1 2 3 4 5 6 9 10 DAVID HASTINGS, Case No.: 19cv2217-BAS-MDD
11 Plaintiff, ORDER GRANTING 12 v. DEFENDANTS’ MOTION FOR REIMBURSEMENT OF 13 FORD MOTOR COMPANY and REASONABLE FEES INCURRED FORD OF CHULA VISTA, 14 IN OPPOSING PLAINTIFF’S Defendants. MOTION TO COMPEL 15
16 [ECF No. 86] 17 18 Before the Court is Defendants’ request for attorneys’ fees expended to 19 oppose Plaintiff’s motion to compel (ECF No. 63). (ECF No. 86). Plaintiff 20 does not oppose the motion and agrees to pay the requested fees totaling 21 $10,946. (ECF No. 90). 23 On April 2, 2021, the Court denied Plaintiff’s motion to compel 24 regarding twelve requests for production (“RFPs”). (ECF No. 73). The Court 25 found that Plaintiff failed to specifically address the RFPs at issue, was not 26 entitled to discovery relevant only to damages under the Song-Beverly Act, 1 Defendants. (See generally, id.). The Court ordered Plaintiff to show cause 2 why Plaintiff should not be required to reimburse Defendants’ reasonable 3 fees and expenses in opposing the motion to compel. (Id. at 8). After 4 reviewing the parties’ filings, the Court found that Plaintiff’s motion to 5 compel was not substantially justified and that no other circumstances made 6 an award or expenses unjust. (ECF No. 84 at 2). 7 Accordingly, on May 12, 2021, Defendants moved the Court for 8 reasonable expenses incurred in opposing Plaintiff’s motion to compel. (ECF 9 No. 86). Defendants seek a total award of $10,946. (ECF No. 86 at 7). 10 Plaintiff filed a statement of non-opposition on May 20, 2021 and agreed to 11 pay Defendants the requested $10,946 in fees. (ECF No. 90). 13 Pursuant to Federal Rule of Civil Procedure 37, if a motion to compel is 14 denied, the Court “must, after giving an opportunity to be heard, require the 15 movant, the attorney filing the motion, or both to pay the party . . . who 16 opposed the motion its reasonable expenses incurred in opposing the motion, 17 including attorney’s fees” unless “the motion was substantially justified or 18 other circumstances make an award or expenses unjust.” Fed. R. Civ. P. 19 37(a)(5)(B). 20 The Supreme Court has made clear that determining the appropriate 21 amount of attorneys’ fees “should not result in a second major litigation.” 22 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). In determining the size of a 23 fee award, “trial courts need not, and indeed should not, become green- 24 eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011). Courts should 25 not strive to “achieve auditing perfection” but should attempt “to do rough 26 justice.” Id. In so doing, courts may “take into account their overall sense of 1 attorney’s time.” Id. 2 Even though it is impossible to determine with mathematical precision 3 the amount of attorneys’ fees and costs incurred by one party as a direct 4 result of misconduct, courts must “abide by the injunction of the arithmetic 5 teacher: Show your work!” Padgett v. Loventhal, 706 F.3d 1205, 1208 (9th 6 Cir. 2013); Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183, 185 (9th 7 Cir. 1996). 8 In the Ninth Circuit, courts calculate awards for attorneys’ fees using 9 the “lodestar” method. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th 10 Cir. 2000) (citing Hensley, 461 U.S. at 433). “The ‘lodestar’ is calculated by 11 multiplying the number of hours the prevailing party reasonably expended on 12 the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 13 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad Credit Corp., 14 244 F.3d 1145, 1149 n.4 (2001)). The reasonableness of the hourly rate is 15 determined by the prevailing market rates in the community in which the 16 court sits, for similar litigation by attorneys of comparable experience, skill 17 and reputation. Blum v. Stenson, 465 U.S. 886, 895 and n.11 (1984). 19 Two firms, Schnader Harrison Segal & Lewis, LLP (“Schnader”) and 20 Huie Fernambucq & Stewart, LLP (“Huie”) worked on Defendants’ opposition 21 to Plaintiff’s motion to compel. (ECF No. 86 at 7). According to Defendants, 22 counsel of record, Schnader, incurred fees of $6,744 and outside discovery 23 counsel, Huie, incurred fees of $4,202. (Id.). Defendants request a total of 24 $10,946 in attorney fees. (Id.). 25 I. Reasonable Hourly Rate 26 Determination of a reasonable hourly rate requires consideration of 1 attorney requesting fees.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 2 (9th Cir. 2007) (quotation marks and citation omitted). “Affidavits of the 3 [moving] attorney and other attorneys regarding prevailing fees in the 4 community . . . are satisfactory evidence of the prevailing market rate.” 5 United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 6 1990). 7 At Schnader, attorneys Stephen Dye and Charles F. Harlow worked on 8 the opposition at issue. (ECF No. 86-1 ¶7). Mr. Dye serves as a partner, and 9 possesses over 38 years of experience practicing law in California. (Id. at 10 ¶¶1-4). His hourly billing rate to Ford in “lemon law” cases is $280. (Id. at 11 ¶4). Mr. Harlow is also a partner at Schnader, was admitted to the 12 California bar in 1999, and has gained substantial experience in automotive 13 consumer warranty and fraud litigation in recent years. (Id.). Mr. Harlow’s 14 hourly billing rate here is $225. (Id.). 15 At Huie, a partner, associate, and paralegal billed time for their work 16 opposing the motion to compel. (ECF No. 86-3 ¶10). Most of the fees 17 requested by Huie were incurred by Partner, John Isaac Southerland. Mr. 18 Southerland has an hourly rate of $290. (Id.). Fees were also incurred by 19 Huie Associate, Woods Parker, at an hourly rate of $200 and by Huie 20 Paralegal, Artley Young, at an hourly rate of $95. (Id.). 21 To support that Defendants’ counsel’s hourly rates are reasonable, 22 Defendants compare their own rates, all of which are under $290, with those 23 charged by one of the same firms representing Plaintiff in another “lemon 24 law” case against Ford Motor Company. (ECF No. 86-1 ¶33). Defendants 25 submitted the March 6, 2018 declaration of managing partner, Payam 26 Shahian, which lists hourly partner rates ranging between $570 to $650, and 1 that Plaintiff’s counsel requested even higher fees for attorneys with fewer 2 years of experience than Mr. Dye and Mr. Harlow. (ECF No. 86-1 ¶33). 3 The Court finds that Defendants have produced satisfactory evidence 4 that the hourly rates for its attorneys and staff are reasonable. The hourly 5 rates are supported by declarations from lead counsel at each firm that 6 worked on the motion and are consistent with this Court’s knowledge of the 7 rates charged in the San Diego community. Further, the requested rates do 8 not exceed those previously approved in other “lemon law” cases within this 9 District. See, e.g., Aispuro v. Ford Motor Co., No. 18-CV-2045 DMS (KSC), 10 2020 U.S. Dist.
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1 2 3 4 5 6 9 10 DAVID HASTINGS, Case No.: 19cv2217-BAS-MDD
11 Plaintiff, ORDER GRANTING 12 v. DEFENDANTS’ MOTION FOR REIMBURSEMENT OF 13 FORD MOTOR COMPANY and REASONABLE FEES INCURRED FORD OF CHULA VISTA, 14 IN OPPOSING PLAINTIFF’S Defendants. MOTION TO COMPEL 15
16 [ECF No. 86] 17 18 Before the Court is Defendants’ request for attorneys’ fees expended to 19 oppose Plaintiff’s motion to compel (ECF No. 63). (ECF No. 86). Plaintiff 20 does not oppose the motion and agrees to pay the requested fees totaling 21 $10,946. (ECF No. 90). 23 On April 2, 2021, the Court denied Plaintiff’s motion to compel 24 regarding twelve requests for production (“RFPs”). (ECF No. 73). The Court 25 found that Plaintiff failed to specifically address the RFPs at issue, was not 26 entitled to discovery relevant only to damages under the Song-Beverly Act, 1 Defendants. (See generally, id.). The Court ordered Plaintiff to show cause 2 why Plaintiff should not be required to reimburse Defendants’ reasonable 3 fees and expenses in opposing the motion to compel. (Id. at 8). After 4 reviewing the parties’ filings, the Court found that Plaintiff’s motion to 5 compel was not substantially justified and that no other circumstances made 6 an award or expenses unjust. (ECF No. 84 at 2). 7 Accordingly, on May 12, 2021, Defendants moved the Court for 8 reasonable expenses incurred in opposing Plaintiff’s motion to compel. (ECF 9 No. 86). Defendants seek a total award of $10,946. (ECF No. 86 at 7). 10 Plaintiff filed a statement of non-opposition on May 20, 2021 and agreed to 11 pay Defendants the requested $10,946 in fees. (ECF No. 90). 13 Pursuant to Federal Rule of Civil Procedure 37, if a motion to compel is 14 denied, the Court “must, after giving an opportunity to be heard, require the 15 movant, the attorney filing the motion, or both to pay the party . . . who 16 opposed the motion its reasonable expenses incurred in opposing the motion, 17 including attorney’s fees” unless “the motion was substantially justified or 18 other circumstances make an award or expenses unjust.” Fed. R. Civ. P. 19 37(a)(5)(B). 20 The Supreme Court has made clear that determining the appropriate 21 amount of attorneys’ fees “should not result in a second major litigation.” 22 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). In determining the size of a 23 fee award, “trial courts need not, and indeed should not, become green- 24 eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011). Courts should 25 not strive to “achieve auditing perfection” but should attempt “to do rough 26 justice.” Id. In so doing, courts may “take into account their overall sense of 1 attorney’s time.” Id. 2 Even though it is impossible to determine with mathematical precision 3 the amount of attorneys’ fees and costs incurred by one party as a direct 4 result of misconduct, courts must “abide by the injunction of the arithmetic 5 teacher: Show your work!” Padgett v. Loventhal, 706 F.3d 1205, 1208 (9th 6 Cir. 2013); Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183, 185 (9th 7 Cir. 1996). 8 In the Ninth Circuit, courts calculate awards for attorneys’ fees using 9 the “lodestar” method. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th 10 Cir. 2000) (citing Hensley, 461 U.S. at 433). “The ‘lodestar’ is calculated by 11 multiplying the number of hours the prevailing party reasonably expended on 12 the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 13 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad Credit Corp., 14 244 F.3d 1145, 1149 n.4 (2001)). The reasonableness of the hourly rate is 15 determined by the prevailing market rates in the community in which the 16 court sits, for similar litigation by attorneys of comparable experience, skill 17 and reputation. Blum v. Stenson, 465 U.S. 886, 895 and n.11 (1984). 19 Two firms, Schnader Harrison Segal & Lewis, LLP (“Schnader”) and 20 Huie Fernambucq & Stewart, LLP (“Huie”) worked on Defendants’ opposition 21 to Plaintiff’s motion to compel. (ECF No. 86 at 7). According to Defendants, 22 counsel of record, Schnader, incurred fees of $6,744 and outside discovery 23 counsel, Huie, incurred fees of $4,202. (Id.). Defendants request a total of 24 $10,946 in attorney fees. (Id.). 25 I. Reasonable Hourly Rate 26 Determination of a reasonable hourly rate requires consideration of 1 attorney requesting fees.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 2 (9th Cir. 2007) (quotation marks and citation omitted). “Affidavits of the 3 [moving] attorney and other attorneys regarding prevailing fees in the 4 community . . . are satisfactory evidence of the prevailing market rate.” 5 United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 6 1990). 7 At Schnader, attorneys Stephen Dye and Charles F. Harlow worked on 8 the opposition at issue. (ECF No. 86-1 ¶7). Mr. Dye serves as a partner, and 9 possesses over 38 years of experience practicing law in California. (Id. at 10 ¶¶1-4). His hourly billing rate to Ford in “lemon law” cases is $280. (Id. at 11 ¶4). Mr. Harlow is also a partner at Schnader, was admitted to the 12 California bar in 1999, and has gained substantial experience in automotive 13 consumer warranty and fraud litigation in recent years. (Id.). Mr. Harlow’s 14 hourly billing rate here is $225. (Id.). 15 At Huie, a partner, associate, and paralegal billed time for their work 16 opposing the motion to compel. (ECF No. 86-3 ¶10). Most of the fees 17 requested by Huie were incurred by Partner, John Isaac Southerland. Mr. 18 Southerland has an hourly rate of $290. (Id.). Fees were also incurred by 19 Huie Associate, Woods Parker, at an hourly rate of $200 and by Huie 20 Paralegal, Artley Young, at an hourly rate of $95. (Id.). 21 To support that Defendants’ counsel’s hourly rates are reasonable, 22 Defendants compare their own rates, all of which are under $290, with those 23 charged by one of the same firms representing Plaintiff in another “lemon 24 law” case against Ford Motor Company. (ECF No. 86-1 ¶33). Defendants 25 submitted the March 6, 2018 declaration of managing partner, Payam 26 Shahian, which lists hourly partner rates ranging between $570 to $650, and 1 that Plaintiff’s counsel requested even higher fees for attorneys with fewer 2 years of experience than Mr. Dye and Mr. Harlow. (ECF No. 86-1 ¶33). 3 The Court finds that Defendants have produced satisfactory evidence 4 that the hourly rates for its attorneys and staff are reasonable. The hourly 5 rates are supported by declarations from lead counsel at each firm that 6 worked on the motion and are consistent with this Court’s knowledge of the 7 rates charged in the San Diego community. Further, the requested rates do 8 not exceed those previously approved in other “lemon law” cases within this 9 District. See, e.g., Aispuro v. Ford Motor Co., No. 18-CV-2045 DMS (KSC), 10 2020 U.S. Dist. LEXIS 142806 at *11 (S.D. Cal. Aug. 10, 2020) (granting 11 plaintiffs’ counsel hourly rate of $350 for partners, $225 for associates, and 12 $200 for paralegals); Hellenberg v. Ford Motor Co., No. 18cv2202 JM (KSC), 13 2020 U.S. Dist. LEXIS 64303 at *4 (S.D. Cal. Apr. 10, 2020) (granting 14 plaintiff’s counsel’s hourly rates between $250 and $550). 15 II. Reasonably Expended Hours 16 Generally, the Court should defer to the winning lawyer’s professional 17 judgment as to how much time the case required. Costa v. Comm’r of Social 18 Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012). Counsel should exclude 19 hours that are “excessive, redundant, or otherwise unnecessary” and the 20 Court should decrease the hours that were not “reasonably expended.” 21 Hensley, 461 U.S. at 434. A district court “may not uncritically accept a fee 22 request,” and is obligated to review the time billed and assess whether it is 23 reasonable in light of the work performed and the context of the case. 24 Common Cause v. Jones, 235 F. Supp. 2d 1076, 1079 (C.D. Cal. 2002). 25 Defendants limit their request for reimbursement to time spent 26 between the date Plaintiff filed the motion to compel, March 12, 2021, and 1 at 7). Defendants explain that opposing Plaintiff’s motion was particularly 2 time consuming because Plaintiff’s motion to compel did not specifically 3 address the RFPs at issue, and instead made other discovery demands. (Id.). 4 This required Defendants to both address the specific issues raised by the the 5 RFPs at issue, which would have posed an extreme burden on Ford if 6 granted, and address the discovery demands made in Plaintiff’s moving 7 papers. (Id.). 8 Schnader’s work on the opposition consisted of reviewing and analyzing 9 the motion, and participating in preparing the draft opposition papers, 10 revisions, and final opposition papers. (ECF No. 86-1 at ¶8). Mr. Dye billed 11 2.1 hours on the initial review and analysis of the moving papers, the history 12 of the discovery dispute, and the review and revision of the Declaration of 13 Counsel filed on March 19, 2021 (ECF No. 67). (ECF No. 86-1 at ¶8). Mr. 14 Dye also billed 6.4 hours between March 22 and March 30, 2021 for review, 15 revision and final preparation of the opposition papers, for a total of 8.5 16 hours. (Id.). Mr. Harlow billed for a total of 19.4 hours. (Id. at ¶9). 17 Specifically, Mr. Harlow billed 5.3 hours to prepare the Declaration of 18 Counsel filed on March 19, 2021, and 14.1 hours for “further analysis of the 19 moving papers, preparation of the draft opposition brief, the declararation of 20 counsel, exhibits, revisions to the opposition papers, and final preparation of 21 the opposition papers.” (Id.). 22 Defendants explain that involving the Huie firm, which has experience 23 and expertise in Ford discovery matters, enabled them to more efficiently 24 prepare Defendants’ opposition. (Id. at 8). Huie’s work on the opposition 25 consisted of “analyzing the motion itself to assist with determining the issues 26 in dispute, participation in preparing the response, and preparation of 1 ||Southerland] prepared to address the undue burden on Ford should Plaintiff 9 ||be granted the relief requested.” (ECF No. 86-3 at 98). Accordingly, Huie 3 Partner, John Isaac Southerland, billed 12.7 hours at his hourly rate of $290; 4 || Associate, Woods Parker, billed approximately 2.3 hours at the hourly rate of 5 || $200; and Paralegal, Artley Young, billed approximately 0.6 hours at the G || houly rate of $95. Ud. at 410). Mr. Southerland further attested that all 7 || time expended on this motion was necessary, and that the rates charged are g ||reasonable within this jurisdiction for attorneys and professionals of like 9 ||experience and expertise. (/d. at 412). 10 Upon review of the hours submitted by Defendants’ counsel, the Court 11 finds that the hours expended in responding to this motion were not 12 ||excessive, redundant, or otherwise unnecessary. Accordingly, Defendants 13 |}expended a reasonable number of hours opposing Plaintiff's motion to compel. 15 Based on the foregoing, the Court GRANTS Defendants’ request for 16 |;attorneys’ fees and ORDERS Plaintiff to pay fees of $10,946 within 30 days 17 this order. Dated: May 26, 2021 + uk | [ Hon. Mitchell D. Dembin 21 United States Magistrate Judge 22 23 24 25 26 27