1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PAMELA DENISE PRINGLE, No. 2:18-cv-02035 WBS KJN 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS 15 BRENT CARDALL, COUNTY OF YOLO, YOLO COUNTY PROBATION 16 DEPARTMENT, SANDY JONES, AMANDA GENTRY, NOEL BARLOW-HUST, CINDY 17 McDONALD, MARK ALAN KUBINSKI, ELISA SUE MAGNUSON, JOHN DOES 1- 18 20, and JANE DOES 1-20, inclusive, 19 Defendants. 20
21 ----oo0oo---- 22 Following the clerk’s entry of default against him, 23 defendant Anthony Pennella (“defendant”) moved this court to set 24 aside the entry of default. (Docket No. 105.) The court granted 25 that motion on the condition that defendant pay the attorney’s 26 fees and costs associated with plaintiff’s preparation of an 27 opposition to that motion (“Opposition” or “plaintiff’s 28 Opposition”). (See Docket No. 110.) The court previously set 1 forth the legal basis for that ruling as well as the factual and 2 procedural events that precipitated it. (Id.) The court now 3 turns to the amount of plaintiff’s attorney’s fees and costs to 4 be paid by defendant. 5 In calculating the amount of an award of attorney’s 6 fees, the court will use a lodestar calculation, i.e., the number 7 of hours reasonably expended on the litigation multiplied by a 8 reasonable hourly rate. Allen v. Shalala, 48 F.3d 456, 458 (9th 9 Cir. 1995). There is a strong presumption that the lodestar 10 amount is reasonable. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 11 1119 n.4 (9th Cir. 2000) (citation omitted). However, the court 12 may adjust the lodestar figure if various factors overcome the 13 presumption of reasonableness.1 Hensley v. Eckerhart, 461 U.S. 14 424, 434 (1983). 15 I. Number of Hours Reasonably Expended 16 Plaintiff requests that the court award 24.4 hours of 17 attorney’s fees in connection with the preparation of her 18 1 The court may adjust the lodestar figure on the basis 19 of the Kerr factors:
20 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill 21 requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due 22 to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time 23 limitations imposed by the client or the circumstances, (8) the amount involved and the results 24 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the 25 case, (11) the nature and length of the professional relationship with the client, and (12) awards in 26 similar cases.
27 Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975). 28 1 Opposition, which would result in a lodestar value of $6,832.00. 2 (See Aff. of Hans W. Herb (“Herb Aff.”) (Docket No. 111-1).) 3 Defendant opposes plaintiff’s request on two grounds. First, 4 defendant argues that plaintiff should not recover any attorney’s 5 fees because plaintiff cannot show that her attorney performed 6 any work associated with the preparation of the Opposition. (See 7 Def.’s Mem. P. & A. Opp’n Pl.’s Fee Req. at 3-6 (“Def.’s Opp’n”) 8 (Docket No. 112).) Second, defendant requests that certain fee 9 entries be stricken or reduced in the event that the court 10 refuses to deny plaintiff’s fee request in its entirety. (See 11 id. at 6-7.) 12 A. Evidence of Plaintiff’s Counsel’s Work 13 Defendant argues that plaintiff’s entire fee request 14 should be denied because it appears that plaintiff herself 15 drafted the Opposition. (See id.) 16 To establish that a party is entitled to attorney’s 17 fees and costs, “the burden of proof is on the party seeking the 18 fee award.” Diamond v. John Martin Co., 753 F.2d 1465, 1467 (9th 19 Cir. 1985). Defendant argues that plaintiff has not met this 20 burden because the affidavit of plaintiff’s attorney submitted in 21 support of her motion does not expressly state that it was 22 plaintiff’s counsel who did the work on the Opposition of the 23 motion to set aside the default. (Herb Aff. ¶ 2.) Defendant 24 also points to the Opposition’s overall quality and 25 unprofessional tone, communications between counsel where 26 plaintiff’s counsel stated that he “still represent[s] 27 [plaintiff] in the Sacramento case, but primarily as her attorney 28 of record,” and the fact that plaintiff’s counsel at one point 1 attempted to withdraw as counsel as evidence that plaintiff’s 2 counsel did not himself draft plaintiff’s Opposition. (See 3 Def.’s Opp’n at 4-5.) 4 From the materials presented by plaintiff’s counsel, 5 the court presumes that he, and not his client, performed the 6 work on the Opposition. Plaintiff’s counsel’s affidavit 7 expressly states that attached billing records accurately reflect 8 the work performed in drafting the Opposition. (See Herb Aff. ¶ 9 2.) These billing records were printed on letterhead reading 10 “Law Offices of Hans W. Herb,” and were addressed to plaintiff 11 for legal services rendered. (See Herb Aff. Ex. A.) These 12 records appear to accurately describe the tasks necessary to 13 prepare plaintiff’s Opposition to Defendant’s Motion to Set Aside 14 Default. See Diamond, 753 F.2d at 1467. 15 Moreover, in the same email where plaintiff’s counsel 16 states that he is “primarily” representing plaintiff as her 17 attorney of record, plaintiff’s counsel expressly states, “I did 18 submit opposition to the motion to have [defendant’s] default set 19 aside last week.” (Def.’s Opp’n at 5.) The court therefore 20 concludes that plaintiff is eligible to receive attorney’s fees 21 and costs associated with her Opposition. 22 B. Scope of Recoverable Hours and Costs 23 Defendant further argues that certain entries in the 24 billing records attached to plaintiff’s counsel’s declaration 25 should be stricken or reduced. In an entry for 4.8 hours of work 26 on September 2, 2020, plaintiff seeks to recover fees and costs 27 associated with the preparation of a “Supplemental Declaration of 28 Pamela Pringle in support of Opposition, including Exhibits.” 1 (Herb Aff. at 2.) This “Supplemental Declaration” was 2 essentially a sur-reply, as it was filed after all the moving 3 papers in support of and opposition to Defendant’s Motion to Set 4 Aside Default had been filed. (See Docket Nos. 105-109.) 5 “Although the court in its discretion [may] allow the filing of a 6 sur-reply, this discretion should be exercised in favor of 7 allowing a sur-reply only where a valid reason for such 8 additional briefing exists.” Johnson v. Wennes, No. 08-cv-1798, 9 2009 WL 1161620, at *2 (S.D. Cal. April 28, 2009). Plaintiff 10 never requested the court’s permission to file a sur-reply. 11 Accordingly, the court will disallow plaintiff’s September 2, 12 2020 entry. Because plaintiff only requested fees for half of 13 the 4.8 hours recorded for this entry, the court will reduce 14 plaintiff’s fee request by 2.4 hours. 15 Plaintiff further requests fees for 0.9 hours of work 16 on September 3, 2020 for “Review Order by Senior Judge William B. 17 Shubb granting Defendant Pennella’s Motion to Set Aside Default 18 conditioned on payment of Plaintiff’s attorney’s fees and costs 19 associated with the preparation of Plaintiff’s Opposition; 20 conference with Client regarding same.” (Herb Aff.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PAMELA DENISE PRINGLE, No. 2:18-cv-02035 WBS KJN 13 Plaintiff, 14 v. ORDER RE: PLAINTIFF’S MOTION FOR ATTORNEY FEES AND COSTS 15 BRENT CARDALL, COUNTY OF YOLO, YOLO COUNTY PROBATION 16 DEPARTMENT, SANDY JONES, AMANDA GENTRY, NOEL BARLOW-HUST, CINDY 17 McDONALD, MARK ALAN KUBINSKI, ELISA SUE MAGNUSON, JOHN DOES 1- 18 20, and JANE DOES 1-20, inclusive, 19 Defendants. 20
21 ----oo0oo---- 22 Following the clerk’s entry of default against him, 23 defendant Anthony Pennella (“defendant”) moved this court to set 24 aside the entry of default. (Docket No. 105.) The court granted 25 that motion on the condition that defendant pay the attorney’s 26 fees and costs associated with plaintiff’s preparation of an 27 opposition to that motion (“Opposition” or “plaintiff’s 28 Opposition”). (See Docket No. 110.) The court previously set 1 forth the legal basis for that ruling as well as the factual and 2 procedural events that precipitated it. (Id.) The court now 3 turns to the amount of plaintiff’s attorney’s fees and costs to 4 be paid by defendant. 5 In calculating the amount of an award of attorney’s 6 fees, the court will use a lodestar calculation, i.e., the number 7 of hours reasonably expended on the litigation multiplied by a 8 reasonable hourly rate. Allen v. Shalala, 48 F.3d 456, 458 (9th 9 Cir. 1995). There is a strong presumption that the lodestar 10 amount is reasonable. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 11 1119 n.4 (9th Cir. 2000) (citation omitted). However, the court 12 may adjust the lodestar figure if various factors overcome the 13 presumption of reasonableness.1 Hensley v. Eckerhart, 461 U.S. 14 424, 434 (1983). 15 I. Number of Hours Reasonably Expended 16 Plaintiff requests that the court award 24.4 hours of 17 attorney’s fees in connection with the preparation of her 18 1 The court may adjust the lodestar figure on the basis 19 of the Kerr factors:
20 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill 21 requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due 22 to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time 23 limitations imposed by the client or the circumstances, (8) the amount involved and the results 24 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the 25 case, (11) the nature and length of the professional relationship with the client, and (12) awards in 26 similar cases.
27 Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975). 28 1 Opposition, which would result in a lodestar value of $6,832.00. 2 (See Aff. of Hans W. Herb (“Herb Aff.”) (Docket No. 111-1).) 3 Defendant opposes plaintiff’s request on two grounds. First, 4 defendant argues that plaintiff should not recover any attorney’s 5 fees because plaintiff cannot show that her attorney performed 6 any work associated with the preparation of the Opposition. (See 7 Def.’s Mem. P. & A. Opp’n Pl.’s Fee Req. at 3-6 (“Def.’s Opp’n”) 8 (Docket No. 112).) Second, defendant requests that certain fee 9 entries be stricken or reduced in the event that the court 10 refuses to deny plaintiff’s fee request in its entirety. (See 11 id. at 6-7.) 12 A. Evidence of Plaintiff’s Counsel’s Work 13 Defendant argues that plaintiff’s entire fee request 14 should be denied because it appears that plaintiff herself 15 drafted the Opposition. (See id.) 16 To establish that a party is entitled to attorney’s 17 fees and costs, “the burden of proof is on the party seeking the 18 fee award.” Diamond v. John Martin Co., 753 F.2d 1465, 1467 (9th 19 Cir. 1985). Defendant argues that plaintiff has not met this 20 burden because the affidavit of plaintiff’s attorney submitted in 21 support of her motion does not expressly state that it was 22 plaintiff’s counsel who did the work on the Opposition of the 23 motion to set aside the default. (Herb Aff. ¶ 2.) Defendant 24 also points to the Opposition’s overall quality and 25 unprofessional tone, communications between counsel where 26 plaintiff’s counsel stated that he “still represent[s] 27 [plaintiff] in the Sacramento case, but primarily as her attorney 28 of record,” and the fact that plaintiff’s counsel at one point 1 attempted to withdraw as counsel as evidence that plaintiff’s 2 counsel did not himself draft plaintiff’s Opposition. (See 3 Def.’s Opp’n at 4-5.) 4 From the materials presented by plaintiff’s counsel, 5 the court presumes that he, and not his client, performed the 6 work on the Opposition. Plaintiff’s counsel’s affidavit 7 expressly states that attached billing records accurately reflect 8 the work performed in drafting the Opposition. (See Herb Aff. ¶ 9 2.) These billing records were printed on letterhead reading 10 “Law Offices of Hans W. Herb,” and were addressed to plaintiff 11 for legal services rendered. (See Herb Aff. Ex. A.) These 12 records appear to accurately describe the tasks necessary to 13 prepare plaintiff’s Opposition to Defendant’s Motion to Set Aside 14 Default. See Diamond, 753 F.2d at 1467. 15 Moreover, in the same email where plaintiff’s counsel 16 states that he is “primarily” representing plaintiff as her 17 attorney of record, plaintiff’s counsel expressly states, “I did 18 submit opposition to the motion to have [defendant’s] default set 19 aside last week.” (Def.’s Opp’n at 5.) The court therefore 20 concludes that plaintiff is eligible to receive attorney’s fees 21 and costs associated with her Opposition. 22 B. Scope of Recoverable Hours and Costs 23 Defendant further argues that certain entries in the 24 billing records attached to plaintiff’s counsel’s declaration 25 should be stricken or reduced. In an entry for 4.8 hours of work 26 on September 2, 2020, plaintiff seeks to recover fees and costs 27 associated with the preparation of a “Supplemental Declaration of 28 Pamela Pringle in support of Opposition, including Exhibits.” 1 (Herb Aff. at 2.) This “Supplemental Declaration” was 2 essentially a sur-reply, as it was filed after all the moving 3 papers in support of and opposition to Defendant’s Motion to Set 4 Aside Default had been filed. (See Docket Nos. 105-109.) 5 “Although the court in its discretion [may] allow the filing of a 6 sur-reply, this discretion should be exercised in favor of 7 allowing a sur-reply only where a valid reason for such 8 additional briefing exists.” Johnson v. Wennes, No. 08-cv-1798, 9 2009 WL 1161620, at *2 (S.D. Cal. April 28, 2009). Plaintiff 10 never requested the court’s permission to file a sur-reply. 11 Accordingly, the court will disallow plaintiff’s September 2, 12 2020 entry. Because plaintiff only requested fees for half of 13 the 4.8 hours recorded for this entry, the court will reduce 14 plaintiff’s fee request by 2.4 hours. 15 Plaintiff further requests fees for 0.9 hours of work 16 on September 3, 2020 for “Review Order by Senior Judge William B. 17 Shubb granting Defendant Pennella’s Motion to Set Aside Default 18 conditioned on payment of Plaintiff’s attorney’s fees and costs 19 associated with the preparation of Plaintiff’s Opposition; 20 conference with Client regarding same.” (Herb Aff. at 2.) The 21 court’s September 3, 2020, order conditioned the setting aside of 22 defendant Pennella’s default on “his payment of plaintiff’s 23 attorney’s fees and costs associated with the preparation of 24 plaintiff’s opposition to this motion.” (Docket No. 110 at 10.) 25 The order did not contemplate fees or costs incurred after its 26 issuance. Accordingly, the court disallows plaintiff’s entry on 27 September 3, 2020, and will reduce plaintiff’s fee request by 0.9 28 hours. 1 The court therefore finds that plaintiff’s fee request 2 contains only 21.1 hours of billing entries for work properly 3 associated with the preparation of plaintiff’s Opposition to 4 Defendant’s Motion to Set Aside Entry of Default and caused by 5 defendant’s conduct. 6 II. Reasonable Hourly Rate 7 Plaintiff seeks an hourly rate of $280 for her counsel, 8 Hans Herb. In its April 2019 order granting plaintiff’s request 9 for attorney’s fees, the court determined that an hourly rate of 10 $280 was appropriate for Mr. Herb given his skill and experience. 11 (See Docket No. 65 (citing Deocampo v. Potts, No. 2:06-1283 WBS, 12 2014 WL 788429 (E.D. Cal. Feb. 25, 2014)(awarding $280 hourly 13 rate to lawyer with approximately 30 years of experience); Levine 14 v. Sleep Train, Inc., No. 2:15-00002 WBS AC, 2016 WL 4368107 15 (E.D. Cal. Aug. 16, 2016)(awarding $260 hourly rate to attorney 16 with 25 years of experience)).) The court finds that this is 17 still a reasonable hourly rate for Mr. Herb. 18 Given Mr. Herb’s reasonable hourly rate of $280, the 19 lodestar amount is $5,908.00 ($280/hour x 21.1 hours). 20 III. Adjustments to the Loadstar Amount 21 Defendant argues that the lodestar figure used to 22 calculate plaintiff’s fee award should be reduced by 50% because 23 plaintiff failed to serve defendant with notice of her request 24 for entry of default under Federal Rule of Civil Procedure 5. 25 (See Def. Opp’n at 7.) Had plaintiff provided proper notice of 26 her request for an entry of default, defendant argues, he could 27 have simply entered into a stipulation with plaintiff’s counsel 28 at the time to set aside the default without the need for a 1 formal motion or briefing. (See id.) Plaintiff has not provided 2 an explanation for her failure to serve defendant with notice of 3 her request for entry of default, at least as a matter or 4 professional courtesy. (See Docket No. 110; Pl.’s Mot. Att’y 5 Fees & Costs at 4, Ex. A (Docket No. 111).) 6 The court agrees that plaintiff’s failure to serve 7 defendant with notice of her request for entry of default 8 contributed in part to her need to oppose defendant’s motion to 9 set aside that default. Therefore, to reflect the probability 10 that the motion to set aside the default could have been avoided 11 if plaintiff had simply done so, the court will exercise its 12 discretion to reduce the lodestar amount by 50% to $2,954.00. 13 See Kerr, 526 F.2d at 69. 14 The court finds a further reduction of the lodestar 15 amount to be warranted by the tone and content of plaintiff’s 16 Opposition. As defendant points out, plaintiff’s Opposition and 17 her attached declaration were replete with unprofessional and 18 inappropriate statements. Plaintiff’s declaration repeatedly and 19 without evidence accused the defendant of lying to the court and 20 alluded to “confidential sources.” (See Pringle Decl. at ¶¶ 7, 21 18, 55, 64, 69 (Docket No. 107).) Plaintiff concluded her 22 Opposition by stating “The first time, it was the Idaho 23 defendants who simply waived a one-finger salute to the Court and 24 threw its summons in the trash. Defendant Pennella is even more 25 bold as he now seeks to deposit his waste on the courthouse 26 floor.” (Pl.’s Opp’n Def. Mot. Set Aside Default at 12 (Docket 27 No. 106).) 28 Though the court does not go so far as to conclude from 1 these statements that plaintiff herself authored the Opposition, 2 the inappropriate nature of the statements in plaintiff’s 3 Opposition does persuade the court to reduce plaintiff’s fee 4 request. “The amount of attorney’s fees to be awarded is, of 5 course, within the discretion of the trial court . . . .” Kerr, 6 526 F.2d at 69. “An experienced trial judge is the best judge of 7 the value of professional services in his court.” Diamond, 735 8 F.2d at 1467. Statements such as the defendant “now seeks to 9 deposit his waste on the courthouse floor” are entirely 10 unproductive. They do nothing to aid the court in evaluating the 11 claims before it. If anything, inflammatory language like that 12 contained in plaintiff’s Opposition generally hinders proceedings 13 by distracting the court’s attention from the issues legitimately 14 raised by the motion and interfering with parties’ willingness to 15 engage in settlement talks or meet and confer on future disputes 16 that arise in the course of litigation. 17 The court cannot condone or reward a party for 18 including that kind of diatribe in a brief filed with this court. 19 Accordingly, the court will further reduce plaintiff’s attorney’s 20 fees by an additional percentage which the court deems fairly 21 attributable to the time spent on conceiving and drafting the 22 inappropriate remarks. 23 In light of plaintiff’s failure to serve defendant with 24 notice of her request for entry of default and the unprofessional 25 nature of her Opposition, the court will reduce plaintiff’s 26 overall fee award to $2,000.00. See Kerr, 526 F.2d at 69. 27 IT IS THEREFORE ORDERED that the defendant Anthony 28 Pennella shall, within 30 days, pay plaintiff $2,000.00 in WAS 6. VEYVO VV DOING IN RVVUITIOCII 2a POR OUT eo PAY YY VI
1 attorney’s fees and costs associated with the preparation of her 2 Opposition to Defendant’s Motion to Set Aside Entry of Default. 3 Upon defendant’s timely and complete compliance with this Order, 4 the entry of default against him (Docket No. 24) shall be set 5 aside. 6 | Dated: September 29, 2020 tleom ah. A. be—~ 7 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28