The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 KATY WILLIAMS, et al., Case No.: 17-cv-00815-MMA (JLB)
12 Plaintiffs,
ORDER RE: DEFENDANT’S
13 v. REQUEST FOR ATTORNEY’S FEES
14 COUNTY OF SAN DIEGO, et al.,
15 Defendants.
16
17
18 Presently before the Court is a request for attorney’s fees filed by Defendant County
19 of San Diego (“Defendant” or “County”), supported by declarations from counsel (ECF
20 Nos. 60, 84), and oppositions filed by Plaintiff Katy Williams (“Plaintiff” or “Williams”)
21 (ECF Nos. 68, 88). For the reasons set forth below, Defendant’s request for fees is
22 GRANTED IN PART and DENIED IN PART.
23 I. BACKGROUND
24 The present request for attorney’s fees comes to the Court following the denial of
25 Williams’ motion to compel further responses from Defendant to her Interrogatories, Set
26 One, and Request for Production of Documents, Set One. (ECF No. 49.) On July 19, 2018,
27 Williams served interrogatories (set one) and requests for production (set one) on
28 Defendant, “seeking information relating to the documents from the Juvenile Court file
1 reviewed by County Counsel prior to the Early Neutral Evaluation Conference [(“ENE”)].”
2 (See ECF No. 45-2 at ¶ 11, Exhs. 1 & 2.)
3 The interrogatories asked the following:
4 1. Have YOU reviewed any documents in conjunction with the litigation filed in
5 this case, other than those documents produced to YOU by Plaintiffs on
6 May 18, 2018, since the litigation was filed in this matter on April 24, 2017?
7 2. If YOUR answer to Interrogatory No. 1 is “yes,” please identify each and
8 every document that you have reviewed, other than documents produced to
9 YOU by Plaintiffs on April 24, 2017.
10 (See ECF No. 50-3 at 5.) The terms YOU and YOUR were defined as: “Defendant
11 COUNTY OF SAN DIEGO, including its Health and Human Services Agency, and any
12 other entity, program and agency of the COUNTY, and includes, but is not limited to,
13 YOUR past and present attorneys, agents, employees, representatives, agencies,
14 organizations, entities or any of them, and any PERSON and ENTITY acting through or
15 on YOUR behalf.” (See id. at 3.)
16 Williams’ request for production similarly requested: “Please produce each and
17 every DOCUMENT that YOU have identified in YOUR Responses to Plaintiff Katy
18 Williams’ Interrogatories Propounded to Defendant County of San Diego, Set One.” (See
19 ECF No.50-4 at 7.)
20 Defendant objected to the interrogatories and request for production on the grounds
21 that they were overbroad and unduly burdensome, with no limitation in scope, and sought
22 information protected from disclosure by the work product doctrine and the attorney-client
23 privilege. (See ECF Nos. 50-5; 50-6.) Defendant did not otherwise respond or produce
24 documents. (See id.)
25 On September 25, 2018, Williams filed a motion to compel further responses. (ECF
26 Nos. 45; 50 (sealed).) In response, Defendant moved for a protective order and requested
27 that the Court order Williams’ counsel to pay the expenses, including attorney’s fees, which
28 it incurred in opposing Williams’ motion and seeking a protective order, and any additional
1 sanctions the Court deems appropriate pursuant to Federal Rule of Civil Procedure
2 37(a)(5). (ECF Nos. 46; 51 (sealed).)
3 On October 15, 2018, the Court denied Williams’ motion to compel further
4 responses from Defendant to her Interrogatories, Set One, and Request for Production of
5 Documents, Set One. (ECF No. 49.) The Court specifically held that the interrogatories
6 and request for production seek information protected by the work product doctrine and
7 shielded from disclosure. (ECF No. 49 at 10.) The Court declined to issue a protective
8 order, but tentatively held that it was appropriate to order Williams to pay Defendant the
9 reasonable expenses, including attorney’s fees, which it incurred in opposing Williams’
10 motion to compel. (Id. at 11–12.) The Court determined that “Defendant is the prevailing
11 party on the discovery motion.” (Id. at 11.) The Court further expressed deep concern
12 about Williams’ violation of her obligation to respect the confidentiality of statements
13 made at the ENE by repeatedly citing representations allegedly made by Defendant’s
14 counsel at the ENE in her motion to compel. (Id.)
15 The Court ordered the parties to meet and confer on the subject of reasonable
16 expenses, including attorney’s fees, and thereafter to advise chambers if either party wished
17 to be heard. (Id. at 13.) If neither party wished to be heard, Williams was ordered to pay
18 Defendant the amount of reasonable expenses, including attorney’s fees, incurred by
19 Defendant in opposing Williams’ motion to compel. (Id. at 13.) If either party wished to
20 be heard, the matter was to be briefed in accordance with a briefing schedule provided by
21 the Court. (Id.)
22 In compliance with the Court’s briefing schedule, the parties jointly called to inform
23 the Court that Williams wished to be heard. (See ECF No. 57.) Williams thereafter filed
24 an objection before the Honorable Michael M. Anello to the Court’s denial of Williams’
25 motion to compel. (ECF No. 58.) In compliance with the Court’s initial briefing schedule,
26 Defendant filed declarations seeking total fees in the amount of $8,183.00, which were
27 incurred in opposing Williams’ motion to compel and preparing the fee declarations. (ECF
28 No. 60.) Williams filed an opposition to Defendant’s declarations. (ECF No. 68.)
1 On December 21, 2018, Judge Anello overruled Williams’ objection to the Court’s
2 October 15, 2018 Order. (ECF No. 79.) Specifically, Judge Anello overruled Williams’
3 objections (1) to the Court’s finding that the interrogatories and request for production
4 sought information covered by the work product doctrine, and (2) to the Court’s finding
5 that Williams violated both the Local Civil Rules and its ENE order. (Id. at 6–10.)
6 Judge Anello also overruled as premature Williams’ objection to the imposition of
7 sanctions on the grounds her motion to compel was substantially justified, as the Court has
8 not yet issued an order making a final determination on the issue. (Id. at 10–11.)
9 On December 28, 2018, Defendant filed an ex parte motion for leave to file a
10 supplemental declaration regarding the fees and costs it expended in opposing Williams’
11 objections to the Court’s October 15, 2018 Order. (ECF No. 80.) Williams filed an
12 objection. (ECF No. 81.) On January 23, 2019, the Court granted the ex parte motion.
13 (ECF No. 82.) Defendant thereafter filed its supplemental declaration, which updated its
14 total fees request to $12,544.00. (ECF No. 84.) Williams filed an opposition. (ECF No.
15 88.)
16 II. LEGAL STANDARD
17 When a motion to compel is denied, a court “must, after giving an opportunity to be
18 heard, require the movant, the attorney filing the motion, or both to pay the party . . . who
19 opposed the motion its reasonable expenses incurred in opposing the motion, including
20 attorney’s fees” unless “the motion was substantially justified or other circumstances make
21 an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Courts “must calculate awards
22 for attorneys’ fees using the ‘lodestar’ method.” Camacho v. Bridgeport Fin., Inc., 523
23 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145,
24 1149 n.4 (9th Cir. 2001)). The lodestar method is calculated by “multiplying the number
25 of hours the prevailing party reasonably expended on the litigation by a reasonable hourly
26 rate.” Id. (quoting Ferland, 244 F.3d at 1149 n.4).
27 “A strong presumption exists that the lodestar figure represents a reasonable fee,”
28 and courts must “decide whether to enhance or reduce the lodestar figure based on an
1 evaluation” of the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.
2 1975), “that are not already subsumed in the initial lodestar calculation.” Fischer v. SJB-
3 P.D. Inc., 214 F.3d 1115, 1119 & n.4 (9th Cir. 2000) (citations and internal quotation marks
4 omitted); see also Parsons v. Ryan, 949 F.3d 443, 467 (9th Cir. 2020); Ferland, 244 F.3d
5 at 1149 n.4. The Kerr factors include:
6 (1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the
7
preclusion of other employment by the attorney due to acceptance of the case,
8 (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time
limitations imposed by the client or the circumstances, (8) the amount
9
involved and the results obtained, (9) the experience, reputation, and ability
10 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
11
cases
12 Kerr, 526 F.2d at 70. District courts have “discretion in determining the amount of a fee
13 award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
14 III. DISCUSSION
15 A. Defendant’s Request for Attorney’s Fees
16 In support of Defendant’s request for attorney’s fees, Defendant filed the
17 declarations of Kate Jones (“Jones”) and Erica Cortez (“Cortez”). (See ECF Nos. 60,
18 Declaration of Kate Jones Regarding Attorney’s Fees (“Jones Decl.”); 60-1, Declaration
19 of Erica Cortez Regarding Attorney’s Fees (“Cortez Decl.”).) Jones and Cortez are
20 employed by Defendant as Senior Deputy County Counsel. (Jones Decl. ¶ 1; Cortez Decl.
21 ¶ 1.) Jones is the attorney of record for Defendant in this case, and Cortez is her supervisor.
22 (Id.)
23 The Office of County Counsel maintains computerized time records of attorneys’
24 time. (Jones Decl. ¶ 2; Cortez Decl. ¶ 1.) An attorney’s time is required to be entered
25 accurately in tenths of an hour. (Id.) The hourly rate for both Jones and Cortez is $245 per
26 hour. (Jones Decl. ¶¶ 4, 6; Cortez Decl. ¶¶ 3, 5.) Jones contends she spent 28.4 hours
27 opposing Williams’ motion to compel and preparing her fee declaration, for a total of
28 $6,958. (Jones Decl. ¶ 4.) Cortez contends she spent 5 hours supervising and assisting
1 Jones in opposing Williams’ motion to compel and in preparing her fee declaration, for a
2 total of $1,225. (Cortez Decl. ¶ 3.)
3 Jones filed a supplemental declaration regarding the time she expended in opposing
4 Williams’ objections to the Court’s October 15, 2018 Order and in updating her fee
5 declaration. (ECF No. 84, Supplemental Declaration of Kate Jones Regarding Attorney’s
6 Fees (“Jones Supp. Decl.”), ¶ 4.) Jones contends she spent an additional 17.8 hours filing
7 the opposition and updating her fee declaration. (Id.) Accordingly, Jones contends she
8 spent a total of 46.2 hours successfully opposing Williams’ motion to compel and preparing
9 fee declarations, for a total of $11,319. (Id.)
10 B. Substantially Justified
11 Williams argues that her motion to compel was substantially justified “because
12 reasonable minds can differ on the issues raised regarding the sought Juvenile Case File
13 documents currently in Defendant’s possession (without the approval of the Juvenile
14 Court), and whether they are protected by the attorney work product privilege.” (ECF No.
15 68 at 4.) Williams maintains that her “arguments were soundly supported by the facts
16 surrounding the dispute” and the question of whether the work product doctrine applies to
17 the documents in question “is subject to reasonable dispute.” (Id.) Williams adds that she
18 “was justified in bringing her motion [to] seek[] information that Defendant has had in its
19 possession since the inception of this lawsuit and that Plaintiffs still do not have some 18
20 months after filing their lawsuit.” (Id.)1
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23 1 Williams has acknowledged that the Juvenile Court ordered the release of the
minor plaintiffs’ Juvenile Case Files in response to Cal. Welf. & Inst. Code §§ 827 and 828
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petitions on September 21, 2018, subject to certain redactions, four days before she filed
25 her motion to compel. (ECF Nos. 50-2 at 2; 58 at 14–15.) The materials were to be released
by late October or early November. (ECF No. 50-2 at 2.) By filing her motion to compel,
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Williams claims she was “simply attempting to ‘accelerate disclosure of matters’ that will
27 ultimately be revealed in due course (albeit very lengthy due course).” (ECF No. 58 at 18.)
Ultimately, Williams did obtain additional documents from the minor plaintiffs’ Juvenile
28
1 The test for whether a motion to compel was substantially justified depends on
2 whether “the dispute over discovery between the parties [was] genuine, though ultimately
3 resolved one way or the other by the court.” Fed. R. Civ. P. 37, advisory committee’s note
4 to 1970 amendment. “In such cases, the losing party is substantially justified in carrying
5 the matter to court.” Id. The purpose of the rule is to “deter the abuse implicit in carrying
6 or forcing a discovery dispute to court when no genuine dispute exists.” Id. In Reygo Pac.
7 Corp. v. Johnston Pump Co., 680 F.2d 647 (9th Cir. 1982), overruled on other grounds by
8 Cunningham v. Hamilton Cnty., 527 U.S. 198, 210 (1999), the Ninth Circuit held that a
9 request for discovery is substantially justified if “reasonable people could differ as to
10 whether the party requested must comply.” Id. at 649. The party being sanctioned bears
11 the affirmative burden of demonstrating that its position was substantially justified. Brown
12 v. Hain Celestial Grp., Inc., No. C 11-03082 LB, 2013 WL 5800566, at *5–7 (N.D. Cal.
13 Oct. 28, 2013); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).
14 Williams contends that the Court’s “denial was based primarily upon the wording of
15 the requests and a concern that Plaintiffs were seeking documents protected by the attorney
16 work product privilege.” (ECF No. 68 at 2.) Yet, Williams still downplays the significance
17 of “the wording.” As the Court previously noted: “Williams did not request the production
18 of Juvenile Case File documents in the possession of Defendant. Rather, she requested
19 identification of, and production of, documents reviewed by Defendant and/or counsel ‘in
20 conjunction with’ this litigation.” (ECF No. 49 at 9.) Thus, the requests necessarily sought
21 opinion work product, i.e., attorney mental impressions, conclusions, opinions, or legal
22 theories, which represents the core type of protected work product. (See id. at 9–10.)
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e.g., ECF No. 201 at 3 (“Plaintiffs’ Exhibits 16 through 42 [in support of their motion for
27 partial summary judgment, ECF No. 183] are documents that were ordered released by the
juvenile court in response to the sections 827 and 828 petitions.”); see also ECF No. 213
28
1 Williams’ primary concern in bringing the motion to compel was her comparative
2 lack of access to the Juvenile Case Files. (ECF No. 68 at 2, 5.) However, she had a parallel
3 concern about Defendant’s allegedly unlawful and unauthorized access to the Juvenile
4 Case Files in its client’s possession. (ECF Nos. 50-1 at 3–5; 68 at 2.) The Court
5 acknowledges that the parties have an ongoing dispute over defense counsel’s review of
6 the minor plaintiffs’ Juvenile Case Files. The same day Williams filed her motion to
7 compel, the minor plaintiffs filed a separate class action lawsuit against Cortez, Jones, and
8 the County, alleging the defendants violated the U.S. Constitution when County Counsel
9 inspected and/or accessed the minor plaintiffs’ entire and unredacted juvenile records
10 and/or case file without judicial authorization in the present case. See A.C., et al. v. Cortez,
11 et al., Case No. 18-cv-02227-AJB (AGS) (S.D. Cal.) (“A.C.”), ECF No. 1 ¶¶ 19, 46–53.
12 In their class action complaint, the minor plaintiffs allege that “[s]ince at least 2003, it has
13 been clearly established that an attorney representing the government in civil litigation may
14 not access or use confidential juvenile court records without first obtaining court approval
15 to do so. And, that such conduct violates the constitutional rights of the litigants who are
16 the subjects of those juvenile court records.” Id. ¶ 48 (citing Gonzalez v. Spencer, 336 F.3d
17 832, 835 (9th Cir. 2003)).2
18
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2 On July 23, 2019, the case was dismissed without leave to amend, with the
20
court finding that the minor plaintiffs had failed to state a claim and that Cortez and Jones
21 were entitled to qualified immunity on the privacy claims. A.C., ECF No. 42; see also A.C.
v. Cortez, 398 F. Supp. 3d 748, 756 (S.D. Cal. 2019). The minor plaintiffs filed an appeal,
22
which remains pending. See A.C., ECF No. 48. That appeal was stayed, in part, pending
23 the issuance of a decision in Case No. 19-16815, Nunes v. Stephens, which has now been
issued. A.C., ECF No. 48. On December 29, 2020, the Ninth Circuit issued a decision in
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Nunes holding that the defendants, which included, inter alia, county counsel, were entitled
25 to qualified immunity as there was no clearly established constitutional privacy right in
juvenile records. See Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 983 F.3d
26
1108, 1114 (9th Cir. 2020). Specifically, the Ninth Circuit held that it could not “conclude
27 that every reasonable official acting as [the d]efendants did would have known they were
violating the constitutional rights of [the p]laintiffs based on Gonzalez, the only authority
28
1 However, filing an improper motion to compel was not the proper remedy nor the
2 proper tool for gathering evidence to support the filing of the A.C. litigation, especially
3 where Williams did not argue, much less establish, that an exception to the opinion work
4 product doctrine applies. Accordingly, the Court finds that Williams has failed to
5 demonstrate that her motion to compel was substantially justified.
6 C. Confidential ENE Statements
7 In its October 15, 2018 Order, the Court also held that Williams’ counsel violated
8 the Local Civil Rules and this Court’s Order setting the ENE when Williams “repeatedly
9 cited representations allegedly made by Defendant’s counsel at the [ENE] in her motion to
10 compel.”3 (ECF No. 49 at 11–12.) Statements made during an ENE are “off the record,
11 privileged, and confidential.” (Id. at 12.) Not only do the Local Civil Rules for the
12 Southern District of California state as such, see CivLR 16.1(c)(1)(b), but the Court’s Order
13 setting the ENE clearly states: “All ENE Conference discussions will be informal, off the
14 record, privileged and confidential.” (See ECF No. 31 at 1.) Therefore, the Court
15 determined that it was “appropriate to order Plaintiff to pay Defendant the reasonable
16 expenses, including attorney’s fees, which it incurred in opposing Williams’ motion to
17 compel” on this basis as well. (ECF No. 49 at 12.)
18 As previously recognized in this District, “disclosure of information exchanged in
19 the confidentiality of a Settlement Conference undermines the trust jurists of this Court
20 have earned in the legal community and diminishes the integrity and effectiveness of the
21 Settlement Conference process.” Century Sur. Co. v. 350 W.A., LLC, No. CIV. 05CV1548-
22 LLSP, 2008 WL 1787491, at *3 (S.D. Cal. Apr. 16, 2008). As such, any unauthorized
23 disclosure has served as a basis for sanctions against the violating attorney. See id.; see
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the Constitution provides a privacy right in juvenile records; rather, [it] decide[d] only that
27 no such right was clearly established at the time of the Defendants’ alleged conduct.” Id.
3 Defendant denies that its counsel made the statements Williams alleges they
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1 also CivLR 83.1(a) (“Failure of counsel . . . to comply with these rules, with the Federal
2 Rules of Civil . . . Procedure, or with any order of the court may be grounds for imposition
3 by the court of any and all sanctions authorized by statute or rule or within the inherent
4 power of the court . . . .”).
5 In her opposition, Williams argues that the “confidentiality and privilege governing
6 communications during an ENE Conference does not extend to the present dispute, since
7 the sought information does not relate to the liability for or invalidity of Plaintiff’s claim
8 or its amount.” (ECF No. 68 at 5–6.) Williams does not cite any authority to support her
9 position that this Court’s Order setting the ENE and this District’s Local Rules carve out
10 an exception on this basis. Williams further cites Jones v. Metro. Life Ins. Co., No. C-08-
11 03971-JW DMR, 2010 WL 4055928 (N.D. Cal. Oct. 15, 2010) in an attempt to justify
12 disclosure to “prevent manifest injustice,” but Jones involves the Northern District of
13 California’s Local Rules for Alternative Dispute Resolution (“ADR Local Rules”). Jones,
14 2010 WL 4055928 at *1, 7, 20. Those rules do not apply in this District.4
15 As stated above, the Court acknowledges that the parties have an ongoing dispute
16 over defense counsel’s review of the minor plaintiffs’ Juvenile Case Files. However, this
17 legal dispute does not provide a basis for Williams to breach her obligation to maintain the
18 confidentiality of communications made during the ENE. Even the Northern District’s
19 ADR Local Rules, on which Williams relies, require “prior court approval for any
20
21
4 The other cases relied on by Williams are similarly inapplicable as they do
22
not apply this District’s Local Civil Rules or address the Court’s Order setting the ENE.
23 See Munoz v. J.C. Penney Corp., No. CV09-0833ODWJTLX, 2009 WL 975846, at *3
(C.D. Cal. Apr. 9, 2009) (declining to adopt a federal mediation privilege that precludes
24
the use of mediation-related settlement communications for purposes of assessing the
25 sufficiency of a removal; finding that Fed. R. Evid. 408 is not offended by such use);
Molina v. Lexmark Int’l, Inc., No. CV0804796MMMFMX, 2008 WL 4447678, at *4 (C.D.
26
Cal. Sept. 30, 2008) (same); see also F.D.I.C. v. White, 76 F. Supp. 2d 736, 736–38 (N.D.
27 Tex. 1999) (holding that Fed. R. Civ. P. 501 does not create a mediator privilege; permitting
the defendants to testify about statements made at a mediation where the parties have filed
28
1 disclosures otherwise prohibited” so that the court may engage in a balancing test. See
2 Jones, 2010 WL 4055928, at *8, 11. Here, Williams did not seek leave of court before
3 disclosing the statements in a public filing, nor did she even attempt to file her motion to
4 compel under seal. The Court sua sponte ordered the motion sealed. (See ECF No. 49.)
5 The only exception recognized by Jones to the requirement of prior court approval is when
6 “truly exigent circumstances” exist. See Jones, 2010 WL 4055928, at *8, 12. Those are
7 not present here. Williams had a remedy, filing a lawsuit, which she exercised. See A.C.,
8 ECF No. 1.
9 Given the foregoing, the Court finds that it is appropriate to order Williams to pay
10 Defendant the reasonable expenses, including attorney’s fees, which it incurred in opposing
11 Williams’ motion to compel. Thus, the Court turns to addressing the reasonableness of
12 Defendant’s claimed hourly rates and hour expended.
13 D. Reasonable Hourly Rates
14 1. Legal Standard
15 When determining a reasonable hourly rate, the district court should consider the
16 prevailing hourly rate in the relevant community. Camacho, 523 F.3d at 979. Generally,
17 “the relevant community is the forum in which the district court sits.” Id. (citing Barjon v.
18 Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Rates outside of the relevant community
19 should only be used when “local counsel was unavailable, either because they are unwilling
20 or unable to perform because they lack the degree of experience, expertise, or specialization
21 required to handle properly the case.” Id. (quoting Barjon, 132 F.3d at 500). Although
22 determining the “appropriate market rate” for a lawyer’s services can be difficult, “the
23 established standard when determining a reasonable hourly rate is the rate prevailing in the
24 community for similar work performed by attorneys of comparable skill, experience, and
25 reputation.” Id. (citations and internal quotation marks omitted).
26 “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition
27 to the attorney’s own affidavits—that the requested rates are in line with those prevailing
28 in the community for similar services by lawyers of reasonably comparable skill,
1 experience and reputation.” Id. at 980 (quoting Blum v. Stenson, 456 U.S. 886, 895 n.11
2 (1984)). Satisfactory evidence of the prevailing market rate can include “affidavits of the
3 [requesting] attorneys and other attorneys regarding prevailing fees in the community, and
4 rate determinations in other cases.” Id. (quoting United Steelworkers of Am. v. Phelps
5 Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)). The party opposing the fees application
6 has the “burden of rebuttal that requires submission of evidence to the district court
7 challenging the accuracy and reasonableness of the . . . facts asserted by the prevailing
8 party in its submitted affidavits.” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397–
9 98 (9th Cir. 1992)).
10 2. Analysis
11 Defendant contends that the rate of $245 per hour for Jones and Cortez is reasonable
12 given their skill, reputation, and experience in civil rights cases. (Jones Decl. ¶¶ 6–9;
13 Cortez Decl. ¶¶ 6–9; Jones Supp. Decl. ¶¶ 6–9.) Defendant represents that the Auditor and
14 Controller of the County of San Diego makes an annual determination as to the actual cost
15 of the Office of County Counsel’s attorneys’ time, and beginning July 1, 2018, the actual
16 cost of attorneys’ time was $245 per hour. (Jones Decl. ¶ 6; Cortez Decl. ¶ 5; Jones Supp.
17 Decl. ¶ 6.) Defendant further represents that a review of cases in the Southern District of
18 California “demonstrates that prevailing attorneys in civil rights cases have been awarded
19 fees between $250 per hour and $650 per hour, depending on their level of experience and
20 expertise.” (Jones Decl. ¶ 8 (citing cases); Cortez Decl. ¶ 7 (citing cases); Jones Supp.
21 Decl. ¶ 8 (citing cases).)
22 At the time she filed her initial declaration, Jones had approximately seven years of
23 experience as a civil defense attorney, specializing in defending civil rights actions against
24 government agencies. (Jones Decl. ¶ 9; see also Jones Supp. Decl. ¶ 9.) Jones has worked
25 for the State of Virginia, the U.S. Department of Justice and the County of San Diego. In
26 addition, at the time she filed her initial declaration, Cortez had practiced law for over nine
27 years, with a specialty in “prosecuting juvenile dependency actions on behalf of the County
28 in addition to defending the County in civil rights actions.” (Cortez Decl. ¶ 8.)
1 For purposes of Defendant’s fees request, Williams “does not take issue with defense
2 counsels’ claimed hourly rate of $245/hour based on defense counsels’ stated years of
3 experience and the non-complex nature of the motion.” (ECF No. 68 at 8.) Accordingly,
4 the Court finds that Defendant has established that a rate of $245 per hour is reasonable for
5 Jones and Cortez.
6 E. Reasonableness of Hours Expended
7 1. Legal Standard
8 A “reasonable” number of hours equals “[t]he number of hours . . . [which] could
9 reasonably have been billed to a private client.” Gonzalez v. City of Maywood, 729 F.3d
10 1196, 1202 (9th Cir. 2013) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111
11 (9th Cir. 2008)). The fee requesting party “has the burden of submitting billing records to
12 establish that the number of hours it has requested are reasonable.” Id. The fee requesting
13 party “should make a good faith effort to exclude from a fee request hours that are
14 excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434.
15 Largely, a district court “should defer to the winning lawyer’s professional judgment
16 as to how much time he was required to spend on the case.” Chaudhry v. City of Los
17 Angeles, 751 F.3d 1096, 1111 (9th Cir. 2014) (quoting Moreno, 534 F.3d at 1112).
18 However, district courts have discretion to reduce the number of hours that were not
19 reasonably expended. Hensley, 461 U.S. at 434; see also Gates, 987 F.2d at 1399. A
20 district court may conduct an “hour-by-hour analysis of the fee request,” and exclude those
21 hours for which it would be unreasonable to compensate the prevailing party. Gonzalez,
22 729 F.3d at 1203 (quoting Gates, 987 F.2d at 1399). A district court, “when faced with a
23 massive fee application,” may also “make across-the-board percentage cuts either in the
24 number of hours claimed or in the final lodestar figure as a practical means of [excluding
25 non-compensable hours] from a fee application.” Id. (citation and internal quotation marks
26 omitted).
27 When a district court makes its award, it must provide a “concise but clear”
28 explanation of its reasoning. Moreno, 534 F.3d at 1111 (quoting Hensley, 461 U.S. at 437).
1 A district court can also “impose a small reduction, no greater than 10 percent—a
2 ‘haircut’—based on its exercise of discretion and without a more specific explanation.” Id.
3 at 1112.
4 2. Analysis
5 Williams contends that Defendant’s claimed hours are unreasonable. (ECF Nos. 68
6 at 7–10; 88 at 5.) The Court addresses Defendant’s specific objections below.
7 a. Meet and Confer Time Entries
8 Williams opposes all meet and confer entries and requests that all 4.1 hours spent
9 “meeting and conferring” be excluded from the request for attorney’s fees. (ECF No. 68
10 at 9.) Relying on Aevoe Corp. v. AE Tech Co., No. 2:12-CV-00053-GMN, 2013 WL
11 5324787 (D. Nev. Sept. 20, 2013), Williams claims that “[d]efense counsel may not claim
12 hours for the meet and confer process, only for opposing the motion itself.” (ECF No. 68
13 at 9.) However, Williams’ reliance on Aevoe is inapposite. Defense counsel explicitly
14 states that the “Meet & Confer with Staff” entries “refe[r] to time spent meeting and
15 strategizing with colleagues,” which “includes discussing Plaintiff[‘s] factual allegations,
16 Defendant’s defenses, legal theories and research, and pleadings.” (Jones Decl. ¶ 5; Cortez
17 Decl. ¶ 4; Jones Supp. Decl. ¶ 5.) These meetings are therefore intra-office conferences,
18 unlike the meet and confer process in Aevoe, which refers to the local rules requiring
19 counsel from both parties to attempt to resolve disputes together before filing a discovery
20 motion.
21 However, a court may reasonably reduce the hours billed for intra-office conferences
22 if they are unnecessary and duplicative. See Welch v. Metro. Life Ins. Co., 480 F.3d 942,
23 949 (9th Cir. 2007) (finding hours for intra-office conferences between primary counsel
24 and her colleague reasonably reduced by the district court as “unnecessary and duplicative”
25 given primary counsel’s “substantial experience” and “failure to provide a persuasive
26 justification for the intra-office meetings”); see also Love v. Sanctuary Recs. Grp., Ltd.,
27 386 F. App’x 686, 689 (9th Cir. 2010). In reviewing the motion at issue, the Court
28 determines that only two hours of time spent meeting and conferring with colleagues is
1 reasonably charged to Williams. Given Jones’ substantial experience in defending civil
2 rights actions against government agencies and the lack of specificity as to which
3 colleagues other than her supervisor she met and conferred with, Defendant has not
4 persuaded the Court that the full 4.1 hours are justified.
5 b. Review Motion Time Entries
6 Jones spent one hour reviewing Williams’ motion to compel, .5 hours reviewing the
7 Court’s October 15, 2018 Order, and .5 hours reviewing an unknown motion/order.5 (Jones
8 Decl. ¶ 4.) Subsequently, Jones spent one hour reviewing an unknown motion on
9 November 26, 2018.6 (Jones Supp. Decl. ¶ 4.) Cortez spent three hours reviewing
10 Williams’ motion to compel and/or Defendant’s draft opposition and .5 hours reviewing
11 the Court’s October 15, 2018 Order. (Cortez Decl. ¶ 3.)
12 Williams argued after the submission of the initial fees declaration that “[s]hould the
13 Court be so inclined to grant attorneys fees at all, th[e] one hour” Jones spent reviewing
14 the motion to compel is appropriate, and nothing else. (ECF No. 68 at 9.) Although she
15 does not specifically address the additional time Jones spent on November 26, 2018,
16 Williams contends that “a reasonable number of hours to prepare the documents submitted
17 by [Defendant] in support of this discovery dispute is 7.5 hours.” (ECF No. 88 at 5.) In
18 addition, Williams argues that the “3 hours Cortez claims to have spent reviewing the 11-
19 page opposition is unnecessary, excessive, and constitutes needless duplication of efforts.”
20 (ECF No. 68 at 9.) Williams further argues that the .9 hours Cortez “claims she spent . . .
21 reviewing documents after the opposition was filed, . . . should be excluded.” (Id.)
22
23
24 5 Jones spent .5 hours reviewing a motion/order on October 24, 2018. (Jones
25 Decl. ¶ 4.) However, no new motions or pertinent orders were filed on the docket between
October 15, 2018 and October 24, 2018, so it is unclear what Jones reviewed.
26 6 Although no motion was filed on November 26, 2018, as Defendant filed its
27 opposition (ECF No. 65) to Williams’ objection to the Court’s October 15, 2018 Order
(ECF No. 58) on November 27, 2018, it is likely the motion referred to was Williams’
28
1 Based on the foregoing, the Court finds that the .5 hours Jones spent reviewing an
2 unspecified motion/order on October 24, 2018 to be unsupported and therefore
3 unnecessary. The Court further finds that it was excessive for Cortez to spend three hours
4 reviewing an approximately 38-page motion to compel. Jones was able to review the same
5 document in one hour. To the extent Cortez considered the entry “Review Motion” to also
6 refer to review of the opposition being drafted by Jones, the Court finds the entries unclear
7 and therefore unsupported. As they are unsupported, the Court finds it appropriate to
8 reduce by two hours the time spent by Cortez reviewing motions. However, the Court
9 rejects Williams’ objection to the time Cortez spent reviewing the Court’s
10 October 15, 2018 Order and reviewing and revising documents thereafter. In its
11 October 15, 2018 Order, the Court tentatively determined that ordering Plaintiff to pay
12 Defendant reasonable expenses, including attorney’s fees, was appropriate, and Cortez
13 submitted her fee declaration, as ordered, on October 30, 2018.
14 c. Draft Document/Opposition Time Entries
15 Jones spent seventeen hours drafting Defendant’s opposition to the motion to
16 compel, including research. (Jones Decl. ¶ 4.) She thereafter spent 6.5 hours drafting her
17 fees declaration, which included two hours of research. (Id.) Jones then spent sixteen
18 hours drafting her opposition to Williams’ objection to the Court’s October 15, 2018 Order,
19 including at least three hours of research. (ECF No. 84 ¶ 4.). Lastly, Jones spent .5 hours
20 drafting an updated fees statement. (Id.; see also ECF No. 80.)
21 Williams contends that the hours claimed by Jones in drafting the opposition to the
22 motion to compel are unreasonable given that the motion did not involve complex or
23 complicated discovery issues, only involved limited interrogatories and requests for
24 production, and did not require extensive legal research. (ECF No. 68 at 8.) Williams
25 notes that the “11-page opposition only had one general case citation, and simply
26 mentioned aspects of the Federal Rules of Civil Procedure that may apply to the dispute.”
27 (Id.) Williams further contends that the hours claimed by Jones in drafting the opposition
28 to the Court’s October 15, 2018 Order were unreasonable because the 11-page opposition
1 was substantially similar to and merely restated the arguments in its prior opposition and
2 did not include a single citation to controlling authority. (ECF No. 88 at 5.)
3 Williams also objects to the hours Jones and Cortez spent drafting their fees
4 declarations. (ECF No. 68 at 9.) She argues that “the time estimates to complete the
5 substantially similar three-and-a-half-page declaration [are] excessive and should be
6 substantially reduced.” (Id. at 9–10; see also ECF No. 88 at 5.) Williams submits that a
7 reasonable number of hours to prepare and review the 11-page opposition and the two
8 substantially similar three-and-a-half-page declaration is five hours, and a reasonable
9 number of hours to prepare all of the documents submitted by Defendant related to this
10 discovery dispute is 7.5 hours. (Id. at 10; see also ECF No. 87 at 5.)
11 Generally, a court should defer to the “winning lawyer’s professional judgment as
12 to how much time he was required to spend on the case.” Chaudhry, 751 F.3d at 1111
13 (quoting Moreno, 534 F.3d at 1112); see also Costa v. Comm’r of Soc. Sec. Admin., 690
14 F.3d 1132, 1135 (9th Cir. 2012). However, “a reduction in hours is appropriate if the court
15 reasonably concludes that preparation of a motion ‘demanded little of counsel’s time.’”
16 Welch, 480 F.3d at 950 (quoting Webb v. Sloan, 330 F.3d 1158, 1170 (9th Cir. 2003)). A
17 court may properly impose a reduction for block billing if it “‘explain[s] how or why the
18 reduction fairly balances’ those hours that were actually billed in block format.” Id. at 948
19 (quoting Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001) (internal alterations
20 omitted)).
21 Here, the Court finds that the full amount of time Defendant billed for preparing its
22 oppositions, supporting documents, and fee statements is not, in total, reasonably charged
23 to Williams. Williams’ motion to compel did not raise a complicated issue requiring
24 extensive time and research. There were only two interrogatories, one request for
25 production, and one overriding legal issue before the Court. As Williams noted, despite
26 billing seventeen hours of time, at least eleven of which may have included research,
27 Defendant’s opposition contains only one case citation. Defendant’s opposition also
28 included a motion for protective order that was not well-taken and was denied. The Court
1 finds that Defendant is not entitled to any attorney’s fees for time expended researching,
2 drafting, or revising the motion for protective order. Because Defendant’s time entries do
3 not allow for the Court to neatly exclude the time spent drafting the motion for protective
4 order or exclude the excessive amount of time spent conducting research, the Court finds
5 a twenty percent reduction to be appropriate and to fairly address the Court’s concerns. As
6 such, the Court finds that 13.6 hours of the total seventeen hours Defendant spent opposing
7 Williams’ motion to compel are reasonable.
8 The Court also finds that the sixteen hours Defendant spent opposing Williams’
9 objection to the Court’s October 15, 2018 Order exceeds what should be reasonably
10 charged to Williams. Although Defendant’s opposition to Williams’ objection specifically
11 addressed the Court’s October 15, 2018 Order and Williams’ specific objections to that
12 order, which involved distinguishing multiple cases cited by Williams in her objection, it
13 also contains some duplication of prior efforts. (See ECF No. 65.) In light of the
14 duplication of prior efforts, including most of the background section, the Court finds a
15 twenty percent reduction of the claimed hours appropriate. See Welch, 480 F.3d at 950
16 (finding the district court did not err in reducing the requested 13 hours by 9 hours because
17 much of the language “was recycled from submissions to other courts”). Accordingly, the
18 Court finds that 12.8 hours of the total sixteen hours Defendant submitted for opposing
19 Williams’ objection to the Court’s October 15, 2018 Order are reasonable.
20 Lastly, the fee declarations submitted by Defendant are not fulsome. As discussed
21 below and throughout this Order, the fee entries are not very descriptive or particularly
22 helpful. Other than the meet and confer entries, counsel does not further explain the
23 computerized time entries in their declarations. Counsel also does not separate out their
24 block-billed time. The fee applications are approximately two and half pages each and
25 contain basic information and citations. Jones claims she spent 6.5 hours drafting her initial
26 declaration, including research, and .5 hours drafting her supplemental declaration. Cortez
27 claims she spent .6 hours drafting her declaration. The Court finds the .6 hours spent by
28 Cortez to be reasonable, and .5 hours Jones spent drafting her supplemental declaration to
1 be reasonable. However, the Court finds that only three hours of the 6.5 hours claimed by
2 Jones in drafting her initial declaration to be reasonable.
3 3. Lack of Evidence
4 Lastly, Williams takes issue with the lack of evidence provided by Defendant, other
5 than the “self-serving and overgeneralized time entries by Cortez and Jones,” to
6 substantiate the hours counsel spent opposing Williams’ motion to compel. (ECF No. 68
7 at 8; see also ECF No. 88 at 5.) Williams contends that it was “impossible to tell” from
8 the chart provided by defense counsel whether the time spent was reasonably expended.
9 (Id.)
10 Here, Defendant had the burden of producing “billing records to establish the
11 number of hours it requested is reasonable.” Gonzalez, 729 F.3d 1196, 1202 (9th Cir.
12 2013); see also Tourgeman v. Collins Fin. Servs., Inc., No. 08-CV-1392 JLS NLS, 2010
13 WL 4117416, at *1 (S.D. Cal. Oct. 18, 2010). Defendant has done so. Williams does not
14 identify what other type of information she believes Defendant was required to produce.
15 As discussed above, the Court acknowledges that the time entries are not overly
16 descriptive, but the Court was able, nonetheless, to determine, with the exceptions noted
17 herein, how defense counsel spent their time. Moreover, the documentation was adequate
18 to put Williams on notice and allow her to meaningfully challenge the reasonableness of
19 the hours claimed by Defendant.
20 F. Adjustments to the Lodestar
21 The Court may adjust the lodestar figure upward or downward based on the Kerr
22 factors. Gonzalez, 729 F.3d at 1209. Williams requests a downward adjustment to account
23 for Defendant’s unsupported, excessive time entries. (ECF Nos. 68 at 7–10; 88 at 5.)
24 Because the Court already considered these issues when determining a reasonable number
25 of hours, no further adjustment to the lodestar is necessary. See Gonzalez, 729 F.3d at 1209
26 n.11. Accordingly, the Court adopts the presumptively reasonable lodestar figure, id. at
27 1201, which is $8,942.50 (36.5 hours multiplied by $245/hour).
28 ///
1 |}IV. CONCLUSION
2 For the foregoing reasons, Defendant’s request for fees is GRANTED IN PART
3 DENIED IN PART. The Court awards Defendant fees in the amount of $8,942.50.
4 || Plaintiff's counsel is ordered to pay Defendant in full within 30 days of the date of this
5 || Order.
6 IT IS SO ORDERED.
7 ||Dated: August 16, 2021 -
n. Jill L. Burkhardt
? ited States Magistrate Judge
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