Lardizabal v. American Express National Bank

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 GREGORIO LARDIZABAL, Case No.: 22-cv-345-MMA (BLM)

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART PLAINTIFF’S

MOTION FOR ATTORNEYS’ FEES

14 AMERICAN EXPRESS NATIONAL

AND COSTS

15 BANK, et al.,

Defendants. [Doc. No. 143]

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23 Pending before the Court is Plaintiff Gregorio Lardizabal’s (“Plaintiff”) Motion for

24 Attorneys’ Fees and Costs against Defendant Arvest Central Mortgage Company

25 (“Arvest”). Doc. No. 143. The Court found the matter suitable for determination on the

26 papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and

27 Civil Local Rule 7.1.d.1. See Doc. No. 157. For the reasons set forth below, the Court

28 GRANTS in part and DENIES in part Plaintiff’s motion.

1 I. RELEVANT BACKGROUND

2 In April 2015, Plaintiff and his wife took out a mortgage from Arvest on their

3 investment property. Doc. Nos. 143-2 ¶ 5; 145-1 ¶ 6. Five years later, in April 2020,

4 Plaintiff contacted Arvest regarding possible hardship options available to him. Doc. No.

5 145-1 ¶ 7. Plaintiff then entered into a forbearance agreement with Arvest. Doc. Nos.

6 143-2 ¶ 7; 145-1 ¶ 8. Although Plaintiff timely made all payments on the property, Doc.

7 No. 143-2 ¶ 6, the crux of Plaintiff’s complaint against Arvest is that it inaccurately

8 reported to credit agencies that Plaintiff was thirty-days late on his October 2020

9 payment, Doc. No. 1 ¶ 47.

10 On March 14, 2022, Plaintiff initiated this action alleging violations of the Fair

11 Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., California’s Consumer Credit

12 Reporting Agencies Act (“CCRAA”), Cal. Civ. Code § 1785.1, et seq., and intentional

13 infliction of emotional distress, against Arvest and nine other defendants, including

14 American Express National Bank, Bank of America, N.A., Barclays Bank Delaware,

15 Citibank, N.A., Synchrony Bank, Equifax Information Services, LLC, Experian

16 Information Solutions, Inc., Innovis Data Solutions, Inc., and Trans Union, LLC. Doc.

17 No. 1. Between April 5, 2022 and June 6, 2022, all defendants filed an answer to

18 Plaintiff’s complaint, with Bank of America, N.A., filing a motion to dismiss. Doc. Nos.

19 16, 28, 31, 34, 36, 43, 52, 60–61.

20 On May 16, 2022, Plaintiff and all defendants attended a court-ordered Early

21 Neutral Evaluation (“ENE”) conference before U.S. Magistrate Judge Barbara L. Major,

22 which did not resolve the case. Doc. No. 49. Following the ENE and with leave of

23 Court, Plaintiff later filed a First Amended Complaint (“FAC”) alleging only violations

24 of the FCRA and CCRAA against seven of the defendants, including Arvest, American

25 Express National Bank, Bank of America, N.A., Equifax Information Services, LLC,

26 Experian Information Solutions, Inc., Innovis Data Solutions, Inc., and Trans Union,

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1 LLC. Doc. Nos. 70; 72. All remaining defendants, including Arvest, filed answers to

2 Plaintiff’s FAC between August 5, 2022 and August 19, 2022. Doc. Nos. 76–80, 82, 84.

3 On August 12, 2022, Plaintiff and the seven remaining defendants attended a

4 second ENE before Judge Major. Doc. No. 81. Because the case again did not resolve,

5 the case proceeded through discovery. Id.; Doc. No. 85. On October 10, 2022 and

6 October 13, 2022, Plaintiff filed notices of settlement for all of the remaining defendants,

7 except Arvest.2 Doc. Nos. 90–93, 95–96.

8 From October 2022 to February 2023, Plaintiff and Arvest duked it out in

9 discovery, which included Plaintiff filing two separate motions to resolve various

10 discovery disputes. Doc. Nos. 101; 127. Judge Major granted in part Plaintiff’s first

11 motion, which sought for Arvest to supplement some of its responses to two of Plaintiff’s

12 Requests for Production, and granted Plaintiff’s second motion in full, requiring Arvest to

13 produce two of its employees for depositions. Doc. Nos. 108; 138.

14 On March 9, 2023, Plaintiff and Arvest attended a Mandatory Settlement

15 Conference (“MSC”) before Judge Major. Doc. No. 139. The case did not settle. Id.

16 However, soon after, on March 13, 2023, Plaintiff filed a notice of acceptance of a

17 Federal Rule of Civil Procedure 68 offer of judgment from Arvest that provided $40,000

18 in damages, “inclusive of any and all actual, statutory and punitive damages, including

19 any applicable interest,” and injunctive relief, where Arvest agreed to “request that the

20 consumer reporting agencies suppress the reporting on Plaintiff’s October 2020 payment

21 from Plaintiff’s credit reports.” Doc. Nos. 140; 140-1 at 3. On March 14, 2023, exactly

22 one year from the date Plaintiff filed his initial complaint, the Court entered judgment

23 and closed the case. Doc. No. 141.

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26 1 On May 16, 2022 and May 25, 2022, the Court granted Joint Motions to Dismiss Defendants Citibank,

N.A., and Barclays Bank Delaware. Doc. Nos. 50; 58. In addition, the Court granted a Joint Motion to

27 Dismiss Defendant Synchrony Bank shortly after the filing of the FAC. Doc. No. 75.

2 The other six defendants were later dismissed after the Court granted the parties’ Joint Motions to

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1 Thereafter, on March 28, 2023, Plaintiff filed the instant Motion for Attorneys’

2 Fees and Costs. Doc. No. 143. In support of his motion, Plaintiff offered over 450 pages

3 worth of declarations, receipts, discovery from Arvest, and exhibits that included billing

4 records of Plaintiff’s four attorneys, Matthew Loker, Joshua Swigart, Daniel Shay, and

5 Spencer Pfeiff. See Doc. Nos. 143-2–143-63. Arvest filed an opposition,3 Doc. No. 145,

6 to which Plaintiff replied, Doc. No. 152. As stated above, the Court found the matter

7 suitable for determination on the papers and without oral argument, and took the matter

8 under submission. Doc. No. 157.

9 II. LEGAL STANDARD

10 Under the FCRA, a successful party in an action to enforce liability under the

11 statute may recover costs and reasonable attorney’s fees. See 15 U.S.C. § 1681n(a)(3)

12 (“In the case of any successful action to enforce any liability under this section, [the court

13 may award] the costs of the action together with reasonable attorney’s fees as determined

14 by the court,” against “[a]ny person who willfully fails to comply” with the FCRA); 15

15 U.S.C. § 1681o(a)(2) (same for negligent violations of the FCRA). The CCRAA

16 similarly provides that “the prevailing plaintiffs in any action commenced under this

17 section shall be entitled to recover court costs and reasonable attorney’s fees.” See Cal.

18 Civ. Code § 1785.31(d).

19 When evaluating a motion for reasonable attorneys’ fees under the FCRA and

20 CCRAA, the Court undertakes a two-step process. Fischer v. SJB–P.D. Inc., 214 F.3d

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3 After Arvest filed its opposition, Plaintiff filed an ex parte motion to seal certain exhibits attached to

23 the opposition which included Plaintiff’s confidential information. Doc. No. 146. Upon review of the

ex parte motion, the briefing for the fees motion, and the relevant exhibits, the Court granted Plaintiff’s

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motion to seal while also finding that Plaintiff’s own motion included confidential information. See

25 Doc. No. 149. Accordingly, the Court sealed Document Numbers 143-8, 143-9, 143-10, 145-5, and

145-6, and required the parties to file redacted copies of the above filings on the docket, see Doc. Nos.

26 154–155. Following this Order, Plaintiff filed an ex parte motion to strike certain portions of Arvest’s

opposition because they contained confidential settlement communications. Doc. No. 158. The Court

27 denied Plaintiff’s motion to strike and instead directed the Clerk of Court to seal Arvest’s entire

opposition brief and the declaration of Arvest’s attorney, Magdalena D. Kozinska. Doc. No. 160. The

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1 1115, 1119 (9th Cir. 2000). First, the Court calculates the presumptive fee award, also

2 known as the “lodestar figure,” by taking the number of hours reasonably expended on

3 the litigation and multiplying it by a reasonable hourly rate. Id. (citing Hensley v.

4 Eckerhart, 461 U.S. 424, 433 (1983)). The Court “must carefully review attorney

5 documentation of hours expended; ‘padding’ in the form of inefficient or duplicative

6 efforts is not subject to compensation.” Ketchum v. Moses, 24 Cal. 4th 1122, 1132

7 (2001) (citation omitted). “The reasonable hourly rate is that prevailing in the

8 community for similar work.” PLCM Grp. v. Drexler, 22 Cal. 4th 1084, 1095 (2000).

9 Second, in “appropriate cases” the court may enhance or reduce the lodestar figure

10 based on an evaluation of the factors set forth in Kerr v. Screen Extras Guild, Inc., 526

11 F.2d 67, 69–70 (9th Cir. 1975),4 that were not taken into account in the initial lodestar

12 calculation. Intel Corp. v. Terabyte Intern., Inc., 6 F.3d 614, 622 (9th Cir. 1993) (citation

13 omitted). The Kerr factors include, but are not limited to, the time and labor required, the

14 novelty and difficulty of the questions involved, the skill required to perform the legal

15 services properly, the preclusion of other employment by the attorney due to acceptance

16 of the case, whether the fee is fixed or contingent, and the experience, reputation, and

17 ability of the attorneys. Kerr, 526 F.2d at 70. The Ninth Circuit has cautioned that there

18 is a “strong presumption” that the lodestar figure represents a reasonable fee and that

19 adjustment upward or downward is “the exception rather than the rule.” D’Emanuele v.

20 Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir. 1990).

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4 Abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992).

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1 III. DISCUSSION

2 Plaintiff requests a total of $121,574.50 in attorneys’ fees and $12,191.13 in

3 litigation costs.5 Doc. No. 152 at 14. Arvest presents two main arguments in its

4 opposition. First, Arvest argues that Plaintiff is not entitled to fees or costs because its

5 “intent . . . was for the [Rule 68] Offer of Judgment to settle the entire case, attorneys’

6 fees and costs included.” Doc. No. 161-1 at 16. Second, Arvest argues that even if

7 Plaintiff is entitled to fees, the amount Plaintiff requests is unreasonable. Doc. No. 161-1

8 at 17–32. The Court will first address Arvest’s argument regarding the availability of

9 attorneys’ fees and costs before analyzing the requests themselves.

10 A. Whether Attorneys’ Fees and Costs are Recoverable

11 As stated above, the Court first considers whether, having accepted Arvest’s Rule6

12 68 Offer, Plaintiff may now seek attorneys’ fees and costs in addition to the $40,000

13 judgment award.

14 1. Rule 68 Standard

15 Federal Rule of Civil Procedure 68 provides:

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At least 14 days before the date set for trial, a party defending against a claim

17 may serve on an opposing party an offer to allow judgment on specified terms,

with the costs then accrued. If, within 14 days after being served, the opposing

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party serves written notice accepting the offer, either party may then file the

19 offer and notice of acceptance, plus proof of service. The clerk must then enter

judgment.

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21 Fed. R. Civ. P. 68(a). The rule also contains a fee-shifting provision: “If the judgment

22 that the offeree finally obtains is not more favorable than the unaccepted offer, the

23 offeree must pay the costs incurred after the offer was made.” Fed. R. Civ. P. 68(d).

24 Thus, plaintiffs must choose carefully when deciding whether to accept or reject a Rule

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5 Plaintiff initially requested $114,072.50 in attorneys’ fees in his motion, Doc. No. 143-1 at 29, but later

27 revised this number to include additional fees incurred to fully brief this fee petition and to correct

several errors in Plaintiff’s attorneys’ initial time sheet they submitted.

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1 68 offer. See Marek v. Chesny, 473 U.S. 1, 10–11 (1985) (noting that a Rule 68 offer

2 “will require plaintiffs to ‘think very hard’ about whether continued litigation is

3 worthwhile”). Indeed, “the plain purpose of Rule 68 is to encourage settlement and avoid

4 litigation.” Id. at 5.

5 2. Analysis

6 Plaintiff argues that he is entitled to attorneys’ fees and costs because he is the

7 prevailing party under the FCRA and CCRAA, and because Arvest’s Rule 68 offer was

8 silent regarding attorneys’ fees and costs. Doc. Nos. 143-1 at 15; 152 at 7, 9. Arvest

9 responds that “it [wa]s reasonable for Arvest to presume that Plaintiff accepted the

10 $40,000 offer, attorneys’ fees and costs included,” based on confidential settlement

11 communications7 between the parties that took place prior to Arvest’s offer. Doc. No.

12 145 at 16. Arvest further argues that “for Plaintiff to now claim that he did not know the

13 offer included fees and costs is just another bad faith tactic in pursuing a windfall

14 payout.” Id. at 15.

15 The Ninth Circuit has stated that a Rule 68 offer of judgment “must be clear and

16 unambiguous” in waiving or limiting attorneys’ fees and costs. Nusom v. Comh

17 Woodburn, Inc., 122 F.3d 830, 833 (9th Cir. 1997); Erdman v. Cochise County, Ariz., 926

18 F.2d 877, 880 (9th Cir. 1991); see also Marek, 473 U.S. at 6 (1985). More specifically,

19 “where the underlying statute does not make attorney fees part of costs, [like in the

20 situation here], it is incumbent on the defendant making a Rule 68 offer to state clearly

21 that attorney fees are included as part of the total sum for which judgment may be entered

22 if the defendant wishes to avoid exposure to attorney fees in addition to the sum offered

23 plus costs.” Id. at 834 (emphasis added); see F. v. Blue Shield of California, No. 09-CV-

24 2037-PJH, 2016 WL 1059459, at *14 (N.D. Cal. Mar. 17, 2016) (clarifying that,

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7 As stated in the Court’s April 28, 2023 Order, the Court will not rely on any of these confidential

27 settlement communications in its decision. Doc. No. 160 at 2. And, as explained further in the instant

Order, even if the Court were to consider this extrinsic evidence, Arvest was ultimately the maker of its

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1 according to Nusom, “a Rule 68 offer may include the amount for attorney’s fees (if this

2 inclusion is expressly stated) or may contemplate that the court will entertain requests for

3 attorney’s fees after acceptance.”). Therefore, “a Rule 68 offer for judgment in a specific

4 sum together with costs, which is silent as to attorney fees, does not preclude the plaintiff

5 from seeking fees when the underlying statute does not make attorney fees a part of

6 costs.” Nusom, 122 F.3d at 835. Moreover, “ambiguities in a Rule 68 offer are typically

7 construed against the offeror,” with defendants bearing the brunt of uncertainty.

8 Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d 1216, 1223 (9th Cir. 2016)

9 (citing Nusom, 122 F.3d at 834).

10 Here, of importance, Arvest’s Rule 68 offer of judgment to Plaintiff reads:

11 Judgment shall be entered against Arvest on all claims and in favor of Plaintiff

in the amount of $40,000 (forty thousand dollars and no cents), inclusive of

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any and all actual, statutory and punitive damages, including any applicable

13 interest, as may be awardable under the governing law. In addition, [Arvest]

will request that the consumer reporting agencies suppress the reporting on

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Plaintiff’s October 2020 payment from Plaintiff’s credit reports.

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Doc. No. 140-1 at 3. Thus, on its face, Arvest’s offer of judgment is silent as to

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whether attorneys’ fees or costs are included in its offer. Accordingly, Arvest’s

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argument that its “Offer of Judgment included [f]ees and [c]osts,” Doc. No. 145 at

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13, is unpersuasive. See Gutierrez v. Good Savior, LLC, No. CV 14-4595 (AJW),

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2016 WL 5661869, at *4 (C.D. Cal. Sept. 28, 2016). In addition, Arvest does not

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dispute that Plaintiff is the prevailing party or that the FCRA and CCRAA allow for

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recovery of attorneys’ fees upon a successful action to enforce liability under these

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statutes.

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Moreover, Arvest’s reliance on Radecki v. Amoco Oil Co., 858 F.2d 397 (8th

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Cir. 1988), an old out-of-circuit case, is unpersuasive, as a cursory review of the

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more current case law in this circuit (and elsewhere) reveals the approach the Ninth

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Circuit takes on this issue. See Gutierrez, 2016 WL 5661869, at *6 (finding that

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“[T]he Eighth Circuit’s application [in Radecki] of Rule 68 is markedly more lenient

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1 toward defendants than are Ninth Circuit precedents.”); Barbour v. City of White

2 Plains, 700 F.3d 631, 633–34 (2d Cir. 2012) (affirming district court’s grant of

3 attorneys’ fees and costs where defendants’ offer of judgment “for the settlement of

4 all claims pending against the defendants in this action” was clearly silent as to

5 attorneys’ fees and costs); Lima v. Newark Police Dep’t, 658 F.3d 324, 331–32 (3d

6 Cir. 2011) (rejecting argument that reference to “all of Plaintiff’s claims for relief”

7 in a Rule 68 offer explicitly covered attorneys’ fees and costs); Bosley v. Mineral

8 Cty. Comm’n, 650 F.3d 408, 411–13 (4th Cir. 2011) (rejecting argument that

9 defendants’ offer of judgment for “full and complete satisfaction of [plaintiff’s]

10 claim against . . . Defendants” included attorneys’ fees and costs).

11 However, the Ninth Circuit has indicated that extrinsic evidence may

12 sometimes be considered in resolving Rule 68 contract disputes. See Nusom, 122

13 F.3d at 834–35. But, even assuming the Court should or could look at extrinsic

14 evidence here—i.e., the parties’ confidential settlement communications offered by

15 Arvest—the evidence presented would not change the fact that Arvest is the master

16 of its own offer and did not explicitly state, in its written offer, that attorneys’ fees

17 or costs were included. Arvest apparently asserts that Plaintiff should have known

18 that its offer included attorneys’ fees and costs based on their communications in

19 earlier settlement discussions that took place shortly before Arvest made the offer.

20 Doc. No. 145 at 15–16. However, as the Gutierrez court points out, Plaintiff should

21 be able to rely on the actual offer given to him, which here, does not explicitly state

22 that attorneys’ fees or costs were included in the offer. 2016 WL 5661869, at *5–7.

23 Indeed, the Ninth Circuit has suggested that defense counsel must take care to draft

24 their offers to explicitly address fees and costs to “avoid exposure to attorney fees in

25 addition to the sum offered plus costs.” Nusom, 122 F.3d at 834.

26 The Court also notes that the case law it found while researching this issue

27 was available to Arvest at the time it was drafting its Rule 68 offer of judgment.

28 Thus, the Court is unpersuaded that Arvest should not be held to the actual offer it

1 presented to Plaintiff. To the extent that Arvest moves for a relief from judgment

2 pursuant to Rule 60(b) based on its argument that the “[j]udgment should be vacated

3 and the case should be litigated on its merits” due to no “meeting of the minds,” the

4 Court DENIES any such motion. “[T]he proper procedural device for relief from a

5 Rule 68 judgment is the same as for any other judgment: Rule 60.” Webb v. James,

6 147 F.3d 617, 620 (7th Cir. 1998). Rule 60 permits the court “to relieve a party or

7 its legal representative from a final judgment” for a variety of reasons, including

8 “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1).

9 Here, although Arvest attempts to label its contention as a mistake of fact, it appears

10 to the Court that Arvest’s entire argument is premised on a mistake of law regarding

11 the availability of attorneys’ fees, which is not a basis for granting relief under Rule

12 60(b). See Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103–04 (9th

13 Cir. 2006) (holding that counsel’s alleged gross negligence does not provide grounds

14 to vacate a Rule 68 judgment under Rule 60 and noting that “the very purpose of

15 Rule 68 is to encourage termination of litigation”).

16 Accordingly, the Court finds that Arvest’s Rule 68 offer of judgment did not

17 state that attorneys’ fees or costs were included and that, therefore, Plaintiff is

18 entitled to an award of attorneys’ fees as the prevailing party pursuant to the FCRA

19 and CCRAA, and to costs pursuant to Federal Rule of Civil Procedure 68. See

20 Marek, 473 U.S. at 6; Nusom, 122 F.3d at 833–34.

21 B. Calculation of Reasonable Attorneys’ Fees and Costs

22 As stated above, Plaintiff is seeking a total of $121,574.50 in attorneys’ fees and

23 $12,191.13 in costs. Doc. No. 152 at 14. Having determined that Plaintiff may seek fees

24 and costs, the Court now turns to the question of whether the requested amount in this

25 case is reasonable.

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1 1. Fees

2 a. Reasonableness of Rates

3 In determining whether the amount of fees requested in this case is reasonable, the

4 Court must first determine whether Plaintiff’s attorneys’ rates are reasonable. To do so,

5 the Court must weigh the “experience, skill, and reputation of the attorney[s] requesting

6 fees,” and compare the requested rates to prevailing market rates. Chalmers v. City of

7 Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), opinion amended on denial of reh’g,

8 808 F.2d 1373 (9th Cir. 1987); see also Blum v. Stenson, 465 U.S. 886, 886 (1984). The

9 relevant community for analyzing reasonable hourly rates “is the forum in which the

10 district court sits,” here the Southern District of California. Camacho v. Bridgeport Fin.,

11 Inc., 523 F.3d 973, 979 (9th Cir. 2008).

12 In this action, Plaintiff’s counsel requested hourly rates ranging from $295 to $795.

13 Doc. No. 143-1 at 20. Plaintiff argues these fee rates are reasonable given the

14 contentious nature of the litigation and the extensive experience of Plaintiff’s counsel

15 with FCRA and CCRAA claims. Id. at 21. In support of these rates, Plaintiff submits

16 numerous declarations from other attorneys and also contends that the requested rates are

17 in line with the prevailing rates in the Southern District of California, relying on

18 Orthopaedic Hosp. v. Encore Med., L.P., No. 19-cv-00970-JLS-AHG, 2021 U.S. Dist.

19 LEXIS 225014 (S.D. Cal. Nov. 19, 2021). Arvest argues that Plaintiff’s reliance on the

20 Orthopaedic case is “disingenuous” and that the requested rates are unreasonably high

21 based on the most recent U.S. Consumer Law Attorney Fee Survey Report from 2017 to

22 2018, which indicates median rates of $400 for attorneys practicing in credit rights cases.

23 Doc. Nos. 145 at 24; 145-15 at 9.

24 First, the Court agrees with Arvest that the Orthopaedic case is inapposite here.

25 That case dealt with a “complex, high-stakes patent litigation” which the Court held

26 justified “the approval of higher billing rates.” 2021 U.S. Dist. LEXIS 225015, at *43.

27 Based on a review of the case law in this area, the Court finds another November 2021

28 case from this District much more instructive than Orthopaedic. In Buchannon v.

1 Associated Credit Services, Inc., No. 20-cv-02245-BEN-LL, 2021 WL 5360971 (S.D.

2 Cal. Nov. 17, 2021), U.S. District Judge Roger T. Benitez found an hourly rate of $575

3 was reasonable for attorney Michael Cardoza, owner of the Cardoza Law Corporation,

4 who submitted a declaration in support of the instant motion. 2021 WL 5360971, at *15.

5 Like Plaintiff’s counsel here, Mr. Cardoza is a consumer law attorney who frequently

6 litigates FCRA cases and cases involving other consumer protection statutes. Id.; see

7 also Doc. No. 143-46 at 2–4. Mr. Cardoza also has a commensurate practice and

8 litigation experience compared to the three more experienced attorneys in this case.

9 Second, the Court agrees with Arvest that the twenty attorney declarations

10 submitted by Plaintiff are not persuasive. The declarations are conclusory and do not

11 include sufficient detail—e.g., what the attorneys’ own rates currently are, whether they

12 have been awarded $795 as an hourly rate in this District, or whether they practice in this

13 District, specifically—to assist the Court in determining whether counsel’s requested

14 rates in the instant case are reasonable.

15 Moreover, although the Fee Survey Report is quite often relied on by other judges

16 in this District,8 the Court finds Arvest’s suggested rate of $400 based on the report

17 unreasonably low, particularly in light of inflation. See Bell v. Clackamas Cty., 341 F.3d

18 858, 869 (9th Cir. 2003) (“We hold, however that it was an abuse of discretion in this

19 case to apply the market rates in effect [more] than two years before the work was

20 performed.” (emphasis in original)). Thus, based on the above reasoning, the Court will

21 calculate counsel’s hourly fee in this case using the $575 hourly rate that Judge Benitez

22 found reasonable in the Buchannon case. Adjusting for inflation rates of 6.5% and 3.2%9

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25 8 For example, this report was cited to recently in October 2023 by U.S. Magistrate Judge Allison H.

Goddard when calculating reasonable attorneys’ fees. See Roland S. v. Kijakazi, No. 20-cv-01068-

26 AHG, 2023 WL 6966153, at *3 (S.D. Cal. Oct. 20, 2023).

9 The Court takes judicial notice of these rates, see Fed. R. Evid. 201(c)(1), which are public records

27 published by the United States Bureau of Labor Statistics, and are calculated as the total Consumer Price

Index (“CPI”) for each year. See https://www.bls.gov/news.release/archives/cpi_01122023.htm

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1 in 2022 and 2023, respectively, the Court finds that $650 is a reasonable hourly rate for

2 Mr. Loker, Mr. Swigart, and Mr. Shay.10 As to the associate in this case, Mr. Pfeiff, the

3 Court finds that his requested fee of $295 is reasonable based on the Fee Survey Report

4 submitted by Arvest and the above-mentioned inflation rates.11

5 Having determined the reasonable hourly rates, the Court will now determine the

6 reasonableness of the hours expended by counsel to litigate this case.

7 b. Reasonableness of Hours Expended

8 Here, as modified in their supplemental joint time sheet, Plaintiff’s attorneys seek

9 compensation for the following hours billed: (1) 89.2 hours for Mr. Loker; (2) 40.2 hours

10 for Mr. Swigart; (3) 12.8 hours for Mr. Shay; and (4) 28.9 hours for Mr. Pfeiff. Doc. No.

11 152-2 at 14. To determine the appropriate lodestar amount, the Court must now assess

12 the “number of hours reasonably expended on the litigation[.]” Credit Managers Ass’s of

13 S. Cal. v. Kennesaw Life and Accident Ins. Co., 25 F.3d 743, 750 (9th Cir. 1994). “In

14 determining the appropriate lodestar amount, the district court may exclude from the fee

15 request any hours that are excessive, redundant, or otherwise unnecessary.” Welch v.

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19 https://www.bls.gov/news.release/archives/cpi_11142023.htm (showing the unadjusted annual

percentage change of the CPI of 3.2% for October 2023); see also

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https://www.usinflationcalculator.com/inflation/current-inflation-rates/.

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10 This rate was calculated by dividing the inflation rates by 100, multiplying that number by the

relevant hourly rate, and then adding the annual increase based on inflation to the hourly rate. Although

22 the actual calculation for the new hourly rate came to approximately $631.89, the Court in its discretion

finds $650 reasonable based on Plaintiff’s counsel’s experience and expertise in FCRA and CCRAA

23 cases.

11 In its opposition, Arvest disputes Mr. Pfeiff’s hourly rate and notes that in Plaintiff’s original joint

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time sheet submitted with his motion for fees, Mr. Pfeiff was billing on this case at the same rate before

25 he was admitted to the California State Bar. Doc. No. 145 at 24. In reply, Plaintiff acknowledges the

error and notes that “the intent was to seek compensation for [Mr. Pfeiff’s] time at a lower rate for when

26 he was a law clerk.” Doc. Nos. 152 at 13 n.4; 152-1 ¶ 10. In light of this error, Plaintiff submitted an

updated time sheet that does not seek recovery for any of Mr. Pfeiff’s time spent working on this case

27 before he was barred. Doc. No. 152-1 ¶ 11. Accordingly, the Court will only apply Mr. Pfeiff’s

reasonable hourly rate of $295 to reasonable hours billed while he was a practicing attorney, with his

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1 Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (internal quotation marks

2 omitted).

3 In opposition, Arvest disputes Plaintiff’s attorneys’ claimed hours for various

4 reasons, including excessive hours spent litigating a case Arvest believes was a “frivolous

5 and bad faith action,”12 “fail[ing] to properly identify and segregate its billing as to

6 Arvest only,” duplicative billing, block billing, the wrong attorney billing for a deposition

7 where he was not present, and improperly seeking fees for non-recoverable clerical work.

8 Doc. No. 145 at 18–21. In reply, Plaintiff notes that his supplemental joint time sheet

9 corrects some of the errors that Arvest identified, such as Mr. Pfeiff conducting the

10 deposition of David Roth and not Mr. Swigart. Doc. Nos. 152 at 13 n.4; 152-2 at 10.

11 Plaintiff also notes that his supplemental joint time sheet accounts for time spent

12 defending his fee motion. Doc. No. 152 at 13 n.4.

13 As an initial matter, the Court will not second guess the litigation tactics used by

14 Plaintiff, because as noted above, he is to be considered the prevailing party for purposes

15 of this motion. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008);

16 Doc. No. 141. Accordingly, the Court will treat all motion practice conducted by both

17 parties in this matter as reasonably necessary.

18 As to Arvest’s complaints of duplicative billing and block billing, the Court is

19 unpersuaded. First, although Plaintiff’s attorneys’ time sheet includes entries for the

20 same task by different counsel, they specifically billed the time to just one attorney. See,

21 e.g., Doc. No. 152-2 at 11. To the extent Plaintiff argues that it was unnecessary for the

22 more senior attorneys to review the younger associate’s work, the Court finds that Arvest

23 has failed to show how Plaintiff’s attorneys’ decision to staff multiple attorneys on

24 certain tasks resulted in unnecessary duplicative billing. See Kim v. Fujikawa, 871 F.2d

25 1427, 1435 n. 9 (9th Cir. 1989) (“[T]he participation of more than one attorney does not

26

27

12 Arvest also argues at multiple times in its opposition that Plaintiff “manufactured” discovery disputes.

28

1 necessarily constitute an unnecessary duplication of effort.”); Mitchell v. Metro. Life Ins.

2 Co., 2008 WL 1749473, at *3 (C.D. Cal. Apr. 7, 2008) (“It is not unusual for one

3 attorney to draft a brief, for another attorney to review and revise the brief, and then for

4 the drafting attorney to make final edits and changes.”); Charlebois v. Angels Baseball,

5 LP, 993 F. Supp. 2d 1109, 1125 (C.D. Cal. May 30, 2012) (declining to strike billing

6 entries “simply because Class Counsel kept each other informed about the case and

7 double-checked each other’s work . . . indeed, many motions this Court denie[d] would

8 have benefitted from a second read and more strategizing by the attorneys involved.”).

9 Therefore, the Court does not find duplicative billing as a basis to disallow certain billing

10 entries from a fee award. Second, in regard to block billing, the Court finds that Arvest’s

11 objections to specific entries in Plaintiff’s time sheet are without merit. Doc. No. 145-7

12 ¶ 46. Block billing is not prima facie objectionable. Garcia v. Ford Motor Co., No. 22-

13 CV-1474-GPC, 2023 WL 3961090, at *3 (S.D. Cal. June 12, 2023). Instead, block

14 billing is first and foremost objectionable when billing records block bill multiple tasks in

15 which only some are entitled to fee recovery. See Bell v. Vista Unified School Dist., 82

16 Cal. App. 4th 672, 689 (Cal. App. 2000) (objecting to block billing because the court

17 could not break down the hours to determine which were related to Brown Act violations

18 and therefore recoverable and other legal claims that were not recoverable). Here, all of

19 the tasks relate to Plaintiff’s FCRA and CCRAA claims, and fees are recoverable under

20 these statutory schemes. Further, none of the entries complained about by Arvest

21 exceeded even three hours of billable time—this is not an egregious use of block billing.

22 Thus, the Court finds that block billing is not objectionable in this context.

23 On the other hand, the Court is persuaded by Arvest’s arguments regarding

24 Plaintiff’s failure to properly identify and segregate its billing as to Arvest only, and as to

25 Plaintiff improperly seeking fees for clerical tasks. Although the Court agrees with

26 Plaintiff that Arvest is solely responsible for any reasonable time billed after notices of

27 settlement were filed as to the other nine defendants, the Court finds it necessary to

28 discount or disallow Plaintiff’s attorneys’ time for tasks prior to October 2022, such as

1 preparing for and attending two ENEs, where multiple other defendants were involved.

2 See Clark v. Cap. Credit & Collection Servs., Inc., 561 F. Supp. 2d 1213, 1223 (D. Or.

3 2008) (apportioning attorneys’ fees between multiple defendants where the parties were

4 not jointly and severally liable for plaintiff’s attorneys’ fees). In addition, the Court finds

5 that numerous entries in Plaintiff’s joint time sheet—for example, “[r]eceiving [a]

6 message from Chambers re[garding] scheduling, Doc. No. 152-2 at 9—must be

7 disallowed due to improperly seeking fees for non-professional, clerical tasks. Missouri

8 v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (“‘[P]urely clerical or secretarial tasks should

9 not be billed at a paralegal’s [or lawyer’s] rate, regardless of who performs them . . .

10 [The] dollar value [of such non-legal work] is not enhanced just because a lawyer does

11 it.’”) (internal citations omitted); see also Young v. Geico Indem. Co., No. 08–00171

12 JMS/KSC, 2009 WL 3049640, at *8 (D. Haw. Sept. 23, 2009) (communications with the

13 court are clerical and not compensable at attorney rates); Compass Bank v. Morris

14 Cerullo World Evangelism, No. 13:CV-0654-BAS (WVG), 2015 WL 3442030, at *8

15 (S.D. Cal. May 28, 2015) (reducing billing entries due to a finding that “certain tasks

16 were ministerial and did not require an attorney to perform[,]” including drafting a

17 revised subpoena, preparing instructions for service, and phone calls and emails to

18 reschedule deposition); Miller v. Schmitz, No. 112CV00137LJOSAB, 2017 WL 633892,

19 at *7 (E.D. Cal. Feb. 15, 2017) (excluding numerous email communications as purely

20 clerical and noting that “[a]lthough Plaintiff’s counsel is a solo practitioner and may not

21 have secretarial support for these types of tasks, there is nothing in the record to establish

22 clerical tasks are not generally subsumed within an attorney’s hourly rate”).

23 Moreover, as seen in the chart below, the Court also finds some entries in the

24 billing sheet are vague or include excessive hours. See Santiago v. Equable Ascent Fin.,

25 No. C 11-3158 CRB, 2013 WL 3498079, at *5 (N.D. Cal. July 12, 2013) (explaining that

26 “[w]ork entries are inadequately vague when the district court is unable to discern how

27 the time spent is attributable to the case at hand” and deducting billed hours with vague

28 entries); see also Welch, 480 F.3d at 946.

1 Finally, as to Plaintiff’s additional time sought to defend the instant motion, the

2 Court finds that Plaintiff may also seek the additional fees and costs he incurred in

3 litigating his fees and costs. See Orange Blossom Ltd. P’ship v. S. Cal. Sunbelt

4 Developers, Inc. (In re S. Cal. Sunbelt Developers, Inc.), 608 F.3d 456, 463 (9th Cir.

5 2010).

6 Based on the above reasoning and its line-by-line review of Plaintiff’s

7 supplemental joint time sheet, Doc. No. 152-2, the Court finds that the following

8 reductions are warranted for the reason(s) shown:

9 Billing Date Task Time Claimed Court Adjusted Reason(s) for

Time Adjustment

10 3/12/2022 Finalized Complaint. 0.4 0.2 Excessive hours

for task

11

12 3/14/2022 Received approval for 0.1 0 Clerical

Complaint.

13

3/14/2022 Filed Complaint. 0.1 0 Clerical

14

15 4/1/2022 Received executed 0.1 0 Clerical

JPA and added my

16 signature.

17 4/1/2022 Prepared NOA. 0.2 0.1 Excessive hours

for task

18

19 4/1/2022 Filed NOA. 0.1 0 Clerical

20 4/1/2022 Provided Zoho link to 0.1 0 Clerical

Spencer so Swigart

21 Law Group could

upload the remainder

22

of their documents to

23 my system.

24

25 5/6/2022 Sent research notes to 0.1 0 Excessive hours

co counsel. Asked for task; clerical

26

Spencer to discuss

27 with Lardizabal.

28

1 5/6/2022 Drafted ENE brief. 3.2 0.3 Hours reduced to

account for

2 multiple

defendants

3

4 5/11/2022 Provided Zoom link to 0.1 0 Clerical

Lardizabal.

5

5/13/2022 Received message 0.1 0 Clerical

6 from Magdalena

seeking dismissal

7

inclusive of docs.

8

5/16/2022 Attended ENE. Need 1.0 0.1 Hours reduced to

9 more info to facilitate account for

substantive multiple

10

discussions. defendants

11

5/16/2022 Received email from 0.1 0 Clerical

12 Magdalena re Rule

11.

13

7/3/2022 Worked on ENE Brief 0.8 0.1 Hours reduced to

14

#2. account for

15 multiple

defendants

16

7/20/2022 Drafted FAC. 1.2 0.2 Hours reduced to

17 account for

multiple

18

defendants

19

7/28/2022 Finalized ENE Brief 1.3 0.2 Hours reduced to

20 #2. account for

multiple

21 defendants

22

8/5/2022 Received counter 0.1 0 Clerical

23 from Arvest along

with

24 documents/recordings.

25 8/12/2022 Attended second 3.0 0.4 Hours reduced to

ENE. account for

26

multiple

27 defendants

28

1 9/9/2022 Received Arvest’s 0.1 0 Clerical

discovery requests.

2

3

10/10/2022 Received message 0.1 0 Clerical

4 from Magdalena re

resolution.

5

11/2/2022 Finalized and filed 2.6 2.0 Excessive hours

6 disco dispute Motion. for task; clerical

7

11/22/2022 Received Order re 0.1 0 Clerical

8 Disco Dispute.

9 12/19/2022 Received unilateral 0.1 0 Clerical

“cancellation” of

10

depos by Magdalena.

11

12/21/2022 Organized Exhibits 0.6 0.3 Excessive hours

12 for Johnson and for task; clerical

Bisbee no show.

13

12/21/2022 Submitted No Show 0.1 0 Clerical

14

Exhibits to Steno.

15

12/28/2022 Received expert 0.1 0 Clerical

16 designations from

Arvest.

17

1/9/2023 Provided final costs re 0.1 0 Clerical

18

No Show Depos to

19 Magdalena.

20 1/11/2023 Received message 0.1 0 Clerical

from Magdalena that

21 Arvest will reimburse

costs but will not

22

produce either Bisbee

23 or Johnson for a depo.

24 1/13/2023 Received message 0.1 0 Clerical

from Chambers re

25

scheduling disco

dispute conference

26

call.

27 1/13/2023 Confirmed disco 0.1 0 Clerical

dispute call for 1.18.

28

1 1/20/2023 Finalized and filed 2.8 1.4 Vague; excessive

Disco Dispute #2. hours for task;

2 partially clerical

2/24/2023 Received Order re 0.7 0 Vague; excessive

3

MTC #2. hours for task;

4 clerical

2/27/2023 Drafted and submitted 2.8 2.0 Excessive hours

5 MSC Brief. for task

6

3/9/2023 Received Rule 68 0.1 0 Clerical

Offer of Judgment.

7

8 3/13/2023 Prepared and filed 0.3 0.1 Excessive hours

notice of acceptance for task; partially

9 of OOJ. clerical

10

3/14/2023 Judgement entered. 0.4 0 Vague; excessive

11 hours for task;

clerical

12

Taking into account the reduction of hours detailed above, the Court will allow the

13

recovery of 82.4 hours worked by Mr. Loker, 34.6 hours worked by Mr. Swigart, and

14

12.8 hours worked by Mr. Shay at the hourly rate of $650, and 25.3 hours worked by Mr.

15

Pfeiff at the hourly rate of $295. The Court finds that these hourly rates provide adequate

16

and reasonable compensation, and a review of the Kerr factors does not support a

17

lodestar multiplier or reduction.

18

However, “the district court can impose a small reduction, no greater than 10

19

percent—a ‘haircut’—based on its exercise of discretion and without a more specific

20

explanation.” Moreno, 534 F.3d at 1112. “This reduction is in addition to the line-item

21

reductions explained above.” Salmeron v. Ford Motor Co., No. 218CV07266SVWPLA,

22

2020 WL 9217979, at *8 (C.D. Cal. July 14, 2020). Having closely examined the record,

23

and in consideration of the Court’s experience with similar cases, the Court finds that

24

several inefficiencies are not accounted for in the above reductions. Accordingly, the

25

Court imposes an additional 10 percent “haircut” to its modified lodestar figure.

26

///

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1 In sum, the Court will award Plaintiff $82,650.15 in attorneys’ fees. That figure

2 was arrived at under the following calculations:

3 Attorney Reasonable Rate Reasonable Hours Fee

Matthew Loker $650 89.2 – 6.8 = 82.4 $53,560

4 Joshua Swigart $650 40.2 – 5.6 = 34.6 $22,490

Daniel Shay $650 12.8 – 0 = 12.8 $8,320

5

Spencer Pfeiff $295 28.9 – 3.6 = 25.3 $7,463.50

6 Subtotal --- --- $91,833.50

“Haircut Reduction” --- --- $9,183.35

7 Total --- --- $82,650.15

8 2. Costs

9 Plaintiff also requests a total of $12,191.13 in costs and expenses. Doc. No. 143-1

10 at 29. Arvest does not dispute that Plaintiff’s counsel is owed costs and expenses, but

11 argues that the $402 filing fee sought in the Bill of Costs should not be solely apportioned

12 to Arvest due to there being nine other defendants at the start of this case. Doc. No. 145

13 at 31–32. Plaintiff does not address this argument in his reply. On this point, the Court

14 agrees with Arvest. Therefore, the Court will only apportion one-tenth of the filing fee to

15 Arvest, which is $40.20. Arvest also challenges $7,246.90 in litigation costs sought by

16 the Swigart Law Group. Id. at 32. However, the Court finds there is no material dispute

17 regarding these expenses sought by Plaintiff. The Court entered judgment in favor of

18 Plaintiff, see Doc. Nos. 140–141, and additionally, the FCRA and CCRAA entitle a

19 successful party to recover costs. See 15 U.S.C. §§ 1681n, 1681o; Cal. Civ. Code

20 § 1785.31(d). The Court has reviewed the challenged expenses and Plaintiff’s receipts—

21 which include service fees, depositions fees, transcript fees, and video fees related solely

22 to Arvest—and finds these costs recoverable. See 28 U.S.C. § 1920; see also CivLR

23 54.1. Accordingly, the Court awards $11,829.33 in costs to Plaintiff.

24 ///

25

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27

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IV. CONCLUSION

2 For the reasons above, the Court GRANTS in part and DENIES in part

3 || Plaintiff's Motion for Attorneys’ Fees and Costs. Doc. No. 143. Accordingly, the Court

4 || finds Plaintiffs attorneys are entitled to $82,650.15 in attorneys’ fees and $11,829.33 in

5 || costs.

6 IT IS SO ORDERED.

7 ||Dated: November 29, 2023 MA. , Ou / ; lf,

8 HON. MICHAEL M. ELLO

9 United States District Judge

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