Opinion

Rachelle Edith Lupekha

Court
United States Bankruptcy Court, E.D. California
Filed
Mar 14, 2024
Cited by
0 cases
Authority
More cited than 30.0%

affirming bankruptcy court decision requiring Chapter 11 debtor’s counsel to submit evidence of prevailing rates charged by bankruptcy attorneys in the community in order to establish a reasonable hourly rate

How later courts described this case

  • affirming bankruptcy court decision requiring Chapter 11 debtor’s counsel to submit evidence of prevailing rates charged by bankruptcy attorneys in the community in order to establish a reasonable hourly rate

Written by the judges who cited it.

The opinion

1 UNITED STATES BANKRUPTCY COURT

2 EASTERN DISTRICT OF CALIFORNIA

3

4 In re: ) Case No. 23-90032-B-13

)

5 RACHELLE EDITH LUPEKHA, ) DC No. CRG-3

)

6 )

Debtor(s). )

7 ________________________________)

8

MEMORANDUM DECISION GRANTING IN PART AND DENYING IN PART

9 APPLICATION FOR COMPENSATION

10

Introduction

11

This is a continued proceeding on an application for

12

compensation filed by attorney Carl R. Gustafson (“Counsel”) as

13

the attorney of record for chapter 13 debtor Rachelle Lupekha.

14

The court issued a conditional ruling on March 5, 2024, granting

15

in part and denying in part the application. See Docket 56.1

16

The conditional ruling approved and allowed paralegal fees

17

in the amount requested, approved and allowed expenses in the

18

amount requested, and reduced the attorney’s fees requested based

19

on a reduction of Counsel’s hourly rate which he unilaterally

20

increased from $375.00 previously approved and allowed in this

21

case to $450.00 based on a 20% California State Bar board

22

certification enhancement reserved for the chapter 13 “no-look”

23

fee. The conditional ruling also permitted any party in interest

24

to file a response by March 8, 2024. Id. at 5-6. Counsel filed

25

a Response to Pre-Disposition Tentative Ruling on March 8, 2024.

26

27

28 1The conditional ruling is incorporated herein and made a

part of this memorandum decision by this reference. It is also

attached as Appendix A.

See Docket 58. The court issues this memorandum decision to

2 |) supplement its conditional ruling and to address the response.*

3

4 || Discussion

5 Counsel disputes only the $375.00 attorney’s fees hourly

rate approved and allowed in the conditional ruling. Counsel

7! wants to be compensated at an hourly rate of $450.00. Counsel

8 || believes he is entitled to a $450.00 hourly rate because he is

9] board certified. He also asserts that a $450.00 hourly rate is

10 || inherently reasonable in the Eastern District of California for

an attorney with his years of experience, i.e., just over sixteen

12 || years. The court disagrees.

13 As an initial matter, Counsel has failed to satisfy the

14 || basic burden of a fee applicant. As the United States Supreme

15 Court stated in Blum v. Stenson, 465 U.S. 886 (1984):

16 To inform and assist the court in the exercise of its

discretion, the burden is on the fee applicant to

17 produce satisfactory evidence-in addition to the

attorney’s own affidavits—that the requested rates are

18 in line with those prevailing in the community for

similar services by lawyers of reasonably comparable

19 skill, experience and reputation.

at 895 n.11. This, of course, is nothing new. In fact, one

21 |) would expect this to be common knowledge for a board certified

22 || —___ SSS

23 "The court has reviewed the response and its related

declaration and exhibits. The court has also reviewed and takes

24 || judicial notice of the docket. See Fed. R. Evid. 201(c) (1).

Oral argument is not necessary and will not assist in the

25 decision-making process. See Local Bankr. R. 1001-1(f£), 9014-

26 1(h). The continued hearing on March 19, 2024, at 1:00 p.m. will

be vacated, and the court will adopt the conditional ruling and

27 | this supplement as its final decision and its findings of fact

and conclusions of law. See Fed. R. Civ. P. 52(a); Fed. R.

28 || Bankr. P. 7052, 9014(c).

- 2? -

1 attorney because this court said the same thing thirty-five years

2 ago in In re Gianulias, 98 B.R. 27 (Bankr. E.D. Cal. 1989),

3 aff’d, 111 B.R. 867 (E.D. Cal. 1989).

4 Here, Counsel submitted no evidence with his fee application

5 or the response, in the form of declarations or otherwise, that

6 establishes other bankruptcy attorneys in the Eastern District of

7 California with just sixteen years of experience, board certified

8 or not, charge an hourly rate of $450.00. Instead, counsel

9 relies entirely on legal arguments that he is entitled to be

10 compensated at an hourly rate of $450.00 based on a 20% board

11 certification enhancement - whether by analogy to the local rules

12 that allow a 20% enhancement to the chapter 13 “no-look” fee or

13 under 11 U.S.C. §§ 330(a)(3)(E) and 330(a)(4)(B) - and the

14 enhanced hourly rate of $450.00 is inherently reasonable. Of

15 course, legal arguments are not evidence. And in any event,

16 Counsel’s legal arguments are without merit.

17 Counsel’s arguments are based on a single district court

18 decision the court cited in its conditional ruling, i.e.,

19 Momentum Commercial Funding, LLC v. Project Storm, LLC, 2022 WL

20 2817429 (E.D. Cal. July 18, 2022), adopted in full, 2022 WL

21 3578571 (E.D. Cal. Aug. 19, 2022). Counsel attempts to

22 substantiate both his entitlement to an enhanced hourly rate of

23 $450.00 and the reasonableness of a $450.00 enhanced hourly rate

24 by manipulating the actual and approved hourly rates of the

25 attorney involved in Momentum Commercial under what is commonly

26 referred to as the Laffey matrix. Problem is, the Ninth Circuit

27 has discredited the Laffey matrix as unreliable and rejected it

28 as unworkable in this Circuit. As the Nevada district court

- 3 -

1] explained in Voggenthaler v. Maryland Square, LLC, 2010 WL

21 4316883 (D. Nev. Oct. 20, 2010):

3 In this matter, the Court rejects the use of the Laffey

matrix to determine the reasonable hourly rate for

4 purposes of awarding attorneys’ fees. In Prison Legal

News, [608 F.3d 446 (9th Cir. 2010})] the Ninth Circuit

5 stated that a district court does not need to use the

Laffey matrix for purposes of determining appropriate

6 hourly rates. 608 F.3d at 454. The Ninth Circuit

noted that the ‘Laffey matrix is an inflation-adjusted

7 grid of hourly rates for lawyers of varying levels of

experience in Washington D.C.’ Id. According to the

8 Ninth Circuit, ‘just because the Laffey matrix has been

accepted in the District of Columbia does not mean that

9 it is a sound basis for determining rates elsewhere,

let alone in a legal market 3,000 miles away.’ Id.

10 Thus, the Court will apply the Lodestar method and look

to the prevailing market rates in Las Vegas, Nevada.

11

Id. at *3.

12

This court agrees with Voggenthaler to the extent it relied

13

on Prison Legal to discredit and reject the Laffey matrix and

14

instead looked to prevailing local market rates. The Hastern

15

District of California district court shares the same view. See

16

e.g., Cabardo v. Patacsil, 2022 WL 956951, at *3 (E.D. Cal. March

17

30, 2022) (“The Eastern District has repeatedly declined to adopt

18

the Laffey matrix, as it only surveys prevailing rates in the

19

Washington, D.C. legal community and does not directly correlate

20

to hourly rates for attorneys and paralegals in other parts of

21

the country.”); Chapman v. Jacobs, 2019 WL 4259765, at *4 (E.D.

22

Cal. Sept. 9, 2019) (declining to use the Laffey matrix to

23

determine a reasonable hourly rate because ‘it is not an accurate

24

tool to assess market rates in this district’) aff’d, 836 Fed.

25

App’ x 606 (9th Cir. 2021). So too does the Northern District of

26

California. See e.g., Theodore Broomfield v. Craft Brew

27

Alliance, Inc., 2020 WL 1972505, at *27 (N.D. Cal. Feb. 5, 2020).

28

- 4 -

1] Accordingly, this court will not use the Laffey matrix for any

2 ||) purpose, generally, and, particularly, it will not use it to

3 manipulate a reasonable hourly rate in this case or in this

4 district.

5 Without evidence from Counsel that satisfies his basic

burden as the fee applicant, and with the Laffey matrix rejected,

7 the court will rely on its own knowledge of local customary

hourly rates based on years of experience within the Eastern

District of California as the relevant legal market. Ingram v.

10 | Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). And it does so

11} guided by the two other decisions cited in the conditional ruling

12 | which the response ignores, i.e., Ambrose v. US Med-Equip, LLC,

13] 2024 WL 307843 (E.D. Cal. Jan. 26, 2024), and In re Howell, 2023

WL 3486669 (Bankr. E.D. Cal. May 14, 2023).

15 The district court in Ambrose recognized that “[i]n the

16 || Fresno Division of the Eastern District of California, across a

17 || variety of types of litigation, generally, attorneys with

18 || experience of twenty or more years of experience are awarded

19} $350.00 to $400.00 per hour; attorneys with ten to twenty years

20 | of experience are awarded $250.00 to $350.00 per hour[.]”

21 |] Ambrose, 2024 WL 307843 at *15.° This court in Howell approved a

221 $450.00 hourly rate as reasonable rate for an attorney with “more

23} than three decades” of bankruptcy experience. Howell, 2023 WL

24 3486669 at *11. Ambrose is instructive because it recognizes

25

26 *Perez v. All Ag., Inc., 2021 WL 3129602, at *5 & n.7 (E.D.

27" Cal. July 23, 2021), notes there is no distinction in hourly

rates between Sacramento and Fresno divisions, particularly in

28 || soecialized areas of practice.

~5 -

1 that an hourly rate of $400.00 is reasonable for attorneys with

2 over twenty years experience. Howell is instructive because it

3 recognizes that an hourly rate of $450.00 is reasonable for an

4 attorney with over thirty years of experience. Counsel’s years

5 of experience fall short of both thresholds.

6 Ambrose and Howell are also recent decisions which means

7 they are more timely and more relevant snapshots of reasonable

8 rates in the Eastern District of California without the need for

9 any Laffey matrix manipulation. Ambrose was decided less than

10 two months ago and Howell was decided less than ten months ago.

11 The court does not completely discount Momentum Commercial

12 in its analysis. In fact, the decision remains relevant not for

13 the actual or requested rates involved in the case, or for a

14 manipulation of those rates under the Laffey matrix, but for

15 evidence the fee applicant submitted to demonstrate that the

16 hourly rate at which he requested to be compensated was below

17 local market rates and therefore reasonable. To demonstrate

18 this, the fee applicant surveyed actual rates charged by Eastern

19 District of California bankruptcy practitioners with whom he best

20 compared and found as follows:

21 a. one bankruptcy attorney with forty-two years of

experience billed at $490.00;

22

b. another bankruptcy attorney with forty-one years

23 of experience billed at $600.00;

24 c. another bankruptcy attorney with thirty-four years of

experience billed at $525.00;

25

d. another bankruptcy attorney with thirty-two years of

26 experience billed at $525.00;

27 e. another bankruptcy attorney with forty-nine years of

experience billed at $625.00;

28

- 6 -

1 f. another bankruptcy attorney with fifteen years of

experience billed between $390.00-$500.00; and

2

g. another bankruptcy attorney with forty-one years of

3 experience billed at $435.00.

4 Momentum Commercial Funding, LLC, v. Project Storm, LLC, Case

5 2:21-cv-00981-KJM-KJN, Docket 19 at ¶¶ 8-11 (supplemental

6 declaration filed May 24, 2022).

7 The important take-aways from the Momentum Commercial

8 bankruptcy practitioner hourly rate survey are twofold. First,

9 Eastern District of California bankruptcy attorneys with

10 substantially more years of experience than Counsel’s sixteen

11 years bill at hourly rates closer to Counsel’s requested $450.00

12 hourly rate. Second, a $450.00 hourly rate for an Eastern

13 District of California bankruptcy attorney with just over sixteen

14 years of experience is not reasonable.4

15 Taking all of this into consideration, the court concludes

16 that, in this case, $375.00 is a reasonable hourly rate for an

17 attorney, such as Counsel, with just over sixteen years

18 experience. In fact, not only is a $375.00 hourly rate

19 reasonable under the facts and circumstance of this case, but it

20 is extremely generous inasmuch as it falls above the range of

21 reasonable hourly rates for attorneys, like Counsel, with

22 experience in the ten to twenty year range noted in Ambrose,

23 i.e., $250.00 to $350.00.

24 That Counsel may be board certified does not change the

25

4Even when compared with the surveyed rates on an average

26

basis, a $450.00 hourly rate is disproportionate to just over

27 sixteen years of experience. The average hourly rate of the

surveyed bankruptcy attorneys is $528.57 and their average years

28 of experience is 36.28.

- 7 -

1 result, at least in this case.5 Board certification by the

2 California State Bar requires “demonstration of a broad-based and

3 comprehensive experience in the specialty area based on

4 completion of a variety of matters in the specialty area[.]”

5 https://www.calbar.ca.gov/attorneys/legal-specialization (viewed

6 on March 14, 2024). The court is not convinced that Counsel

7 satisfied this standard, at least when this case was filed on

8 January 27, 2023, and during the time it has been pending. The

9 court recently discovered that throughout 2023 Counsel excluded

10 services the local rules characterize as “basic services” that

11 attorneys who represent debtors must provide in bankruptcy cases.

12 See In re Pegany, Case No. 23-23448, Dockets 22, 30, and 34

13 (order to show cause regarding Counsel’s exclusion in chapter 7

14 cases of services required under Local Bankr. R. 2017-1(a)(1)

15 which Local Bankr. R. 2016-3 characterizes as “basic services”).

16 Although the problem has been fixed, as a board certified

17 attorney who represents an overwhelming number of debtors,

18 Counsel is expected to be intimately familiar with the court’s

19 local rules and proficient in their application particularly with

20 regard to local rules that apply directly to debtors’ attorneys

21 and govern the scope of their representation in bankruptcy cases

22 filed in this district. Having failed in that endeavor during

23 the relevant period, the court is hard-pressed to find that an

24 hourly rate enhancement for board certification is appropriate or

25

5Since Counsel repeatedly touts his board certification as a

26

reason to enhance his hourly rate, as support for an increase in

27 the $375.00 hourly rate to $450.00, and as support for the

argument that a $450.00 hourly rate is reasonable in this case

28 the court must address it.

- 8 -

1 warranted in this case.

2

3 Conclusion

4 The conditional ruling of March 5, 2024, as supplemented

5 herein, is adopted as the court’s final decision and as its

6 findings of fact and conclusions of law. Counsel’s application

7 for compensation will be ORDERED APPROVED IN PART AND DENIED IN

8 PART as stated in the conditional ruling.

9 The court’s decision is firm. Counsel’s arguments have been

10 thoroughly considered in the context of the initial fee

11 application and the response. The court will therefore not

12 entertain any motion for reconsideration on the basis it

13 “overlooked” an argument. See Arellano v. Blahnik, 2021 WL

14 1515564 (S.D. Cal. April 16, 2021). Absent highly unusual

15 circumstances, a motion for reconsideration is appropriate, and

16 therefore will be entertained, only if the court is “presented

17 with newly discovered evidence, committed clear error, or if

18 there is an intervening change in the controlling law.” Kona

19 Enterprises, Inc. v. Estate of Bishop, 229 F3d 877, 890 (9th Cir.

20 2000) (internal quotes omitted).

21 A separate order will issue.

22

23

24

25

26

27

28

- 9 -

1 APPENDIX A

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF CALIFORNIA

CIVIL MINUTES

_____________________________________________________________________

Case Title: Rachelle Edith Case No.: 23-90032 - B - 13

Lupekha

Docket Control No. CRG-3

Date: 03/05/2024

Time: 1:00 PM

Matter: [50] - Motion/Application for Compensation [CRG-3] by the

Law Office of Lincoln Law for Carl R Gustafson, Debtors Attorney(s).

Filed by Carl R. Gustafson (vrof)

Judge: Christopher D. Jaime

Courtroom Deputy: Michelle

Peterson

Reporter: Not Recorded

Department: B

_____________________________________________________________________

APPEARANCES for:

Movant(s):

None

Respondent(s):

None

_____________________________________________________________________

CIVIL MINUTES

Motion Conditionally Approved in Part, Denied in Part and Motion and

Hearing Continued to 3/12/2024 at 1:00 PM at Modesto Courtroom

See Findings of fact and conclusions of law below

Introduction

Before the court is an Application for Additional Attorney’s Fees

filed by Carl R. Gustafson (“Counsel”) as the attorney of record for

Chapter 13 debtor Rachelle Edith Lupekha (“Debtor”). The application

requests additional compensation in the amount of $8,695.50 which

includes the following: (i) attorney’s fees in the amount of $6,885.00

(15.30 hours x $450.00/hr.); (ii) paralegal fees in the amount of

$1,757.50 (9.50 hours x $185.00/hr); and (iii) expenses in the amount

of $53.00.

The court has reviewed the application and all related declarations

and exhibits. The court has also reviewed and takes judicial notice

of the docket. See Fed. R. Evid. 201(c)(1). Oral argument is not

necessary and will not assist in the decision-making process. See

Local Bankr. R. 1001-1(f), 9014-1(h). For the reasons explained

below, paralegal fees and expenses will be allowed in the amount

requested. However, attorney’s fees will be reduced.

The court’s decision is to conditionally approve in part and deny in

part the application for additional compensation and continue the

hearing to March 12, 2024, at 1:00 p.m.

Discussion

Counsel has elected to receive compensation in this Chapter 13 case

pursuant to Local Bankr. R. 2016-1(b) that requires a fee application

and court approval under 11 U.S.C. § 330 rather than pursuant to Local

Bankr. R. 2016-1(c), which provides for a flat-rate “no-look” fee

1

without the need for court approval and a fee application.

Counsel states that he contracted with the Debtor for attorney’s fees

at an hourly rate of $525.00 and paralegal fees at an hourly rate of

$215.00. Counsel acknowledges that his hourly rate of $525.00 has

previously been determined by this court to be unreasonable and has

been reduced as such. For that reason, Counsel voluntarily reduced

his hourly rate for purposes of the current fee application from

$525.00 to $450.00.

Counsel states that his reduced hourly rate of $450.00 includes a 20%

increase to a previously-approved hourly rate in this case of $375.00.

Counsel bases the 20% increase on the board certification enhancement

to the “no-look” fee permitted for opt-in attorneys under Local Bankr.

2

R. 2016-1(c)(1)(C). Counsel recognizes that the 20% enhancement

directly applies only to the “no-look” fee and only to board certified

opt-in attorneys. Nevertheless, as a board certified opt-out

1

Receipt of compensation pursuant to a § 330 fee application under

Local Bankr. R. 2016-1(b) is typically referred as an “opt-out”

election whereas receipt of the “no-look” fee under Local Bankr. R.

2016-1(c) is typically referred to as an “opt-in” election. See Local

Bankr. R. 2016-1(a). The court will use these terms for purposes of

clarity.

2

Local Bankr. R. 2016-1(c)(1)(C) states as follows:

Attorneys who are board certified in bankruptcy law by the

State Bar of California Board of Legal Specialization or by

the American Board of Certification on the date of the

petition may increase the fee to which they would be

entitled under subdivision (c)(1), or any later increased

fee thereunder, by 20%. Not later than 28 days after filing

the petition, any attorney contending entitlement to the

fee enhancement under this provision shall file EDC Form 3-

750.

attorney, Counsel asserts that he, too, is entitled to the same 20%

enhancement to his hourly rate by analogy to Local Bankr. R. 2016-

1(c)(1)(C). Counsel raises a valid but probably unnecessary point

because § 330(a)(3)(E), applicable to requests for compensation by

opt-out Chapter 13 debtors’ attorneys through § 330(a)(4)(B), already

allows the court to consider board certification as a factor in the

context of fee applications filed under § 330.

In any event, the result in this case is the same regardless of

whether the 20% hourly-rate enhancement is sought by analogy to Local

Bankr. R. 2016-1(c)(1)(C) or under § 330(a)(3)(E)/§ 330(a)(4)(B).

That is, under the facts and circumstances of this case, the enhanced

hourly rate is unreasonable.

As an initial matter, the 20% board certification enhancement allowed

under Local Bankr. R. 2016-1(c)(1)(C) increases the “no-look” fee and

not opt-in attorneys’ hourly rates. Indeed, hourly rates are largely

irrelevant in the context of a “no-look” fee and, to the extent they

are relevant, they are presumed to be reasonable. In re Villaverde,

2016 WL 1179343, at *1 (Bankr. S.D. Fla. March 25, 2016) (“A no look

fee is a flat fee, usually adopted within a district by local rule or

guideline ... It is a presumptively reasonable fee based on local

hourly rates, and the general amount of work required by a typical

chapter 13 case.”).

The same is not true with regard to compensation requested by opt-out

attorneys, generally, or, specifically, their hourly rates. Hourly

rates of opt-out attorneys do not enjoy the same presumption of

reasonableness incorporated into the “no-look” fee. Rather, it is

incumbent on opt-out attorneys requesting compensation under Local

Bankr. R. 2016-1(b) and § 330 to demonstrate - and for the court to

find - that hourly rates charged debtors are reasonable rates in the

Eastern District of California bankruptcy court. See e.g., 11 U.S.C.

§ 330(a)(3)(B), 330(a)(4)(B); see also In re Gire, 107 B.R. 739, 742

(Bankr. E.D. Cal. 1989). The court sees no reason - and Counsel has

offered none - why the same analysis should not apply equally when an

hourly-rate enhancement is requested by opt-out attorneys. In other

words, assuming board certified opt-out attorneys may increase hourly

rates by 20% - by analogy to Local Bankr. R. 2016-1(c)(1)(C) or

otherwise - the burden still remains with board certified opt-out

attorneys to demonstrate the enhanced hourly rate is reasonable. To

hold otherwise, i.e., to hold that opt-out board certified attorneys

are always entitled to enhance their hourly rates by 20%, would

essentially eviscerate the bankruptcy court’s statutory obligation to

determine reasonableness under § 330 insofar as it would effectively

negate §§ 330(a)(3)(B), 330(a)(3)(E), and 330(a)(4)(B) by rendering

these provisions meaningless in the context of fee applications filed

under § 330. Such a conclusion would also violate Fed. R. Bankr. P.

9029 insofar as it would put the local rules at odds with § 330.

In assessing fee applications filed under § 330, reasonable hourly

rates are calculated according to the prevailing market rates in the

relevant legal community. Blum v. Stenson, 465 U.S. 886, 895 (1984);

Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013);

Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). Typically,

the “relevant legal community” is the forum district and the local

hourly rates for similar work should normally be employed. Gonzalez,

729 F.3d at 1205; In re Gianulias, 111 B.R. 867, 869-70 (E.D. Cal.

1989) (affirming bankruptcy court decision requiring Chapter 11

debtor’s counsel to submit evidence of prevailing rates charged by

bankruptcy attorneys in the community in order to establish a

reasonable hourly rate).

The district court Momentum Commercial Funding, LLC v. Project Storm,

LLC, 2022 WL 2817429 (E.D. Cal. July 18, 2022), adopted in full, 2022

WL 3578571 (E.D. Cal. Aug. 19, 2022), recently reviewed the hourly

rates of bankruptcy attorneys who practice in the Eastern District of

California and who have substantially more experience and expertise

than Counsel. 2022 WL 2817429 at *9-*10. The district court noted

that “[t]he cited rates for attorneys with 30-plus years in practice

range from $435 per hour to $600 per hour.” Id. It therefore found

that a $395.00 hourly rate requested by two attorneys in the case

before it who were similarly-situated to the bankruptcy attorneys

whose rates were reviewed, one with over 40 years experience and the

other with over 30 years experience, to be reasonable. Id. See also

Ambrose v. US Med-Equip, LLC, 2024 WL 307843, at *15 (E.D. Cal. Jan.

26, 2024) (“In the Fresno Division of the Eastern District of

California, across a variety of types of litigation, generally,

attorneys with experience of twenty or more years of experience are

awarded $350.00 to $400.00 per hour; attorneys with ten to twenty

years of experience are awarded $250.00 to $350.00 per hour; attorneys

with five to ten years of experience are awarded $225.00 to $300.00

per hour; and less than $200.00 per hour for attorneys with less than

five years of experience.”); Perez v. All Ag., Inc., 2021 WL 3129602,

at *5 & n.7 (E.D. Cal. July 23, 2021) (noting no distinction in rates

between Sacramento and Fresno divisions, particularly in specialized

areas of practice).

For purposes of reviewing the reasonableness of Counsel’s enhanced

$450.00 hourly rate in this case, the court takes judicial notice of

the State Bar of California website which reflects Counsel’s

California bar admission date is December 29, 2007.

https://apps.calbar.ca.gov/attorney/Licensee/Detail/254881 (when

viewed on March 2, 2024). In this court’s view, an hourly rate of

$450.00 charged by a consumer bankruptcy attorney with just slightly

over 16 years of experience, board certified or otherwise, is not a

3

reasonable hourly rate. It is also inconsistent with the hourly rates

3

The court is aware that another bankruptcy judge in this district

recently approved a $450.00 hourly rate as reasonable; however, the

attorney in that case had nearly 40 years of experience. In re

Howell, 2023 WL 3486669 (Bankr. E.D. Cal. May 14, 2023).

of Eastern District of California bankruptcy attorneys reviewed by the

district court in Momentum Commercial. So, at least in this case, the

20% enhancement requested by Counsel will not be applied to Counsel’s

previously approved and allowed hourly rate of $375.00 because doing

4

so would result in an unreasonable hourly rate.

Consistent with this court’s prior award of compensation to Counsel in

this case, Counsel will be awarded compensation for attorney’s fees at

an hourly rate of $375.00 as a reasonable hourly rate. Reduction in

Counsel’s hourly rate from $450.00 to $375.00 results in approved and

allowed compensation as follows:

Attorney @ $375.00/hr 15.30 hours $5,737.50

Paralegal @ $185.00/hr 9.50 hours $1,757.50

$7,495.00

Expenses $53.00

Total Compensation $7,548.00

Approved & Allowed

Counsel’s application for compensation is ORDERED APPROVED IN PART AND

DENIED IN PART for the reasons stated in the minutes.

Conditional Nature of this Ruling

Any party in interest shall have until 5:00 p.m. on Friday, March 8,

2024, to file and serve a response to this ruling. See Law Offices of

David A. Boone v. Devin Derham-Burk (In re Eliapo), 468 F.3d 592, 601-

03 (9th Cir. 2006). Any response shall be served on the Chapter 13

Trustee by facsimile or email.

If no response is timely filed and served, the application will be

deemed granted in part and denied in part for the reasons stated

4

This decision does not foreclose the possibility of an opt-out board

certified attorney obtaining approval of a 20% hourly-rate enhancement

by analogy to Local Bankr. R. 2016-1(c)(1)(C) or otherwise. For

example, a board certified opt-out attorney who bills at $325.00 per

hour could request a 20% enhancement which would increase the

attorney’s hourly rate to $390.00. In most cases, depending on

experience and expertise, that would be a reasonable hourly rate in

this district. Alternatively, an attorney billing at a higher rate

could request an enhancement in a lesser percentage. Neither of these

circumstances are present here. The request here is for automatic

application of the 20% enhancement applicable to the “no-look” fee by

analogy to Local Bankr. R. 2016-1(c)(1)(C). And as noted above, that

renders Counsel’s hourly rate unreasonable under § 330.

hereinabove, this ruling will no longer be conditional and will become

the court’s final decision, and the continued hearing on March 12,

2024, at 1:00 p.m. will be vacated.

If a response is timely filed and served, the court will hear the

application on March 12, 2024, at 1:00 p.m., or as soon thereafter as

the court’s calendar permits.

The court will issue an order.

1 INSTRUCTIONS TO CLERK OF COURT

SERVICE LIST

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The Clerk of Court is instructed to send the attached

3 document, via the BNC, to the following parties:

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Carl R. Gustafson

5 1525 Contra Costa Blvd.

Pleasant Hill CA 94523

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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