THOMAS J. WHELAN, District Judge.
Pending before the Court are Plaintiff's motion for attorney's fees (Pl.'s Mot. Fees [Doc. 62]) and Plaintiff's motion to strike Defendant's expert declaration in support of Defendant's opposition to Plaintiff's fee motion. (Pl.'s Obj. & Mot. Strike [Doc. 69].) The Court decides the matter on the papers submitted and without oral argument.
On November 30, 2012, Plaintiff Amy May filed suit against her now-former landlord, Defendant Bruce K. Brunton, alleging discrimination and harassment on the basis of sex in violation of the federal Fair Housing Act and related state laws. (Compl. [Doc. 1] ¶¶ 1, 6-35.) On January 18, 2013, Defendant filed his answer along with two counterclaims against Plaintiff for: (1) breach of contract, and (2) defamation. (See Answer & Counterclaim [Doc. 5].) On February 11, 2013, Plaintiff moved to dismiss Defendant's breach of contract counterclaim. (See MTD Counterclaim [Doc. 8].) Plaintiff also moved—under California Code of Civil Procedure § 425.16 (California's "anti-SLAPP" statute)—to strike Defendant's counterclaim for defamation. (See Mot. Strike Counterclaim [Doc. 9].)
Thereafter, the parties filed, and the Court subsequently granted, a joint motion to dismiss Defendant's counterclaim for breach of contract. (See March 15, 2013 Order [Doc. 16].) The Court then dismissed Defendant's counterclaim for defamation after Defendant filed a notice of non-opposition to Plaintiff's motion to strike. (See April 5, 2013 Order [Doc. 24].) In the wake of that litigation, Plaintiff filed a motion for attorney's fees under the anti-SLAPP statute for work done by the Legal Aid Society of San Diego ("LASSD") on Plaintiff's case. (See Mot. Anti-SLAPP Fees [Doc. 31].) On August 2, 2013, the Court granted the motion and awarded Plaintiff attorney's fees in the amount of $11,660.00. (August 2, 2013 Order [Doc. 34].)
On April 10, 2013, Magistrate Judge Mitchell D. Dembin held the telephonic case management conference. (See CMC Minute Entry [Doc. 28].) The following day, the case management order regulating discovery and other pretrial proceedings issued. The order indicated that all expert disclosures required by Federal Rule of Civil Procedure 26(a)(2) be served on all parties on or before August 26, 2013, and that rebuttal disclosures within the meaning of Rule 26(a)(2)(D)(ii) be disclosed on or before September 26, 2013. (CMC Order [Doc 29] ¶ 2.) The order further indicated that all discovery be completed by all parties on or before October 28, 2013. (Id. ¶ 3.)
Thereafter, on May 30, 2014, Judge Dembin held a settlement conference, wherein the parties agreed to settle the case. (See, e.g., Notice of Settlement [Doc. 56].) The terms of the settlement agreement provided that: (1) Defendant or his insurer would pay $40,000 to Plaintiff by June 30, 2014; (2) Defendant or his insurer would pay Plaintiff's reasonable attorney's fees and costs to be fixed by the Court in the absence of an agreement as to the amount of such fees and costs;
Under the Fair Housing Act's fee-shifting provision,"the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs." 42 U.S.C. § 3613(c)(2).
Initially, "[t]he fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S. at 433, 437). "The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Id. at 1397-98 (citing Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir. 1987)). Ultimately, "[i]t remains for the district court to determine what fee is `reasonable.'" Hensley, 461 U.S. at 433.
Generally, a court begins its calculation of reasonable attorney's fees using the "loadstar" method, which calculates the product of the number of hours reasonably expended and a reasonable hourly rate. Hensley, 461 U.S. at 433; McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The court may then make adjustments to the lodestar, if necessary, to arrive at a reasonable fee. Blum, 465 U.S. at 888; Hensley, 461 U.S. at 434-37. Although the court "has a great deal of discretion in determining the reasonableness of the fee," the court also must provide a "`clear explanation of its reasons for the fee award.'" Gates, 987 F.2d at 1398 (quoting Hensley, 461 U.S. at 437). "[A] brief explanation of how the court arrived at its figures will do." Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).
In her motion, Plaintiff seeks a total of $101,615.00 in fees for work completed by her attorneys Christopher Brancart, of Brancart & Brancart, and Branden Butler, of LASSD.
Defendant, for his part, does not dispute that Plaintiff is the prevailing party, or that Plaintiff is entitled to reasonable attorney's fees. (See Def.'s Opp'n 1:19-21; Jt. Appl. & Stip. ¶ 3; Rep. Tr. of Settlement 3:1-5.) Notably, Defendant also does not dispute the reasonableness of the hourly compensation rates proffered by Plaintiff's counsel, that Plaintiff is entitled to costs, or the reasonableness of the costs outlined in Plaintiff's motion. The only contested issue is the reasonableness of the hours billed by Plaintiff's counsel. (Def.'s Opp'n 9:2; Pl.'s Reply 1:25-27.) Defendant submits the following arguments in his attempt to demonstrate the unreasonableness of the requested fees: (1) the fees sought are unreasonable in relation to the results Plaintiff's counsel have obtained; (2) documentation of the requested fees is improper; (3) the requested fees are excessive due to overstaffing; and (4) the time Mr. Brancart spent on the anti-SLAPP motion is not compensable. (See Def.'s Opp'n.)
In responding to the instant motion, Defendant submitted a timely opposition. (See Def.'s Opp'n.) Defendant appended to his opposition a document entitled "Rule 26 Disclosure and Declaration of Robert K. Sall." (See Sall Decl. [Doc. 66-1] ¶¶ 1-2.) In the declaration, Mr. Sall purports to be an expert witness and provides a series of opinions in accordance with his engagement as such. (See generally id.) Plaintiff, in replying to the opposition, has filed a concurrent objection and motion to strike Mr. Sall's declaration. (See Pl.'s Obj. & Mot. Strike.) Before reaching the merits of Plaintiff's underlying fee motion, the Court will first address Plaintiff's motion to strike. For the following reasons, the Court
Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose the identity of each expert witness "it may use at trialto present evidence." Fed. R. Civ. P. 26(a)(2)(A) (emphasis added). Such disclosures must be "accompanied by a written report —prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case." Fed. R. Civ. P. 26(a)(2)(B). Rule 26(a)(2)(D) further provides that parties "must make these disclosures at the time and in the sequence that the court orders." Fed. R. Civ. P. 26(a)(2)(D). A party who fails to adhere to the court's pre-trial scheduling order is subject to sanctions under Rule 16(f) and Rule 37(c).
Plaintiff argues that the Court should, under Rule 37(c), strike Mr. Sall's declaration because it comes after the August 26, 2013 deadline for Rule 26(a)(2) disclosures contained in Judge Dembin's scheduling order setting pre-trial deadlines. (See Pl.'s Obj. & Mot. Strike 4:10-5:3.) However, Plaintiff does not cite, and the Court's research has not uncovered, any authority for the proposition that Rule 37(c) applies in the context of a post-settlement motion for attorney's fees. Here, Plaintiff's claims have been settled pursuant to the terms of the above-described settlement agreement. (See Jt. Appl. & Stip.; Rep. Tr. of Settlement.) In the wake of that agreement, the Court vacated the pre-trial conference. (See June 24, 2014 Order [Doc. 59].) The sole issue remaining in this case is the ambit of Plaintiff's reasonable attorney's fees. It follows that the purpose of Rule 26(a)(2)—which was designed to prevent ambush at trial—is not implicated here.
Without more, the Court cannot find that Defendant violated Rule 26, or that Rule 37 sanctions should now be applied to preclude Mr. Sall's declaration.
That a plaintiff is deemed a "prevailing party" for the purposes of a fee-shifting provision says little about the reasonableness of the fees sought.
Defendant contends that Plaintiff's attorneys achieved only limited success in pursuing Plaintiff's claims. In support of this argument, Defendant cites a number of cases and points to the fact that "Plaintiff only received $40,000 in settlement for her claims." (See Def.'s Opp'n 10:6-9.) Accordingly, Defendant concludes that the fees sought are not commensurate with the extent of Plaintiff's success. (See id. at 9:1-10:9.) Plaintiff, on the other hand, contends that the parties' settlement agreement represents the relief she sought in her complaint. (Pl.'s Reply 2:8-10.) She claims that her attorneys obtained "significant" and "excellent" results, as opposed to merely partial or limited success. (See Mem. P&A ISO Pl.'s Mot. Fees 8:4-26; Pl.'s Reply 2:3-4.) Thus, Plaintiff avers that the quantity of time spent on her case, measured against the results obtained, was reasonable. (Id. at 8:24-26.)
Defendant's arguments fail to persuade for three reasons. First, the cases to which Defendant cites are not applicable here. For instance,
Second, Plaintiff has proffered evidence that her non-pecuniary award is of considerable import. (See Brancart Decl. ¶ 29; Loy Decl. [Doc. 62-7] ¶ 11.) Defendant, on the other hand, does not adequately explain or otherwise provide evidence in support of his assertion that the fees requested are not reasonably related to all the relief Plaintiff obtained in settling her claims.
Third, Defendant's contention that "no more than approximately $40,000 should reasonably be awarded in attorney's fees [in this case]" is inapposite. (See Def.'s Opp'n 6:20-22.) This strict proportionality argument is inconsistent with the relevant case law.
According to Defendant, the hours requested have not been adequately documented. Defendant contends that Plaintiff's counsel: (1) "generally summarized all of the hours and activities they undertook" and supplied non-contemporaneous records that were "created after the fact" (Def.'s Opp'n 2:13-15, 4:10-11); and (2) "repeatedly use[d] a disfavored billing method known as block billing." (Id. at 5:16-17.) The Court addresses each of these issues below.
In support of his contention that Plaintiff's counsel improperly summarized hours and failed to provide contemporaneous time-keeping records, Defendant cites
In
The circumstances that existed in
Defendant also contends that the number of hours for which Plaintiff seeks attorney's fees is unreasonable because Mr. Brancart employed a method of billing known as "block billing."
"`Block billing' is `the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.'"
According to Plaintiff, "block billing that `involves the grouping of highly related tasks that rarely cover more than a few hours[]' does not call for a reduction in fees." (Pl.'s Reply 8:7-9 (quoting
Defendant's next contention is that the total number of hours for which Plaintiff's attorneys seek compensation should be reduced to account for overstaffing and duplicative work. (Def.'s Opp'n 13:1-14:26; Sall Decl. ¶¶ 9.6, 9.10.) According to Defendant, Plaintiff's evidence suggests that her attorneys engaged in excessive consultations and unnecessarily exerted duplicative efforts in attending the same hearings or working on the same projects. (Def.'s Opp'n 13:14-17.) These contentions, however, fail to persuade.
The Ninth Circuit has instructed courts "to examine with skepticism claims that several lawyers were needed to perform a task."
In arguing that Plaintiff's counsel engaged in excessive consultations, Defendant's contentions appear to be inconsistent. According to the declaration submitted in support of Defendant's opposition, the fact that a consultation between Plaintiff's attorneys appears on the time records of only one of those attorneys indicates that the time records are inaccurate or "potentially even false." (Sall Decl. ¶ 9.6.) In his opposition, however, Defendant cites
In addition, Plaintiff has provided evidence as to Mr. Brancart's experience and the reasonableness of LASSD's decision to engage Mr. Brancart as co-counsel in Plaintiff's case. (See Butler Decl. ¶¶ 4-5; see also Brancart Decl.) And, as other courtshave determined, it is not unreasonable for an attorney to engage non-local co-counsel with expertise in a particular area of law relevant to a particular case, or for such non-local counsel to seek reasonable fees for travel time. See, e.g., Thalheimer v. City of San Diego, 2012 WL 1463635, at *4 (S.D. Cal. Apr. 26, 2012) (citing cases). The Court is satisfied with Plaintiff's evidence as to the reasonableness of the hours for Mr. Brancart's travel time and involvement in various hearings in this case. In challenging those hours, however, Defendant has failed to meet his burden of rebuttal. (See Def.'s Opp'n 13:19-14:18 (failing to cite authority or relevant evidence).) Moreover, to the extent that Plaintiff's attorney's hours can be described as duplicative, they are not egregiously so, and, as discussed below, the Court will apply an across-the-board reduction to address that issue. See Moreno, 534 F.3d at 1112 (noting that "the district court can impose a small reduction, no greater than 10 percent—a `haircut'—based on its exercise of discretion and without a more specific explanation").
Defendant challenges the time for which Mr. Brancart worked on the "SLAPP matter." (See Def.'s Opp'n 15:1-13.) Defendant points to Mr. Brancart's time entries dated 1/28/2013, 1/30/2013, 2/6/2013, and 2/8/2013 as examples of time spent on that matter. (Id. at 15:10-11; see also Sall Decl. ¶ 9.9.) According to Defendant, time for such work is not compensable because it constitutes a duplication of time for work that has already been compensated. (Def.'s Opp'n at 15:7-8.) Alternatively, Defendant suggests that such time should not be compensated because fees regarding the anti-SLAPP proceedings have already been separately adjudicated. (Id. at 15:11-12.)
Plaintiff counters that the anti-SLAPP fee-shifting statute does not preclude her from recovering Mr. Brancart's anti-SLAPP fees under the fair housing fee-shifting statutes. (Pl.'s Reply 8:23-26 (citing Cal. Civ. Proc. Code § 425.16(c)).) In support of this contention, Plaintiff cites
As an initial matter, the Court finds Plaintiff's citation to
Additionally, it is worth noting that in arguing against an award of fees for work on the anti-SLAPP motion, Defendant again mischaracterizes Plaintiff's motion. In his opposition, Defendant seems to argue that Plaintiff's motion excludes all time allocated to the anti-SLAPP matter. (Def.'s Opp'n 10:5-6.) It does not. What Plaintiff's motion does exclude, however, is the time LASSD spent on the anti-SLAPP motion. (Mem. P&A ISO Pl.'s Mot. Fees 6:16-17 ("Using this formula, excluding time spent on the anti-SLAPP motion by LASSD....") (emphasis added).) In other words, the instant motion does not purport to exclude time that Mr. Brancart spent on the anti-SLAPP motion.
Still, another source does purport to exclude such time. In a May 2013 declaration submitted by Mr. Brancart in support of Plaintiff's first motion for attorney's fees, Mr. Brancart declared that his firm "does not see[k] to recover the several hours of time spent by me in consultation with Mr. Butler on the SLAPP motion or on reviewing and revising that motion." (Brancart Decl. ISO Mot. Anti-SLAPP Fees [Doc. 31-4] ¶ 4.) That statement is clear and is unaccompanied by any temporal qualification, such as "at present" or "at this time." (Id.)
In light of the above, the Court will reduce the fee award by the number of hours Mr. Brancart spent on the anti-SLAPP matter, which Defendant has indicated as amounting to at least 4.6 hours. (See Def.'s Opp'n 15:10-11 (providing examples).) Based on the Court's review of Mr. Brancart's time records, Mr. Brancart spent an additional 1.7 hours on the anti-SLAPP matter beyond the 4.6 hours to which Defendant has pointed.
Plaintiff also seeks additional fees and costs for time that her attorneys have allocated toward preparing the reply brief and concurrent motion to strike Mr. Sall's declaration. (See Pl.'s Reply 9:6-23.) Specifically, Mr. Butler seeks an additional 6.2 hours, for a total of $1,767.00, and Mr. Brancart seeks an additional 16.3 hours, for a total of $7,335.00. (See id.) According to the Court's review of the relevant case law, such time is compensable.
In viewing the declarations submitted by Mr. Butler and Mr. Brancart in support of Plaintiff's reply, the Court concludes that the hours sought are reasonably related to the tasks completed. (See Brancart Reply Decl. [Doc. 70-1] ¶ 9; See Butler Reply Decl. [Doc. 70-3].) While there does appear to be some duplication of efforts in the time counsel spent reviewing various documents, such duplication appears to be minor. Thus, as discussed below, the Court will apply the same across-the-board reduction to the fees sought by Mr. Butler and Mr. Brancart for their work on Plaintiff's reply brief. However, because Plaintiff did not prevail on her motion to strike Mr. Sall's declaration, the Court will reduce Mr. Butler's time by 4 hours—the number of hours related to his work on that motion.
In Plaintiff's motion for fees, Plaintiff's calculation of the lodestar figure included a proposed 7.5% reduction "for any duplication of effort or unreasonable time." In the documents supporting Plaintiff's reply brief, however, Plaintiff appears to now suggest a 10% reduction in those hours. (See Brancart Reply Decl. ¶ 8.) The Court accepts this figure as appropriate for addressing any excess that exists in the lodestar amounts for the hours that Plaintiff seeks. Moreno, 534 F.3d at 1112. Accordingly, the Court will apply a 10% reduction to the pre-fee motion hours sought by Mr. Brancart, Mr. Butler, and Mr. Gardner. And, as discussed above, the Court will reduce Mr. Brancart's pre-fee motion hours by an additional 2% to account for the limited block-billed entries in his time records. The Court will also reduce Mr. Brancart's pre-fee motion time by 6.3 hours—the amount of time Mr. Brancart allocated to work on the anti-SLAPP matter. Moreover, with respect to the hours sought for work on Plaintiff's reply brief, the Court will reduce Mr. Butler's time by the 4 hours spent on Plaintiff's motion to strike, and will apply an across-the-board reduction of 10% to both Mr. Brancart's and Mr. Butler's hours. Thus, the Court finds Plaintiff entitled to an attorney fee award as follows:
For the foregoing reasons, the Court
