1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ANN MARILYN LEMBERG, Case No. 17-cv-06641-MMC
9 Plaintiff, ORDER GRANTING DEFERRED 10 v. PART OF DEFENDANT’S REQUEST FOR ATTORNEY’S FEES 11 SAN FRANCISCO OPERA ASSOCIATION, 12 Defendant. 13 14 On June 16, 2020, defendant San Francisco Opera Association (“the Opera”) filed 15 a “Motion to Enforce Settlement,” whereby the Opera contended it entered into a 16 confidential settlement agreement (“the Settlement”) with plaintiff Ann Lemberg 17 (“Lemberg”) and sought an order enforcing the terms thereof, as well as an award of 18 19 attorney’s fees incurred in connection with said motion. 20 By order filed August 24, 2020, the Court granted the Opera’s motion, finding the 21 parties had entered an enforceable settlement agreement and that said Settlement 22 provided for an award of attorney’s fees to the party prevailing on a motion to enforce its 23 terms. The Court, however, denied a portion of the fees requested by the Opera, 24 deferred ruling on the Opera’s request for the balance of the fees it sought, specifically, 25 26 fees in the amount of $14,750, and directed the Opera to file a “supplemental declaration 27 providing a detailed breakdown as to how those hours were expended.” (See Order, filed On August 31, 2020, the Opera’s counsel (hereinafter, “counsel”) filed a 1 2 supplemental declaration, attaching thereto a table identifying the tasks he performed 3 and the hours expended on those tasks. Having read and considered said additional 4 submission, the Court hereby rules as follows. 5 The prevailing party in an action to enforce a contract may recover “reasonable 6 attorney’s fees” where, as here, “the contract specifically provides that attorney’s fees 7 and costs, which are incurred to enforce that contract, shall be awarded either to one of 8 the parties or to the prevailing party.” See Cal. Civ. Code § 1717 (providing “[r]easonable 9 10 attorney’s fees shall be fixed by the court”); (Doc. No. 86, Ex. A (Settlement) ¶ 24 11 (providing that, “[i]n the event any action is brought to enforce the terms of this Release 12 and Settlement Agreement or to obtain compensation for any breach of its terms, the 13 prevailing party shall be entitled to recover all attorney’s fees and costs reasonably 14 incurred in prosecuting or defending any such action”); see also Tiger Bay Village Corp. 15 v. Yihe Corp., No. 13-cv-8837-RSWL, 2014 WL 3662259 at *7 (C.D. Cal. July 18, 2014) 16 (applying Cal. Civ. Code § 1717; awarding attorney’s fees incurred in connection with 17 18 motion to enforce). 19 When calculating an award of attorney’s fees, courts use the “lodestar” method, 20 whereby the Court multiplies the number of hours reasonably expended by a reasonable 21 hourly rate. See PLCM Grp. v. Drexler, 22 Cal. 4th 1084, 1095 (2000). The Court has 22 “broad authority” to determine the amount of a reasonable fee, and the Court “may make 23 its own determination of the value of the services,” taking into consideration factors such 24 25 as “the nature of the litigation, its difficulty, the amount involved, the skill required in its 26 handling, the skill employed, the attention given, the success or failure, and other 27 circumstances in the case.” See id. at 1096 (holding “[i]t is well established that the of the trial court”). 1 2 Here, counsel states in his supplemental declaration that he has “expended in 3 excess of . . . 68.9 hours” in connection with the motion to enforce and “matters related to 4 the motion to enforce,” all such work billed at the rate of “$295/hour.” (See Castricone 5 Supp. Dec. at 2:15-19.) Based thereon, the Opera now requests an award of fees in the 6 amount of $20,325.50. 7 Turning to the requested hourly rate, counsel states he has worked “almost 29 8 years as a practicing attorney” and that the $295 per hour rate charged in this matter “is 9 10 set by [his] agreed upon rates with [his] client’s insurer” and is “far below [his] normal 11 non-insurance billing rates.” (See Castricone Supp. Dec. ¶ 7.) Given counsel’s 12 experience, the Court finds an hourly rate of $295 per hour is reasonable. 13 As to the hours expended by counsel, however, the Court finds, for the reasons 14 set forth below, many of the hours claimed by the Opera exceed those reasonably 15 necessary to enforce the settlement. 16 First, 18.3 of the hours expended preparing the motion to enforce were spent 17 18 reviewing hundreds of emails and voicemails sent “over a several month period” (see 19 Castricone Supp. Dec. at 5:1), including communications “regarding historical settlement 20 discussions, offers/demands, terms and conditions leading up to various draft settlement 21 agreements” (see id. at 4:23-25). The motion to enforce, however, was not based on 22 such “historical” negotiations stretching over a period of months, but rather on the 23 Opera’s final settlement offer sent December 31, 2019, Lemberg’s acceptance sent that 24 25 same day, and a small number of clarifying communications sent in the days immediately 26 thereafter. Indeed, of the exhibits submitted by the Opera in support of the motion to 27 enforce, the vast majority were emails sent between December 30, 2019, and January 9, the settlement relied exclusively on that evidence. Moreover, as of January 14, 2020, 1 2 well before he began working on the motion to enforce, counsel had already compiled the 3 set of relevant communications. (See Doc. No. 86 (Castricone Dec., Ex. U).) 4 Accordingly, the Court finds only two hours were reasonably necessary to review the 5 communications upon which the motion was based. 6 As to the remainder of the hours expended in the preparation of the motion to 7 enforce, specifically, 0.6 hours outlining the motion, 2.8 hours conducting legal research, 8 8.9 hours drafting the motion, 2.7 hours drafting counsel’s declaration in support of the 9 10 motion, and 2.8 hours drafting the sealing motion accompanying the motion to enforce, 11 the Court finds those 17.8 hours were reasonably expended. 12 Next, with regard to the 10.4 hours expended reviewing Lemberg’s opposition 13 filings and preparing the Opera’s reply thereto, the Court notes that approximately one 14 third of the reply brief addresses procedural defects in those filings. As a pro se litigant, 15 however, Lemberg is entitled to some latitude as to the procedural rules, see Draper v. 16 Coombs, 792 F.2d 915, 924 (9th Cir.1986), and, to the extent she significantly departed 17 18 therefrom, such as her failure to provide a declaration, any such deficiency required a 19 minimum of discussion. The Court thus finds the time spent in addressing procedural 20 defects was not reasonably expended. Accordingly, the Court will deduct one third of the 21 hours expended by counsel on the reply. 22 The remainder of the hours for which the Opera seeks fees pertain, with limited 23 exception, to (1) conducting and reviewing out-of-court communications between 24 25 Lemberg and counsel or the Opera, (2) ancillary motions filed by Lemberg and the 26 Opera, and (3) the instant request for fees. 1 27 With regard to out-of-court communications, the vast majority of such exchanges 1 2 do not relate to the motion to enforce, but rather to peripheral disputes between Lemberg 3 and counsel, other motions filed in the case, and attempts to resolve the instant action by 4 means other than the motion to enforce. Although the balance constitutes exchanges 5 regarding enforcement and fees, the value of any such exchange is neither explained nor 6 otherwise apparent.
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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ANN MARILYN LEMBERG, Case No. 17-cv-06641-MMC
9 Plaintiff, ORDER GRANTING DEFERRED 10 v. PART OF DEFENDANT’S REQUEST FOR ATTORNEY’S FEES 11 SAN FRANCISCO OPERA ASSOCIATION, 12 Defendant. 13 14 On June 16, 2020, defendant San Francisco Opera Association (“the Opera”) filed 15 a “Motion to Enforce Settlement,” whereby the Opera contended it entered into a 16 confidential settlement agreement (“the Settlement”) with plaintiff Ann Lemberg 17 (“Lemberg”) and sought an order enforcing the terms thereof, as well as an award of 18 19 attorney’s fees incurred in connection with said motion. 20 By order filed August 24, 2020, the Court granted the Opera’s motion, finding the 21 parties had entered an enforceable settlement agreement and that said Settlement 22 provided for an award of attorney’s fees to the party prevailing on a motion to enforce its 23 terms. The Court, however, denied a portion of the fees requested by the Opera, 24 deferred ruling on the Opera’s request for the balance of the fees it sought, specifically, 25 26 fees in the amount of $14,750, and directed the Opera to file a “supplemental declaration 27 providing a detailed breakdown as to how those hours were expended.” (See Order, filed On August 31, 2020, the Opera’s counsel (hereinafter, “counsel”) filed a 1 2 supplemental declaration, attaching thereto a table identifying the tasks he performed 3 and the hours expended on those tasks. Having read and considered said additional 4 submission, the Court hereby rules as follows. 5 The prevailing party in an action to enforce a contract may recover “reasonable 6 attorney’s fees” where, as here, “the contract specifically provides that attorney’s fees 7 and costs, which are incurred to enforce that contract, shall be awarded either to one of 8 the parties or to the prevailing party.” See Cal. Civ. Code § 1717 (providing “[r]easonable 9 10 attorney’s fees shall be fixed by the court”); (Doc. No. 86, Ex. A (Settlement) ¶ 24 11 (providing that, “[i]n the event any action is brought to enforce the terms of this Release 12 and Settlement Agreement or to obtain compensation for any breach of its terms, the 13 prevailing party shall be entitled to recover all attorney’s fees and costs reasonably 14 incurred in prosecuting or defending any such action”); see also Tiger Bay Village Corp. 15 v. Yihe Corp., No. 13-cv-8837-RSWL, 2014 WL 3662259 at *7 (C.D. Cal. July 18, 2014) 16 (applying Cal. Civ. Code § 1717; awarding attorney’s fees incurred in connection with 17 18 motion to enforce). 19 When calculating an award of attorney’s fees, courts use the “lodestar” method, 20 whereby the Court multiplies the number of hours reasonably expended by a reasonable 21 hourly rate. See PLCM Grp. v. Drexler, 22 Cal. 4th 1084, 1095 (2000). The Court has 22 “broad authority” to determine the amount of a reasonable fee, and the Court “may make 23 its own determination of the value of the services,” taking into consideration factors such 24 25 as “the nature of the litigation, its difficulty, the amount involved, the skill required in its 26 handling, the skill employed, the attention given, the success or failure, and other 27 circumstances in the case.” See id. at 1096 (holding “[i]t is well established that the of the trial court”). 1 2 Here, counsel states in his supplemental declaration that he has “expended in 3 excess of . . . 68.9 hours” in connection with the motion to enforce and “matters related to 4 the motion to enforce,” all such work billed at the rate of “$295/hour.” (See Castricone 5 Supp. Dec. at 2:15-19.) Based thereon, the Opera now requests an award of fees in the 6 amount of $20,325.50. 7 Turning to the requested hourly rate, counsel states he has worked “almost 29 8 years as a practicing attorney” and that the $295 per hour rate charged in this matter “is 9 10 set by [his] agreed upon rates with [his] client’s insurer” and is “far below [his] normal 11 non-insurance billing rates.” (See Castricone Supp. Dec. ¶ 7.) Given counsel’s 12 experience, the Court finds an hourly rate of $295 per hour is reasonable. 13 As to the hours expended by counsel, however, the Court finds, for the reasons 14 set forth below, many of the hours claimed by the Opera exceed those reasonably 15 necessary to enforce the settlement. 16 First, 18.3 of the hours expended preparing the motion to enforce were spent 17 18 reviewing hundreds of emails and voicemails sent “over a several month period” (see 19 Castricone Supp. Dec. at 5:1), including communications “regarding historical settlement 20 discussions, offers/demands, terms and conditions leading up to various draft settlement 21 agreements” (see id. at 4:23-25). The motion to enforce, however, was not based on 22 such “historical” negotiations stretching over a period of months, but rather on the 23 Opera’s final settlement offer sent December 31, 2019, Lemberg’s acceptance sent that 24 25 same day, and a small number of clarifying communications sent in the days immediately 26 thereafter. Indeed, of the exhibits submitted by the Opera in support of the motion to 27 enforce, the vast majority were emails sent between December 30, 2019, and January 9, the settlement relied exclusively on that evidence. Moreover, as of January 14, 2020, 1 2 well before he began working on the motion to enforce, counsel had already compiled the 3 set of relevant communications. (See Doc. No. 86 (Castricone Dec., Ex. U).) 4 Accordingly, the Court finds only two hours were reasonably necessary to review the 5 communications upon which the motion was based. 6 As to the remainder of the hours expended in the preparation of the motion to 7 enforce, specifically, 0.6 hours outlining the motion, 2.8 hours conducting legal research, 8 8.9 hours drafting the motion, 2.7 hours drafting counsel’s declaration in support of the 9 10 motion, and 2.8 hours drafting the sealing motion accompanying the motion to enforce, 11 the Court finds those 17.8 hours were reasonably expended. 12 Next, with regard to the 10.4 hours expended reviewing Lemberg’s opposition 13 filings and preparing the Opera’s reply thereto, the Court notes that approximately one 14 third of the reply brief addresses procedural defects in those filings. As a pro se litigant, 15 however, Lemberg is entitled to some latitude as to the procedural rules, see Draper v. 16 Coombs, 792 F.2d 915, 924 (9th Cir.1986), and, to the extent she significantly departed 17 18 therefrom, such as her failure to provide a declaration, any such deficiency required a 19 minimum of discussion. The Court thus finds the time spent in addressing procedural 20 defects was not reasonably expended. Accordingly, the Court will deduct one third of the 21 hours expended by counsel on the reply. 22 The remainder of the hours for which the Opera seeks fees pertain, with limited 23 exception, to (1) conducting and reviewing out-of-court communications between 24 25 Lemberg and counsel or the Opera, (2) ancillary motions filed by Lemberg and the 26 Opera, and (3) the instant request for fees. 1 27 With regard to out-of-court communications, the vast majority of such exchanges 1 2 do not relate to the motion to enforce, but rather to peripheral disputes between Lemberg 3 and counsel, other motions filed in the case, and attempts to resolve the instant action by 4 means other than the motion to enforce. Although the balance constitutes exchanges 5 regarding enforcement and fees, the value of any such exchange is neither explained nor 6 otherwise apparent. Consequently, the Court finds the time attributed to engaging in or 7 reviewing out-of-court communications was not reasonably expended in prosecuting the 8 motion to enforce. 9 10 As to ancillary motions, specifically, Lemberg’s motions to amend, the Opera’s 11 motion to strike, Lemberg’s motions for extension of time to file opposition, and the 12 Opera’s motions to seal Lemberg’s filings, the Court finds the first two are unrelated to 13 the motion to enforce, and, as to the second two, that 1.5 hours were reasonably 14 expended. 15 With regard to time spent on the instant fee request, counsel states he spent 4.3 16 hours reviewing invoices and preparing his supplemental declaration. As over half of the 17 18 entries for which counsel seeks reimbursement relate to extraneous motions and 19 communications that were not reasonably necessary to prosecuting the motion to 20 enforce, the Court will deduct half of the hours attributed to preparation of the instant fee 21 request. 22 Lastly, to the extent Lemberg, in opposing the motion to enforce, contends her 23 financial circumstances justify denial of the Opera’s request for fees, the Court is not 24 25 he expended 3 hours communicating with the Opera, arranging service of an unredacted 26 version of the motion to enforce, reviewing court orders relating to the motion to enforce and sealing motion that accompanied it, and reviewing “notices” (see Doc. Nos. 120, 121) 27 Lemberg filed relating to the motion to enforce. Of those 3 hours, the Court finds 1 hour 4 persuaded. Rather, the Court finds persuasive the reasoning set forth by the California 2 || Court of Appeal in Walker v. Ticor Title Co. of California, 204 Cal. App. 4th 363 (2012). 3 || See id. at 373 (holding, where attorney's fees sought pursuant to contract, “a losing 4 || party’s financial condition should not be considered in setting the amount of such an award’; distinguishing statutory fees). In particular, “unlike statutory fees, contractual 8 fees are voluntarily incurred,” both parties having “chose[n] to enter into an agreement” providing for such an award. See id. Moreover, even assuming the Court has discretion
9 to consider Lemberg's financial circumstances, the Court finds, in light of the lengthy 10 || negotiations preceding the settlement and Lemberg’s active participation therein, both 11 parties should be bound by the terms on which they agreed. 12 In sum, the Court finds the Opera is entitled to fees attributable to 31.5 hours of £ work at the rate of $295 per hour. 414 z 16 Accordingly, the Opera’s request for attorney's fees is hereby GRANTED, and the 16 Opera is hereby AWARDED attorney’s fees in the amount of $9292.50. 5 17 IT IS SO ORDERED. 18 Dated: September 4, 2020 [iyfinn LY Chase 19 MAXINE M. CHESNEY United States District Judge 20 21 22 23 24 25 26 27 28