Caccamise v. Credit One Bank, N.A. et al, No. 3:2018cv00971 - Document 126 (S.D. Cal. 2020)

Court Description: ORDER granting in part and denying in part 117 Plaintiff's Motion for Attorneys' Fees. Signed by Judge Janis L. Sammartino on 2/18/2020. (jpp)
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Caccamise v. Credit One Bank, N.A. et al Doc. 126 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORDAN CACCAMISE, an individual, Plaintiff, 12 13 v. 14 CREDIT ONE BANK, N.A.; LVNV Funding, LLC; et al., 15 Case No.: 18-CV-971 JLS (BLM) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 117) Defendants. 16 17 Presently before the Court is Plaintiff Jordan Caccamise’s Motion for Attorney’s 18 Fees and Costs (“Mot.,” ECF No. 117).1 Also before the Court are Defendants Credit One 19 Bank, N.A. and LVNV Funding, LLC’s Opposition to (“Opp’n,” ECF No. 123) and 20 Plaintiff’s Reply in Support of (“Reply,” ECF No. 124) the Motion. The Court vacated the 21 hearing on the Motion and took the matter under submission without oral argument 22 pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 125. Having carefully considered the 23 Parties’ arguments, the evidence, and the law, the Court GRANTS IN PART AND 24 DENIES IN PART Plaintiff’s Motion, as follows, and AWARDS Plaintiff attorneys’ fees 25 in the amount of $75,270.00. 26 27 28 1 On the same day that she filed the instant Motion, Plaintiff also filed a Bill of Costs. See ECF No. 116. While this Motion was pending, the Clerk of Court taxed costs in the amount of $6,146.28. See ECF No. 122. The Court therefore DENIES AS MOOT Plaintiff’s Motion to the extent it addresses costs. 1 18-CV-971 JLS (BLM) Dockets.Justia.com 1 2 BACKGROUND I. Factual Background 3 In 2017, Plaintiff was the victim of identity theft perpetrated by Jacqueline Rae 4 Murphy a/k/a Jackie Martinez. See ECF No. 1 (“Compl.”) ¶¶ 1–2, 63. Two credit cards 5 in Plaintiff’s name, including a Credit One Visa, were discovered in Ms. Murphy’s vehicle, 6 along with credit cards belonging to eight other victims and drug paraphernalia. See id. 7 ¶ 5–6, 68. Ms. Murphy was arrested, charged, and convicted for stealing Plaintiff’s 8 identify. See id. ¶ 64. 9 After the La Mesa Police Department informed Plaintiff that she had been the victim 10 of identity theft, Plaintiff checked her credit to discover that numerous fraudulent accounts 11 had been opened in her name. See id. ¶¶ 6, 70. As relevant here, Ms. Murphy applied for 12 and was given a credit card in Plaintiff’s name with Credit One on April 30, 2017, see id. 13 ¶ 74, which resulted in a “hard inquiry” on Plaintiff’s Experian credit report. See id. ¶ 75. 14 Ms. Murphy charged $444 in fraudulent charges to the Credit One card. See id. ¶ 83. 15 Credit One reported this balance and that it was past due on a recurring basis from April 16 through December 2017. See id. 17 Plaintiff disputed the fraudulent accounts and credit inquiries, but Defendants 18 continued to pursue her for the debts incurred by Ms. Murphy and to report the information 19 to the credit bureaus. See id. ¶¶ 7, 71. Specifically, Plaintiff sent disputes to the three 20 credit reporting agencies—Equifax, Trans Union, and Experian—on December 5, 2017, 21 which were forwarded to Credit One on December 22, 2017. See id. ¶ 87. Plaintiff also 22 sent a written dispute to Credit One on December 20, 2017, attaching a copy of the police 23 report for Ms. Murphy’s arrest. See id. ¶ 88. Nonetheless, Credit One sold the fraudulent 24 account to LVNV on January 17, 2018. See id. ¶ 90. 25 LVNV reported the account as in collection to the consumer credit reporting 26 agencies on May 1, 2018. See id. ¶¶ 93–94. A “collection” account is the most derogatory 27 account status possible. See id. ¶ 95. As a result of Defendants’ actions, Plaintiff’s credit 28 /// 2 18-CV-971 JLS (BLM) 1 score suffered a fifty-eight-point drop, severely damaging her credit and resulting in credit 2 denials. See id. ¶¶ 8, 72. 3 II. Procedural Background 4 On May 16, 2018, Plaintiff filed this action for damages and injunctive relief against 5 Credit One; LVNV; Monetary Management of California, Inc. d/b/a Money Mart; Kohl’s 6 Department Stores, Inc.; TD Bank USA, N.A.; Bluestem Brands, Inc. d/b/a Fingerhut; 7 WebBank, Inc.; First Premier Bank; Trans Union, LLC; Experian Information Solutions, 8 Inc.; and Equifax Information Services, LLC, alleging claims for violations of the 9 California Identity Theft Act (“CITA”), Cal. Civ. Code §§ 1798.93 et seq.; the Fair Debt 10 Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq.; the California Consumer 11 Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code §§ 1785 et seq.; and the Fair 12 Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq. See generally Compl. LVNV 13 answered the Complaint on August 1, 2018, see ECF No. 43, and Credit One answered on 14 August 20, 2018. See ECF No. 57. 15 Following settlement, Plaintiff voluntarily dismissed her claims as to nine of the 16 eleven named Defendants. See ECF Nos. 52 (WebBank), 72 (Trans Union), 75 (TD Bank), 17 76 (Money Mart), 84 (Equifax), 88 (Kohl’s), 90 (Fingerhut), 103 (First Premier Bank), 109 18 (Experian). 19 As to Defendants Credit One and LVNV, Plaintiff served two sets of requests for 20 production of documents (“RFPs”) on each Defendant on October 12, 2018. See ECF No. 21 94-2 ¶ 2; ECF No. 95-2 ¶ 2. Defendants responded on December 17, 2018, see ECF Nos. 22 94-3, 95-3, and supplemented their responses on February 28, 2019. See ECF Nos. 94-4, 23 95-4. Believing Defendants’ responses to be insufficient, Plaintiff sent multiple meet-and- 24 confer letters on January 22, 2019, see ECF No. 94-2 ¶ 3; ECF No. 95-2 ¶ 3, and met and 25 conferred with Defendants’ counsel on January 24, 2019, see ECF No. 94-2 ¶ 4; ECF No. 26 95-2 ¶ 4; January 30, 2019, see ECF No. 94-2 ¶ 5; ECF No. 95-2 ¶ 5; March 7, 2019, see 27 ECF No. 94-2 ¶ 6; ECF No. 95-2 ¶ 6; and March 8, 2019, see ECF No. 94-2 ¶ 7; ECF No. 28 /// 3 18-CV-971 JLS (BLM) 1 95-2 ¶ 7. Ultimately, Plaintiff filed two motions to compel on March 18, 2019, one against 2 each of Credit One and LVNV. See ECF No. 94 (LVNV); ECF No. 95 (Credit One). 3 On April 26, 2019, Magistrate Judge Barbara Lynn Major granted in part and denied 4 in part both of Plaintiff’s motions. See generally ECF No. 107 (Credit One); ECF No. 108 5 (LVNV). Specifically, Magistrate Judge Major ordered Credit One to supplement its 6 responses to RFP Nos. 1, 6–7, 14–24, 29–30, 34–48, 52–54, 56–62, 64, and 66–72, see 7 generally ECF No. 107, and LVNV to supplement its responses to RFP Nos. 1, 6, 12–25, 8 33–34, 37, 44–48, 61–62, 64–65, and 72–73. See generally ECF No. 108. Plaintiff’s 9 motions to compel were otherwise denied. See generally ECF Nos. 107, 108. 10 In addition to the two sets of RFPs to each of Credit One and LVNV, Plaintiff also 11 served two sets of requests for admission (“RFAs”) and two sets of special interrogatories 12 (“SROGs”) on each Defendant. See Opp’n at 16 n.5. Additionally, Plaintiff took four 13 depositions: Plaintiff, the officer who arrested Ms. Murphy, Credit One’s person most 14 knowledgeable, and LVNV’s person most knowledgeable. See Mot. at 8. The Parties 15 attended a private mediation before the Honorable Margaret Nagle on May 21, 2019. See 16 ECF No. 110-2 ¶ 2. 17 On May 28, 2019, Credit One and LVNV served Plaintiff with an offer of judgment 18 pursuant to Federal Rule of Civil Procedure 68. See ECF No. 112-1. Plaintiff filed a notice 19 of acceptance the following day. See ECF No. 112. On May 30, 2019, the Court entered 20 an Order of Judgment in favor of Plaintiff in the amount of $60,100 and enjoining 21 Defendants from collecting or attempting to collect the underlying debts. See ECF No. 114 22 at 1. The Parties also agreed that “Plaintiff is entitled to all permissible costs incurred and 23 reasonable statutory attorneys’ fees incurred in pursuing the claims against Defendants, the 24 total amount to be determined by the Court upon application by Plaintiff or by agreement 25 of the Parties.” Id. at 2. The Clerk entered judgment the following day. See ECF No. 115. 26 On June 13, 2019, Plaintiff filed a bill of costs in the amount of $14,229.45, see 27 generally ECF No. 116, and the instant Motion seeking fees in the amount of $81,510.00. 28 /// 4 18-CV-971 JLS (BLM) 1 See generally ECF No. 117. On July 16, 2019, the Clerk taxed costs in the amount of 2 $6,146.28. See ECF No. 122. 3 ANALYSIS 4 Plaintiff seeks $81,510 in attorneys’ fees pursuant to 15 U.S.C. §§ 1681n(a)(3), 5 1681o(a)(2), 1692k(a)(3); California Civil Code sections 1785.31(a)(1)–(2)(A) and 6 1798.93(c)(5); and Federal Rules of Civil Procedure 54 and 68. See Mot. at 1. Defendants 7 challenge Plaintiff’s Motion on several bases, arguing that she has failed to demonstrate 8 the reasonableness of (1) the requested fees; and (2) the hours spent on duplicative, clerical, 9 excessive, or inappropriately apportioned tasks. See generally Opp’n at 5–20. Based on 10 these objections, Defendants request that the fee be reduced to a maximum award of 11 $45,455.50. See id. at 1, 21. 12 The Court calculates a reasonable fee award using a two-step process. See Fischer 13 v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). “First, the court must calculate the 14 ‘lodestar figure’ by taking the number of hours reasonable expended on the litigation and 15 multiplying it be a reasonable hourly rate.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 16 433 (1983)). “Second, the court must decide whether to enhance or reduce the lodestar 17 figure based on an evaluation of the Kerr[ v. Screen Extras Guild, Inc., 526 F.2d 67 (9th 18 Cir. 1975), abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 19 (1992)] factors that are not already subsumed in the initial lodestar calculation.” Fischer, 20 214 F.3d at 1119 (citing Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th 21 Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996)). 22 I. Lodestar Method 23 “‘The lodestar determination has emerged as the predominate element of the 24 analysis’ in determining a reasonable attorney’s fee award.” Morales, 96 F.3d at 363 25 (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 (9th Cir. 1987)). “The ‘lodestar’ 26 is calculated by multiplying the number of hours the prevailing party reasonably expended 27 on the litigation by a reasonable hourly rate.” Id. (citing McGrath v. Cty. of Nevada, 67 28 F.3d 248, 252 (9th Cir. 1995)). 5 18-CV-971 JLS (BLM) 1 A. 2 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition 3 to the attorney’s own affidavits—that the requested rates are in line with those prevailing 4 in the community for similar services by lawyers of reasonably comparable skill, 5 experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 6 2008) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). 7 community is the forum in which the district court sits.” Id. (citing Barjon v. Dalton, 132 8 F.2d 496, 500 (9th Cir. 1997)). “[A]ffidavits of the plaintiffs’ attorney[s] and other 9 attorneys regarding prevailing fees in the community, and rate determinations in other 10 cases . . . are satisfactory evidence of the prevailing market rate.” Id. at 980 (second and 11 third alterations in original) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 12 896 F.2d 403, 407 (9th Cir. 1990)). The Court may also consider cases setting reasonable 13 rates during the time period in which the fees in the present action were incurred, 14 see Camacho, 523 F.3d 973, 981 (9th Cir. 2008) (citing Bell v. Clackamas Cty., 341 F.3d 15 858, 869 (9th Cir. 2003)), which—in this case—is between May 16, 2018, and May 29, 16 2019. See ECF Nos. 1, 112; see also Bell, 341 F.3d at 869 (holding that district court 17 abused its discretion in applying “market rates in effect more than two years before the 18 work was performed”) (emphasis in original). Reasonableness of Plaintiff’s Counsels’ Hourly Rates “[T]he relevant 19 Here, “Plaintiff’s counsel is seeking approval of an hourly rate of $400 for Wayne 20 A. Sinnett (a princip[al]), and $300 for Crystal T. Innabi (an associate).” Mot. at 9. In 21 addition to counsels’ own declarations, see ECF Nos. 117-1 (“Sinnett Decl.”), 117-2 22 (“Innabi Decl.”), Plaintiff relies on other district court cases in which counsels’ rates have 23 been found reasonable; the United States Consumer Law Attorney Fee Survey Report 24 (“Survey”) for 2013–2014, see ECF No. 117-7 (“2013 to 2014 Survey”); and declarations 25 filed by attorneys Clark Ovruchesky, see ECF No. 117-4 (“Ovruchesky Decl.”), and 26 Matthew M. Loker, see ECF No. 117-5 (“Loker Decl.”). See generally Mot. at 9–11. 27 Contesting the sufficiency of Plaintiff’s evidence, particularly in light of the number of 28 years that Mr. Sinnett and Ms. Innabi have been in practice, Defendants urge that the Court 6 18-CV-971 JLS (BLM) 1 reduce these rates “to $285 per hour for Mr. Sinnett and $200 per hour for Ms. Innabi.” 2 Opp’n at 6. 3 1. The Consumer Law Attorney Fee Survey Report 4 Plaintiff claims that her counsels’ rates are “equal to or lower than the ‘prevailing 5 market rates in the community’ as described in the [2013 to 2014] Survey.” Mot. at 9. 6 Specifically, Plaintiff claims that the 2013 to 2014 Survey “establishes that ‘85.9% of all 7 California consumer Law attorneys (regardless of all other factors) have a billable hourly 8 rate above $325 and the average rate [is] $439.’” Id. at 10 (emphasis omitted) (quoting 9 2013 to 2014 Survey at 17). 10 Defendants stress that the 2013 to 2014 Survey “does not contain data concerning 11 reasonable rates [for] attorneys practicing in San Diego with Plaintiff’s counsels’ 12 experience level and, thus, is not a reliable means to calculate the appropriate rate for 13 attorneys in San Diego.” 2 Opp’n at 6 (citing Diaz v. Kubler Corp., No. 12CV1742-MMA- 14 BGS, 2014 WL 12789109, at *5 (S.D. Cal. Mar. 26, 2014)). An updated survey from 2015 15 to 2016, on the other hand, “shows that the average hourly rate for an attorney in San Diego 16 with 1–3 and 3–5 years of experience is $250 per hour.” Id. at 7 (emphasis in original) 17 (citing Mohandesi Decl. at 217).3 18 Plaintiff rejoins that “years in practice is by no means the exclusive factor 19 determining a reasonable hourly rate. Rather, the determination of the prevailing rate ‘. . . 20 involves examining the prevailing market rates in the community charged for similar 21 services by lawyers of reasonably comparable skill, experience, and reputation.’” Reply 22 at 1 (emphasis in original) (citing Kerr, 526 F.2d 69–70; Schuchardt v. Law Office of Rory 23 24 25 26 27 28 2 Mr. Sinnett was admitted to practice in California in May 2015, see ECF No. 123-1 (“Mohandesi Decl.”) at 5, meaning that he had been practicing between three and four years during the pendency of this litigation, while Ms. Innabi was admitted in November 2017, see id. at 7, meaning that she had been practicing between one-half and one-and-a-half years during the relevant time. 3 Citations to the Mohandesi Declaration refer to the CM/ECF page numbers electronically stamped at the top of each page. 7 18-CV-971 JLS (BLM) 1 W. Clark, 314 F.R.D. 673, 688 (N.D. Cal. 2016)). As noted in counsels’ declarations, in 2 his four years of practice, Mr. Sinnett has litigated over ninety-three individual and putative 3 class actions under consumer protection statutes, has served on multiple committees with 4 the Federal Bar Association, and has lectured on consumer law and class actions at law 5 schools and universities. Sinnett Decl. ¶¶ 4–7. Ms. Innabi, in her two years as a member 6 of the California Bar, has litigated over fifty-four consumer rights cases and is an Adjunct 7 Professor at California Western School of Law who has given lectures on civil litigation 8 and civil procedure. Innabi Decl. ¶¶ 3, 5. 9 Plaintiff is correct that years in practice is not the be-all and end-all in determining 10 the reasonableness of an attorney’s hourly rate. Despite their relatively recent admission 11 to the California Bar, it is evident from Mr. Sinnett’s and Ms. Innabi’s declarations that 12 they have extensive experience in consumer law cases such as this. See generally Sinnett 13 Decl.; Innabi Decl. Further, the 2015 to 2016 Survey on which Defendants rely indicates 14 that the average attorney rate for all consumer attorneys in San Diego is $371, the median 15 rate is $360,4 and the median rate for attorneys handling credit rights cases is $375, which 16 is higher than the median rate for attorneys covering several other types of consumer rights 17 cases, including mortgage cases ($316), TCPA cases ($355), and “other” consumer rights 18 cases ($315). See Mohandesi Decl. at 216. These rates support, rather than undermine, 19 Plaintiff’s counsels’ claimed rates. 20 The most recent data for 2017 to 2018 further supports Plaintiff’s counsels’ rates.5 21 The 2017 to 2018 Survey indicates that the average attorney hourly rate for a consumer 22 law attorney with Mr. Sinnett’s experience would be $275 and $250 for an attorney with 23 Ms. Innabi’s experience. Ronald L. Burdge, U.S. Consumer Law Attorney Fee Survey 24 25 4 26 The Court also acknowledges that the median years in practice is 16.0, see Mohandesi Decl. at 216, which is significantly greater than the number of years either Mr. Sinnett or Ms. Innabi has been practicing. 27 5 28 The 2017 to 2018 Survey was not released until September 10, 2019, after the briefing on this Motion had closed. Nonetheless, the 2017 to 2018 Survey is most pertinent to the instant Motion, which seeks to recover fees incurred between May 2018 and May 2019. 8 18-CV-971 JLS (BLM) 1 Report, 2017–2018, at 235, available at https://burdgelaw.com/wp-content/uploads/2019/ 2 10/US-Consumer-Law-Attorney-Fee-Survey-Report-2017-2018.pdf (last visited Feb. 4, 3 2020). Meanwhile, the average rate for all consumer law attorneys is $452, the median 4 rate for all consumer law attorneys is $475, and the median rate for attorneys handling 5 credit rights cases is $400. 6 Id. at 234. Given Mr. Sinnett’s and Ms. Innabi’s skill and 6 experience as demonstrated through their declarations and the more relevant 2017 to 2018 7 Survey data, the Court does not conclude that the 2015 to 2016 Survey demonstrates that 8 Plaintiff has failed to establish that Mr. Sinnett’s and Ms. Innabi’s requested rates of $400 9 and $300, respectively, are reasonable. 10 2. The Ovruchesky and Loker Declarations 11 “In support of counsels’ hourly rates, Plaintiff has also submitted declarations of 12 independent attorneys who regularly litigate before this court,” Mr. Ovruchesky and 13 Mr. Loker. Mot. at 10 (citing Ovruchesky Decl.; Loker Decl.). “Defendants object to 14 Paragraphs 6 and 8 of each declaration[],” Opp’n at 8, on the grounds that “neither 15 Mr. Loker nor Mr. Ovruchesky provide any sufficient explanation or basis for their 16 conclusions that $400 or $300 per hour are reasonable rates for attorneys in the Southern 17 District of California with Plaintiff[’s] counsels’ level of experience.” Id. at 9. Defendant 18 also urges that “declarations are inadequate where the declarants failed to state that their 19 respective skill, experience, and reputation are comparable to that of Plaintiff’s counsel, or 20 that they have actually been compensated at the requested hourly rates for work on cases 21 of similar complexity.” Id. at 9–10 (internal quotation marks omitted) (quoting Diaz, 2014 22 WL 12789109 at *5) (citing Bratton v. FCA US LLC, No. 17-CV-01458-JCS, 2018 WL 23 5270581, at *4 (N.D. Cal. Oct. 22, 2018)). Plaintiff does not respond to Defendants’ 24 objections, see generally Reply; the Court therefore declines to consider either the 25 Ovruchesky Declaration or the Loker Declaration for purposes of this Motion. 26 27 28 6 The median years in practice for all consumer law attorneys in San Diego, however, is 18.0. See id. at 234. 9 18-CV-971 JLS (BLM) 1 3. Awards in Other Cases 2 Finally, Plaintiff cites to several cases approving the rates Mr. Sinnett and Ms. Innabi 3 seek here. See Mot. at 10–11 (citing Smith v. Ferguson Grp. USA, 5:18-cv-02251-DMG- 4 SP, Dkt. No. 22 at *3 (C.D. Cal. Feb. 21, 2019) (finding Mr. Sinnett’s rate of $400 and Ms. 5 Innabi’s rate of $300 reasonable); Gomez v. Assocs. Grp., 2:18-cv-07795-FMO-JPR, Dkt. 6 No. 18, at *7 (C.D. Cal. Dec. 27, 2018) (same); Townsend v. Yorkshire Acquisition Grp., 7 No. SACV1701897JVSAFMX, 2018 WL 4006956, at *3 (C.D. Cal. May 7, 2018) (same); 8 Mabeza v. Ashfield Mgmt. Servs., Inc., No. 17-CV-1946-AJB-KSC, 2018 WL 1400778, at 9 *4 (S.D. Cal. Mar. 20, 2018) (same); Washington v. City Title Loan, LLC, No. 10 CV165427FMOAFMX, 2018 WL 4005447, at *8 (C.D. Cal. Feb. 26, 2018) (finding 11 Mr. Sinnett’s rate of $400 reasonable); Yang v. Assisted Credit Servs., Inc., No. 12 SACV1502118AGJCGX, 2017 WL 9939710, at *3 (C.D. Cal. Nov. 7, 2017) (same)). 13 Defendants contend that Plaintiffs’ cited cases are “[i]napposite” and that courts in 14 this District have approved “[s]ignificantly [l]ower [r]ates [f]or [a]ttorneys [w]ith 15 Plaintiff[’s] [c]ounsels’ [e]xperience.” See Opp’n at 9–12 (emphasis omitted). For 16 example, in 2016 (when Mr. Sinnett had been in practice for one year), Judge Larry Alan 17 Burns approved a rate of $250 for Mr. Sinnett instead of his requested $400. See id. at 18 9–10 (citing Arana v. Monterey Fin. Servs. Inc., No. 15CV2262-LAB (BGS), 2016 WL 19 1324269, at *3 (S.D. Cal. Apr. 5, 2016)). Further, Defendants contend that “courts within 20 the Southern District of California generally approve rates of under $400/hr in consumer 21 cases for attorneys with only 4 years of experience like Mr. Sinnett,” see id. at 10 (citing 22 Diaz v. Kubler Corp., No. 12CV1742-MMA-BGS, 2014 WL 12789109, at *5–6 (S.D. Cal. 23 Mar. 26, 2014)), while Judge M. James Lorenz approved a rate of $150 for an attorney 24 with approximately the same number of years of experience as Ms. Innabi. See id. at 10 25 (citing Cole v. Mercantile Adjustment Bureau, LLC, No. 3:17-CV-2514-L-WVG, 2018 WL 26 5920019, at *2 (S.D. Cal. Nov. 12, 2018)). As for Plaintiff’s authorities, Defendants 27 challenge those from the Central District of California, “which does not properly represent 28 the comparable market rate for cases litigated in San Diego.” See id. at 11 (citing Diaz, 10 18-CV-971 JLS (BLM) 1 2014 WL 12789109 at *5). “Further, Mr. Sinnett’s rate approvals in those cases are 2 distinguishable because they were approved in connection with his requests for default 3 judgments and, thus, were unopposed.” See id. 4 Plaintiff replies that “Defendants do not offer authority supporting th[e] position 5 [that cases involving default judgment should be given less deference] and it is unclear 6 why the Court would give less consideration to a motion because it was a default 7 judgment.” See Reply at 2. The Court agrees with Plaintiff that the fact that fees were 8 awarded on default in another case does not alone render that case distinguishable. See, 9 e.g., Vogel v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1160 (9th Cir. 2018) (“In a case in 10 which a defendant fails to appear or otherwise defend itself, however, the burden of 11 scrutinizing an attorney’s fee request—like other burdens—necessarily shifts to the 12 court.”) (citing In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999)). Defendant is correct, 13 however, that the cases on which Plaintiff relies from the Central District of California may 14 not reflect rates prevailing in this District. See Camacho, 523 F.3d at 979–80. Further, it 15 is inappropriate for the Court to consider cases applying “market rates in effect more than 16 two years before the work was performed,” see Bell, 341 F.3d at 869 (emphasis in original), 17 here, May 2016. These considerations render the majority of the cases cited by either side 18 inapposite. 19 Nonetheless, the Court finds persuasive Judge Anthony J. Battaglia’s determination 20 in March 2018 that Mr. Sinnett’s $400 rate and Ms. Innabi’s $300 rate are reasonable, see 21 Mabeza, 2018 WL 1400778, at *4, which is borne out by other awards during the relevant 22 time period within this District. See, e.g., Dashnaw v. New Balance Athletics, Inc., No. 23 17CV159-L(JLB), 2019 WL 3413444, at *9 (S.D. Cal. July 29, 2019) (finding rate of $475 24 reasonable for attorney with five years’ class action experience in consumer fraud action 25 for work between January 2017 and 2019). 26 Mr. Sinnett’s rate of $400 and Ms. Innabi’s rate of $300 are reasonable given their 27 experience, the prevailing market rates in this District, and recent cases approving similar 28 rates. The Court therefore concludes that 11 18-CV-971 JLS (BLM) 1 B. 2 “The party seeking an award of fees should submit evidence supporting the hours 3 worked.” Hensley, 461 U.S. at 434. “The district court . . . should exclude . . . hours that 4 were not ‘reasonably expended’” and “hours that are excessive, redundant, or otherwise 5 unnecessary.” Id. “[T]he [opposing party] bears the burden of providing specific evidence 6 to challenge the accuracy and reasonableness of the hours charged.” McGrath, 67 F.3d at 7 255 (citing Blum, 465 U.S. at 892 n.5; Gates v. Gomez, 60 F.3d 525, 534–35 (9th Cir. 8 1995)). Reasonableness of Hours Expended 9 Here, Plaintiff seeks fees for 147 hours billed by Mr. Sinnett and 75.7 hours billed 10 by Ms. Innabi. See Mot. at 7. Plaintiff claims to have removed approximately $30,090 in 11 fees attributable to the other nine defendants that were originally parties to this action. See 12 id. at 8 (citing Sinnett Decl. ¶ 12). Plaintiff also has provided the Court with a ten-page, 13 redacted Account Statement for this matter detailing the billing entries for the hours 14 claimed. See generally ECF No. 117-6 (“Ex. 1”). 15 Defendants urge, however, that Plaintiff’s counsels’ “time sheets show[] that 16 reductions are required for numerous entries, including for duplicative work (7.9 hours), 17 impermissible clerical work (5.5 hours), excessive and unreasonable time incurred in 18 connection with discovery (22.7 hours), and time that Plaintiff failed to apportion between 19 each appearing defendant (13 hours).” Opp’n at 12. Defendant therefore requests that “the 20 total award should be reduced by 49.1 hours at a minimum.” See id. (emphasis in original). 21 1. Duplicative Work 22 Defendants first contend that “Plaintiff seeks several hours that were unnecessarily 23 incurred by both Mr. Sinnett and Ms. Innabi, which could have been incurred by just one 24 attorney.” Opp’n at 13. Specifically, Defendants challenge time that both Mr. Sinnett and 25 Ms. Innabi spent preparing Plaintiff’s document production and traveling and appearing 26 for Plaintiff’s deposition. See id. Mr. Sinnett spent 8.6 hours on these tasks, while 27 Ms. Innabi spent 7.9 hours. See id. Defendants therefore request that the Court exclude 28 the time billed by Ms. Innabi. See id. 12 18-CV-971 JLS (BLM) 1 Plaintiff responds that “attorneys within a firm routinely divide tasks for large and 2 pivotal portions of a case” and “[t]his [is] especially true for discovery productions and 3 client depositions which are at issue here.” Reply at 3. Instead of duplicating work, 4 Plaintiff contends that “counsel . . . divided tasks to ensure they were properly handled and 5 should not be penalized for devoting adequate resources to litigating the case.” Id. 6 “[T]he participation of more than one attorney does not necessarily constitute an 7 unnecessary duplication of effort.” Kim v. Fujikawa, 871 F.2d 1427, 1435 (9th Cir. 1989) 8 (citing Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 785 (9th Cir.), cert. denied, 476 9 U.S. 1170 (1986)). Indeed, the Ninth Circuit has acknowledged that “the district court 10 should take into account the reality that some amount of duplicative work is ‘inherent in 11 the process of litigating over time.’” Stetson v. Grissom, 821 F.3d 1157, 1166 (9th Cir. 12 2016) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)). 13 Here, Defendant has “offered no evidence to support either the reductions or its 14 claim that the hours originally charged were unnecessary.” See McGrath, 67 F.3d at 255. 15 Further, it is not unreasonable for counsel to divide tasks or for two attorneys to attend a 16 deposition. See, e.g., Rodriguez v. Cty. of Los Angeles, 96 F. Supp. 3d 1012, 1024 (C.D. 17 Cal. 2014) (“A second attorney may serve as a sounding board or be necessary to assure 18 that valuable testimony (for all Plaintiffs) is obtained during the limited time allotted 19 in deposition.”), aff’d, 891 F.3d 776 (9th Cir. 2018); Atl. Recording Corp. v. Andersen, No. 20 CV 05-933 AC, 2008 WL 2536834, at *11 (D. Or. June 24, 2008) (“The evidence in the 21 record supports the conclusion that it was reasonable for both [attorneys] to attend the 22 depositions challenged here.”). Accordingly, the Court declines to reduce Ms. Innabi’s 23 hours by 7.9 as “duplicative” of Mr. Sinnett’s time spent on the challenged tasks. 24 2. Clerical Work 25 Defendants next challenge 2.0 hours billed by Ms. Innabi and 3.5 hours billed by 26 Mr. Sinnett on “strictly clerical tasks,” specifically scheduling and service emails; 27 preparation of proofs of service, civil cover sheets, and exhibits; and filings. See Opp’n at 28 14–16. Plaintiff rejoins that “the majority of the contested entries reflect correspondence 13 18-CV-971 JLS (BLM) 1 between counsel relating to discovery disputes, mediation, expert discovery, and motion 2 practice” and notes that “significant amounts of time litigating a civil action will be spent 3 conferring with opposing counsel.” Reply at 3. 4 “Hours that are not properly billed to one’s client also are not properly billed to one’s 5 adversary.” Hensley, 461 U.S. at 434. Consequently, “clerical tasks, including but not 6 limited to filing and scheduling, setting up meetings, and preparing a proof of service, are 7 part of the normal overhead costs of litigation and not included in recoverable hours.” 8 Puccio v. Love, No. 16-CV-02890 W (BGS), 2020 WL 434481, at *2 (S.D. Cal. Jan. 28, 9 2020) (citing Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n.10 (1989); Arana, 2016 10 WL 1324269, at *3). Further, “[b]illing for individual, mundane tasks like emails or filing 11 with excessive specificity can lead to artificial inflation of time spent.” Id. at *5. 12 Having reviewed the challenged billing entries, the Court reduces Ms. Innabi’s hours 13 by 2.0, reflecting purely clerical tasks, and Mr. Sinnett’s hours by 2.2, reflecting tasks that 14 were purely clerical and/or inflated by virtue of several entries for 0.1 hours. Mr. Sinnett 15 may still recover for 1.3 hours of time, however, spent reading and responding to 16 Defendants’ counsels’ emails and speaking with Defendants’ counsel by phone, tasks that 17 are essential to litigation and reasonably performed. 18 3. Excessive and Unreasonable Hours Expended on Discovery 19 “Overlitigation deemed excessive does not count towards the reasonable time 20 component of a lodestar calculation,” Puccio, 2020 WL 434481, at *6 (citing Tomovich v. 21 Wolpoff & Abramson, LLP, No. 08cv1428-JM (BLM), 2009 WL 2447710, at *4–5 (S.D. 22 Cal. Aug. 7, 2009)), although the Ninth Circuit has also instructed that, “[b]y and large, the 23 court should defer to the winning lawyer’s professional judgment as to how much time he 24 was required to spend on the case; after all, he won, and might not have, had he been more 25 of a slacker.” Moreno, 534 F.3d at 1112. Defendants challenge three categories of 26 expenses as unreasonable. See Opp’n at 16–18. 27 /// 28 /// 14 18-CV-971 JLS (BLM) 1 a. Discovery Requests 2 First, Defendants contend that the 14.8 hours Ms. Innabi spent propounding 3 discovery requests on Credit One and LVNV was unreasonable, particularly given that a 4 number of these requests were “duplicative.” See Opp’n at 16 & n.5. Defendants therefore 5 request that the Court reduce the hours for these tasks by half to 7.4. See id. at 17. Plaintiff 6 responds that “Credit One and LVNV are separate parties[,] which required Plaintiff 7 propound discovery to both parties.” Reply at 4. 8 Plaintiff propounded two sets of RFPs, two sets of RFAs, and two sets of SROGs on 9 each of Defendants. See Opp’n at 16 n.5. Although it is unclear how many requests there 10 were in all, the first sets of RFPs contained 71 to LVNV, see ECF No. 94-1, and 62 to 11 Credit One, see ECF No. 95-1, while the second sets of RFPs contained five to LVNV, see 12 Mohandesi Decl. at 445, and 11 to Credit One. Defendants identify only six RFPs that are 13 duplicative in the first sets. See Opp’n at 16. On this record, the Court declines to conclude 14 that the 4.2 hours Ms. Innabi billed for preparing 133 RFPs or the 2.4 hours for preparing 15 16 additional RFPs is unreasonable. As for the RFAs and SROGs, Defendants have failed 16 to introduce any evidence as to the breadth of those requests; accordingly, the Court cannot 17 determine that the amounts billed on those requests are unreasonable. The Court therefore 18 declines to deduct any hours from Ms. Innabi’s time spent propounding discovery requests 19 on Defendants. 20 b. Meet-and-Confer Correspondence 21 Second, Defendants argue that “Plaintiff’s attorneys also spent an inordinate amount 22 of time in drafting meet and confer letters to both LVNV and Credit One during discovery,” 23 and that “Plaintiff has provided no explanation concerning why she should be entitled to 24 fees in connection with each letter covering the same topics.” See Opp’n at 17. Defendants 25 therefore urge the Court to reduce the 9.1 hours billed by 50 percent to 4.5. See id. Plaintiff 26 counters that “Defendants withheld clearly relevant documents that were central to the 27 prosecution of Plaintiff’s case” and “Plaintiff’s counsel should not be penalize[d] for 28 attempting to obtain them in an amicable manner.” See Reply at 4. 15 18-CV-971 JLS (BLM) 1 Defendants do not claim that Ms. Innabi sent identical—or even substantially 2 overlapping—letters to each Defendant. 3 necessarily, respond to each Defendant’s own arguments. One Defendant should not be 4 given a “freebie” because Plaintiff was required to address objections—the overlap 5 Defendants have failed to establish—concerning discovery of the same general subject- 6 matter. Further, given the lack of separate billing entries for such tasks, it would appear 7 that the drafting of the meet-and-confer letters also included a review of the underlying 8 discovery responses and/or objections and an evaluation of their perceived deficiencies. 9 Accordingly, Defendants have not demonstrated that Ms. Innabi’s hours are unreasonable 10 and the Court declines to reduce Ms. Innabi’s hours billed on the meet-and-confer 11 correspondence. 12 c. Indeed, each of Plaintiff’s letters would, Review of Deposition Transcripts 13 Finally, Defendants challenge 10.7 hours Mr. Sinnett billed for “reviewing 14 transcripts of depositions that he personally attended,” which they request that the Court 15 exclude entirely from the fee award. See Opp’n at 18. Plaintiff responds that Mr. Sinnett 16 “reviewed and annotated the deposition transcripts to identify the need for a motion to 17 compel and their application to a Summary Judgment Motion,” tasks that are “both 18 necessary and reasonably incurred.” See Reply at 4. 19 Upon review of the challenged billing entries, it appears that Defendants are 20 challenging 10.7 hours of time Mr. Sinnett spent reviewing well over 400 pages of 21 deposition transcripts and over 100 deposition exhibits.7 See Ex. 1 at 7–8. Given the scope 22 of the task, the Court concludes that these hours were reasonably expended, see, e.g., 23 Takiguchi v. MRI Int’l, No. 2:13-CV-1183-HDM-VCF, 2016 WL 10807145, at *1 (D. Nev. 24 Oct. 13, 2016) (concluding that “10.1 hours is a reasonable amount of time to review 25 deposition transcripts which were central to the parties[’] latest round of litigation); 26 27 28 7 Mr. Sinnett reviewed 400 pages of deposition transcripts on April 14, 2019. See Ex. 1 at 7. It is unclear, however, how many pages of deposition transcripts he reviewed on April 21, 2019. See id. at 8. 16 18-CV-971 JLS (BLM) 1 Johnson v. CFS II, Inc., No. 5:12-CV-01091-LHK, 2013 WL 6841964, at *5 (N.D. Cal. 2 Dec. 27, 2013) (concluding that 3.6 hours spent reviewing and summarizing transcript of 3 2.5 hour deposition was reasonable), aff’d, 628 F. App’x 505 (9th Cir. 2016); therefore, the 4 Court declines to exclude those hours from the fee award. 5 4. Apportionment Among Defendants 6 Finally, Defendants argue that “Plaintiff seeks to recover fees attributable to multiple 7 defendants at the outset of the case in connection with preparing the Complaint, initial 8 disclosures, and the Rule 26(f) report.” Opp’n at 19. Specifically, Defendants claim, 9 “entries pertaining to preparation of the Complaint (including, unspecified client e-mails, 10 drafting the Complaint[,] and reviewing documents), preparation of the Rule 26(f) report, 11 and preparation of initial disclosures are all billed generally without any specific reference 12 to hour reductions specifically for Credit One and LVNV.” Id. at 20. Defendants challenge 13 4.4 hours billed by Ms. Innabi and 11.2 billed by Mr. Sinnett, see id. at 19–20, and appear 14 to request that the Court reduce Ms. Innabi’s hours for these tasks to zero and Mr. Sinnett’s 15 hours to 2.6. See id. at 20 & n.7. Plaintiff replies that Defendants’ argument “disregards 16 Plaintiff having already reduced the amount of attorney’s fees sought by approximately 17 $30,090,” which have been removed from the submitted timesheets. See Reply at 4–5. 18 “The Court agrees with [Defendants] that various tasks relating to all [eleven] 19 Defendants should be split so [they are] not required to unfairly bear the burden of fees that 20 otherwise would have been shared by [the other nine] defendants.” 8 See Breidenbach v. 21 Experian, No. 3:12-CV-1548-GPC-BLM, 2013 WL 2631368, at *4 (S.D. Cal. June 11, 22 2013). Although the Court understands that Plaintiff has reduced the fees sought to account 23 for expenses incurred by the nine defendants who previously settled, it is unclear from 24 Plaintiff’s Reply whether she had made reductions to the entries challenged by Credit One 25 26 27 28 8 Citing to Plaintiff’s Complaint, Defendants contend that Plaintiff originally sued twelve defendants. See, e.g., Opp’n at 2 (citing Compl.). In her Motion, Plaintiff claims to have sued eleven defendants, see Mot. at 8, and there are eleven defendants listed in the caption of her Complaint. See generally Compl. It appears that Defendants are counting “TD Bank USA, N.A.” and “TD Bank, N.A.” as two separate entities. 17 18-CV-971 JLS (BLM) 1 and LVNV. The Court therefore concludes that it is fair to apportion those hours among 2 the eleven defendants Plaintiff originally sued. Although Defendants propose attributing 3 half of the hour reduction to Mr. Sinnett and half to Ms. Innabi, the Court instead apportions 4 the hours to each attorney. Accordingly, the Court reduces Mr. Sinnett’s hours by 9.2 and 5 Ms. Innabi’s hours by 3.6 to reflect hours spent on work attributable to all eleven 6 defendants. 7 * * * 8 In light of the foregoing, the Court calculates the lodestar figure as follows: 9 Attorney Reasonable Rate Reasonable Hours Fee 10 Mr. Sinnett $400 135.6 $54,240 11 Ms. Innabi $300 70.1 $21,030 --- 205.7 $75,270 12 Total 13 14 II. Kerr Factors 15 “[I]n appropriate cases, the district court may adjust the ‘presumptively reasonable’ 16 lodestar figure based upon the factors listed in Kerr.” Intel Corp. v. Terabyte Int’l, Inc., 6 17 F.3d 614, 622 (9th Cir. 1993) (citing D’Emmanuele v. Montgomery Ward & Co., 904 F.2d 18 1379, 1383 (9th Cir. 1990), overruled on other grounds by Dague, 505 U.S. 557). The 19 Kerr factors are 20 26 (1) the time and labor required[;] (2) the novelty and difficulty of the questions involved[;] (3) the skill requisite to perform the legal service properly[;] (4) the preclusion of other employment by the attorney due to acceptance of the case[;] (5) the customary fee[;] (6) whether the fee is fixed or contingent[;] (7) time limitations imposed by the client or the circumstances[;] (8) the amount involved and the results obtained[;] (9) the experience, reputation, and ability of the attorneys[;] (10) the ‘undesirability’ of the case[;] (11) the nature and length of the professional relationship with the client[;] and (12) awards in similar cases. 27 526 F.2d at 70. “The lodestar amount presumably reflects the novelty and complexity of 28 the issues, the special skill and experience of counsel, the quality of representation, and the 21 22 23 24 25 18 18-CV-971 JLS (BLM) 1 results obtained from the litigation.” Intel Corp., 6 F.3d at 622 (citing D’Emanuele, 904 2 F.3d at 1383). 3 Plaintiff does not seek any adjustment to counsels’ fees based on the Kerr factors; 4 rather, Plaintiff argues that the Kerr factors support the reasonableness of the lodestar 5 calculation. See generally Mot. at 12–18. Defendant fails to address the Kerr factors in its 6 Opposition. See Reply at 1; see also generally Opp’n. 7 Upon consideration of the Kerr factors, the Court agrees that they support the 8 reasonableness of the lodestar calculation. The Court has determined that the allowable 9 hours were a reasonable expenditure of time and labor given the circumstances, see supra 10 Section I.B, and, as Plaintiff notes, see Mot. at 14, “[c]ommon sense dictates that the time 11 spent litigating this matter, was time spent not litigating another case.” Plaintiff’s counsel 12 contend that Mr. Sinnett’s customary fee is $400 per hour, see Sinnett Decl. ¶ 11, and that 13 Ms. Innabi’s customary fee is $300 per hour, see Innabi Decl. ¶ 9, although it remains 14 unclear whether the fee is fixed or contingent. The Court is also persuaded by Plaintiff’s 15 argument that “[c]ases arising under the FDCPA and FCRA would most certainly qualify 16 as ‘undesirable’ absent the fee provision enacted by Congress,” Mot. at 14, and that the 17 failure to award reasonable attorneys’ fees “would counter the purpose of the statute, 18 which, when coupled with the provision awarding attorney’s fees is to encourage attorneys 19 to file actions to protect consumers against unlawful debt collection practices.” See id. at 20 15 (citing 15 U.S.C. § 1692). And, over the course of the year that this case was pending, 21 “Plaintiff successfully argued two Motions to Compel against CREDIT ONE and LVNV, 22 participated in four (4) depositions, and actively litigated on behalf of Plaintiff.” See id. at 23 17. Finally, awards in similar cases support the lodestar calculation. See, e.g., Nguyen v. 24 HOVG, LLC, No. 14CV837 BTM RBB, 2015 WL 5476254, at *1 (S.D. Cal. Sept. 15, 25 2015) (awarding $41,350 for 121.6 hours billed in an FDCPA case litigated over eight- 26 month period in which the plaintiff filed a motion to strike and motion for leave to amend 27 her complaint). Having considered the Kerr factors, the Court therefore concludes that— 28 on balance—they support the award of $75,270 calculated using the lodestar method. 19 18-CV-971 JLS (BLM) 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 3 Plaintiff’s Motion (ECF No. 117) and AWARDS Plaintiff fees in the amount of 4 $75,270.00. 5 IT IS SO ORDERED. 6 7 Dated: February 18, 2020 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 18-CV-971 JLS (BLM)