Opinion
For Melissa Zuniga, R. J., minor, by and through Guardian Ad Litem, Melissa Zuniga, A. J., minor, by and through Guardian Ad Litem, Melissa Zuniga, Diane Rodriguez, M. R., minor, by and through Guardian Ad Litem, Diane Rodriguez, E. R., minor, by and through Guardian Ad Litem, Diane Rodriguez, Dalila Gonzalez, K. R., minor, by and through Guardian Ad Litem, Dalila Gonzalez, N. R., minor, by and through Guardian Ad Litem, Dalila Gonzalez, D. R., minor, by and through Guardian Ad Litem, Dalila Gonzalez, Gloria Orozco, L.O., minor, by and through Guardian Ad Litem, Gloria Orozco, A.O., through Guardian Ad Litem, Gloria Orozco, Jose Ramirez Esquesda, Plaintiffs: Stuart E Fagan, LEAD ATTORNEY, Law Offices of Stuart E Fagan, Wheaton, IL.
For Western Apartments, a business of unknown form, Defendant: Dale Alberstone, LEAD ATTORNEY, Alberstone and Evangelatos, Los Angeles, CA.
For Real Estate Connection, a business of unknown form, Defendant: Dale Alberstone, LEAD ATTORNEY, Alberstone and Evangelatos, Los Angeles, CA; Marjorie E Motooka, Fidone and Motooka LLP, Pasadena, CA.
For BTS, a California Limited Partnership, Defendant: Marjorie E Motooka, Fidone and Motooka LLP, Pasadena, CA.
CIVIL MINUTES -- GENERAL
PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE.
PROCEEDINGS (IN CHAMBERS): ORDER AWARDING ATTORNEY'S FEES AND COSTS
On August 1, 2014, Plaintiffs Melissa Zuniga, R.J., A.J., Diane Rodriguez, M.R., E.R., Dalila Gonzalez, K.R., and N.R. (collectively, " Plaintiffs") filed a Motion for Attorneys' Fees and Costs (" Motion"). On August 18, 2014, Defendant BTS (" Defendant") filed its Opposition. On August 23, 2014, Plaintiffs filed a Reply. On September 8, 2014, the Court held a hearing on Plaintiffs' Motion. On October 15, 2014, the Court entered an Order requiring the parties to meet and confer and agree on the amount of attorneys' fees that should be awarded to Plaintiffs. On November 12, 2014, Defendant filed a Supplemental Brief Re Plaintiffs' Entitlement to Recover Costs. On November 14, 2014, the parties filed a Joint Statement Re Plaintiffs' Motion (" Joint Statement"). Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the papers without further oral argument. The matter was, therefore, removed from the Court's November 24, 2014 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows:
At the September 8, 2014 hearing, the Court determined that Plaintiffs were the prevailing party and granted Plaintiffs' Motion.
I. Factual and Procedural Background
Although the parties were able to narrow the issues during the meet and confer process, they continue to disagree on the amount of attorneys' fees and costs that the Court should award to Plaintiffs. Plaintiffs argue that the Court should award $272, 469.42 and Defendant claims that the award should not exceed $150, 000.00.
II. Legal Standard
" The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This equation is commonly referred to as the " lodestar." See, Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945 (9th Cir. 2007). The prevailing rate in the community is indicative of the reasonable hourly rate for purposes of calculating attorney's fees using the lodestar method. Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987). The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation. Blum v. Stenson, 465 U.S. 886, 895, n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The fee applicant also " 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). " In determining the appropriate lodestar amount, the district court may exclude from the fee request any hours that are 'excessive, redundant, or otherwise unnecessary.'" Welch, 480 F.3d at 946 (quoting Hensley, 461 U.S. at 433). In making its reasonableness determination, the district court has considerable discretion to adjust the lodestar upward or downward on the basis of the twelve factors set forth in Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), some of which are subsumed into the initial lodestar calculation. Morales v. City of San Rafael, 96 F.3d 359, 364 (9th Cir. 1996). In addition, " [i]f opposing counsel cannot come up with specific reasons for reducing the fee request that the district court finds persuasive, it should normally grant the award in full, or with no more than a haircut." Moreno v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008).
These " subsumed factors" include (1) the novelty and complexity of the issues; (2) the special skill and experience of counsel; (3) the quality of representation; (4) the results obtained ; and (5) the contingent nature of the fee agreement. Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996). In the Ninth Circuit, the favored approach is to adjust the lodestar on the basis of the subsumed reasonableness factors before calculating the lodestar. Id.
III. Discussion
A. Fagan's Hourly Rate is Reasonable.
In this case, Defendant disputes that the $450 hourly rate charged by Plaintiffs' counsel, Stuart E. Fagan (" Fagan"), is reasonable. Instead, Defendant argues that an hourly rate of $275 is more reasonable given Fagan's skills and experience. In his declaration, Fagan, a sole practitioner, details his experience and reputation as an attorney. After graduating with honors from the University of Nebraska College of Law, Fagan has practiced law for 24 years, with the past 16 years of his practice devoted almost exclusively to the area of fair housing litigation. Declaration of Stuart E. Fagan (" Fagan Decl."), ¶ 2. Fagan is currently litigating fair housing cases in San Diego, Los Angeles, San Joaquin, and Alameda Counties, and has earned a reputation as an expert on fair housing matters among his fellow attorneys. Fagan Decl., ¶ 2; Declaration of Michael Olshan (" Olshan Decl."), ¶ 4 (" Mr. Fagan is an extremely talented attorney who knows this area of the law like few others do"); Declaration of Matthew P. Harrington (" Harrington Decl."), ¶ ¶ 5-6 (" In addition to impressing me with his grasp of the complicated legal and factual issues, Mr. Fagan always treated me with courtesy and professional respect. Moreover, at the recent Neri mediation, Mr. Fagan was extremely well-prepared, presented factual and legal issues in a clear and precise manner, and competently represented his clients"); Declaration of Christopher A. Brancart (" Brancart Decl."), ¶ 9 (" [Fagan] is highly regarded in the fair housing community and recognized for his expertise, particularly in cases involving discrimination against families and children"). In fact, his former opposing counsel often contact him for advice on fair housing matters or refer fair housing matters to him. Fagan Decl., ¶ 2.
In addition to his extensive experience, Fagan's hourly rate is reasonable when compared to the prevailing rates charged in the Central District of California " for similar services of lawyers with reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895. For example, Judge Morrow recently concluded that a reasonable hourly rate for partners, principals, and managing attorneys with 19 years of experience was $595. In re Toys " R" Us -- Delaware, Inc. -- Fair & Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438, 462 (C.D. Cal. 2014). In addition, Judge Wilson recently concluded that $400 per hour was a reasonable hourly rate for a civil rights plaintiffs' attorney with 12 years of experience. Contreras v. City of Los Angeles, 2013 WL 1296763, *3 (Mar. 28, 2013). Finally, Judge Anderson awarded an hourly rate of $400 in a fair housing case for work performed in 2008 and 2009 by an attorney with approximately 22 years of experience. Brancart Decl., ¶ 13.
Based on a comparison of the expertise, experience, and reputation of Fagan in fair housing litigation with the hourly rates charged by comparable lawyers, the Court finds that the $450 per hour rate charged by Fagan is reasonable. Accordingly, the Court finds that Plaintiffs have produced satisfactory evidence demonstrating that the $450 per hour rate requested by Fagan is in-line with the prevailing rate in the community. See United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) (holding that " [a]ffidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community and rate determinations in other cases, particularly setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate").
B. The Majority of the Time Billed by Fagan Was Not Excessive or Unnecessary .
In the Joint Statement, Defendant makes several boilerplate objections that the time charged was " excessive" or " unnecessary." However, Defendant failed to provide an adequate explanation or reason for the majority of those objections. Despite the boilerplate nature of Defendant's objections, the Court has reviewed each of the billing entries and makes the following rulings.
With respect to time spent on Plaintiffs' motion for summary judgment and Plaintiffs' opposition to Defendant's motion for summary judgment, Defendant argues that the 58.6 hours billed by Fagan for preparing the two briefs (34.2 hours drafting Plaintiffs' motion for summary judgment and 24.4 hours drafting Plaintiffs' opposition to Defendant's motion for summary judgment) is excessive because there was substantial overlap in the two briefs. In response, Plaintiffs argue that the focus of Plaintiffs' motion for summary judgment was the issue of discrimination while Defendant's motion for summary judgment focused on advice of counsel as an affirmative defense to Plaintiffs' claims of discrimination, and, thus, there was minimal overlap because the motions involved different legal issues. Although the Court agrees that the legal issues raised in the motions for summary judgment were somewhat different, both motions dealt with the fundamental issue of Defendant's alleged discrimination of Plaintiffs. Thus, the Court concludes there was substantial overlap in the facts presented and certainly some overlap in the legal issues addressed in the motions. Therefore, the Court reduces the 24.4 hours billed by Fagan for drafting Plaintiffs' opposition to Defendant's motion for summary judgment by 9.4 hours.
With respect to time spent preparing pretrial documents, Defendant's objections are patently frivolous. It was largely due to Defendant's failure to comply with the Court's orders that the parties were required to prepare a second set of pretrial documents after the initial pretrial documents were stricken. Therefore, the Court overrules Defendant's objections with respect to time billed for preparing pretrial documents.
With respect to time spent for preparing deposition notices and subpoenas, Fagan agreed at the September 8, 2014 hearing on Plaintiffs' Motion to reduce his " standard" charge of .50 for preparing a deposition notice or a subpoena to .30, and he has made the necessary adjustments in the billing records. In addition, Fagan reduced the time billed for the preparation of letters to clients and witnesses, which was also discussed at the September 8, 2014 hearing. Therefore, Defendant's continued objections to the time billed for these activities are frivolous and overruled.
With respect to time spent drafting consent decrees before the case settled in July 2014, the consent decree drafted by Fagan on October 21, 2013 and revised on January 16, 2014 and April 10, 2014, formed the basis of the consent decree eventually signed by the parties after they settled the case. In addition, the October 21, 2013 draft and the January 16, 2014 draft of the consent decree were sent to Defendant as part of Plaintiffs' settlement demands. Therefore, the Court finds the 4.0 hours billed for drafting and revising the consent decree prior to the July 2014 settlement to be reasonable, and, thus, Defendant's objections are overruled.
With respect to travel time, the Court agrees with Plaintiffs that travel time is compensable, but, as stated at the hearing on September 8, 2014, also agrees with Defendant that it was unnecessary to retain a San Diego attorney for a Los Angeles case. In fact, the Court is confident that if Plaintiffs had been ultimately responsible for actually paying their own attorneys' fees and costs in this action, they would have retained an equally competent Los Angeles-based attorney, or, at a minimum, negotiated a fee arrangement with Fagan that would have eliminated or substantially discounted any time billed for travel. Accordingly, the Court will reduce the total travel time billed by 60 percent to take into consideration Fagan's travel from San Diego to Los Angeles.
From the Court's review of the billing records, it appears that travel time was billed on June 3, 2013; December 10, 2013; December 12, 2013; December 20, 2013; February 27, 2014; February 28, 2014; March 5, 2014; March 24, 2014; March 25, 2014; April 7, 2014; April 28, 2014; May 14, 2014; July 7, 2014; and September 8, 2014 for an approximate total of 71.4 hours.
With respect to the remaining objections that Fagan billed excessive or unnecessary time on particular items, the Court has reviewed the billing records submitted with the Joint Statement, and finds that the time spent on the various tasks to be reasonable and Defendant's objections are overruled.
C. The Costs Billed by Plaintiffs Are Recoverable .
It is undisputed that, as part of the award of attorneys' fees in this case, Plaintiffs are entitled to recover their costs. However, the parties disagree on which costs are recoverable by Plaintiffs. Defendant argues that Plaintiffs are limited to those costs recoverable under 28 U.S.C. § 1920. However, traditionally, fee-shifting statutes have been broadly interpreted by the courts to permit the prevailing party in civil rights cases to recover a broad range of out-of-pocket litigation costs as an element of reasonable attorneys' fees, such as messengers, copying costs, parking, and mail service. Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994) (holding that " reasonable expenses, though greater than taxable costs, may be proper" and allowing recovery for service of summons and complaint, service of trial subpoenas, postage, investigator, copying costs, hotel bills, meals, messenger service and employment record reproduction); Davis v. City and County of San Francisco, 976 F.2d 1536, 1556 (9th Cir. 1992) (allowing for award of out-of-pocket expenses, including travel time, courier, and copying costs). This includes the recovery of costs in fair housing act cases. See, e.g., Davis v. Sundance Apartments, 2008 WL 3166479, *6 (E.D. Cal. Aug. 5, 2008).
In this case, Defendant argues that Plaintiffs are not entitled to recover costs for mileage and parking, interpreter costs for translating documents, postage, and hotel expenses, and that interpreter costs and copying costs should be limited to only those necessarily incurred. As stated above, the Court finds that Plaintiffs could have retained a Los Angeles-based attorney to represent them, and, thus, will reduce Fagan's mileage charges by 60 percent to take into consideration his travel from San Diego to Los Angeles. For the same reason, the Court concludes that Fagan should not be reimbursed for the hotel expenses he billed in this case.
Defendant pointed out during the meet and confer process that Fagan billed court reporter fees that were not supported by the actual invoices, and Fagan has agreed to make the appropriate adjustments.
With respect to interpreter's fees, the Court finds Defendant's argument that the fees were not necessary primarily because Fagan could have used one of the English-speaking Plaintiffs to translate for the other Plaintiffs unpersuasive. As their counsel, Fagan had a duty to make sure all of his clients were fully informed regarding important information related to their case, including his legal strategies, and the only way Fagan could do so was through a certified interpreter. With respect to Defendant's objections as to the other costs Plaintiffs seek to recover, including mileage, interpreter fees for translating documents, postage, and copying costs, the Court finds that those costs are reasonable and necessary, and, thus, Defendant's objections to those costs are overruled.
IV. Conclusion
For all the foregoing reasons, Plaintiffs are entitled to an award of attorneys' fees and costs in accordance with this Minute Order. The parties are ordered to meet and confer and prepare a joint proposed Order which is consistent with this Minute Order. The parties shall lodge the joint proposed Order with the Court on or before December 1, 2014. In the unlikely event that counsel are unable to agree upon a joint proposed Order, the parties shall submit separate versions of a proposed Order along with a declaration outlining their objections to the opposing party's version no later than December 1, 2014.
IT IS SO ORDERED.