David Arnold v. City of Redondo Beach

Opinion

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8 United States District Court 9 Central District of California

11 IN RE CITY OF REDONDO BEACH Case № 2:17-cv-09097-ODW (SKx) 12 FLSA LITIGATION Consolidated Case: 13 2:18-cv-01533-ODW (SKx) 14 ORDER GRANTING PLAINTIFFS’ 15 MOTION FOR ATTORNEYS’ FEES 16 AND COSTS [81] 17 18 I. INTRODUCTION 19 One hundred and fifteen law enforcement officers and firefighters (“Plaintiffs”) 20 sued the City of Redondo Beach (the “City”) under the Fair Labor Standards Act 21 (“FLSA”) for alleged miscalculation of overtime compensation. The parties reached 22 an agreement and the Court granted approval of a settlement under the FLSA. 23 Plaintiffs now move for $97,587.50 in attorneys’ fees and $37,210.46 in costs. (Pls. 24 Mot. Award Att’y Fees (“Mot.” or “Motion”) 1, 9, ECF No. 81.) For the reasons 25 discussed below, the Court GRANTS Plaintiffs’ Motion and awards $92,197.50 in 26 fees and $37,210.46 in costs.1 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 The Court will not recount the lengthy factual and procedural history of this 3 action. Instead, the Court refers any interested party to its orders on the parties’ cross 4 motions for summary judgment, (Order Mots. Summ. J. (“Order MSJ”), ECF No. 56), 5 and granting approval of the FLSA settlement, (Order Granting Approval (“Order 6 Approval”), ECF No. 80). 7 From the lawsuit’s inception in 2017, the parties engaged in extensive 8 negotiations and discovery. (See id. at 2, 6.) In November 2019, the Court ruled on 9 the parties’ cross-motions for partial summary judgment, granting in part and denying 10 in part the City’s motion and denying Plaintiffs’ motion. (Order MSJ 19.) With the 11 aid of the Court’s ruling and experts’ calculations of damages, Plaintiffs and the City 12 reached an agreement. (See Order Approval 2.) Based on the now-undisputed 13 damages calculations, only twenty-three Plaintiffs would receive monetary damages 14 under the agreement, so the other ninety-two dismissed their claims without prejudice 15 on July 22, 2020. (Id. at 3.) The twenty-three remaining Plaintiffs2 and the City 16 executed the final Settlement Agreement, which the Court approved on March 16, 17 2021. (See id. at 9.) 18 The Settlement Agreement provides that Plaintiffs will move for reasonable 19 attorneys’ fees and costs, and that the Settling Plaintiffs “shall be considered as the 20 prevailing parties” for the limited purpose of the fee motion. (Joint Mot. Approval 21 Ex. A (“SA”) ¶ A.5, ECF No. 75.) That Motion is now before the Court. 22 23 24

25 2 The twenty-three remaining, “Settling Plaintiffs” are: David Arnold, John J. Anderson, John Bruce, Robert Carlborg, Mark Chafe, David M. Christian, Justin Drury, Joseph Fonteno, Michael J. Green, 26 Ryan Harrison, Corey W. King, Aaron Plugge, Bryan Ridenour, Jason Sapien, Michael Snakenborg, Stephen M. Sprengel, Terrence Stevens, Brian Weiss, Andrei Alexandrescu, Donovan Hall, Brandon 27 Lackey, David Smith, and Bart Waddell. (Id. at 3 n.3.) The ninety-two Plaintiffs who dismissed 28 their claims are hereafter the “Dismissed Plaintiffs.” (See Dismissal, ECF No. 71.) When referring to all 115 Plaintiffs in both groups, the Court uses “Plaintiffs” without a qualifying designation. 1 III. LEGAL STANDARD 2 Prevailing plaintiffs are entitled to reasonable attorneys’ fees and costs under 3 the FLSA. 29 U.S.C. § 216(b); Newhouse v. Robert’s Ilima Tours, Inc., 708 F.2d 436, 4 441 (9th Cir. 1983). Courts in the Ninth Circuit calculate an award of reasonable 5 attorneys’ fees using the “lodestar” method, whereby a court multiplies the number of 6 hours the prevailing party “reasonably expended on the litigation (as supported by 7 adequate documentation) by a reasonable hourly rate for the region and for the 8 experience of the lawyer.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 9 941 (9th Cir. 2011); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 10 2008). District courts may exercise their discretion in determining the reasonable 11 amount of the fee award. Hensley v. Eckerhart, 461 U.S. 424, 433–37 (1983). 12 IV. DISCUSSION 13 Plaintiffs seek $97,587.50 in attorneys’ fees and $37,210.46 in costs as 14 prevailing parties under the FLSA; they argue the hours billed and rates requested are 15 reasonable. (See Mot. 4, 6, 9.) The City contends that the Court should calculate any 16 fee award as a percentage of the common settlement fund rather than under the 17 lodestar method, that Dismissed Plaintiffs are not entitled to fees as they are not 18 “prevailing parties,” and that Plaintiffs’ requested hours and costs are unreasonable. 19 (See Opp’n 2–3, ECF No. 82.) 20 The Court dismisses as a non-starter the City’s argument for application of the 21 percentage method. This is not a common-fund case, “where the settlement or award 22 creates a large fund for distribution to the class.” Hanlon v. Chrysler Corp., 150 F.3d 23 1011, 1029 (9th Cir. 1998). To the contrary, the parties calculated damages here per 24 each individual Plaintiff according to extensive records and expert analysis. (See SA 25 ¶ A.2 (listing specific, calculated amounts the City agreed to pay each Settling 26 Plaintiff).) As such, the percentage method is inappropriate, and the Court applies the 27 lodestar method. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) 28 1 (“The ‘lodestar’ figure has . . . become the guiding light of our fee-shifting 2 jurisprudence.” (original alteration omitted)). 3 A. PREVAILING PARTIES 4 Plaintiffs assert they are prevailing parties and therefore entitled to reasonable 5 attorneys’ fees and costs under the FLSA. (Mot. 3–4.) There is no dispute that 6 Settling Plaintiffs are prevailing parties for purposes of fee-shifting under the FLSA, 7 as they and the City expressly agreed that they “shall be considered as the prevailing 8 parties.” (SA ¶ A.5.) However, the City contends Dismissed Plaintiffs are not 9 “prevailing parties,” and therefore not entitled to fees, because they (1) are not parties 10 to the executed Settlement Agreement, (2) are not entitled to damages in this action, 11 and (3) dismissed their claims. (Opp’n 2–3.) 12 A plaintiff is considered the prevailing party for attorneys’ fees purposes if she 13 succeeds “on any significant issue in litigation which achieves some of the benefit the 14 parties sought in bringing suit.” Thorne v. City of El Segundo, 802 F.2d 1131, 1140 15 (9th Cir. 1986) (quoting Hensley, 461 U.S. at 433). The resolution of a dispute which 16 changes the legal relationship between the parties also supports prevailing party status. 17 Texas State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). 18 Dismissed Plaintiffs qualify as prevailing parties here. Although the Court 19 denied Plaintiffs’ motion for partial summary judgment, Plaintiffs successfully 20 opposed the City’s cross-motion on several material issues, reflected in the Court’s 21 conclusions that the City: failed to establish the benefits plan was bona fide, (Order 22 MSJ 10); failed to prove that a 28-day work period had been established for police 23 officers to trigger an overtime exemption, (id. at 12–13); failed to show certain 24 Plaintiffs were not entitled to overtime compensation, (id. at 13, 16); and, could not 25 apply a cumulative offset in calculating damages, (id. at 14). Only after the Court 26 issued these rulings against the City were the parties able to agree on the calculation 27 of damages and reach an agreement. At that point, all Plaintiffs retained viable 28 claims. The expert damages calculations resulted in Dismissed Plaintiffs receiving no 1 monetary damages and they elected, reasonably, to dismiss their claims without 2 prejudice. That they did so does not negate their success in securing a material change 3 to the legal relationship between the parties and thus achieving some of the benefit 4 they sought in bringing suit. See Thorne, 802 F.2d at 1140. “Where such a change 5 has occurred, the degree of the plaintiff’s overall success goes to the reasonableness of 6 the award under Hensley,” and not to its availability. Texas State Tchrs. Ass’n, 7 489 U.S. at 793. 8 Plaintiffs, including Settling Plaintiffs and Dismissed Plaintiffs, are prevailing 9 parties under the FLSA and therefore entitled to recover reasonable attorneys’ fees 10 and costs. 11 B. HOURS AND RATES 12 Under the lodestar method, courts multiply the hours the prevailing party 13 reasonably expended by a reasonable hourly rate. See Camacho, 523 F.3d at 978. 14 The fee applicant bears the burden of demonstrating that the number of hours spent 15 were “reasonably expended” and that counsel made “a good faith effort to exclude 16 from [the] fee request hours that are excessive, redundant, or otherwise unnecessary.” 17 Hensley, 461 U.S. at 434. “Where the [applicant’s] documentation of hours is 18 inadequate, the district court may reduce the award accordingly.” Id. at 433. The 19 party opposing the fee application has the burden of rebuttal to submit evidence 20 challenging the fee application, including the accuracy and reasonableness of the 21 hours charged, requested hourly rate, and evidence submitted. See Gates v. 22 Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992). 23 1. Reasonable Hours 24 “By and large, the court should defer to the winning lawyer’s professional 25 judgment as to how much time he was required to spend on the case.” Moreno v. City 26 of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008); Blackwell v. Foley, 724 F. Supp. 27 2d 1068, 1081 (N.D. Cal. 2010) (“An attorney’s sworn testimony that, in fact, it took 28 the time claimed . . . is evidence of considerable weight on the issue of the time 1 required . . . .” (alterations in original; internal quotation marks omitted)). To deny 2 compensation, “it must appear that the time claimed is obviously and convincingly 3 excessive under the circumstances.” See Blackwell, 724 F. Supp. 2d at 1081. “The 4 presumption that attorneys’ claimed hours are reasonable is essential because ‘the 5 purposes of the [fee-shifting] statutes will not be met’ unless plaintiffs’ attorneys are 6 ‘reasonably compensated for all their time.’” Rutti v. Lojack Corp., No. SACV 7 06-00350-DOC (JCx), 2012 WL 3151077, at *2 (C.D. Cal. July 31, 2012) (quoting 8 Moreno, 534 F.3d at 1112). 9 Plaintiffs establish the reasonableness of their counsel’s hours through 10 declarations and detailed time records, which reflect a total attorney time expended of 11 206.9 hours spanning four years of litigation.3 Plaintiffs’ counsel exercised billing 12 judgment by “meticulously remov[ing] any time spent on [Dismissed] Plaintiffs,” 13 which included excising all hours spent related to the voluminous discovery 14 propounded specifically on Dismissed Plaintiffs. (Mot. 5; Decl. Michael A. McGill 15 (“McGill Decl.”) ¶ 22, ECF No. 81-1.) Additionally, Plaintiffs’ counsel seeks to 16 recover for the hours of only three attorneys: Michael A. McGill (30.9hrs), Samantha 17 M. Swanson (164hrs), and Brittany A. Broms (12hrs), demonstrating shrewd use of 18 resources over an extensive litigation history. (See Mot. 6; McGill Decl. ¶ 22.) The 19 Court has reviewed the time records and declarations submitted in support of the 20 hours expended and finds the records accurate and billed hours reasonable. See Rutti, 21 2012 WL 3151077, at *3 (finding hours expended “eminently reasonable” where 22 counsel exercised billing judgment by reducing the total lodestar and costs after 23 litigating for over six years). 24 The burden thus shifts to the City to rebut this reasonableness and accuracy 25 with evidence. See Gates, 987 F.2d at 1397–98. The City spends the great balance of 26 its opposition on its unmeritorious argument that the lodestar method should not 27 3 Although Plaintiffs indicate they anticipate another seven hours of attorney time in preparing the 28 reply brief, (Mot. 5), they submit no evidentiary support for this additional time, (see Reply, ECF No. 83). The Court therefore does not include this “expected” additional time in its analysis. 1 apply. (See Opp’n 1–3, 5–11.) In the two pages devoted to rebutting the hours 2 expended, the City argues (1) certain entries still reflect time spent on Dismissed 3 Plaintiffs, and (2) other entries are vague or block billed. (Opp’n 11–12.) The City’s 4 first argument fails, at the least because the identified entries reflect time benefitting 5 all Plaintiffs, including Settling Plaintiffs. See Pehle v. Dufour, No. 2:06-CV-1889- 6 EFB, 2014 WL 546115, at *3 (E.D. Cal. Feb. 11, 2014) (quoting Cabrales v. County 7 of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991)) (finding that plaintiffs should be 8 compensated for work that contributes to the ultimate success). 9 As to the City’s second point, the entries the City identifies as “block billed” do 10 not warrant reduction. (See Opp’n 12.) The entries to which the City points— 11 8.5 hours as “Began researching for the motion for summary judgment” and 12 10.0 hours as “Began preparing the motion for summary judgment”—are not the type 13 of block-billing that “prevent[s] the court from parsing the amount of time spent” on a 14 given task. See Robinson v. Open Top Sightseeing S.F., LLC, No. 14-CV-00852-PJH, 15 2018 WL 2088392, at *4 (N.D. Cal. May 4, 2018) (citing Welch v. Metro. Life Ins. 16 Co., 480 F.3d 942, 948 (9th Cir. 2007)) (discounting nineteen block billed time entries 17 totaling fifty hours for one reply, which grouped together drafting, editing, research, 18 review, conferencing, and emailing in a single time blocks). Furthermore, the Court 19 does not find the identified billed time unreasonable. The summary judgment motions 20 in this case were involved and nuanced, addressing multiple issues and layers of 21 legality, and warranted careful consideration. The Court therefore declines to reduce 22 the challenged “block billed” entries. 23 The Court agrees with the City, however, that it is unreasonable for Plaintiffs to 24 bill 4.5 hours of Attorney Swanson’s time as “Waited for Andy to finish filing.” 25 Therefore, the Court subtracts 4.5 hours from Swanson’s time and finds the resulting 26 total 202.4 hours reasonably expended. 27 28 1 2. Reasonable Rates 2 The fee applicant bears the burden to produce evidence that “the requested rates 3 are in line with those prevailing in the community for similar services by lawyers of 4 reasonably comparable skill, experience and reputation.” Camacho, 523 F.3d at 980. 5 The “relevant community is the forum in which the district court sits.” Gonzalez v. 6 City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013). Satisfactory evidence of the 7 prevailing market rate generally includes affidavits of the applicant’s “attorney and 8 other attorneys regarding prevailing fees in the community, and rate determinations in 9 other cases, particularly those setting a rate for the [applicant’s] attorney.” Hiken v. 10 Dep’t of Def., 836 F.3d 1037, 1044 (9th Cir. 2016). A district court may also “rely on 11 its own familiarity with the legal market.” Ingram v. Oroudjian, 647 F.3d 925, 928 12 (9th Cir. 2011). 13 Plaintiffs seek hourly rates of $625 for McGill, $450 for Swanson, and $350 for 14 Broms. (Mot. 6.) McGill and Broms submit declarations attesting to the propriety of 15 the requested hourly rates and their experience. (See McGill Decl. ¶¶ 7–21; Decl. 16 Brittany A. Broms (“Broms Decl.”) ¶¶ 7–13, ECF No. 81-2.) Swanson is no longer 17 with the law firm representing Plaintiffs and thus submits no declaration, although 18 McGill and Broms both attest to her experience and the reasonableness of her hourly 19 rate. (McGill Decl. ¶ 21; Broms Decl. ¶ 13.) The City does not appear to challenge 20 the requested rates. (See generally Opp’n.) 21 McGill has been a practicing attorney for seventeen years, with a focus almost 22 exclusively on public safety employees such as Plaintiffs. (McGill Decl. ¶¶ 7–9.) In 23 2013, a district court in the Central District of California approved an hourly rate for 24 McGill of $450 in a similar FLSA action; in another in 2018, the court approved $500, 25 finding a $50 increase was appropriate to account for the additional five years’ 26 experience. (See McGill Decl. ¶ 19, Ex. A at 12, Ex. B at 11.) McGill seeks $625 in 27 this case but fails to explain or support a $125 increase. Indeed, this litigation 28 commenced in 2017, just prior to the approval of $500 in 2018, suggesting something 1 closer to that rate is appropriate. Accordingly, in considering McGill’s background, 2 relevant experience, and the Court’s familiarity with the legal market, and in view of 3 McGill’s failure to support the requested increase, the Court concludes an hourly rate 4 of $525 for McGill is reasonable, in light of the intervening years. The Court has also 5 reviewed the qualifications of Swanson, a nine-year associate, and Broms, a four-year 6 associate, and concludes that the hourly rates requested are not unreasonable in this 7 case. (See McGill Decl. ¶ 21; Broms Decl. ¶ 13.) As such, the Court approves the 8 requested rates for Swanson of $450 per hour and Broms of $350 per hour. 9 The following lodestar calculation results: 10 McGill: 30.9 hours x $525 = $16,222.50 11 Swanson: 159.5 hours x $450 = $71,775.00 12 + Broms: 12.0 hours x $350 = $ 4,200.00 13 202.4 hours $92,197.50 lodestar figure 14 C. LODESTAR MODIFICATION 15 The lodestar figure is presumptively reasonable but the district court may 16 increase or decrease the lodestar amount in a rare or exceptional case. See Blum v. 17 Stenson, 465 U.S. 886, 898–901 (1984). 18 Plaintiffs do not seek an upward adjustment and the City does not expressly 19 seek a lodestar reduction. (Mot. 6 n.1; see generally Opp’n.) To the extent the City 20 contends Plaintiffs’ fee award should be reduced proportionately to the modest 21 damages recovered, (see Opp’n 6), the Court rejects such a proposition, see Thorne, 22 802 F.2d at 1143 (rejecting a requirement that attorneys’ fees in a civil rights case be 23 proportionate to the damages awarded); Rutti, 2012 WL 3151077, at *7 (collecting 24 cases recognizing that the same logic applies to attorneys’ fees in FLSA cases). 25 “[T]he correct standard is one of compensation for time reasonably expended.” 26 Thorne, 802 F.2d at 1143. “It must be remembered that an award of attorneys’ fees is 27 not a gift. It is just compensation for expenses actually incurred in vindicating a public 28 right.” Rutti, 2012 WL 3151077, at *7; see also id. at *2 (“Courts must award 1 appropriate compensation to ensure that competent counsel will take on cases that 2 seek to protect an important public right but may not be financially lucrative.” (citing 3 City of Burlington v. Dague, 505 U.S. 557 (1992))). 4 The Court has considered the relationship between the amount of the fee award 5 and the results obtained in this action, see Thorne, 802 F.2d at 1142, as well as other 6 factors not subsumed within the lodestar figure, see Camacho, 523 F.3d at 978.4 In 7 light of such consideration, the Court finds no reason to modify the presumptively 8 reasonable lodestar figure. 9 D. COSTS 10 Under the FLSA, the court “shall, in addition to any judgment awarded to the 11 plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, 12 and costs of the action.” 29 U.S.C. § 216(b). Litigation expenses are reimbursable as 13 part of the award for attorney fees if they are the types of expenses that an attorney 14 would include in a bill for professional services. See Missouri v. Jenkins, 491 U.S. 15 274, 285–89 (1989). 16 Plaintiffs seek to recover costs in the amount of $37,210.46,5 consisting of 17 filing fees, postage, mailing, transcript preparation, mediation fees, and expert 18 services. (See Mot. 8–9.) They submit an itemized breakdown of these expenses and 19 receipts for each entry, substantiating the claimed expenses. (McGill Decl. ¶ 25, 20 Ex. D.) The City disputes the expert expenses and argues the claimed $5,250 for 21

22 4 Those factors, also known as the Kerr factors, include: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service 23 properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the 24 client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, 25 reputation, and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. See Kerr v. Screen 26 Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). 5 This figure excludes two line-items that appear in the expense transaction breakdown, but which 27 are not noted in the moving papers or supported by receipts. (See McGill Decl. Ex. D at 1 (listing 28 $18.18 “Fed Ex,” and $1,750.00 “Invoice for Time and Expense 08/06/19–08/25/19 Attend/Review/ Write”).) As these two items are neither supported nor explained, the Court does not consider them. 1 || mediation should be reduced to exclude representation of Dismissed Plaintiffs. (Opp’n 13-14.) Regarding the fee for mediation, Plaintiffs’ counsel’s efforts at 3 | mediation benefitted the litigation for Plaintiffs as a whole and will not be reduced. 4|| As for the expert services, courts have found awarding such costs appropriate. See, 5 || e.g., Tenorio v. Gallardo, No. 1:16-cv-00283-DAD (JLTx), 2019 WL 3842892, at *6 6 || (E.D. Cal. Aug. 15, 2019). In this case, the disputed damages calculations were a 7 || critical and complicated issue; thus, it was reasonable for Plaintiffs’ counsel to rely on 8 || expert advice to compare and evaluate the City’s damages expert’s report. (See 9} McGill Decl. § 25.) The Court finds the requested costs substantiated and 10 || recoverable, and awards $37,210.46. 1] Vv. CONCLUSION 12 For the reasons discussed above, the Court GRANTS Plaintiffs’ Motion for 13 | Award of Reasonable Attorneys Fees. (ECF No. 81.) Plaintiffs are awarded 14 | $92,197.50 in fees and $37,210.46 in costs. 15 16 IT IS SO ORDERED. 17 18 November 23, 2021 oe . 19 SF en, ee 20 Ge : White 1 OTIS D. vas I UNITED STATES DISTRICT JUDGE

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