Balik v. County of Ventura et al, No. 2:2022cv00679 - Document 25 (D. Nev. 2022)
Court Description: ORDER Granting 22 Motion for Attorney Fees. IT IS FURTHER ORDERED that Defendant County of Ventura be awarded $12,000.00 in attorneys' fees. Signed by District Judge Cristina D. Silva on 6/29/2022. (Copies have been distributed pursuant to the NEF - LOE)
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Balik v. County of Ventura et al Doc. 25 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 1 of 7 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 JEREMIAH WILLIAM BALIK 6 7 Plaintiff, Case No. 2:22-cv-00679-CDS-VCF v. 8 COUNTY OF VENTURA, 99TH SECURITY FORCES/NELLIS AFB, BMO HARRIS 9 BANK, NA, 10 Order Granting Defendant County of Ventura’s Motion for Attorneys’ Fees Defendants. 11 Presently before the court is the matter of Balik v. County of Ventura et al., No. 2:22-cv- 12 13 00679-CDS-VCF. Defendant County of Ventura moves for a grant of attorneys’ fees incurred in 14 their defense from Plaintiff Jeremiah William Balik’s civil rights lawsuit. ECF No. 22. For the 15 reasons explained below, County of Ventura’s Motion for Attorneys’ Fees is GRANTED. 16 17 I. Relevant Background Information On February 24, 2020, United States District Court Judge Richard F. Boulware, II, 18 entered an order (hereinafter “the Pre-Filing Order”) deeming Plaintiff a vexatious litigant. Balik 19 v. City of Torence, No. 2:18-CV-2174-RFB-EJY, 2020 WL 907559 (D. Nev. Feb. 25, 2020), aff’d sub 20 nom. Balik v. City of Torrance, 841 F. App’x 21 (9th Cir. 2021). The Pre-Filing Order stated that 21 Plaintiff could not file certain lawsuits in the District of Nevada without first obtaining 22 permission from the Magistrate Judge assigned to his case. Id. at *5-8. Despite that mandate, 23 Plaintiff filed in state court and removed to federal court the instant action, possibly to 24 contravene the Pre-Filing Order. See ECF No. 17. I found Judge Boulware’s Pre-Filing Order to be Dockets.Justia.com Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 2 of 7 1 applicable to this case and dismissed Plaintiff’s lawsuit. Id. at 5. I further found that Plaintiff’s 2 action was “a violation of the Pre-Filing Order and [was] both harassing and vexatious.” Id. 3 Defendant County of Ventura then moved for attorneys’ fees on June 13, 2022. ECF No. 22. Balik 4 responded the same day. ECF No. 23. 5 6 7 II. Discussion i. Defendant’s Motion Conforms to the Legal Standard for Attorneys’ Fees A prevailing civil rights defendant is entitled to a fee award “only where the action 8 brought is found to be unreasonable, frivolous, meritless, or vexatious.” Edgerly v. City & Cnty. of 9 San Francisco, 599 F.3d 946, 962 (9th Cir. 2010) (internal quotations omitted). Where a court 10 finds “no legal or factual basis” for a civil rights plaintiff’s claims, a court may grant fees to the 11 prevailing defendant. See Christiansburg Garment Co. v. E. E. O. C., 434 U.S. 412, 420 (1978). This 12 Court’s findings in its Order granting Defendant’s motion to dismiss found that Balik had no 13 legal basis for his claims and that Balik’s action was frivolous, meritless, or vexatious. See Order, 14 ECF No. 17 at 4-5 (Balik has violated the pre-filing order imposed due to his status as a 15 vexatious litigant, Balik’s filing of the present action was “both harassing and vexatious”, and 16 Balik had filed in state court to “thwart the clear intent” of the pre-filing order). 17 Consequently, Balik’s conduct rises to a level of vexatiousness warranting imposition of 18 reasonable attorneys’ fees. The court should only award attorneys’ fees that it deems reasonable. 19 Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). Reasonableness is generally 20 determined using the “lodestar” method, where a court considers the work completed by the 21 attorneys and multiplies the number of hours reasonably expended on the litigation by the 22 reasonable hourly rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). After making 23 that computation, the court then assesses whether it is necessary to adjust the presumptively 24 2 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 3 of 7 1 reasonable lodestar figure based on the factors 1 that are not already subsumed in the initial 2 lodestar calculation. Id. Among the subsumed factors presumably considered in either the 3 reasonable hours component or the reasonable rate component of the lodestar calculation is: “(1) 4 the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the 5 quality of representation, (4) the results obtained, and (5) the contingent nature of the fee 6 agreement.” Morales, 96 F.3d at 364, n.9 (internal quotations and citations omitted). 7 Adjustments are proper only in rare and exceptional cases. Fifty-Six Hope Road Music, Ltd. v. 8 A.V.E.L.A., Inc., 915 F. Supp. 2d 1179, 1188 (D. Nev. 2013) (citing Jordan v. Multnomah Cnty., 815 F.2d 9 1258, 1262 (9th Cir. 1987). Adjusting the lodestar because of subsumed reasonableness factors 10 after the lodestar has been calculated, instead of adjusting the reasonable number of hours or 11 reasonable hourly rate at the first step, i.e., when determining the lodestar, is a disfavored 12 procedure. Corder v. Gates, 947 F.2d 374, 378 (9th Cir. 1991). However, if the district court only 13 makes one adjustment per factor, either before or after the lodestar calculation, the Ninth 14 Circuit has found such an error to be harmless. Morales, 96 F.3d at 364, n.9 (citing Cabrales v. 15 County of Los Angeles, 864 F.2d 1454, 1465 (9th Cir. 1988), reinstated, 886 F.2d 235 (1989), cert. denied, 16 494 U.S. 1091 (1990)). 17 ii. 18 Defendant’s Attorneys Have Demonstrated a Reasonable Hourly Rate The court determines a reasonable hourly rate by reference to the “prevailing market 19 rates in the relevant community” for an attorney of similar experience, skill, and reputation. 20 Gonzalez v. City of Maywood, 729 F.3d 1196 (9th Cir. 2013). The relevant community generally is 21 1 The Kerr factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions 22 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 23 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 24 ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.3d 67, 70 (9th Cir. 1975). 3 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 4 of 7 1 “the forum in which the district court sits.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 2 (9th Cir. 2010). “For the Las Vegas market, this court has regularly awarded fees where the 3 hourly rates at issue were between $250 and $400.” Scott v. Smith’s Food and Drug Ctr., Inc., No. 2:184 cv-303-JCM-VCF, 2020 WL 343642, at *2 (D. Nev. Jan. 21, 2020) (compiling cases). 5 The relevant community at issue is Las Vegas, Nevada. Defendant’s counsel includes G. 6 Mark Albright, whose hourly rate is $450, Jorge L. Alvarez, whose hourly rate is $350, Daniel R. 7 Ormsby, whose hourly rate is $350, Kegan M. Monks, whose hourly rate is $350, and unnamed 8 paralegals, whose hourly rate is $100. ECF No. 22 at 7. While Mr. Albright’s $450 hourly rate 9 might exceed Las Vegas norms, he has volunteered in his pleading to accept a reduced rate of 10 $400 as “a reasonable compensation.” See ECF No. 22 at 7 (“Attorney G. Mark Albright’s rate of 11 $400.00 per hour as lead counsel is a reasonable compensation…”). Given that reduction, these 12 rates are exactly in line with what courts have found reasonable in the Las Vegas market. 13 14 iii. Defendant’s Attorneys Expended a Reasonable Amount of Hours The requesting party “has the burden of submitting billing records to establish that the 15 number of hours it has requested are reasonable.” Gonzalez, 729 F.3d at 1202. The court should 16 exclude from the lodestar calculation hours that were not “reasonably expended,” including 17 hours that are “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 18 434 (1983). The court has “a great deal of discretion” in determining the reasonableness of the 19 fee, “including its decision regarding the reasonableness of the hours claimed by the prevailing 20 party.” Prison Legal News, 608 F.3d at 453. A district court may reduce the amount of requested 21 fees to reflect a party’s limited degree of success, to account for block billing, or to deduct hours 22 deemed excessive if it provides an adequate explanation for its fee calculation. Ryan v. Editions Ltd. 23 W. Inc., 786 F.3d 754, 763 (9th Cir. 2015). 24 4 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 5 of 7 1 I find no such factors in the present case, as defense counsel enjoyed a complete, rather 2 than limited, success by dismissing the charges brought against their client. Defense counsel 3 further did not submit large, unexplained “blocks” of hours in their billing calculation. See ECF 4 No. 22, Ex. C. Mr. Albright submitted 47.10 hours of work; at his discounted rate of $400 per 5 hour, that calculates to $18,840. 2 Mr. Alvarez submitted 0.5 hours of work; at his rate of $350 6 per hour, that calculates to $175. Mr. Ormsby submitted 41.70 hours of work; at his rate of $350 7 per hour, that calculates to $14,595. Mr. Monks submitted 3.70 hours of work; at his rate of $350 8 per hour, that calculates to $1,295. Finally, the paralegals submitted 3.70 hours of work; at their 9 rate of $100 per hour, that calculates to $370. 10 As a result, I find that both the hourly rates of the professionals and the total number of 11 hours worked to be reasonable, sum the totals supra, and calculate an initial lodestar amount of 12 $35,275.00 in attorneys’ fees. The departure downward from Defendant’s request of $37,630.00 13 reflects Defendant’s admission that Mr. Albright’s “rate of $400.00 per hour…is a reasonable 14 compensation” (ECF No. 22 at 7) in addition to Defendant’s miscalculation of 0.3 of Mr. 15 Albright’s total hours. 16 Plaintiff’s response does not argue that Defendant’s request is unreasonable. Neither 17 Defendant’s motion (ECF No. 22) nor Plaintiff’s response (ECF No. 23) mention specific factors 18 that might be used to justify a modification of the amount. 19 However, after considering the totality of evidence in the record, I find that the sum of 20 $35,275.00 should be modified in accordance with some of the subsumed Kerr factors based on 21 22 2 Defendant’s Motion for Attorneys’ Fees incorrectly calculates 47.40 hours of Mr. Albright’s time at a 23 rate of $450.00 to equal $21,195.00. ECF No. 22 at 7. A calculator verifies that 47.40 hours at a rate of 24 $450.00/hour equals $21,330.00. The difference of $135.00 reflects a mistaken addition of exactly 0.3 hours. Given the discrepancy between the stated number of hours and the stated total fee, this Court will presume that Mr. Albright completed 47.10 hours of work, not 47.40 hours as alleged in Defendant’s motion. 5 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 6 of 7 1 the discretion afforded to district courts in determining reasonable attorneys’ fees.3 Specifically, 2 my decision is based on the “novelty and difficulty of the questions involved” and the “skill 3 requisite to perform the legal service properly.” Kerr, 526 F.3d at 70. 4 The underlying lawsuit in the present case was subject to a strict pre-filing order entered 5 by Judge Boulware. ECF No. 17 at 5. The lawsuit was initiated by Plaintiff filing his operative 6 complaint on Mar. 23, 2022, in state court. ECF No. 22 at 6. The lawsuit was dismissed on May 7 27, 2022, because Plaintiff failed to adhere to the pre-filing order. ECF No. 17. The court notes 8 that this case concerned frivolous claims and was adjudicated to completion in less than two 9 months. It did not involve any novel or complicated issues of fact or law. While Defense counsel 10 succeeded in obtaining their client’s desired result, the nature of this case did not require 11 significant or specialized skills “to perform the legal service properly.” Kerr, 526 F.3d at 70. Other 12 courts in this district have cut initial lodestar figures by up to 70% in cases that were not 13 particularly difficult to litigate. See, e.g., Cervantes v. Emerald Cascade Restaurant Sys., Inc., 2013 WL 14 3878692, at *10 (D. Nev. July 25, 2013) (reducing lodestar amount of $50,875 to $15,000 based on 15 Kerr factors, including lack of novelty and difficulty of questions involved). Here, the lodestar 16 calculation should be reduced by 66% based on my analysis supra. I award Defendant County of 17 Ventura $12,000.00 in attorneys’ fees. 18 . . . 19 . . . 20 . . . 21 . . . 22 3 Despite reduction of the lodestar amount based on subsumed Kerr factors being disfavored, Corder, 947 23 F.2d at 378, I make only one post-lodestar adjustment based on two of the Kerr factors analyzed in this 24 case. I adjust the lodestar figure because, even though Defendant’s counsel has pled a reasonable number of hours and reasonable hourly rates, the “subsumed” Kerr factors marshal in favor of a reduced award compared to the output mechanically calculated by the lodestar calculation. 6 Case 2:22-cv-00679-CDS-VCF Document 25 Filed 06/29/22 Page 7 of 7 1 2 III. Conclusion Based on the foregoing reasons, IT IS THEREFORE ORDERED that Defendant’s motion 3 for attorneys’ fees (ECF No. 22) is granted. 4 IT IS FURTHER ORDERED that Defendant County of Ventura be awarded $12,000.00 5 in attorneys’ fees. 6 IT IS SO ORDERED. 7 8 DATED this June 29, 2022 9 10 _________________________________ Cristina D. Silva United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 7
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