Opinion
Case No.: 19-cv-02737 CBM(Ex)
2022-02-16
BELLFLOWER UNIFIED SCH. DIST., Plaintiff, v. Rolanda ARNOLD, et al., Defendants.
Richard Dale Brady, Costa Mesa, CA, Eric J. Bathen, Eric J. Bathen Law Offices, Costa Mesa, CA, for Plaintiff. Gregory Lummar McNair, Office of General Counsel, Los Angeles, CA, Margaret Jennifer McNair, Rachel K. Douglas, Hope4Families Special Education Law Firm, Los Angeles, CA, for Defendants.
Richard Dale Brady, Costa Mesa, CA, Eric J. Bathen, Eric J. Bathen Law Offices, Costa Mesa, CA, for Plaintiff.
Gregory Lummar McNair, Office of General Counsel, Los Angeles, CA, Margaret Jennifer McNair, Rachel K. Douglas, Hope4Families Special Education Law Firm, Los Angeles, CA, for Defendants.
ORDER RE: DEFENDANTS' MOTION FOR ATTORNEY'S FEES (DKT. NO. 38.)
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
The matter before the Court is Defendants' Motion for Attorney's Fees (the "Motion"). (Dkt. No. 38.) The matter is fully briefed.
I. BACKGROUND
Defendants Rolanda and Darnell Arnold are parents of a student ("Student") with disabilities. They brought this action on behalf of Student against Bellflower Unified School District ("District"), wherein they seek to recover attorneys' fees they incurred in connection with (1) the due process administrative hearings pursuant to the Individuals with Disabilities Education Act ("IDEA") claim against the school district heard before the California Office of Administrative Hearing ("OAH") and (2) the District's appeal of the ALJ's decision before this Court.
On February 2, 2019, the Administrative Law Judge ("ALJ") issued a decision findingthe school district failed to provide Student with a free and appropriate public education ("FAPE") as required under the IDEA. (Compl. ¶ 6.) On April 10, 2019, the District filed its complaint appealing the ALJ's decision. (Id. ) The parties stipulated that the Court would treat the matter as a trial based on the administrative record and brief. (Dkt. 34.) The Court affirmed the ALJ's decision in favor of the Defendants. (Dkt. 35.) On August 12, 21 (more than 14 days after issuing its order affirming the ALJ's decision), the Court issued an order setting September 13, 2021 as the deadline for post-trial motions. (Dkt. 37.)
Accordingly, Defendants seek to recover attorney's fees and costs incurred in connection with issues on which they prevailed in the administrative proceedings and the current action. (Dkt. 38.)
II. STATEMENT OF THE LAW
The IDEA authorizes a court to award, "in its discretion," reasonable attorneys' fees "to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B) ; see also 34 C.F.R. § 300.517(a)(1)(i) ("In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to ... [t]he prevailing party who is the parent of a child with a disability."). To be a "prevailing party" under the IDEA, a party must "succeed[ ] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Meridian Joint Sch. Dist. No. 2 v. D.A. , 792 F.3d 1054, 1065 (9th Cir. 2015) (internal quotations and citations omitted).
Fees awarded to a prevailing party under the IDEA "must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded." 34 C.F.R. § 300.517.
III. DISCUSSION
The parties do not dispute that the Defendants are the prevailing party in the administrative hearings and the appeal before the Court.
The District, however, argues that a reward of attorney's fees is improper for the following reasons: (1) the Defendants' motion is untimely; (2) the Defendants have no obligation to pay defense counsel attorney's fees; and (3) the Defendants' counsel did not submit adequate evidence in support of their motion. The District also contends that, should the Court award attorney's fees, the Defendants' attorneys' billing statement contains improper and duplicative services and thus should be reduced. (Dkt. 39.) The court finds that Defendants are entitled to recover attorney's fees and that the requested fees are reasonable.
A. Timeliness
Citing Local Rule 54-7 of the Central District of California, the District contends that Defendants' motion for attorney's fees is untimely. (Dkt. 39 at 3–5.) Local Rule 54-7 states that "[a]ny motion or application for attorneys' fees shall be served and filed within fourteen (14) days after the entry of judgment or other final order, unless otherwise ordered by the Court. Such motions and their disposition shall be governed by L.R. 7-3." C.D. Cal. L.R. 54-7.
The Court issued its final order on July 16, 2021. (Dkt. 35.) Pursuant to L.R. 54-7, the default deadline for the Defendants' motion for attorney's fees was July 30, 2021. The deadline to file other post-review motions under Rules 50(b), 52(b), 59(b), and 60 was August 13, 2021. On August 13, 2021, the Court extended the deadline for post-review motions to September 13, 2021. (Dkt. 37.) The Defendants filed their motion for attorney's fees on September 13, 2021. (Dkt. 38.)
Plaintiffs contend that the Defendants may not rely on the Court's August 13, 2021 extension because the Defendants' original deadline to file the motion for attorney's fees had already expired prior to the extension. (Dkt. 39 at 3–5.) The Court's August 13, 2021 order stated the following: "[t]he Court issued an Order on July 16, 2021, affirming the ALJ's decision in favor of Defendants. If the parties intend to file post-review motions, the motion(s) shall be filed no later than September 13, 2021."
Neither party cited case law in support of their arguments and nor does the Court find any, and it is within the Court's discretion whether the motion was timely filed. The Court did not mention motions for attorney's fees in its August 13, 2021 order extending post-review motions. The Court did not intend to exclude motions for attorney's fees in its extension. The Court thus finds that the Defendants' motion was timely because it was the Court's intention that it's Order extend the deadline for the Defendants to file a motion for attorney's fees.
B. Obligation to Pay Fees
The District contends that an award of attorney's fees is improper because the Defendants have no obligation to pay defense counsel. Specifically, it asserts that IDEA's fee-shifting provision is only applicable when "there is a party who is initially liable for the payment of attorneys' fees" and that the Defendants were never liable for payment of any attorney's fees because they were not presented with an invoice. (Dkt. 39 at 5–6.)
The District cites two cases in support of this contention. First, it asserts that this case is analogous to Ford v. Long Beach Unified Sch. Dist. , 461 F.3d 1087 (9th Cir. 2006), in which the 9th Circuit denied recovery of attorney's fees to a pro se parent in an IDEA case. Second, it asserts that this case is analogous to Baker Botts L.L.P. v. ASARCO LLC , 576 U.S. 121, 135 S. Ct. 2158, 2164, 192 L.Ed.2d 208 (2015), a bankruptcy case in which the U.S. Supreme Court denied recovery of attorney's fees incurred for the defense of a law firm's fee application because the "services" were not rendered for the benefit of the client (and instead for the benefit of the law firm itself).
Neither case is persuasive. First, the cases are factually distinguishable from this case. Unlike the pro se parent in Ford , Defendants are represented by counsel. Furthermore, Baker Botts is a bankruptcy case and involved statutes that are unrelated to this case. Second, the argument advanced by the District's citation to Baker Botts contravenes the widely held practice of awarding attorney's fees to the prevailing party in IDEA cases.
Defendants cite S.M. v. Evans-Brant Cent. Sch. Dist. , 2013 WL 3947105 (W.D.N.Y., July 31, 2013) to rebut the District's argument. (Dkt. 40 at 4–5.) S.M. is factually identical to this case: the parents of a student prevailed on their IDEA claim, and the school district argued that an attorney's fees award was improper because the parents "never undertook any real obligation to pay attorney's fees." Id. at *5. The court held in favor of the parents, explaining that "[t]o require that potential plaintiffs become actually liable for the fees associated with these cases would thus thwart the intended goal of the fee-shifting nature of the statute." Id. The Court relies on S.M. 's persuasive precedent, and the precedent from other courts in this district, and finds that Defendants may recover attorney's fees in this case.
C. Evidentiary Objections
The District objects to evidence provided by Defendants in support of their motion.
First, the District contends that the declaration of Julian Treves (Dkt. 38-2.) was not properly authenticated under Rule 901 of the Federal Rules of Evidence because the declaration was not signed. (Dkt. 39 at 9.) Defendants state that the declaration was erroneously filed and filed a signed copy with the reply brief. (Dkt. 40 at 9; Dkt. 40-1.) Accordingly, the Court overrules the objection as moot.
Second, the District contends that the Billing Statement submitted by Defendants' counsel lacks foundation under Rule 602 of the Federal Rules of Evidence because there is no declaration regarding the "preparation, presentation, authenticity, or contents" of the Billing Statement. The District also contends that the Billing Statement is hearsay under Rule 801 of the Federal Rules of Evidence because it "is a statement made not while testifying herein that is offered to prove the truth of the matter asserted." (Dkt. 39. At 9.) Defendants assert that the Declaration of Gregory McNair provides the foundation for the Billing Statement, and that it is admissible under the Business Records Exception to the Hearsay Rule. (Dkt. 40 at 9.)
As to the lack of foundation, Gregory McNair declared that he reviewed the invoices on this matter, including the rates and hours billed by each attorney for services rendered in this litigation, and that they are reflected in the Billing Statement as an exhibit. (Dkt. 38-1 at 3–5.) This is sufficient foundation. As to the Business Records Exception, Margaret McNair declared that she developed the billing practices for Hope4Families, and that Hope4Families "maintains contemporaneous time records for the work performed on all active client files." (Dkt. 38-3 at 2.) Thus, the Court finds that Billing Statement was prepared during the ordinary course of business.
Accordingly, the Court overrules both objections to the Billing Statement.
D. Reasonable Attorney's Fees
Having found Defendants are the prevailing party, the Court must determine a reasonable amount to be awarded to Defendants. Here, the Defendants seek a total fee award of $76,278.50 plus $200 in expenses.
There is a discrepancy in the number of hours expended by Defendants' counsel. In the Billing Statement, the total hours are listed as 184.80 for a total of $76,308.88. (Dkt. 38-3 at 15.) In Defendants' supplemental declaration, the total hours are listed as 183.3. (Dkt. 45 at 3.) The Court accepts the horns as described in the supplemental declaration.
| ATTORNEY | RATE | HOURS EXPENDED | AMOUNT |
|---|---|---|---|
| Margaret McNair | $495 | 2 | $990 |
| Gregory McNair | $495 | 122.30 | $60,538.5 |
| Rachel Douglas | $250 | 59 | $14,750 |
| TOTAL | 183.3 | $76,278.50 |
1. Fees in this Action
Defendants are entitled to seek an award of fees incurred in this federal action under the IDEA for attorneys' fees. See Banda v. Antelope Valley Union High Sch. Dist. , 637 F. App'x 335, 336 (9th Cir. 2016) (holding in IDEA action that "[t]he district court erred in refusing to award fees on fees" and remaining action to "to consider the appropriate fee award to compensate litigation over the fee award.") (citing Barlow–Gresham Union High Sch. Dist. No. 2 v. Mitchell , 940 F.2d 1280, 1286 (9th Cir. 1991)) (concluding "the Mitchells are entitled to recover their reasonable attorneys' fees on this appeal," reasoning "fees are ordinarily available to compensate attorneys for successful litigation of their fee applications, including work on appeal"); Gonzalez v. City of Maywood , 729 F.3d 1196, 1210 (9th Cir. 2013) (concluding "[w]e give no deference to the district court's one-sentence explanation (with no citation to authority) for its decision to award nothing for [time spent in preparing the fee application]" and remanding to the district court to "employ the lodestar method for determining a reasonable fee for Plaintiffs' attorneys' work on the fee application"); Camacho v. Bridgeport Fin., Inc. , 523 F.3d 973, 981 (9th Cir. 2008) ("In statutory fee cases, federal courts, including our own, have uniformly held that time spent in establishing the entitlement to and amount of the fee is compensable.").
Accordingly, Defendants are entitled to recover fees reasonably incurred in this action, including time spent in preparing the motion for fees.
2. Reasonable Rate
In determining the amount of a reasonable fee, the Court must determine "a reasonable hourly rate." Jankey v. Poop Deck , 537 F.3d 1122, 1132 (9th Cir. 2008) (citing Hensley v. Eckerhart , 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). "[T]he rate should be supported by adequate documentation and other evidence." Hanlon v. Chrysler Corp. , 150 F.3d 1011, 1029 (9th Cir. 1998). The District does not dispute that the hourly rates of Defendants' counsel are reasonable. (Dkt. 39 at 13, ¶ 15.)
First, Defendants seek an hourly rate of $495 per hour for work completed by Defendants' counsel Margaret McNair. (Dkt. 38 at 16.) Margaret McNair declares she has practiced special education law since 2011 and is the managing attorney of her organization, Hope4Families, which specializes in IDEA cases. (Dkt. 38-3.) Defendants cite Gordon v. Los Angeles Unified Sch. Dist. , 2:18-cv-00919, 2019 WL 2511936 (C.D. Cal. June 17, 2019), contending that Margaret McNair's hourly rate of $495 per hour is reasonable based on awards by district courts in the Central District of California. Her hourly rate is also supported by other IDEA cases from this district. See C.J. v. Bellflower Unified School District , 2:19-cv-08752, 2020 WL 3893238 (C.D. Cal. July 10, 2020) (finding in IDEA case that $575 per hour rate was reasonable for attorney with more than 19 years of experience almost exclusively in special education); E.S. v. Conejo Valley Unified Sch. Dist. , 2019 WL 1598756, at *8 (C.D. Cal. Mar. 27, 2019) (approving hourly rate of $600 per hour for attorney with 19 years of special education experience in IDEA case); Banda v. Antelope Valley Union High Sch. Dist. , 2016 WL 8970332, at (C.D. Cal. Jul. 28, 2016) (finding in IDEA case that $650 per hour rate for attorney was the market rate in the legal community for lawyers of comparable skill, experience and reputation); Jay F. Et Al., v. William S. Hart Union High Sch. Dist. , 2:16-cv-5117, 2018 WL 11355140 (C.D. Cal. Jan. 24, 2018) (Hatter, J.), Dkt. No. 106 at p.4, lines 20-27 (Jan. 24, 2018) (finding $500 per hour rate for attorney with 11 years of experience was reasonable in IDEA case), aff'd , Dkt. No. 113 772 Fed.Appx. 578 (9th Cir. 2019).
Second, Defendants seek an hourly rate of $495 per hour for counsel Gregory McNair. (Dkt. 38 at 17–18.) Gregory McNair declares he has practice education law since 1999 when he became in-house counsel for the Los Angeles Unified School District. In 2017, He became General Counsel and Deputy Managing Attorney for Hope4Families. (Dkt. 38-1.) Therefore, Defendants' evidence similarly demonstrates that the $495 hourly rate for Gregory McNair's services is reasonable.
Third, Defendants seeks an hourly rate of $250 for work performed by Rachel Douglas, an attorney with Hope4Families. (Dkt. 38 at 17–17.) Douglas declares she graduated Cum Laude and Order of the Coif from Loyola Law School and was admitted to the California State Bar in December 2018. (Dkt. 38-4.) The declarations of Gregory McNair, Julian Treves, Margaret McNair, and Sesha Wolde Tsadik support that her hourly rate is commensurate with the average local rate of special education attorneys with less than a year of special education experience. (Dkt. 38-1, 38-2, 38-3, 38-5.)
The Court finds that the hourly rates of all three attorneys are reasonable.
3. Reasonable Hours Spent
In determining reasonable attorneys' fees, the Court must determine "the number of hours reasonably expended on the litigation." Jankey , 537 F.3d at 1132 (citing Hensley , 461 U.S. at 433-34, 103 S.Ct. 1933 ). "The hours expended ... should be supported by adequate documentation and other evidence." Hanlon , 150 F.3d at 1029. The Court then "exclude[s] from th[e] initial fee calculation hours that were not reasonably expended," such as hours that are "excessive, redundant, or otherwise unnecessary." Jankey , 537 F.3d at 1132 (citing Hensley , 461 U.S. at 433-34, 103 S.Ct. 1933 ). The Court, however, must provide a "comprehensible" explanation for any fee reductions. T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist. , 806 F.3d 451, 486 (9th Cir. 2015), cert. denied sub nom. San Diego Unified Sch. Dist. v. T.B. , 578 U.S. 923, 136 S. Ct. 1679, 194 L.Ed.2d 769 (2016).
Here, Defendants seek an attorney's fees award based on 2 hours worked by Margaret McNair, 122.30 hours worked by Gregory McNair, and 59 hours worked by Rachel Douglas in connection with the administrative proceedings and this action. (Dkt. 38-3, 38-1, 38-4.) The District contends the hours sought by Defendants expended by the three attorneys are unreasonable because several entries in the billing statement are improper and duplicative. (Id. at 7–8.)
First, the District contends that several entries in the Billing Statement are not properly recoverable because the hours expended concerned Defendants' counsel's pre-engagement investigation, an early resolution session, and work on Post-Due Process matters. (Dkt. 39 at 7–8.) In support of this contention, the District submitted itemized lists of billing entries excerpted from the Billing statement in the declaration of Richard Brady, the District's counsel. (Brady Decl., Dkt. 39 at 11–12.) The declarations, however, provide no authority why attorney's fees are not recoverable for the contested entries. Instead, the declaration merely states that the entries "should not be charged to the District." Accordingly, the Court finds that the hours reflected in these entries are reasonable and does not reduce the attorney's fees award for the contested entries.
Second, the District included an additional itemized list of billing entries from Defendants' counsel totaling $249.38 (Brady Decl., Dkt. 39 at 13.) that it contends are billing entries for non-reimbursable clerical activities which should be deducted from any attorneys' fees award. As to the District's evidence in support of the objection, its counsel simply wrote on the top of the list of purported "clerical" entries that "[t]here are entries which show Clerical Services being charged to the District in the amount of $249.38." (Brady Decl., Dkt. 39 at 13.) In his declaration, Gregory McNair responded to the allegation, declaring "District provided no legal support for its position. The Fees were incurred in our representation of Defendants." (Dkt. 40 at 7.)
Clerical work is not compensable. See Spitz Techs. Corp. v. Nobel Biocare USA LLC , 2018 WL 6016149, at *3 (C.D. Cal. Aug. 13, 2018) (Selna, J.) ("Parties cannot recover fees for conducting clerical tasks."), aff'd , 773 Fed.Appx. 625 (Fed. Cir. 2019) ; Weeks v. Kellogg Co. , 2013 WL 6531177, at *32 (C.D. Cal. Nov. 23, 2013) (Morrow, J.) ("In calculating the lodestar, courts typically exclude time spent on clerical or ministerial tasks because such tasks are properly considered part of an attorney's overhead and are reflected in his or her hourly rate."); Cruz v. Alhambra School Dist. , 601. F Supp. 2d 1183, 1193 (C.D. Cal. 2009) (Collins, J.) ("Parties cannot recover fees for conducting clerical matters."). On the other hand, "[w]here support staff do substantive case-related work , ... fees for such work are recoverable." Weeks , 2013 WL 6531177, at *32 (emphasis added).
The contested entries provide the following narratives:
(1) "Create client file; Document/File Management [L140]; Other [A111]"
(2) "Request educational records Bellflower USD & schools; Fact Investigation / Development [L110]; Facsimile [E104]"
(3) "File DPC; Document/File Management [L140] Facsimile [A104]"
(4) "File PHC Statement; Document/File Management [L140]; Facsimile [A104]"
(5) "File Closing Brief; Document/File Management [L140]; Facsimile [A104]"
Examples of clerical, non-substantive tasks billed include time entries for organizing and rearranging exhibits, coordinating dates/scheduling including for witness testimony. The Court finds that these tasks were non-clerical in nature. See, e.g., Nadarajah v. Holder , 569 F.3d 906, 921 (9th Cir. 2009) (reducing fee award by 6.05 hours for clerical work billed by paralegal, including paralegal time entries for researching filing procedures, requesting checks, obtaining transcripts and phone calls and correspondence to the court re same, preparing cover letters, assembling and organizing documents, forwarding documents); Perfect 10, Inc. v. Giganews, Inc. , 2015 WL 1746484, at *27 (C.D. Cal. Mar. 24, 2015) ("Perfect 10 correctly notes that some tasks billed at paralegal rates appear to be purely clerical in nature, like ‘organiz[ing] selected documents from P10's production for attorney review’ and ‘organiz[ing] attorney set of documents in preparation for hearing.’ "), aff'd , 847 F.3d 657 (9th Cir. 2017) ; Darling Intern., Inc. v. Baywood Partners, Inc. , 2007 WL 4532233, at *5 (N.D. Cal. 2007) (excluding hours claimed for "purely clerical and/or secretarial tasks for which there should be no compensation" for fee award, reasoning "it is not reasonable for a law firm to charge a client for the time an attorney spends on purely clerical or secretarial tasks, such as transmitting materials to a client, making travel arrangements, copying documents, setting up and taking down a war room, serving documents, coordinating a court reporter, and so forth"). The Court thus reduces the attorney's fee award by $249.38 because these entries are clerical in nature.
Third, Defendants request an award of $200 for cost incurred during this matter, which it attributes to "copies, fax, phone, mileage and parking." (Dkt. 38-3 at 15.) The District contends that the costs should not be awarded because they were not itemized. The Court finds that the costs incurred for these items are reasonable and awards the costs. I. CONCLUSION
Accordingly, the Court GRANTS Plaintiff's Motion for Attorney's Fees. the Court awards the requested attorney's fees and costs totaling $76,478.50 (the requested amount less the $249.38 billed for clerical tasks).