Opinion
CASE NO:12-CV-2860 W (MDD)
11-13-2014
AMY MAY, Plaintiff, v. BRUCE K. BRUNTON, Defendant.
ORDER:
(1) DENYING PLAINTIFF'S MOTION TO STRIKE [DOC. 69], AND
(2) GRANTING-IN-PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES [DOC. 62]
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. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court DENIES Plaintiff's motion to strike [Doc. 69] and GRANTS-IN-PART Plaintiff's motion for attorney's fees [Doc. 62].
I. BACKGROUND
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; and (3) Defendant would cease and desist from the operation or management of any investment rental dwelling, and would "retain a professional manager, certified as a California Certified Residential Manger by the California Apartment Association to operate and manage his rental dwellings, as further described in the parties' settlement agreement." (Jt. Appl. & Stip. [Doc. 60] ¶¶ 2-4; see also Rep. Tr. of Settlement [Doc 62-3].) On July 29, 2014, Plaintiff filed the instant motion for attorney's fees. (See Pl.'s Mot. Fees; Mem. P&A ISO Pl.'s Mot. Fees [Doc. 62-1].) On September 15, 2014, Defendant filed his opposition and supporting expert declaration challenging the total amount of fees sought by Plaintiff. (Def.'s Opp'n [Doc. 66].) Subsequently, on October 10, 2014, Plaintiff filed her reply and concurrent motion to strike Defendant's expert declaration. (See Pl.'s Reply [Doc. 70]; Pl.'s Obj. & Mot. Strike.)
The agreement set a deadline of July 29, 2014 for Plaintiff to file her motion for attorney's fees and costs. (Jt. Appl. & Stip. [Doc. 60] ¶ 3.) Plaintiff filed her motion on that date. In addition, the agreement provided that "Defendant retains all rights to contest the amount of, but not the entitlement to, an award of attorneys' fees and costs to Plaintiff." (Id.) The agreement further indicated that "[t]he decision of the Court" on the issue of reasonable fees and costs "shall be binding and no party may appeal." (Id.)
II. LEGAL STANDARD
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). A "prevailing party" for the purposes of attorney's fees is a party who "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in brining suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks omitted). Stated differently, "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (citations omitted).
Plaintiff also seeks attorney's fees under California law. (Mem. P&A ISO Pl.'s Mot. Fees 5:21-6:8.) Under California Government Code § 12989.2, a court may award reasonable attorney's fees and costs to a prevailing party in "a civil action brought under Section 12981 or 12989.1, if the court finds that a discriminatory housing practice has occurred." Cal. Gov't Code § 12989.2. Similarly, California Civil Code § 52 allows for an award of attorney's fees against culpable defendants in certain discrimination suits. Cal. Civ. Code § 52(a), (b)(3). Because attorney's fees under these state law provisions are calculated according to the same lodestar method as 42 U.S.C. § 3613(c)(2), the Court's analysis of the reasonableness of Plaintiff's requested fees is equally applicable under federal and California law. See Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1112 (9th Cir. 2014) (citing Ketchum v. Moses, 24 Cal. 4th 1122 (2001)); Muniz v. United Parcel Serv., Inc., 738 F.3d 214 (9th Cir. 2013).
In Hensley, the Supreme Court dealt with a "prevailing party" seeking to recover attorney's fees under 42 U.S.C. § 1988. 461 U.S. at 424. However, courts addressing the same issue under § 3613 may rely on cases interpreting § 1988, because "fee-shifting statutes' similar language is 'a strong indication' that they are to be interpreted alike." Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989) (citations omitted); see also Hensely, 461 U.S. at 433 n.7 ("The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.'"); Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 826 (9th Cir. 2001). Moreover, 42 U.S.C. § 3602(o) explicitly states that "'[p]revailing party' has the same meaning as such term has in section 1988 of this title."
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).
III. DISCUSSION
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. (See Mem. P&A ISO Pl.'s Mot. Fees.) This amount also includes work completed by Mr. Brancart's paralegal, Nathan Gardner. (See, e.g., id. at 7:1-19; 14:7-10.) In addition to these fees, Plaintiff seeks costs in the amount of $4,941.13. Moreover, in her reply, Plaintiff seeks an additional $9,102.00 in fees for time spent by her attorneys in "responding to [D]efendant's opposition, including attempting to subpoena information from defense counsel and [D]efendant's expert and preparing th[e] reply brief." (Pl.'s Reply 9:6-9.) Mr. Butler also seeks an additional $176.00 in costs incurred while working on Plaintiff's reply. (See id. at 9:22-23 (requesting $2,185.68 instead of the $2,009.68 in costs sought in the fee motion).) Plaintiff's motion and reply include billing records and declarations in support of the amounts that she seeks.
This figure is based on: (1) 149.6 hours of work by Mr. Brancart at $450.00 per hour; (2) 110.1 hours of work by Mr. Butler at $285.00 per hour; and (3) 30.7 hours expended by Mr. Gardner at $95.00 per hour. (Mem. P&A ISO Pl.'s Mot. Fees 7:1-19, 17:16-20; see also Brancart Decl. [Doc. 62-2]; Butler Decl. [Doc. 62-9].) The initial number of hours sought have been voluntarily reduced by 7.5% "to account for any duplication of effort or time not reasonably spent." (See Mem. P&A ISO Pl.'s Mot. Fees 7:1-8:3.) After calculating that reduction, Mr. Brancart's total number of hours sought has been augmented by 13 hours for his work on the instant motion. Similarly, Mr. Butler seeks an additional hour for work on the instant motion. (See, e.g., id. at 17:9-14.)
This figure represents the aggregate total costs that Plaintiff seeks in her motion. It represents costs to Mr. Brancart's firm in the amount of $2,931.45 and costs to LASSD in the amount of $2,009.68. (See, e.g., Mem. P&A ISO Pl.'s Mot. Fees 17:18-20.)
This figure is based on: (1) 16.3 hours of work by Mr. Brancart at $450.00 per hour; and (2) 6.2 hours of work by Mr. Butler at $285.00 per hour. (See, e.g., Pl.'s Reply 9:10-18.)
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.)
A. Plaintiff's Objection and Motion to Strike
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 DENIES Plaintiff's objection to and concurrent motion to strike Mr. Sall's declaration.
Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose the identity of each expert witness "it may use at trial to 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. See Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001).
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. Because Plaintiff has had an opportunity to reply to Defendant's opposition and to Mr. Sall's declaration in support thereof, Plaintiff does not appear to have suffered any prejudice. (See Pl.'s Reply.) Therefore, in light of the above, the Court DENIES Plaintiff's objection to and motion to strike Mr. Sall's declaration.
Although Defendant refers to Sall's declaration as a "Rule 26 Disclosure," the declaration appears to relate to Rule 26 only insofar as its contents match the requirements of Rule 26(a)(2)(B)(i)-(vi). (See Sall Decl.)
B. Reasonableness of Fees in Relation to Results Obtained
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. See Hensley, 461 U.S. at 424. In Hensley, the Supreme Court set forth various standards that "are generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.'" Id. at 433 n.7. One such standard requires courts to "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. at 435. The Court further emphasized this point in holding that "the extent of a plaintiff's success is a crucial factor that the district courts should consider carefully in determining the amount of fees to be awarded." Id. at 438 n.14. If a plaintiff achieves only partial or limited success, the lodestar figure "may be an excessive amount." Id. at 436.
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, Farrar v. Hobby involved a civil rights plaintiff who obtained a nominal damages award of one dollar after litigating his case for ten years. 506 U.S. 103 (1992). The Supreme Court ultimately declined to award the plaintiff any attorney's fees. Id. at 115 (holding that "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all") (citations omitted). To say that Plaintiff's $40,000 pecuniary recovery in this case is merely "nominal" would, at best, be a mischaracterization. Furthermore, McCown v. City of Fontana is also inapplicable here. 565 F.3d 1097 (9th Cir. 2008). McCown involved a plaintiff who, after having most of his claims dismissed on summary judgment, "received $20,000 in damages as part of a settlement agreement for his single remaining claim, and no other relief." Id. at 1104 (emphasis added). Here, all of Plaintiff's claims were still intact at the time of settlement, and Plaintiff obtained injunctive relief in addition to her five-figure damages award.
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. See Gates, 987 F.2d at 1397-98 ("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."). Rather, in failing to address Plaintiff's non-pecuniary relief, Defendant seems to have concluded that such relief is worthless. (See, e.g., Def.'s Opp'n 10:6-7 (stating that "Plaintiff only received $40,000 in settlement for 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. See, e.g., McCown, 565 F.3d at 1104 (explaining that a "strict test of proportionality" is inappropriate "because it fails to recognize the nature of many, if not most, civil rights cases, in which damages may be limited by law, regardless of the importance of the civil rights at issue") (citing City of Riverside v. Rivera, 477 U.S. 561, 576-78 (1986)). The Court recognizes the disparity between the $40,000 amount and the amount that Plaintiff seeks in attorney's fees. However, that factor is "only one of many factors that [the] [C]ourt should consider in calculating an award of attorney's fees." Rivera, 477 U.S. at 574. And, in the absence of evidence from Defendant to rebut Plaintiff's evidence regarding the magnitude of the injunctive relief obtained, the Court will not speculate as to the precise dollar value of that relief. Thus, without more, the Court cannot say that the total amount of fees requested is intrinsically unreasonable in relation to the results Plaintiff obtained. See Hensley, 461 U.S. at 436.
C. Propriety of the Documentation of Counsel's Hours
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 addition to these contentions, Defendant also argues that many of Plaintiff's attorneys' time records "contain indecipherable words or letters that are vague and do not accurately reflect a clear and concise method of time keeping or reporting." (Def.'s Opp'n 3:20-22.) Mr. Brancart has since submitted a revised time record that clarifies the meaning of those abbreviations. (See Brancart Decl. sans Abbrev. [Doc. 70-2].) Thus, to the extent that this previously constituted an obstacle, the Court is satisfied that it has been remedied.
1. Time summaries and contemporaneity of records
In support of his contention that Plaintiff's counsel improperly summarized hours and failed to provide contemporaneous time-keeping records, Defendant cites Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1230-31 (9th Cir. 1997). According to Defendant, that case stands for the proposition that "a district court may abuse its discretion by relying on summaries[] of billing records in declarations that are not sufficient to distinguish time spent on different claims." (Def.'s Opp'n 12:2-7.) Plaintiff, however, maintains that counsel did keep regular time sheets, and that counsel's submissions reflect contemporaneous records that were not "reconstructed" after the fact. (Pl.'s Reply 4:19-25.) Moreover, Plaintiff contends that Genesis does not apply in this instance because Plaintiff did not fail to prevail on her claims. (Id. at 3:25-4:4.) The Court agrees with Plaintiff.
In Genesis, a manufacturer filed a lawsuit, consisting of twelve causes of action, against multiple defendants. 122 F.3d at 1214-16. After prevailing on two different partial summary judgment motions, the defendants, under a federal fee-shifting statute, filed separate motions to recover attorney's fees on some of the plaintiff's claims. Id. at 1216. In reviewing the district court's award of fees to one of the prevailing defendants, the Ninth Circuit explained that "[g]iven the instant circumstances . . . the district court abused its discretion by concluding that the summaries submitted in conjunction with the declaration of [the defendant's] counsel were sufficient to determine exactly how many hours [the defendant] spent solely defending against [the compensable claims]." Id. at 1231. The court then noted that "in these circumstances, we believe that the district court erred in not requiring [the defendant] to submit its original time records and billing statements so that [the plaintiff]—and the district court—could determine whether the fees being claimed were truly for time spent in defending against the [compensable] claims." Id.
The circumstances that existed in Genesis are not present in the instant case. Here, it cannot be said that Plaintiff was successful on some of her claims and unsuccessful on others. The Court's review of the record indicates that the parties reached a settlement as to all of Plaintiff's claims, none of which had previously been waived or otherwise disposed of through any consequential motion practice. (CMC Minute Entry 4:1-25.) As a result, this case does not require the type of fee segregation that the Ninth Circuit required in Genesis. See Genesis, 122 F.3d at 1230-31 (citing Hensley, 461 U.S. at 434-37). The Court accepts counsel's records as being sufficiently detailed and reflective of the work completed. See United Steelworkers of Am. v. Ret. Income Plan for Hourly-Rated Employees of ASARCO, Inc., 512 F.3d 555, 565 (9th Cir. 2008). The Court need not parse the time counsel allocated toward certain claims versus others. Therefore, this does not appear to be a basis for a reduction of the hours sought.
The Court notes that even if this were such a case, Defendant has not made an adequate showing of a distinction between the claims that would require segregation and the claims for which Plaintiff can properly seek attorney's fees.
2. Block Billing
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." (Def.'s Opp'n 12:8-10.) In support of this argument, Defendant points to a number of examples in Mr. Brancart's time records, and cites Welch v. Metropolitan Life Insurance Co., 480 F.3d 942, 948 (9th Cir. 2007) for its discussion of the improprieties of block billing. (Def.'s Opp'n 12:11-25; see Sall Decl. ¶ 9.8.) According to Plaintiff, the entries in Mr. Brancart's records that Defendant has identified as improper "are not the kind of 'block billing' justifying across the board reductions in time." (Pl.'s Reply 7:28-8:1.)
Defendant advances his block billing argument only with respect to Mr. Brancart. (See Def.'s Opp'n 12:8-25.) Therefore, the Court does not address Mr. Butler's or Mr. Gardner's time records in the context of this issue.
"'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.'" Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007) (quoting Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir. 1996)). Block billing is generally disfavored because it complicates a court's assessment of the reasonableness of individual tasks performed by attorneys. See id. at 948. However, a block-billed entry is only problematic where it "'obscure[s] the nature of some of the work claimed.'" Kittok v. Leslie's Poolmart, Inc., 687 F. Supp. 2d 953, 964 (C.D. Cal. 2009) (alteration in original) (quoting Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1325 (2008)).
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 Sunstone Behavioral Health, Inc. v. Alameda Cnty. Med. Ctr., 646 F. Supp. 2d 1206, 1217 (E.D. Cal. 2009).) However, using that metric in reviewing Mr. Brancart's time records, the Court estimates that approximately20% of the hours reported in those records—due to the grouping of various tasks—have complicated the Court's ability assess the reasonableness of the hours expended against the tasks completed. Sunstone, 646 F. Supp. 2d at 1214. Therefore, in addition to Plaintiff's suggested voluntary reduction to Mr. Brancart's hours, the Court, in its discretion, will reduce Mr. Brancart's hours by an additional 2% (20% of total hours multiplied by a 10% reduction = 2% overall reduction). See Darling Int'l, Inc. v. Baywood Partners, Inc., 2007 WL 4532233, at *9 (N.D. Cal. Dec. 19, 2007) (noting that, where employed, courts typically make an adjustment of 5% to over 30% in cases involving block billing).
D. Overstaffing
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." Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1286 (9th Cir. 2004). Indeed, when considering the lodestar calculation, courts must exclude hours that are unnecessary or redundant. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007) (quoting Hensley, 461 U.S. at 434). However, "[p]articipation of more than one attorney does not necessarily amount to unnecessary duplication of effort." Reed, 388 F.3d at 1286. Courts are required to exercise judgment and discretion when examining the circumstances of a particular case and in deciding whether there has been unnecessary staffing or duplication of work. Id. at 1286-87. At the same time, "[i]t must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees," given the uncertainty of the ultimate payoff "as to both the result and the amount of the fee." Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).
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 Settlegoode v. Portland Public Schools, 2005 WL 1899376, at *7 (D. Or. Aug. 9, 2005), for the proposition that "[w]hen attorneys hold a telephone or personal conference, good 'billing judgment' mandates that only one attorney should bill that conference to the client, not both attorneys." Yet, it seems that Plaintiff's attorneys indeed exercised such billing judgment in deciding not to bill twice for the same consultations. (See, e.g., Pl.'s Reply 6:5-11.) Thus, in light of such billing judgment, and given the apparent contradiction in Defendant's averments, Defendant's contentions fail.
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 courts have 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").
E. Time Spent on the Anti-SLAPP Motion
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 Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991), wherein the Ninth Circuit held that "plaintiffs are to be compensated for attorney's fees incurred for services that contribute to the ultimate victory in the lawsuit." (Pl.'s Reply 8:26-9:1.) Although both parties' arguments are largely unconvincing, the Court—for the reasons stated below—declines to award Plaintiff attorney's fees for any time spent by Mr. Brancart on the anti-SLAPP matter.
As an initial matter, the Court finds Plaintiff's citation to Cabrales to be unavailing. Plaintiff states, without elaboration, that Mr. Brancart's work on the anti-SLAPP motion "contributed to plaintiff's ultimate victory in this case." (Pl.'s Reply 9:1-2.) However, without more, this conclusory assertion fails to elucidate how Mr. Brancart's work on the anti-SLAPP motion—which was filed in response to Defendant's defamation counterclaim—contributed to Plaintiff's "ultimate victory" on her own claims within the purview of that phrase's meaning in Cabrales.
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 additional1.7 hours on the anti-SLAPP matter beyond the 4.6 hours to which Defendant has pointed. Thus, it appears that Mr. Brancart spent a total of 6.3 hours on the anti-SLAPP matter, and the Court reduces Plaintiff's fee award accordingly.
This additional 1.7 hours includes time Mr. Brancart spent on the anti-SLAPP matter on 3/22/2013, 8/2/2013, and 11/1/2013. (See Brancart Time Records [Doc. 62-4] 5-9.) Because the entry for 11/1/2013 includes various tasks, the Court is unable to segregate the anti-SLAPP time from the rest of the entry. (Id. at 9.) Thus, the Court will exclude the entire 0.9 hours sought for work on that date.
F. Plaintiff's Request for Fees on Fees
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. See In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir. 1985) (citing cases and noting that the Ninth Circuit and other circuit courts have "concluded that statutory fee award provisions should be read as authorizing compensation for time spent litigating fee awards"); see also Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986) (citations omitted). Still, the Court must determine the reasonableness of the fees sought. Hensley, 461 U.S. at 424; see also 42 U.S.C. § 3613(c)(2).
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. See Hensely, 461 U.S. at 436.
G. Award Fee Summary
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: Brancart & Brancart (Mr. Brancart)
| Total Hours | Reduction | Adjusted | Rate | Total | |
| Pre-Fee Motion Work | 147.7 | - 6.3 anti-SLAPP hours and 12% reduction | 124.4 | $450/hour | $55,980.00 |
| Fee Motion | 13.0 | $450/hour | $5,850.00 | ||
| Reply Brief | 16.3 | 10% reduction | 14.7 | $450/hour | $6,615.00 |
| Paralegal (Gardner) | 33.2 | 10% reduction | 29.9 | $95/hour | $2,840.50 |
| $71,285.50 |
LASSD (Mr. Butler)
| Total Hours | Reduction | Adjusted | Rate | Total | |
| Pre-Fee Motion Work | 118.0 | 10% reduction | 106.2 | $285/hour | $30,267.00 |
| Fee Motion | 1.0 | $285/hour | $285.00 | ||
| Reply Brief | 6.2 | - 4.0 strike motion hours and 10% reduction | 2.0 | $285/hour | $570.00 |
| $31,122.00 |
IV. CONCLUSION AND AWARD
For the foregoing reasons, the Court DENIES Plaintiff's motion to strike [Doc. 69] and GRANTS-IN-PART Plaintiff's motion for attorney's fees [Doc. 62]. The Court awards Plaintiff $107,524.63 in fees and costs.
This figure includes the $2,931.45 in costs incurred by Brancart & Brancart, and the $2,185.68 in costs incurred by LASSD. (See Pl.'s Reply 9:18-23.)
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IT IS SO ORDERED. DATED: November 13, 2014
/s/_________
Hon. Thomas J. Whelan
United States District Judge