pappas v. City of San Diego, Case No. 18 37-2017-00033953-CU-OE-CTL (Cal. Super. Ct. San Diego Cty.)) (calculating lodestar 19 based on $650 hourly rate for Mr. Conger);9 Roberts v. City of Chula Vista, No. 20 16CV1955-MMA (DHB), 2017 WL 6541105, at *7 (S.D. Cal. Dec. 21, 2017) (in FLSA 21 22 23 24 25 26 27 28 provide detailed information about these attorneys’ backgrounds, it is more difficult to determine whether they had comparable skills and reputation to the attorneys in this case, though the Court notes that attorneys in this case with similar years of experience have generally requested lower rates than those found reasonable in Vasquez. 9 Although the Court recognizes that the City maintained to the Superior Court that the $650 rate was reasonable in Pappas, ECF No. 591-4, the Court does not agree with Plaintiffs that this “concession” necessarily requires the City to take the same position in this separate litigation. 12 17-cv-1464-GPC-BGS 1 case resulting in settlement, finding reasonable $500 hourly rate for attorney with 13 2 years of experience representing public safety employees); Moreno v. Beacon Roofing 3 Supply, Inc., No. 19CV185-GPC(LL), 2020 WL 3960481, at *8 (S.D. Cal. July 13, 2020) 4 (in wage and hour putative class action resulting in settlement, applying lodestar 5 calculation and finding reasonable an hourly rate of $742 for attorney with 18 years of 6 experience in complex class actions and $455 for attorney with 8 years of experience in 7 labor and employment litigation). Several of the cases cited by Plaintiffs, while awarding 8 fees based upon similar hourly rates for similarly experienced attorneys, were not FLSA 9 or employment law cases. See Lobaton v. City of San Diego, No. 3:15-CV-1416-GPC- 10 DHB, 2017 WL 3622248, at *1 (S.D. Cal. Aug. 22, 2017) (civil rights lawsuit); Makaeff 11 v. Trump Univ., LLC, No. 10CV0940 GPC WVG, 2015 WL 1579000, at *1, 4–5 (S.D. 12 Cal. Apr. 9, 2015) (granting attorney’s fees for plaintiff prevailing on “complex and 13 lengthy” anti-SLAPP motion to strike defamation counterclaim). It is therefore less clear 14 that the attorneys in those cases provided similar services to counsel in this FLSA case, 15 making the rates less comparable than the other cases cited by Plaintiffs. 16 The City contends that the cases cited by Plaintiffs are not comparable because 17 many of them were not contested or applied the lodestar analysis only as a cross-check of 18 the percentage-based award under the common fund approach. While that may be true, 19 the Court finds that these cases, along with the declarations filed in support of Plaintiffs’ 20 motion, present satisfactory evidence of the market rates for attorneys with similar 21 background and experience to Mr. Conger, Ms. Smith, and Mr. Naduris-Weissman. 22 “[C]ourts are required to evaluate the reasonableness of counsel’s fees, regardless of a 23 challenge by opposing counsel.” Rutti v. Lojack Corp., No. SACV 06-350 DOC JCX, 24 2012 WL 3151077, at *11 (C.D. Cal. July 31, 2012). Further, common fund cases are 25 useful to the extent the court actually determines that the rates of counsel were reasonable 26 while performing the lodestar cross-check. Although courts “need not closely scrutinize 27 28 13 17-cv-1464-GPC-BGS 1 each claimed attorney-hour” when conducting the cross-check, see Lopez, 2020 WL 2 1911571, at *9, there is no reason to presume that courts disregard the requirement that 3 the lodestar calculation be based on a reasonable hourly rate. That being said, the rates 4 approved of in these other cases are not dispositive, and the Court must consider the 5 City’s rebuttal evidence. Additionally, the comparable cases cited by Plaintiffs for the 6 most part involved attorneys with almost a decade or more of experience. Of the cases 7 presented in Plaintiffs’ motion, only in Vasquez did the court consider rates for more 8 junior attorneys, and it is not entirely clear that they are similarly situated to the attorneys 9 here, as their backgrounds were not detailed in the declarations available in that case. See 10 Vasquez, 2020 WL 1550234, at *7 (finding reasonable hourly rates of $400 for attorneys 11 with 4 years of experience and $325 for an attorney with 2 years of experience). While 12 the Court will take into account the rates determined by Vasquez and Plaintiffs’ own 13 declarations, it notes that Plaintiffs have provided less evidence to support the requested 14 rates of Mr. Griffith, Ms. Weinstein, and Mr. Lee than those of the more senior attorneys. 15 The Court accordingly turns to the City’s rebuttal evidence. The City mainly relies 16 on the Vinaccia Declaration and its interpretation of the Real Rate Report. The Real Rate 17 Report, an analysis of law firm rates based on invoice data published by Wolters Kluwer 18 that breaks down rates by location, experience, firm size, practice area, industry, and role, 19 has been cited with approval by courts inside and outside this district.10 See Aispuro v. 20 Ford Motor Co., No. 18-CV-2045 DMS (KSC), 2020 WL 4582677, at *4 (S.D. Cal. Aug. 21 10, 2020) (collecting cases); Eclipse Grp. LLP v. Target Corp., No. 15-CV-1411 JLS 22 (BLM), 2020 WL 5709488, at *4 (S.D. Cal. Sept. 24, 2020); Arias v. Ford Motor Co., 23 Case No. EDCV 18-1928 PSG (SPx), 2020 WL 1940843, at *3 (C.D. Cal. Jan. 27, 2020). 24 25 26 27 28 10 See Wolters Kluwer, Real Rate Report, https://www.wolterskluwer.com/en/solutions/enterprise-legalmanagement/legalview-analytics/real-rate-report. 14 17-cv-1464-GPC-BGS 1 The Vinaccia Declaration cites to the 2020 Real Rate Report and notes the median and 2 third quartile hourly rates for partners and associates in the employment and labor 3 practice area in San Diego, as well as the nationwide median and third quartile rates for 4 partners and associates in the employment and labor: compensation and benefits litigation 5 practice area. Vinaccia Decl. ¶¶ 29–30. Among nationwide compensation and benefits 6 litigators, the third quartile rates for partners and associates were $660 and $345 per hour, 7 respectively; the median rates for partners and associates were $515 and $290 per hour, 8 respectively. ECF No. 588-6, at 8. Among San Diego employment and labor lawyers, the 9 third quartile rates for partners and associates were $529 and $390 per hour, respectively; 10 the median rates for partners and associates were $397 and $295, respectively. Id. at 9. 11 However, Ms. Vinaccia does not adopt wholesale either the median or third quartile 12 numbers from the Real Rate Report, and the declaration does not explain in detail how 13 she arrived at her rates for each attorney. The City generally maintains that Plaintiffs’ 14 proposed rates should be reduced because “FLSA litigation is relatively simple.” ECF 15 No. 588 at 20. 16 The Real Rate Report is somewhat helpful to the Court’s analysis of Plaintiffs’ 17 requested rates, particularly for Mr. Griffith, Ms. Weinstein, and Mr. Lee, whose rates 18 Plaintiffs have not supported with significant evidence of past fee awards in comparable 19 cases. Ms. Vinaccia states that the market rates for both Ms. Weinstein and Mr. Lee are 20 $295, the median rate for employment and labor associates in San Diego, Vinaccia Decl. 21 ¶ 31, whereas Plaintiffs request $400 for Ms. Weinstein and $350 for Mr. Lee. Ms. 22 Weinstein has six years of experience working on labor and employment cases and was 23 designated a Super Lawyers Rising Star. ECF No. 580-22 (“Weinstein Decl.”) ¶¶ 2–3. 24 Mr. Lee has four years of experience, including two years as a federal and California 25 Supreme Court judicial law clerk and two years at his current firm representing union and 26 individual clients. Naduris-Weissman Decl. ¶ 4. As for Mr. Griffith, Ms. Vinaccia states 27 28 15 17-cv-1464-GPC-BGS 1 that he would be entitled to a market rate of $225 for his services as an attorney, Vinaccia 2 Decl. ¶ 31, while Plaintiffs request a rate of $275 for his work while a first-year associate 3 and $350 for his work as a second- and third-year associate, ECF No. 580-13 (“Griffith 4 Decl.)” ¶ 5. Mr. Griffith began working on the case as a post-graduate law clerk and has 5 since litigated employment and labor cases, including wage and hour and overtime 6 claims. Id. ¶ 6. The Court agrees with Ms. Vinaccia’s determination that $225 is a reasonable rate 7 8 for Mr. Griffith. Although $225 is lower than the median associate rate for San Diego 9 labor and employment lawyers ($295), the Court finds this differential is appropriate 10 given Mr. Griffith’s experience level.11 Likewise, the Court finds the median associate 11 rate for San Diego labor and employment lawyers is a reasonable rate for Mr. Lee’s 12 services in this case, as opined by Ms. Vinaccia. Vinaccia Decl. ¶ 31. Mr. Lee primarily 13 worked on the case during a short period in 2018, when he had two years of experience as 14 a judicial law clerk but less than a year of experience in the employment and labor law 15 field, suggesting his services would not command an above-average rate. See Naduris- 16 Weissman Decl. ¶ 4; ECF No. 580-18; cf. Blum, 465 U.S. at 899 n.15 (“Each of 17 respondents’ counsel had admirable records as scholars, and two had valuable clerkship 18 experience. . . Yet none of them, at the outset of this suit in December 1978, had more 19 than 1½ years experience as practicing lawyers. As the term ‘experience’ normally is 20 used, this is quite limited.”) (internal citation omitted). As for Ms. Weinstein, the Court 21 finds that her requested rate of $400 is reasonable. This rate is only $10 more than the 22 third quartile rate for San Diego labor and employment associates, and Ms. Weinstein’s 23 24 25 26 27 28 11 Ms. Vinaccia also states that higher rates for Mr. Griffith are not appropriate because the tasks he undertook are not properly billed to a client. Vinaccia Decl. ¶ 32. The Court finds this contention is better addressed in its discussion of whether the hours expended by Mr. Griffith were reasonable, rather than in its evaluation of his hourly rate. 16 17-cv-1464-GPC-BGS 1 declaration demonstrates her experience and achievements in this field. The $400 rate 2 found reasonable for a fourth-year associate in the Vasquez case, though not particularly 3 probative given the lack of details about the attorney’s background, also lends support for 4 Ms. Weinstein’s $400 rate. See Vasquez, 2020 WL 1550234, at *7. 5 Although the Court recognizes that Mr. Conger and Ms. Smith assert rates above 6 the third quartile, and Mr. Naduris-Weissman above the median, of San Diego 7 employment and labor partners according to the Real Rate Report, Plaintiffs have 8 provided sufficient evidence to show that these rates are reasonable. Most importantly, 9 as noted above, several cases in the Southern District of California found equivalent or 10 higher rates to be reasonable for attorneys with similar backgrounds (or, in the case of 11 Mr. Conger, for the same attorney). Additionally, the declarations of Mr. Conger, Ms. 12 Smith, and Mr. Naduris-Weissman attest to counsels’ particular skills and reputations for 13 their work on similar cases. The Court also notes that the Real Rate Report may be of 14 less use in determining a reasonable fee for partners, whose years of experience can span 15 a range of several decades, given that courts must determine market rates for attorneys of 16 reasonably comparable experience. And although the City contends that the case was 17 straightforward, they do not cite any comparable FLSA cases that affirmed lower rates. 18 The Court therefore finds that rates of $600 to $650 for Mr. Conger and Ms. Smith, and a 19 rate of $500 for Mr. Naduris-Weissman, are reasonable for their services in this case. 20 Additionally, the City does not contest the paralegal and law clerk rates urged by 21 Plaintiffs, and the Court finds that the rates requested are reasonable based on previous 22 cases and the Real Rate Report. See Carr v. Tadin, Inc., 51 F. Supp. 3d 970, 980–81 23 (S.D. Cal. 2014) (finding reasonable a $150 rate for paralegals and $200 rate for law 24 clerks); ECF No. 588-6, at 8 (listing nationwide median rates for employment and labor 25 paralegals of at least $159). 26 \\\ 27 28 17 17-cv-1464-GPC-BGS 1 2 Accordingly, the Court finds the reasonable rates for the services rendered in this case are as follows: 3 Case Kries Name Michael Conger Experience 30+ years 6 Kries Mitchell Patti Messner (paralegal) Ann Smith 28 years 30+ years 7 Mitchell Dyland Griffith 3 years Arellano Arellano Arellano Arellano Eli Naduris-Weissman Hannah Weinstein Juhyung Harold Lee Law clerks 14 years 6 years 4 years N/A 4 5 8 9 10 11 Hourly rate (by year) $600 2017–2018 $650 2019–2020 $95 $600 2017–2018 $650 2019–2020 $175 2017 (law clerk) $225 2017–2020 $500 $400 $295 $150 ii. Hours Reasonably Expended 12 The City objects that the hours claimed by Plaintiffs’ attorneys are not reasonable. 13 14 Plaintiffs present time records indicating members of the legal team spent the following 15 hours performing work related to the case (excluding time spent on the instant motion for 16 attorney’s fees, based on the Court’s review of the timesheet entries): Case Kries Name Michael Conger 20 Kries Mitchell Patti Messner (paralegal) Ann Smith 21 Mitchell Dyland Griffith Arellano Arellano Arellano Arellano Eli Naduris-Weissman Hannah Weinstein Juhyung Harold Lee Law clerks 17 18 19 22 23 24 25 26 27 28 Hours expended (by year) 421.5 2017–2018 553.2 2019–2020 138 322.3 2017–2018 348.4 2019–2020 133.6 2017 (law clerk) 878.1 2017–2020 199.8 461.2 30.6 29.7 \\\ 18 17-cv-1464-GPC-BGS 1 The moving party bears the burden of documenting the appropriate hours spent in 2 the litigation and submitting evidence in support of the hours worked. Hensley, 461 U.S. 3 at 433. Counsel should exclude hours that are “excessive, redundant or otherwise 4 unnecessary,” and the Court should decrease any hours that were not “reasonably 5 expended.” Id. at 434. The opposing party must provide rebuttal in the form of 6 “submission of evidence to the district court challenging the accuracy and reasonableness 7 of the hours charged or the facts asserted by the prevailing party in its submitted 8 affidavits.” Gates, 987 F.2d at 1397–98 (citing Blum, 465 U.S. at 892 n.5); McGrath v. 9 County of Nevada, 67 F.3d 248, 255 (9th Cir. 1995) (citations omitted) (noting that there 10 must be evidence to challenge the accuracy and reasonableness of the hours charged). 11 The party opposing fees must specifically identify defects or deficiencies in the hours 12 requested; conclusory and unsubstantiated objections are insufficient to warrant a 13 reduction in fees. Cancio v. Fin. Credit Network, Inc., No. C04-03755 THE, 2005 WL 14 1629809, at *3 (N.D. Cal. July 6, 2005). 15 The district court must provide a “concise but clear” explanation of its reasons for 16 the ultimate award of attorney’s fees. Hensley, 461 U.S. at 437. The district court need 17 not rule on each of defendants’ specific objections, but must provide some indication of 18 how it arrived at the amount of fees to allow for meaningful appellate review. Gates, 987 19 F.2d at 1398, 1400. Specifically, the City contends that many of Plaintiffs’ claimed hours are excessive 20 21 and duplicative and that Plaintiffs have claimed hours for clerical tasks and other 22 activities not properly billable to a client.12 The Court will address each of the City’s 23 24 25 26 27 28 12 The City also argued in its opposition that Plaintiffs improperly included hours for work related to Jose Silva Hernandez, a plaintiff that the City stated was excluded by stipulation of the parties. On reply, Plaintiff pointed out that the stipulation related to a different plaintiff, Jorge Perez, and filed a copy of the alleged stipulation. ECF No. 591-12. The City had not addressed this issue in their sur19 17-cv-1464-GPC-BGS 1 2 3 objections. a. Excessive and duplicative hours The City contends that several categories of hours billed by Plaintiffs are excessive 4 or duplicative. It alleges that Mr. Conger has billed excessive hours, particularly for 5 email and communication with clients; that counsel included excessive hours for research 6 on the methodology to be used to calculate Plaintiffs’ damages; and that Plaintiffs 7 improperly claim hours for multiple attorneys from the same law firm attending the same 8 meeting or conference. 9 Generally, a district court “should defer to the winning lawyer’s professional 10 judgment as to how much time he was required to spend on the case.” Moreno v. City of 11 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). For courts to deny compensation for a 12 task, “it must appear that the time claimed is obviously and convincingly excessive under 13 the circumstances.” Hiken v. Dept. of Def., No. C 06–02812 JW, 2012 WL 3686747, at 14 *7 (N.D. Cal. Aug. 21, 2012). 15 Mr. Conger’s client communications 16 The City argues that Mr. Conger and his paralegal present timesheets accounting 17 for a disproportionate amount of the hours worked on this consolidated case. Further, the 18 City objects to vague block entries submitted by Mr. Conger for his communications with 19 clients. The City also points out that Mr. Conger spent almost two thirds of his hours 20 communicating with the Kries Plaintiffs, which the City alleges is excessive and 21 suggestive that Mr. Conger should have assigned a portion of such tasks to his paralegal 22 or used more efficient communications methods, as the Arellano and Mitchell attorneys 23 appear to have done. The City therefore seeks a reduction of 40% of Mr. Conger’s client 24 25 26 27 28 reply. Accordingly, the Court finds that the City has not put forth sufficient evidence to show these hours are not reasonably included in the fee motion. 20 17-cv-1464-GPC-BGS 1 communication-related entries. Plaintiffs oppose, and Mr. Conger has put forth a 2 declaration on reply explaining the amount of time he spent on client communication and 3 the time-saving measures he employed. Although the Court does not find that Mr. Conger’s hours should be reduced 4 5 merely because of his occasional use of block billing or less specific entries, cf. Secalt 6 S.A. v. Wuxi Shenxi Const. Machinery Co., Ltd., 668 F.3d 677, 690 (9th Cir. 2012) 7 (counsel “is not required to record in great detail how each minute of his time was 8 expended”); Huhmann v. FedEx Corp., No. 13-CV-00787-BAS NLS, 2015 WL 6127198, 9 at *8 (S.D. Cal. Oct. 16, 2015), aff’d sub nom. Huhmann v. Fed. Express Corp., 874 F.3d 10 1102 (9th Cir. 2017) (reducing block-billed entries by 20%), or for his decision not to 11 delegate more client communications to his paralegal, Moreno, 534 F.3d at 1114, the 12 Court finds that the hours Mr. Conger billed for communicating with clients, particularly 13 when compared to the amount billed by the other firms in this case which represented 14 more clients, are excessive. Mr. Conger billed 616.513 hours for communications with 15 the 487 Kries plaintiffs (1.27 hours per client), compared to 422.1 hours by Mr. Griffith, 16 the attorney undertaking most of the communication with the 1,188 Mitchell plaintiffs 17 (.35 hours per client) and 118.2 hours by Ms. Weinstein, the attorney undertaking most of 18 the communication with the 897 Arellano plaintiffs (.13 hours per client).14 ECF No. 575 19 20 13 24 Ms. Vinaccia appears to calculate this total differently by excluding the 28.2 hours she determined to be related to “the execution and e-mailing of his retention agreements.” Vinaccia Decl. ¶ 37; ECF No. 588-7. In his declaration on reply, Mr. Conger clarified that these entries did not signify the actual emailing or processing of retention agreements and involved communication with clients about different questions. ECF No. 591-2 ¶ 22. The Court includes these hours in the total client communication category, and based on Mr. Conger’s representation will not consider them excludable as improper clerical time. 25 14 21 22 23 26 27 28 Although Plaintiffs cite to Moreno v. City of Sacramento for the proposition that the Court “may not set the fee based on speculation as to how other firms would have staffed the case,” 534 F.3d at 1114, the Court’s analysis of the number of hours reasonably expended requires consideration of how reasonable attorneys would approach a similar case. 21 17-cv-1464-GPC-BGS 1 at 4; Vinaccia Decl. ¶ 40;15 ECF No. 588-7. Several timesheet entries indicate Mr. 2 Conger at spent almost a full work day communicating with clients regarding similar 3 issues. See, e.g., ECF No. 580-5 at 4 (8/2/17 entry for “Telephone conferences with and 4 e-mail exchanges (58) with potential clients . . . regarding nature of case, potential 5 recovery, and steps necessary to join the case, submitting Consent . . . , execute retention 6 agreements”), 28 (12/20/18 entry for “E-mail exchange (29) with new clients re: joining 7 lawsuit, necessary paperwork” constituting 7.1 hours). Individualized communication is 8 certainly necessary in FLSA collective actions, when each plaintiff has a separate case 9 and thus distinct issues regarding liability and damages, but the hours billed by Mr. 10 Conger suggest that adequate time-saving measures were not used. Although attorneys 11 owe a duty to their clients to effectively communicate and the Court does not doubt that 12 Mr. Conger’s communication practices were appreciated by his clients, the Court’s 13 mandate is to determine whether the hours were reasonably expended, not whether the 14 time spent was in line with each attorney’s regular practice. 15 However, the Court recognizes there is a range of client communication time that 16 may be reasonable in an FLSA collective action, and thus declines to reduce Mr. 17 Conger’s client communication hours by the degree requested by the City. Instead, the 18 Court will reduce Mr. Conger’s client communication hours by 20%, to 493.2 hours 19 (from 348.3 in 2017–2018 to 278.6, and from 268.2 in 2019–2020 to 214.6). This results 20 in a reasonable time of approximately an hour, on average, of communication with each 21 Kries plaintiff. Cf. Gates, 987 F.2d at 1399 (“[I]n cases where a voluminous fee 22 application is filed in exercising its billing judgment the district court is not required to 23 set forth an hour-by-hour analysis of the fee request.”). 24 25 26 27 28 15 The Court has reviewed the entries referenced by Ms. Vinaccia as relating to client communication and finds no error in her tabulation of these hours, and Plaintiffs did not object to this calculation. 22 17-cv-1464-GPC-BGS 1 Overbilling for methodology research 2 The City argues that Plaintiffs improperly include in the lodestar 108.2 hours on 3 methodology research “despite the limited scope of available case law” on the subject 4 and district court’s decision in Flores v. City of San Gabriel, which the City contends 5 rejected the position on the methodology issue that Plaintiffs took in this case. The City 6 requests a 50% reduction in hours for this methodology research. Plaintiffs dispute this 7 characterization of Flores and contend that the methodology used to calculate Plaintiffs’ 8 damages was a key issue in the case and was highly complex, and thus that the hours 9 spent researching the methodology issue were reasonable. 10 The Court finds that 108.2 hours of research on the methodology issue over several 11 years is not clearly excessive, in light of the importance of the methodology question to 12 Plaintiffs’ case and the resulting settlement. The Court therefore declines to reduce the 13 hours billed by Plaintiffs’ attorneys for research on methodology. 14 Multiple attorneys for each plaintiff group attending meetings 15 The City contends that Plaintiffs improperly included hours for meetings and court 16 conferences attended by multiple attorneys for each firm, resulting in duplication of 17 hours. The City seeks to exclude 48.5 hours for Mr. Griffith, 42.1 hours for Ms. 18 Weinstein, and 0.6 hours for Mr. Naduris-Weissman on this basis.16 Plaintiffs counter 19 that the attendance of multiple attorneys per firm was necessary for some hearings and 20 meetings, because the junior attorneys were the most familiar with the facts of the 21 Plaintiffs’ individual cases and performed the underlying legal research. 22 23 24 25 26 27 28 The 0.6 hours of Mr. Naduris-Weissman’s hours that the City claims is duplicative is an 8/14/2018 entry for “Develop case strategy – HW re joint stipulation to consolidate.” See ECF No. 588-11 at 9; ECF No. 580-18 at 13. As this is not an instance in which multiple attorneys attended the same meeting or conference, it is not clear to the Court why the City considers this entry duplicative. See Vinaccia Decl. ¶¶ 53–54. To the extent that the City argues it is duplicative because there is another entry on 8/13/2018 with the same description for 0.4 hours, the Court disagrees, as it is not unreasonable for attorneys have multiple discussions relating to the same issue totaling only one hour. 16 23 17-cv-1464-GPC-BGS 1 Although courts should “examine with skepticism claims that several lawyers were 2 needed to perform a task,” they also must “exercise judgment and discretion, considering 3 the circumstances of the individual case, to decide whether there was unnecessary 4 duplication.” Democratic Party of Washington State v. Reed, 388 F.3d 1281, 1286–87 5 (9th Cir. 2004). The attendance of multiple attorneys at a hearing or court conference 6 may or may not be reasonable, depending on the circumstances and the explanation of the 7 attorneys for why their attendance was necessary. See Huhmann, 2015 WL 6127198, at 8 *5 (“[T]he Court declines to find that both attorneys meeting with a client or attending a 9 court proceeding constitutes duplicative billing.”); Cruz ex rel. Cruz v. Alhambra Sch. 10 Dist., 601 F. Supp. 2d 1183, 1192 (C.D. Cal. 2009) (“It is clear that Plaintiffs’ counsel 11 decided to take a ‘team’ approach to handling this matter. Nonetheless, that explanation 12 is insufficient to show that it was necessary to have four attorneys attend the 13 mediation.”); Acevedo v. City of Los Angeles, No. CV 14-5661-GHK (PJWx), 2016 WL 14 11525321, at *7 (C.D. Cal. Dec. 2, 2016) (“Without more, simply pointing out that more 15 than one . . . attorney attended certain court hearings and conferences is insufficient to 16 warrant a reduction in the lodestar.”). 17 The Court finds that the attendance of multiple attorneys from the same firm at 18 court conferences was reasonable in this case. Given that the consolidated case involved 19 thousands of plaintiffs with varying potential damages, it was not unreasonable for the 20 attorneys more familiar with the Mitchell and Arellano plaintiffs’ individual cases to be 21 present at court conferences and meetings with opposing counsel at which settlement was 22 discussed. Further, Mr. Griffith’s attendance at depositions that he did not take is 23 adequately explained by his timesheet entries, in which he states he was responsible for 24 tracking deponent’s responses and adjusting the outline accordingly. See ECF No. 580- 25 15 at 31. However, as discussed below with respect to the City’s objection to the billing 26 of intra-office conferences, the Court finds it unreasonable for Plaintiffs’ attorneys to bill 27 28 24 17-cv-1464-GPC-BGS 1 for multiple attorneys from the same firm attending the same internal meetings. The 2 Court therefore will deduct 11.5 hours from Ms. Weinstein’s total and 8.6 hours for Mr. 3 Griffith’s total (after his admission as an attorney) for Plaintiffs’ counsel meetings and 4 teleconferences that Mr. Naduris-Weissman and Ms. Smith also attended. 5 6 b. Hours for non-billable activities The City also seeks to exclude hours for activities that it contends are not billable 7 to a client or an opponent, including hours for clerical work, travel time, and office 8 conferences between attorneys at the same firm. 9 10 Clerical work The City contends that Plaintiffs improperly included hours for clerical work, 11 namely through the inclusion of time spent by Ms. Messner processing and filing 12 Plaintiffs’ consent paperwork and time spent by Mr. Griffith instructing his secretary on 13 filing consents, updating the list of plaintiffs represented by his law firm, updating and 14 organizing files, and performing filing work in his secretary’s absence. Plaintiffs contend 15 that these activities are not clerical work and would be billable to the client, and thus are 16 recoverable. 17 Purely clerical tasks are generally not recoverable on motion for attorney’s fees as 18 they should be considered a part of the firm’s overhead rather than billed to a client. See 19 Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989); Nadarajah v. Holder, 569 20 F.3d 906, 921 (9th Cir. 2009) (“When clerical tasks are billed at hourly rates, the court 21 should reduce the hours requested to account for the billing errors.”); Butler v. 22 Homeservices Lending LLC, No. 11-CV-02313-L MDD, 2014 WL 5460447, at *4 (S.D. 23 Cal. Oct. 27, 2014) (“[Plaintiff] may not bill at paralegal rates for clerical and/or 24 secretarial work.”). Non-compensable administrative tasks include filing, document 25 organization, and instructing administrative staff on how to perform clerical tasks. See 26 Davis v. City & Cty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in 27 28 25 17-cv-1464-GPC-BGS 1 part, 984 F.2d 345, 345 (9th Cir. 1993); Arizona Dream Act Coal. v. Brewer, No. CV 12- 2 02546-PHX-DGC, 2018 WL 6448395, at *6 (D. Ariz. Dec. 10, 2018); Shaw v. Kelley, 3 2019 WL 5102610, at *7 (N.D. Cal. Oct. 11, 2019). 4 Plaintiffs have included a number of hours for tasks that the Ninth Circuit and 5 other district courts have found to be clerical in nature. For instance, almost all of Ms. 6 Messner’s entries consist of “processing all retention agreements and Consents to Join 7 under 216(b), file consents.” ECF No. 580-6. Mr. Griffith claims hours for work 8 including “instruct[ing] secretary re new ECF filings” and “organiz[ing] plaintiff 9 consents, digital file, index contents,” and “e-fil[ing] consents in legal secretary’s 10 absence, draft[ing]/fil[ing] proof of service.” See ECF Nos. 588-9, 588-9. Other 11 attorneys list hours for filing tasks, conferring with secretaries, and other non-legal work. 12 E.g., ECF No. 580-5 at 31; ECF No. 580-11 at 9; ECF No. 580-18 at 4, 14–15. Although 13 these activities were undoubtedly necessary to counsel’s successful litigation of the case, 14 that does not render them legal or paralegal work. The Court will therefore eliminate 15 from the lodestar hours related to processing and filing consent paperwork and updating 16 and organizing files and lists, in the amount of 46.8 hours for Mr. Griffith (law clerk), 17 42.2 hours for Mr. Griffith (attorney),17 6.9 hours for Mr. Conger (1.5 in 2017–2018 and 18 5.4 in 2019–2020), 2.5 hours for Ms. Weinstein, 0.8 hours for Ms. Smith in 2018,18 0.8 19 20 21 22 23 24 25 26 27 28 The Court disagrees with Ms. Vinaccia’s inclusion of the entry of 2.1 hours for “Finalize and file Initial Disclosures, ENE statement, Discovery Plan” on 6/28/2018 as clerical, as the entry suggests review of these documents necessitated some legal work. See ECF No. 588-9 at 44. Additionally, the Court agrees with Ms. Vinaccia’s recommendation to account for clerical tasks in Mr. Griffith’s blockbilled entries by reducing the hours by 15%. See Huhmann, 2015 WL 6127198, at *8 (noting discretion to decrease hours by a percentage when non-recoverable activities are included in block-billed entry with recoverable activities). 17 The Court declines to eliminate the entry on 6/27/2018 for “Final review after edits made and instruct secretary re filing,” as a portion of this 0.2 hours was spent on legal review. 18 26 17-cv-1464-GPC-BGS 1 hours for Mr. Naduris-Weissman, and all hours for Ms. Messner. 2 Travel time 3 The City also argues that travel time billed by Mr. Naduris-Weissman and Ms. 4 Weinstein from Pasadena to San Diego is not properly included in the lodestar 5 calculation.19 Plaintiffs counter that Mr. Naduris-Weissman and Ms. Weinstein otherwise 6 worked on the case during their travel time, as they traveled by train, and that the rare 7 instance in which they traveled by car is nonetheless recoverable. The prevailing party’s attorney travel time is generally compensable when the 8 9 travel expenses are reasonable and would ordinarily be billed to fee-paying clients. See 10 Lemus v. Burnham Painting & Drywall Corp., 426 F. App’x 543, 546 (9th Cir. 2011) 11 (citing Chalmers v. City of L.A., 796 F.2d 1205, 1216 n. 7 (9th Cir.1986)); Lewis v. Cty. 12 of San Diego, No. 13-CV-02818-H-JMA, 2017 WL 6326972, at *8 (S.D. Cal. Dec. 11, 13 2017), aff’d, 798 F. App’x 58 (9th Cir. 2019). Plaintiffs argue that the Arellano 14 plaintiffs’ retention of a Los Angeles-based law firm was reasonable because of the pre- 15 existing relationship between the Arellano plaintiffs’ labor union and the law firm. The 16 Court finds that Rothner, Segall & Greenstone’s considerable experience representing 17 San Diego labor unions and its longstanding relationship with San Diego municipal 18 employees renders it reasonable that the Arellano plaintiffs would retain them for this 19 lawsuit. Although the Ninth Circuit has in the past countenanced a reduction of attorney’s 20 21 hours for travel time, see In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 22 1291, 1298 (9th Cir. 1994) (finding no abuse of discretion when district court reduced 23 hours spent on travel by 50%), the Court finds the City has not established a reduction 24 25 26 27 28 The City also argues that billing for both Mr. Naduris-Weissman and Ms. Weinstein’s travel time is duplicative. As the Court found above, the attendance of both attorneys at court conferences and meetings with opposing counsel was reasonably necessary. 19 27 17-cv-1464-GPC-BGS 1 should apply here. The timesheet entries for Mr. Naduris-Weissman and Ms. Weinstein 2 indicate that at least some of the travel time from Pasadena to San Diego was spent on 3 other compensable activities, including preparing for hearings. E.g., ECF No. 580-18 at 4 20. This bolsters the reasonableness of Plaintiffs’ claimed hours relating to attorney 5 travel, and the Court therefore declines to reduce the hours attributed to travel time. 6 Office conferences 7 The City also opposes 5.3 hours billed by Mr. Griffith, 1.4 hours by Ms. 8 Weinstein, and 0.3 Mr. Lee for office conferences with Ms. Smith and Mr. Naduris- 9 Weissman, for which the City states the senior attorneys have already billed. 10 “Time billed for internal conferencing is recoverable to the extent it is reasonably 11 necessary to conducting the litigation.” Cruz v. Alhambra Sch. Dist., 601 F. Supp. 2d 12 1183, 1192 (C.D. Cal. 2009); see also Saldana-Neily v. Taco Bell of America, Inc., No. 13 C04-04571 MJJ, 2008 WL 793872, at *10 (N.D. Cal. Mar. 24, 2008) (noting that some 14 team meetings or discussion are necessary and it is not unreasonable for an attorney to 15 review the work of another attorney where a filing is important or complex). However, 16 “the law does not require the district court to compensate for all the time [plaintiff’s] 17 counsel spent conferring among themselves.” Terry v. City of San Diego, 583 Fed. 18 App’x 786, 791 (9th Cir.2014) (citing Gonzalez, 729 F.3d at 1203 and Horsford v. Bd. of 19 Trustees of Cal. State Univ., 132 Cal.App.4th 359, 673, 33 Cal.Rptr.3d 644 (2005)). 20 Courts generally require that the attorneys present detailed explanations of why such 21 internal meetings were necessary. See Davis, 976 F.2d at 1545; Welch v. Metro. Life Ins. 22 Co., 480 F.3d 942, 949 (9th Cir. 2007) (given the “failure to provide a persuasive 23 justification for the intra-office meetings, the district court did not err in finding the intra- 24 office conferences to be unnecessary and duplicative”). Additionally, it is not reasonable 25 to double- or triple-bill a client for internal meetings, including meetings between 26 partners and associates regarding assignments. See Munoz v. California Bus. Bureau, 27 28 28 17-cv-1464-GPC-BGS 1 Inc., No. 1:15-CV-1345-BAM, 2017 WL 3009210, at *5 (E.D. Cal. July 14, 2017). 2 Here, the Court agrees with the City that some of the hours billed by Mr. Griffith 3 and Ms. Weinstein appear to already be represented in Ms. Smith and Mr. Naduris- 4 Weissman’s timesheets.20 See ECF No. 580-15 at 9 (duplicative of Smith timesheet 5 entry, ECF No. 580-11 at 4); ECF No. 580-18 at 14. Although the Court does not find 6 that the intra-office conferences were unnecessary, the Court finds it unreasonable to 7 permit Plaintiffs to double-bill defendant for these meetings. Accordingly, the Court will 8 reduce Mr. Griffith’s time by 1.6 hours (0.5 as a clerk and 1.1 as an attorney) and Ms. 9 Weinstein’s time by 1.1 hours to account for the fact that Plaintiffs are already being 10 compensated for these meetings at Ms. Smith’s and Mr. Naduris-Weissman’s rates.21 11 i. Merits Lodestar Calculation 12 Case Kries 13 14 15 Kries Mitchell 16 Mitchell 17 Arellano Arellano Arellano Arellano 18 19 20 Name Michael Conger Hourly rate (per year) $600 2017–2018 $650 2019–2020 Patti Messner $95 Ann Smith $600 2017–2018 $650 2019–2020 Dyland Griffith $175 2017 (law clerk) $225 2017–2020 Eli Naduris-Weissman $500 Hannah Weinstein $400 Juhyung Harold Lee $295 Law clerks $150 Hours 349.8 494.2 0 321.5 348.4 86.3 826.2 199 446.1 30.6 29.7 Amount $209,880.00 $321,230.00 0 $192,900.00 $226,460.00 $15,102.50 $185,895.00 $99,500.00 $178,440.00 $9,027.00 $4,455.00 21 20 24 The Court will not exclude office conferences listed by the junior attorneys that are not included in the senior attorneys’ timesheets. E.g., ECF No. 580-15 at 10 (listing office conference with Ms. Smith on 11/30/2017); ECF No. 580-11 at 4 (not including office conference on 11/30/2017); ECF No. 580-18 at 18 (entry by Mr. Lee for office conference Ms. Weinstein on 11/29/2018, but no entry on same day for conference by Ms. Weinstein). 25 21 22 23 26 27 28 The City also contends that Plaintiffs included hours for reviewing and leaving voicemails and that such tasks are not compensable, but does not request that the Court reduce the lodestar calculation on this basis. Because these hours likely represent counsel’s time spent listening to and responding to Plaintiffs’ questions about the case, the Court does not find them clearly unreasonable. 29 17-cv-1464-GPC-BGS 1 The Court accordingly calculates the lodestar, excluding hours expended on the 2 instant motion, to amount to $531,110.00 for the Kries Plaintiffs, $620,357.50 for the 3 Mitchell Plaintiffs, and $291,422.00 for the Arellano Plaintiffs. 4 B. Post-Lodestar Adjustment 5 Although both Plaintiffs and the City spend significant portions of their briefing 6 discussing the alleged complexity (or lack thereof) of the case, neither appear to request a 7 post-lodestar adjustment to the fee award. In any case, the Court finds any adjustment of 8 the lodestar calculation inappropriate in this case. The litigation was neither exceedingly 9 complex nor simple, as the parties respectively contend. The case presents no unusual 10 circumstances meriting a departure from the lodestar amount. Thus, as the lodestar 11 calculation is reasonable, the Court will not adjust the lodestar calculation. 12 C. Fees-on-Fees Based on the Court’s calculation, Plaintiffs’ time records indicate their attorneys 13 14 spent the following hours working on the instant fee motion, reply brief, and objection to 15 evidence: 16 Case Kries Mitchell Mitchell Arellano Arellano 17 18 19 20 21 22 Name Michael Conger Ann Smith Dyland Griffith Eli Naduris-Weissman Hannah Weinstein Hours expended (by year) 62.6 2019–2020 22 16.7 2019–2020 39.4 2019–2020 23 54.6 62.3 In their sur-reply, the City objects to the approximately 140 hours Plaintiffs expended on their reply brief as excessive, noting that Plaintiffs introduced significant 23 24 25 The Court has subtracted one hour from Ms. Smith’s claimed hours that was anticipated to be spent at the motion hearing that did not occur. 26 23 22 27 28 As for Ms. Smith, the Court has subtracted one anticipated hour from Mr. Naduris-Weinstein’s hours. 30 17-cv-1464-GPC-BGS 1 new evidence on reply that Plaintiffs contend was impermissible. The City does not 2 point to any particular timesheet entries to support its claim that the award should be 3 reduced by 50% after accounting for the City’s suggested rates. ECF No. 596 at 8. 4 “Fees-on-fees”—or fees for work on a motion for attorney’s fees—are typically 5 recoverable, including for a reply brief. See Thompson v. Gomez, 45 F.3d 1365, 1367 6 (9th Cir. 1995); Kailikole v. Palomar Cmty. Coll. Dist., No. 18-CV-02877-AJB-MSB, 7 2020 WL 6203097, at *5 (S.D. Cal. Oct. 22, 2020). However, in evaluating a request for 8 “fees on fees,” a district court can apply the same percentage of merits fees ultimately 9 recovered to determine the proper amount of the fees-on-fees award. Schwarz v. Sec’y of 10 Health & Human Servs., 73 F.3d 895, 909 (9th Cir. 1995); Thompson, 45 F.3d at 1367– 11 68 (affirming district court award of only 87.2% of fees-on-fees given that plaintiffs had 12 only been awarded 87.2% of the fees requested in the original ‘merits’ fee application); 13 Nat.-Immunogenics Corp. v. Newport Trial Grp., No. SACV1502034JVSJCGX, 2016 14 WL 11520758, at *5 (C.D. Cal. Oct. 25, 2016) (awarding party 16.4% of requested fees- 15 on-fees in light of 16.4% recovery of requested merits fees). 16 The Court finds the percentage reduction approach appropriate here. Because the 17 Court determined that Kries Plaintiffs were entitled to 84.9%, Mitchell Plaintiffs to 18 86.4%, and Arellano Plaintiffs to 97.3% of their requested fees excluding fees requested 19 for the fee motion, the Court will grant Plaintiffs a corresponding percentage of their 20 requested fees for the fee application.24 The Court calculates that Plaintiffs are entitled to 21 a fees-on-fees amount of $34,545.81 for the Kries Plaintiffs, $21,293.28 for the Mitchell 22 23 24 25 26 27 28 When calculating the total ‘merits’ fees requested, the Court relied upon the amount requested in the initial fee motion minus the amount billed for the motion itself (calculated with the attorneys’ requested rates), resulting in an initial request of $625,590 for the Kries Plaintiffs, $717,747.50 for the Mitchell legal team, and $299,545 for the Arellano legal team, for a total of $1,642,882.50 excluding fees-onfees. The Court ultimately calculated the lodestar for Kries Plaintiffs to be $531,110, or 84.9% of the fees sought; the lodestar for Mitchell Plaintiffs to be $620,357.50, or 86.4% of the fees sought; and the lodestar for Arellano Plaintiffs to be $291,422.00, or 97.3% of the fees sought. 24 31 17-cv-1464-GPC-BGS 1 Plaintiffs, and $50,810.06 for the Arellano Plaintiffs, taking into account each legal 2 team’s degree of success on the merits fees. 3 4 IV. Conclusion The Court GRANTS in part and DENIES in part the motion for attorney’s fees. 5 The Court awards the Kries Plaintiffs $565,655.81 in attorney’s fees and $5,976.20 in 6 costs, the Mitchell Plaintiffs $641,650.78 in attorney’s fees and $10,856.45 in costs, and 7 the Arellano Plaintiffs $342,232.06 in attorney’s fees and $5,942.62 in costs. 8 IT IS SO ORDERED. 9 10 Dated: January 13, 2021 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 17-cv-1464-GPC-BGS
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