EDWARD J. DAVILA, District Judge.
Plaintiffs Huimin Song ("Plaintiff Song") and Andy Xie ("Plaintiff Xie") (collectively, "Plaintiffs") filed this 42 U.S.C. § 1983 action against Defendants County of Santa Clara, Santa Clara Valley Medical Center, and various county employees (collectively, "the County"), alleging the violation of their due process rights under the Fourteenth Amendment and other state-related claims. This case proceeded to a jury trial in January 2015. The jury returned a verdict for Plaintiffs. Plaintiffs now move for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 as the prevailing parties.
While the factual background of this case was more extensively discussed in the Order Denying Defendants' Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for a New Trial also filed this date, only the facts relevant to this motion will be discussed here.
Plaintiffs worked as ultrasonographers at Santa Clara Valley Medical Center, which is operated by the County. As ultrasonographers, Plaintiffs were members of the Service Employees International Union 715 (the "Union"). Between February 2009 and November 2010, the County implemented a policy concerning the manner in which ultrasonographers who were "on call" would report to work. After November 2010, the County realized that as a result of the policy, they may have overpaid Plaintiffs. The County sought to collect the overpaid wages by deducting the overpaid amount from Plaintiffs' paychecks. After Plaintiffs unsuccessfully tried to resolve this issue through their Union, they filed the instant action.
Plaintiffs filed their complaint on September 7, 2011, alleging various claims for the violation of § 1983, nonpayment of wages, intentional infliction of emotional distress, and other state-related claims.
Jury trial commenced on January 13, 2015, and concluded on January 27, 2015. The jury found that Plaintiffs proved by a preponderance of the evidence that the County deprived them of their rights under the Fourteenth Amendment by failing to provide adequate due process in regards to their collection of wages overpaid to them by the County.
Plaintiffs subsequently filed the instant motion on February 4, 2015.
Pursuant to 42 U.S.C. § 1988, "[a] party who prevails on a claim under § 1983 is entitled to reasonable attorneys' fees unless special circumstances would render such an award unjust."
The reasonableness of attorneys' fees and costs is matter left to the discretion of the court.
In their motion, Plaintiffs seek attorneys' fees, reimbursement of costs, and pre and post-judgment interest. Each of these requests will be addressed in turn.
Plaintiffs seek $585,282.65 in attorneys' fees for the work performed by trial counsel Charles A. Bonner ("Mr. C. Bonner"), A. Cabral Bonner ("Mr. A. Bonner"), and their legal assistants. See Mot. at 21, Appx. A. Upon examining Plaintiffs' calculations, however, there appears to be certain calculation errors and some figures that are inconsistent with the timekeepers' declarations. According to the court's calculations, it appears that Plaintiffs are actually seeking $516,486.02. Plaintiffs' updated appendix is as follows:
On the issue of reasonableness, the Ninth Ciruict has instructed the district courts to "start by calculating the lodestar amount, which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."
"Fee applicants have the burden of producing evidence that their requested fees are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation."
The relevant community for this motion is the Northern District of California. A reasonable hourly rate for civil rights attorneys in this community is up to $700 for partners, $350 for associates, and $200 for paralegals and law clerks.
Mr. C. Bonner seeks a billing rate of $700 per hour.
The County contends a billing rate of $700 is excessive. Opp'n at 4. It argues this case was not factually complicated, it was not document intensive, and the lawyers did not wrestle with intricate legal theories.
The court agrees that a $700 billing rate in this case is excessive for two reasons. First, even though Plaintiffs commenced this action asserting various claims, only one constitutional violation claim was tried. Given that the trial addressed only one claim, this case was less complex and work intensive than other cases warranting a higher billing rate. Second, Mr. C. Bonner did not conduct any depositions, did not comply with Rule 26 initial disclosures, and did not disclose certain evidence and witnesses until the eve of trial, which were excluded from trial because they were inadmissible. Given Counsel Bonner's handling of the trial, a more reasonable billing rate would be $550 per hour.
Mr. A. Bonner seeks a billing rate of $450 per hour. See Decl. of A. Cabral Bonner, Dkt. No. 156 at ¶ 7. Mr. A. Bonner has been licensed to practice law in California since 2006, has been focusing on civil rights and employment discrimination cases, and is a partner in the Law Offices of Bonner & Bonner. Id. at ¶¶ 4-5. In support of his requested billing rate, Mr. A. Bonner provided two declarations from civil rights lawyers in the area attesting that a billing rate in the range of $300-$450 per hour is reasonable.
For the same reasons discussed with respect to Mr. C. Bonner's fees, the requested billing rate of $450 per hour is slightly high for Mr. A. Bonner. The court finds that a more reasonable billing rate would be $400 per hour.
Calvin Bonner has been a legal assistant in the Law Offices of Bonner & Bonner for 24 years, and seeks a billing rate of $200 per hour.
Ilse Wolf has been a legal assistant in the Law Offices of Bonner & Bonner for 8 years, and seeks a billing rate of $175 per hour. See Decl. of Ilse Wolf, Dkt. No. 155-12 at ¶¶ 1, 5, 11. Her work in this case included taking intake of the clients, working on the complaint and amended complaints, working on summary judgment, preparing clients for deposition, and preparing for mediation and trial.
Generally "the district court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case."
Mr. C. Bonner claims 312.90 hours of work performed on this case, and an additional 37.50 hours of work on the instant motion.
As to travel time during trial days, Plaintiffs argue that it was not time wasted since Mr. C. Bonner used the time to discuss strategy and prepare for trial. Reply at 6. Nonetheless, billing at a rate of $700 per hour for a four-hour round trip, amounting to a billing of $2,800 per day in travel time, is excessive. As such, Mr. C. Bonner's 96 hours of driving time will be deducted. As for the amount of time spent on the instant motion, that too is excessive, particularly when Mr. A. Bonner and their legal assistants also spent significant time working on the instant motion. As such, Mr. C. Bonner's 37.50 hours of work on this motion will be deducted. As to Mr. C. Bonner's work in opposition to the County's summary judgment motion, there is no reason to make a deduction because that is work performed in advocating for his clients. Upon reviewing Mr. C. Bonner's itemized billings, the court will also make a deduction of 20 hours related to discovery-related matters since Mr. C. Bonner failed to comply with Rule 26 initial disclosures and other discovery rules. See Dkt. No. 155-9 at 2-11.
Therefore, Mr. C. Bonner's hours will be reduced from the reported sum of 350.4 hours to 196.9 hours.
Mr. A. Bonner claims 385.2 hours of work performed on this case, and an additional 32 hours of work on the instant motion.
As for the amount of time spent on the instant motion, the reported time is high. As such, 22 hours will be deducted. As to Mr. A. Bonner's work in opposition to the County's summary judgment motion, as with Mr. C. Bonner, an unsuccessful opposition does not take away from the time invested in advocating for one's clients. Thus, no deductions will be made there. However, upon reviewing Mr. A. Bonner's itemized billings, the court will make a deduction of 20 hours related to discovery-related matters since Mr. A. Bonner failed to comply with Rule 26 initial disclosures and other discovery rules. See Dkt. No. 156-1.
Therefore, Mr. A. Bonner's hours will be reduced from the reported sum of 417.2 hours to 375.2 hours.
Ms. Wolf is reported to have performed 104.5 hours of work on this case. See Mot. at 21, Appx. A. The County challenges four hours billed for preparing Plaintiffs for their deposition, eight hours billed for attending mediation, and 50 hours billed for observing trial. Opp'n at 7-8. Ms. Wolf's presence in preparing Plaintiffs for their deposition and attending mediation is not unreasonable since her role as a legal assistant may be helpful in those circumstances. However, upon reviewing her itemized billings, the 50 hours billed for merely observing trial is unreasonable. Thus, these hours will be deducted.
Sandra Beltran has been a legal assistant in the Law Offices of Bonner & Bonner for over one year, but has four years of experience as an administrative assistant.
In sum, considering the billing rate and time adjustments discussed above, the lodestar breakdown is as follows:
The adjusted total lodestar amounts to $299,975, which represents $216,511.02 reduction from Plaintiffs' request. The court finds that the adjusted lodestar amount of $299,975 is reasonable.
Plaintiffs further seek an enhancement to the lodestar of 1.1. Mot. at 16. After calculating the lodestar amount, the court may adjust the lodestar based on the degree of success achieved by the prevailing party.
Here, Plaintiffs argue that an enhancement of the lodestar amount is warranted for five reasons. First, since this action was filed in September 2011, Plaintiffs' counsel have spent significant time and labor working on this case. Mot. at 16. Second, this case presented a novel issue because Plaintiffs challenged not only the County, but also their labor union.
The County challenges Plaintiffs' request for a lodestar enhancement and, instead, requests a downward adjustment of 50% of the lodestar. Opp'n at 8, 10. The County argues that a downward adjustment is justified because only one legal issue was tried, which was not a novel issue of law, there were no liability experts or complex medical testimony, and this case was not "undesirable" given that Plaintiffs were affluent medical professionals.
The record shows that this case began with ten claims asserted against six defendants.
The court finds Plaintiffs' arguments to be unpersuasive. While Plaintiffs' counsel have litigated this case since September 2011, time and labor invested in the case is inherent in any litigation and is awarded through the lodestar amount; this is insufficient for an enhancement. As to the due process claim tried, the court recognizes that Plaintiffs' counsel were skilled in explaining the legal concept of due process and, consequently, reached a favorable verdict. However, the due process claim alone did not constitute a novel or complex issue for trial deserving of an enhancement. Plaintiffs also boast that counsel were skilled at trial despite of their "disadvantage" since they did not take any depositions prior to trial and many of their witnesses and evidence was excluded. This, however, is not a disadvantage. Plaintiffs' counsel made a strategic decision not to take any depositions and failed to comply with discovery rules, thus any disadvantage Plaintiffs could have suffered were derived from their counsel's own actions. Lastly, it is difficult to conceive that Plaintiffs' national origin and challenging a labor union makes this case "undesirable," thus that argument is unpersuasive. While Plaintiffs' counsel did take this case on a contingency fee arrangement, this alone is not sufficient to warrant an enhancement of the lodestar.
Therefore, the court will not approve a lodestar enhancement nor will it reduce the fee amount further. The adjusted lodestar amount of $299,975, without enhancement, is a reasonable amount of attorneys' fees for this case.
Plaintiffs seek reimbursement of litigation costs in the amount of $7,151.34. Mot. at 18. The breakdown is as follows:
The prevailing party may seek "fees and expenses under 42 U.S.C. § 1988, which allows for recovery of reasonable out-of-pocket expenses that would normally be charged to a fee paying client."
First, the County argues that Plaintiffs' request of $1,800 for Dr. Lau's testimony is improper because Plaintiffs are not entitled to recover expert fees in a § 1983 case. Opp'n at 12. In this instance, however, Dr. Lau did not testify as an expert witness. Instead, Dr. Lau, as Plaintiffs' treating physician, testified as a fact witness regarding Plaintiffs' health condition.
Second, the County argues that Plaintiffs' request for $1,875 in mediation fees are not recoverable because they are not considered taxable costs. Opp'n at 12. Pursuant to § 1988, however, mediation fees could be considered expenses normally charged to a fee-paying client. Thus, the court approves Plaintiffs' request for mediation fees.
Third, the County argues that Plaintiffs' request for $191 in parking reimbursement is not recoverable because they are non-taxable. Opp'n at 12. As stated above, however, pursuant to § 1988, parking costs could be considered an expense normally charged to a fee-paying client. Thus, the court approves Plaintiff's request for parking reimbursement.
Fourth, the County argues that Plaintiffs' request for $1,242.84 in subpoenas should not be recoverable because certain individuals were not served with a subpoena or were subpoenaed even though they were serving as the County's witness. Opp'n at 12-13. This expense, however, does not appear to be included in the $7,151.34 requested costs, as shown on the table above.
Fifth, the County argues that Plaintiffs' request of $1,278 for daily copies of trial transcripts should be stricken because, in this case, it was not necessary to order daily transcripts. Opp'n at 13. The County, however, acknowledges that transcripts are an administrative cost that is entitled to reimbursement.
Sixth, the County disputes the following charges: (1) $173 for a Rescue Delivery charge that is not related to this lawsuit; (2) $64.85 for the purchase of an easel and marking pens at Office Depot; (3) $104.91 for printing and other purchases at FedEx Office; and (4) $29.27 for gasoline at an ARCO station. Opp'n at 13-14. These expenses, however, do not appear to be included in the $7,151.34 requested costs, as shown on the table above.
Seventh, the County challenges the food and lodging expenses of Plaintiffs' counsel, amounting to $1,072.34 for two nights. Opp'n at 5-6, 14. The court agrees that this expense is excessive, particularly the amount charged for meals at the hotels. As such, half of this amount— $536.17—will be deducted.
In sum, of the requested $7,151.34 in costs, this court approves reimbursement of $6,615.17 in costs.
Plaintiffs seek pre- and post-judgment interest pursuant to 28 U.S.C. § 1961. Mot. at 18. Section 1961 provides:
28 U.S.C. § 1961(a). "Under [§ 1961], the award of post judgment interest on a district court judgment is mandatory."
Here, the County does not oppose the motion on the issue of interest. Plaintiffs' request will therefore be granted.
Plaintiffs further seek interest pursuant to California Labor Code § 218.6. Mot. at 19. Section 218.6 provides:
Cal. Lab. Code § 218.6. The Labor Code "provide[s] specific standards governing when and how employers must pay wages and provide meal and rest breaks to their employees" and "provides specific remedies designed to encourage employees to bring civil actions to enforce those rights," including the remedy provided by § 218.6.
In opposition, the County argues that Plaintiffs may not recover interest under § 218.6 because no issue concerning the violation of the Labor Code was tried at trial. Opp'n at 11. Instead, Plaintiffs' claims concerning Labor Code violations were dismissed on summary adjudication, thus there is no basis for recovering such interest.
Based on the foregoing, Plaintiffs' Motion for Attorneys' Fees and Costs is GRANTED IN PART AND DENIED IN PART. The court orders that Plaintiffs are entitled to the following: (1) $299,975 in attorneys' fees, (2) $6,615.17 in reimbursement of costs, and (3) pre- and post-judgment interest pursuant to 28 U.S.C. § 1961.
