Opinion

Jadwin v. County of Kern

767 F. Supp. 2d 1069
2011 U.S. Dist. LEXIS 9034
2011 WL 240695

Court: District Court, E.D. California
Filed: Jan 24, 2011
Status: Published
Author: Wanger
On the bench: Oliver W. Wanger
Cited by: 91 cases
Authority: More cited than 90.7%

holding that Fresno division, not Sacramento division, was relevant legal 15 community to be used in selecting appropriate hourly rates

How later courts described this case

holding that Fresno division, not Sacramento division, was relevant legal 15 community to be used in selecting appropriate hourly rates
finding reasonable to 18 reduce by nearly 50 percent counsel’s requested time in case that did not involve any novel or 19 particularly complex issues
averaging rates “[t]o properly compensate Plaintiff and to account for the possibility that the jury returned a verdict supported only by [federal] or [state law]”
setting prejudgment interest rate by averaging 16 state and federal rates where the court could not distinguish verdict for violations of the FMLA 17 and state law

Written by the judges who cited it.

The opinion

MEMORANDUM DECISION RE: POST-TRIAL MOTIONS (Docs. 424, 425)

OLIVER W. WANGER, District Judge.

INTRODUCTION.

This case arises out of Plaintiffs former employment at the Kern Medical Center, an acute care teaching hospital owned and operated by the County of Kern, California. Plaintiff David F. Jadwin, D.C. (“Plaintiff’) claimed, among other things, that the County and its employees retaliated and discriminated against him in contravention of federal and state law. The employment issues were tried before the Court and a jury from May 14, 2009 to June 4, 2009. On June 5, 2009, the jury returned verdicts in favor of Plaintiff. On August 4, 2009, Findings of Fact and Conclusions of Law were issued on the claims tried to the court alone. On May 4, 2010, Final Judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on his civil rights claim. At trial, Plaintiff requested over $4.2 million in economic damages.

Before the Court for decision are several post-trial motions. Plaintiff has moved to amend the judgment to incorporate his bill of costs and for prejudgment interest. He has also moved to recover $3,944,818.00 in attorneys’ fees pursuant to 42 U.S.C. § 1988 , 29 U.S.C. § 2617 (a)(3) and California Government Code § 12965.

Defen

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dants have moved for a new trial under Rule 59(e) and, separately, to amend the judgment to reflect to reflect the dismissals of several individually-named defendants.

Oral argument on these motions was held on July 28, 2010. The Court, pursuant to

Moreno v. City of Sacramento,

534 F.3d 1106 (9th Cir.2008), a Ninth Circuit case establishing the rules for evaluating an attorney’s fee request under 42 U.S.C. § 1988 , directed Plaintiff to supplement, organize, and refine his motion for attorneys’ fees.

In particular, it was determined that Plaintiffs counsel’s documentary evidence concerning the hourly rates and tasks performed was materially nonspecific and limited the district court’s ability to meet

Moreno’s

exacting and mandatory standards imposed on district judges for calculating fee awards.

See id.

at 1111 (“[w]hen the district court makes its award, it

must explain how it came up with the amount.

”) (emphasis added).

Plaintiff filed his supplemental and reply briefs, more than 500 pages of argument and billing information, on August 16 and September 16, 2010. Defendants opposed the supplemental motion on September 3, 2010. The motions are now submitted for decision.

II.

BACKGROUND.

The relevant facts and procedural history are summarized in the Court’s previous Memorandum Decisions in this case, filed on April 8, 2009 and March 31, 2010, in brief:

In this employment case, trial commenced on May 14, 2009 and concluded on June 5, 2009. The jury returned verdicts, entered on June 8, 2009, in favor of Plaintiff. (Doc. 384.) The jury found that Defendant County: (1) retaliated against Plaintiff for engaging in certain activities

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in violation of the Family and Medical Leave Act (“FMLA”) and the California Fair Employment and Housing Act (“FEHA”); (2) retaliated against Plaintiff for taking medical leave under the FMLA and the California Family Rights Act (“CFRA”); (3) discriminated against Plaintiff on the basis of his mental disability in violation of the FEHA; (4) failed to reasonably accommodate Plaintiffs mental disability in violation of the FEHA; and (5) failed to engage in an interactive process with Plaintiff in violation of the FEHA. The jury found against the County on its defense that Plaintiffs employment contract was not renewed by reason of his conduct and alleged violation of the employer’s rules and contract requirements and/or that Plaintiffs improper behavior was the cause of the nonrenewal of his contract. The jury awarded damages as follows:

Mental and emotional distress and suffering. $ 0.00

Reasonable value of necessary medical care, treatment, and service received to the present time. $ 30,192.00

Reasonable value of necessary medical care, treatment and services which with reasonable probability will be required in the future. $ 0.00

Reasonable value of earnings and professional fees lost to the present time. $321,285.00

Reasonable value of earnings and professional fees with which reasonable probability will be lost in the future. $154,080.00

Total damages $505,457.00

Certain claims were not submitted to the jury, specifically, Plaintiffs claim for interference with his rights under the FMLA/CFRA and a deprivation of Plaintiffs due process rights under the Fourteenth Amendment (made actionable by 42 U.S.C. § 1983 ).

On August 4, 2009, Findings of Fact and Conclusions of Law were issued on those claims. As to the FMLA/ CFRA claim, it was determined that Plaintiff lacked standing to assert his claim or,

arguendo,

assuming standing existed at the time of the operative pleading, the claim was moot. As to the procedural due process claim, it was determined that Plaintiffs due process rights were violated and he was awarded nominal damages. On May 4, 2010, Final judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on Plaintiffs due process claim, and any costs as permitted by law.

On May 28, 2010, Defendant filed two post-trial motions. The first, to amend the Final Judgment to incorporate the dismissals of several individually-named defendants. (Doc. 414.) According to the County, these individually-named defendants are “prevailing parties” in this action and are entitled to recover their costs of suits. The motion concerns the following individually-named defendants, who were named in the original and first amended

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complaint: Dr. Eugene Kereher, Dr. Jennifer Abraham, Dr. Scott Ragland, Dr. William Roy, Dr. Irwin Harris, Toni Smith and Peter Bryan.

Defendant’s second post-trial motion was for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Doc. 415.) The County argues that Ninth Circuit case law mandates a new trial based on Plaintiffs counsel’s wrongful misconduct during trial.

Plaintiff also filed two post-trial motions. On May 28, 2010, Plaintiff moved to amend the Final Judgment to incorporate in the final judgment, prejudgment interest and his recoverable costs. (Doc. 424.) On June 1, 2010, Plaintiff moved for attorney’s fees of $3,944,818.00 pursuant to 42 U.S.C. § 1988 , 29 U.S.C. § 2617 (a)(3), Cal. Gov’t Code § 12965, and E.D. Local Rule 54-293. (Doc.425.)

Oral argument on the post-trial motions was held on July 28, 2010. At the conclusion of the hearing, it was determined that supplemental briefing and specific justification was necessary to resolve the motions for prejudgment interest and attorney’s fees. (Doc. 450.) Opening supplemental briefs/oppositions on these issues were filed on August 6, 13, 16, and 18, 2010. (Docs. 444, 447-49.) The final opposition and reply briefs were filed on September 3 and 16, 2010. (Does. 450 and 451.)

III.

DISCUSSION.

New Trial Motion

Introduction and Argument

The County moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.

The County argues that there are several independent reasons to grant a new trial, including: the intentional attorney misconduct of Plaintiffs counsel, Mr. Eugene Lee, during trial; Mr. Lee’s repeated use of the word “demotion” in violation of an in limine order and despite numerous admonitions during trial; Mr. Lee and his co-counsel’s inappropriate gesturing, mocking, and disruptive behavior at Plaintiffs counsel table in the juries’ presence during trial; Mr. Lee’s interference with the County’s attempt to evaluate Plaintiff during discovery; and Mr. Lee’s intentional “blurring” to the jury of Plaintiffs employment-based claims, which allegedly resulted in an erroneous award of “front pay” and a violation of the “primary rights” doctrine.

The County filed its motion for a new trial on May 28, 2010.

In support of its motion, Defendant submitted: (1) a Memorandum supporting the County’s motion; (2) the declaration of Mark A. Wasser, the County’s lead counsel; (3) the declaration of Karen S. Barnes, an in-house attorney for Kern County, who was present throughout and testified at trial; (4) the declaration of Amy Remly, Mr. Wasser’s paralegal; (5) the declaration of Joanne

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DeLong, an attorney who observed the entire trial in the courtroom; (6) the declaration of Dr. Robert Burchuk, the County’s medical expert; (7) the declaration of Dr. Irwin Harris, who provided expert testimony during trial; and (8) the declaration of Renita Nunn, who testified on May 20 and June 2, 2009. (Docs. 417-428.)

The declarations describe Mr. Lee’s conduct during trial, including his alleged gesturing and scoffing during witness examinations in front of the jury; his inappropriate and inflammatory comments during closing argument; and his apparent “confusion” over yet repeated use of the term “demotion” as it relates to Dr. Jadwin’s removal from his Pathology Department chairmanship position at Kern County Medical Center. The declarations and other supporting Rule 59 evidence are delineated by topic:

Use of Word “Demotion” at Trial

Mr. Wasser

Early in trial, Mr. Lee began using the words “demoted” and “demotion” to refer to Plaintiffs removal from his chairmanship position at Kern County Medical Center despite the absence of any evidence that Plaintiff was demoted. Every time he used these words, I objected. The Court sustained all of my objections. After Mr. Lee’s third or fourth continued usage of the words, the Court admonished Mr. Lee and told him he was dangerously close to being held in contempt. Mr. Lee never stopped using the words. He even used them in his closing argument, prompting yet another admonition from the Court. On at least one occasion, Mr. Lee sought to excuse his misconduct by claiming it was his first trial.

(Doc. 417 at ¶ 6.)

Joanne Delong

During the course of the trial, in the presence of the jury, Plaintiffs attorney,

Eugene Lee, used the word “demotion” several times in reference to Plaintiffs removal from the chairmanship of the Pathology Department at Kern Medical Center. On at least one occasion, after trial had concluded for the day but before the attorneys were dismissed, the Court admonished Mr. Lee for his continued use of the word “demotion.” I remember the admonishment was lengthy and quite stern.

(Doc. 420 at ¶ 3.)

Karen Barnes

Ms. Barnes’ declaration mirrors that of Ms. Delong’s. (See, e.g., Doc. 418 at ¶ 3) (“During the course of the trial, in the presence of the jury, Plaintiffs attorney, Eugene Lee, used the word “demotion” several times in reference to Plaintiffs removal from the chairmanship of the Pathology Department at Kern Medical Center.”).

Gesturing, Shrugging, and Scoffing

Amy Remly

During the trial, I sat in the gallery. I had an unobstructed view of the Plaintiffs counsel table. Mr. Lee often became agitated and, when he did, he frequently threw himself back into his chair and threw his arms up into the air. Joan Herrington frequently turned her face toward Mr. Lee and made facial expressions in response to witness’ testimony. She rolled her eyes, arched her eyebrows and shook her head. This behavior lasted throughout the trial.

(Doc. 419 at ¶ 2.)

Dr. Irwin Harris

I testified in this case on Friday, may 15, 2009, and Tuesday, May 19, 2009. When I was being questioned about acts by the Plaintiff at Kern Medical Center, regardless of whether the acts were lit-

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tie or big events, the Plaintiff shaking his head “no” with facial expressions of disappointment in me. For the Plaintiffs attorney, Eugene Lee, to allow his client to behave in such a manner was very disturbing to me[... ]

Every few minutes, Plaintiffs other attorney, Joan Herrington, would respond to my answers by raising her eyebrows, looking surprised, and then she would lean over and whisper into the ear of Mr. Lee, who would suspend that line of questioning until another approach was taken with that line of questioning. I found these pauses to be filled with drama, and it disturbed my concentration.

(Doc. 422 at ¶ 3^1)

Trial Witnesses: “Uncomfortable” and “Huffing Sounds”

Karen Barnes and Renita Nunn, two trial witnesses, submitted sworn declarations describing similar conduct by Plaintiffs counsel during trial. (Docs. 418 & 423.) According to Ms. Barnes, she was “uncomfortable” and “distracted” by the constant gesturing, facial grimaces, and snickers from Plaintiff and his attorneys. (Doc. 418 at ¶ 4.) Renita Nunn states that Mr. Lee and Ms. Herrington made “huffing sounds” and rolled their eyes when they disagreed with a witness or opposing counsel. (Doc. 423 at ¶ 3.) Ms. Nunn further recounts an incident where Mr. Lee was admonished by the court after he yelled “come on” in response to one of her answers. (Id. at ¶ 4.) She also states that Mr. Lee “threw his arms about” and engaged in “theatrics” during trial. (Id. at ¶ 3.)

Inappropriate Comments During Closing Argument

The County argues that Mr. Lee improperly appealed to bias, prejudice and emotion in his closing argument by referring to the County’s size and power. According to the County, this was a “clear theme” to Mr. Lee’s trial strategy and supports its Rule 59 motion for a new trial. During his closing argument, Mr. Lee stated:

And you know, we’ve heard Dr. Jadwin, how he is supposedly a millionaire, this and that. You know, in the end, he’s just an individual, it’s just one person against an entire County and all of its resources that we faced in this case. But I will tell you, it’s very important that even a powerful organization such as the County understand that in a court of law, everybody’s equal.

(RT, June 4, 2009, 81:10-81:17.)

The Court,

sua sponte,

immediately instructed the jury to disregard Mr. Lee’s statement:

And I must say, ladies and gentleman, that an appeal to status, big versus little, strong versus weak, is improper under the law and you should disregard any such suggestion.

(RT, June 4, 2009, 81:23-82:1.)

Each time Mr. Lee was admonished he apologized and on more than one occasion stated that it was his first trial and he was “trying.”

The court’s response, in keeping with its duty to recognize the inexperience of counsel, attempted to balance Mr. Lee’s violation of rudimentary rules of trial decorum, against the rights of all parties

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to a fair trial, and refrained from interfering with or chilling Mr. Lee’s advocacy while reminding him of his professional responsibility to abide by the rules. Mr. Lee, notwithstanding, continued to violate the rules.

2. Merits

Rule 59(a) of the Federal Rules of Civil Procedure provides that a court may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a). Rule 59 does not specify the grounds on which a motion for a new trial may be granted.

Zhang v. Am. Gem Seafoods, Inc.,

339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is “bound by those grounds that have been historically recognized.”

Id.

Historically recognized grounds for a new trial include a verdict that is against the weight of the evidence, damages that are excessive, or a trial that was not fair to the moving party.

Molski v. M.J. Cable, Inc.,

481 F.3d 724, 729 (9th Cir.2007). A new trial may be granted only if, after weighing the evidence as the court saw it, “the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski, 481 F.3d at 729 (quoting

Passantino v. Johnson & Johnson Consumer Prods.,

212 F.3d 493 , 510 n. 15 (9th Cir.2000)). The decision whether misconduct of trial counsel has been so egregious to require a new trial is committed to the broad discretion of the court.

See Landes Const. Co. v. Royal Bank of Canada,

833 F.2d 1365, 1371-72 (9th Cir.1987);

see also Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 36 , 101 S.Ct. 188 , 66 L.Ed.2d 193 (1980) (“The authority to grant a new trial [... ] is confided almost entirely to the exercise of discretion on the part of the trial court.”)

The County argues that Plaintiffs attorneys committed ‘‘grievous misconduct” throughout the trial, leading to an improper and inconsistent jury award. The County explains:

Plaintiffs counsel’s misconduct, their continuing misbehavior and breach of courtroom decorum, their refusal to abide by or respect the Court’s ruling, the puree of commingled legal theories thrown to the jury, combined with Plaintiffs ever-shifting dance to reconcile his inconsistent positions, substantially prejudiced the County and renders the resulting verdict flawed to the point a new trial is required.

(Doc. 433 at 5:19-5:23.)

Plaintiffs counsel is critical of the County’s characterization of his behavior during trial. According to Mr. Lee, there was “no misconduct which permeated the entire proceeding so as to prejudice the jury” and, even if there was, “Defendant failed to object [... ] This bars relief.” Defendant also disputes the County’s interpretation of Ms. Herrington’s alleged gesturing and misconduct, which he describes as minimal and not impacting the Rule 59 analysis.

The County’s Rule 59 motion also argues that Plaintiffs counsel continually committed gross prejudicial misconduct during closing argument when he “aggressively appealed to a bias against big organizations.” According to the County, the references to the County’s supposed “power and size” were so numerous that they created “a clear theme to his argument.” Defendant argues that Plaintiffs counsel’s “plan” or “theme” culminated in closing argument when he characterized the County as “powerful” and described his client’s interaction with his employer as “one person against an entire County and all of its resources.”

Here, Plaintiffs counsel’s comments concerning the County’s size and available resources were improper, as he readily concedes. (RT, July 28, 2010 at

*1084

88:2-88:3) (“the Court gave an admonition at that time, sua sponte [... ] and Mr. Lee accepted the admonition [.. ] He apologized.”). However, there is no indication that Mr. Lee’s comments so permeated the trial that the jury was necessarily prejudiced, as required by

Settlegoode v. Portland Pub. Schs.,

371 F.3d 503 (9th Cir. 2004). First, immediately following Mr. Lee’s comments, the Court,

sua sponte,

instructed the jury to disregard Mr. Lee’s statement about size and the County’s power. It did so in a neutral and dispassionate manner to avoid emphasizing any prejudice and so as to not reflect adversely on either party. The law presumes that the jury carefully follows the instructions given to it.

See Doe v. Glanzer,

232 F.3d 1258, 1270 (9th Cir.2000);

see also Hensley v. Eckerhart,

461 U.S. at 434, 103 S.Ct. 1933 (court may deny compensation for “hours that are excessive, redundant, or otherwise unnecessary”).

The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.

Hensley,

461 U.S. at 437 , 103 S.Ct. 1933 . The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.

Toussaint v. McCarthy,

826 F.2d 901, 904 (9th Cir.1987).

Lodestar—Hours Reasonably Expended

Introduction

Plaintiff argues that 4,026.1 hours expended by Mr. Lee and the 862 hours expended by Ms. Herrington were reasonable.

Defendant responds that Mr. Lee and Ms. Herrington should be awarded “no more than 1396 hours [] 1145.2 hours for Mr. Lee and 250.5 for Ms. Herrington.”

According to Defendant, the number of hours spent by Plaintiffs attorneys should be reduced because Plaintiffs counsel expended an excessive amount of time: (1) drafting complaints; (2) noticing, attending and conducting more than forty depositions, including Plaintiffs; (3) preparing Plaintiffs motion for summary judgment; (4) opposing Defendant’s motion for summary judgment; (5) researching and drafting the motion to strike Defendant’s fifth affirmative defense; (6) researching and drafting motions for reconsideration; (7) preparing for the pre-trial conference and drafting the joint pre-trial statement; (9) composing and objecting to proposed jury instructions and verdict forms; (10) filing a reply to Defendant’s objections to Plaintiffs motion for costs; (11) drafting an 88-page opposition to an ex parte application to shorten time, which was granted on May 7, 2008; (12) alleging spoliation of evidence; (13) communicating with his client; (14) advancing “whistleblowing” claims; and (15) researching appellate procedure and extraordinary writs.

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fendant also argues that the attorneys’ fee award should be reduced for the administrative or secretarial work undertaken by Plaintiffs attorneys.

To determine the hours reasonably expended, it is necessary to profile the post-trial briefing in this case, namely the documentation used to support Plaintiffs motion for attorneys’ fees. Here, the voluminous documentary evidence submitted by Plaintiffs counsel is inadequate to support an attorney’s fee petition in this Circuit, especially one that requests nearly $4 million from a public entity.

While Plaintiffs counsel’s inexperience and unnecessarily adversarial practices have been noted throughout this Memorandum Decision, his refusal to provide a properly documented fee motion continuing adequate descriptions of hours expended for specific services provided on identifiable subject matter. This includes failing to provide a functional delineation of the number of hours spent litigating this case with a description of the services performed.

Based on the state of law in the Ninth Circuit, including

Moreno v. City of Sacramento,

534 F.3d 1106 , it is difficult to understand why Plaintiffs lead counsel submitted voluminous billing records without delineating a specific total for each of the categories of work he performed.

Unlike the prevailing party in

Fischer ,

lead counsel’s fee request in this case consisted of a bare request for $4 million dollars and more than 500 pages of “Excel” or “Quick Books” spreadsheets. Not a single task total was provided in his hundreds of pages of supporting documentation. In addition, most of the original spreadsheets were limited to thirty characters, further frustrating any attempt to calculate an accurate lodestar.

During oral argument on July 28, 2010, the Court explained Ninth Circuit law on fee motions and that Plaintiffs documentary support foreclosed any attempt to meet that standard:

All right. Let’s move on now to the subject of attorney’s fees. And let me start by talking about some law that nobody cited. Because the subject of attorney’s fees is changing in the Ninth Circuit. And there is a sea change that is occurring.

It used to be that trial judges were viewed as experts in the matter of attorney’s fees, both as to the rate, as to the services performed, as to what was reasonably necessary to accomplish the result, and essentially, were evaluators, without having to call other experts to provide that kind of information.

As is often the case in law, the world appears to be changing, at least as Chief Judge Kozinski is there, it’s going to

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change. In Moreno versus the City of Sacramento, which is found at 534 Fed 3d [F.3d] 1106, case about two years old now, it’s a July of 2008 decision. Here’s what has happened in the Ninth Circuit. In this case, Judge Levy was hearing a civil rights case brought against Sacramento City involving inverse condemnation, substantive due process, Fourth Amendment unreasonable search and seizure and procedural due process violations in a case where an owner’s building was demolished. And Judge Levy, based on his experience and understanding and knowledge, made some across the board reductions, 25 percent to the requested hours for legal research, 50 percent reduction for trial preparation hours, 33 percent reduction in actual appeal preparation hours, 50 percent reduction for hours spent interviewing and investigating, 50 percent per hour reduction in the hourly rate, which the panel found was impermissible double counting.

So the starting point in a civil rights case, or a case where statutory attorney’s fees are being recovered, is that he starts out, “Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. Congress has recognized that private enforcement of civil rights legislation relies on the availability of fee awards.

If private citizens are to be able to assert their civil rights, and if those would violate the nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it cost them to vindicate these rights in court. At the same time, fee awards are not negotiated at arms length. So there is a risk of overcompensation. A district court thus awards only the fee that it deems reasonable.” And it cites the case of

Hensley v. Eckerhart,

461 U.S. 421 [424] at 433 [ 103 S.Ct. 1933 ]

And there’s one more case that preliminarily I will refer you to. And that is

Lahiri, L-A-H-I-R-I, v. Universal Music & Video Distribution Corporation,

606 Fed 3d [F.3d] 1216 [ (9th Cir. 2010) ]. In

Lahiri,

the concept of block billing, B-L-O-C-K, was used. And in

Lahiri,

the Court reduced 80 percent of the billable hours for attorneys and paralegals by 30 percent. And that court, the Ninth Circuit, found that was a permissible reduction citing California State Bar’s Committee on Mandatory Fee Arbitration Report that block billing may increase time by 20 to 30 percent. The Court further excluded fees incurred because the Court requested supplemental information that made an additional 10 percent across the board reduction for excessive and redundant work, which was found to be a reasoned exercise of discretion.

And in the

Lahiri

case, which was a Lanham Act case, for infringement of copyright. And the ultimate reduction in that case ended up being about 25 percent gross. So we now turn to the plaintiffs motion for attorney’s fees. And the present request involving a two times multiplier is for $3,944,818 in attorney’s fees. And we have certain declarations and some billing records that are submitted.

What the Court must say, as the starting point in the Ninth Circuit or an attorney’s fee award, an application of a lodestar is that specific billing records are absolutely required. And that block billing records—or in this case, for some reason it appears that the program that the plaintiff used cuts off characters in the billing statement.

And so there are gaps in what the Court has been provided, which the plaintiff is going to have to supplement because we simply can’t make sense nor do we have a complete basis for the backup, the

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records that are normally and now essentially required.

Because there’s no way a district court, as we are commanded by the Ninth Circuit, can make a painstaking and exacting analysis of the basis for a lodestar award "without having a comprehensive description of services and allocation of time, normally to the tenth of an hour, spent on all matters with a designation of the identity of the attorney and/or the paralegal who is performing the services.

And so in the Court’s experience, that is the minimum that is required to enable calculation of the lodestar.

(RT, July 28, 2010, 109:14-111:11, 116:1-117:18.)

Also on June 28, 2010, the Court, pursuant to a Minute Order, requested that counsel “include task and billing totals in their supplemental applications for attorneys fees.”

(Doc. 440.) Task totals were requested to facilitate a thorough and careful review of the lengthy objections/arguments and voluminous billing records in this case.

See Moreno,

534 F.3d at 1111 (“[w]hen the district court makes its award, it must explain how it came up with the amount.”).

Plaintiff filed supplement billing information on August 16, 2010. (Doc. 448.) In particular, Plaintiff filed a Memorandum of Points and Authorities and Mr. Eugene Lee’s supplemental declaration, a 76-page amendment to his original 96-page declaration.

(Doc. 448-1.) The supplemental filing, however, did not improve on the original fee motion. None of the billing information requested in open court or via Minute Order was included.

The County opposed the supplemental briefing based on Plaintiffs counsel’s lack of detailed billing records and task totals, as requested on July 28, 2010 in open court and, later, pursuant to Minute Order. In its opposition, the County correctly observed that Plaintiffs counsel did not provide the information requested by the Court on July 28, 2010. To remedy these deficiencies and reach a final fee total, the County prepared appropriate task totals:

Plaintiffs new filing suffers from the same filings that prevented the Court from considering the motion on July 28. Contrary to the Court’s direction, the revised time records do not include task or billing totals. In fact, they provide no totals. Surprisingly, unlike the time records appended to the first filing, the revised time records Mr. Lee submitted with his new filing are not even in chronological order. This makes them even harder to analyze- or group into tasks. To aid the Court in considering the motion, the County has prepared spreadsheets that group time entries into tasks and provide totals.

(Doc. 450 at 7:21-7:28.)

In a last ditch attempt to meet Ninth Circuit fee standards, Plaintiff filed a reply on September 16, 2010.

In his reply,

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Plaintiff admits that the requested task and billing totals were not included, apologizing to the Court for yet another “oversight.” (Doc. 451 at 7:18-7:20 (“In its August 4 Minute Order, the Court wrote, ‘Counsel are requested to include task and billing totals in their supplemental applications for attorneys’ fees’ [... ] Plaintiffs counsel did not do that [... ] [t]his was an oversight for which Plaintiff apologizes.”)) Plaintiff nonetheless suggests that the Court and Defendant had enough information to calculate an accurate Lodestar.

Mr. Lee also attached a third “fee” declaration to his reply, the latest iteration/addendum totaling 866 pages. While the declaration includes sporadic and unexplained task totals—the first time doing so after three rounds of briefing—, it omitted the critical task totals/subtotals and other billing analysis requested on July 28, 2010.

The United States Supreme Court has made clear that “[t]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hens

ley v. Eckerhart,

461 U.S. 424, 437 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983). Plaintiff has not met that burden in this case. As a result of Plaintiffs counsel’s continued oversights, which are unexplained given the number of opportunities he has been afforded to amend his billing information and the Court’s recitation of the relevant legal standards, an independent calculation of an accurate lodestar is required.

Specific Legal Standard

Although district courts have discretion to determine the amount of a fee award, “it remains important ... for the district court to provide a concise but clear explanation of its reasons for the fee award.”

Hensley,

461 U.S. at 437 , 103 S.Ct. 1933 . The district court should give at least some indication of how it arrived at the amount of compensable hours for which fees were awarded to allow for meaningful appellate review.

Cunningham v. County of Los Angeles,

879 F.2d 481, 485 (9th Cir.1988) (“Courts need not attempt to portray the discretionary analyses that leads to their numerical conclu

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sions as elaborate mathematical equations, but they must provide sufficient insight into their exercises of discretion to enable [the appellate court] to discharge our reviewing function”). “When the district court makes its award, it must explain how it came up with the amount [... ] [t]he explanation need not be elaborate, but it must be comprehensible.”

Moreno,

534 F.3d at 1111 .

“The fee applicant bears the burden of documenting the appropriate hours expended in litigation and must submit evidence in support of those hours worked.”

Gates v. Deukmejian,

987 F.2d 1392, 1397 (9th Cir.1992). A court must guard against awarding fees and costs which are excessive and must determine which fees and costs were self-imposed and avoidable.

INVST Fin. Group v. Chem-Nuclear Sys.,

815 F.2d 391 , 404 (6th Cir.1987). A court has “discretion to ‘trim fat’ from, or otherwise reduce, the number of hours claimed to have been spent on the case.”

Soler v. G & U, Inc.,

801 F.Supp. 1056, 1060 (S.D.N.Y.1992) (citation omitted). Time expended on work deemed “excessive, redundant, or otherwise unnecessary” shall not be compensated.

See Gates,

987 F.2d at 1399 (quoting

Hensley,

461 U.S. at 433-34 , 103 S.Ct. 1933 ).

Merits

Preface

Determining the appropriate fee award in a case involving voluminous fee materials and resistance by the moving party to comply with the law will inevitably be imprecise. To the extent possible, an attempt was made to address each time entry and objection filed by the parties. If an entry or objection was not addressed, it was either incorporated into a task total without specific reference or, alternatively, was too vague and unnecessary to consider.

See Ravet v. Stern,

No. 07CV31-JLS-CAB, 2010 WL 3076290 , at *6 (S.D.Cal. Aug. 6, 2010) (explaining the “vague entry” case law and excluding fees because “the Court cannot reasonably ascertain whether these conversations were pertinent or irrelevant to the [fee motion].”). A number of time entries were excluded based on the Supreme Court’s decision in

Hensley v. Eckerhart,

461 U.S. 424 , 103 S.Ct. 1933 :

[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise ‘billing judgment’ with respect to hours worked and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.

Id.

at 437, 103 S.Ct. 1933 .

The confusion and resistance of Plaintiffs counsel to organize and chronologically catalogue and/or describe the specific service giving rise to the fees in this case further complicated an already arduous undertaking.

Complaint Drafting

According to Defendant, Plaintiffs counsel spent an excessive number of hours drafting the original, amended and supplemental complaints. Defendant argues that the Court should “substantially reduce” the claimed number of hours spent on these tasks, which it estimates at 415 hours:

Mr. Lee and Ms. Herrington together recorded nearly 155 hours researching and drafting the first version of the complaint. Mr. Lee spent an additional 260 hours researching, drafting, writing, and filing two supplemental complaints and a second amended complaint.

(Doc. 450 at 21:3-21:5.)

Defendant also claims that Court should exclude in its entirety: (1) the time associated with the (mis)filing of the first amended complaint; and (2) the time associated with filing the third supplemental

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complaint, which was withdrawn three weeks after it was filed.

Plaintiff rejoins:

A review of Ms. Herrington’s and Mr. Lee’s declarations reveals that Ms. Herrington spent a total of 59.8 hours researching and drafting the first complaint while Mr. Lee spent a total of 46.6 hours reviewing and drafting the complaint. The total for both attorneys is 106.4 hours [... ]

Defendant is arbitrarily categorizing all billing items prior to filing of the complaint as complaint-related, including items such as phone calls, correspondence, and research into non-complaint related items such peer review privilege in discovery. There are additional discrepancies in Defendant’s calculations. Exhibit G includes 174 hours of research which it correctly describes as “Additional research after filing complaint”. But Defendant then includes this post-complaint research in the 260 hrs which Defendant claims Plaintiff spent researching the supplemental and amended complaints. This is contradictory and wrong. Defendant also appears to have lumped all research time entries together and deemed them complaint-related.

(Doc. 451 at 34:26-35:12.)

Plaintiffs arguments lack merit. As to Mr. Lee’s briefing, there was an easy fix to this problem: he could have provided the necessary documentation during the first two rounds of briefing, filed on June 1, 2010 and August 16, 2010, specifying the specific hours spent research and drafting the complaint and subsequent amendments/supplements. Having decided not to do so, after several rounds of briefing and a lengthy instruction on the relevant legal standards, Plaintiff has not satisfied the Moreno standard.

Even considering the merits of his third and most recent supplemental filing, Mr. Lee’s supporting documentation is incomplete and underdeveloped. In particular, Plaintiff argues that Defendant incorrectly includes non-complaint research time into the “complaint” total. Plaintiff, however, does not separately accumulate or relate this “uncategorized” time to the complaint, instead offering an artificially reduced “original” complaint total of 106.4 hours. More problematic is that Mr. Lee responds with task totals for the “complaint” and “third supplemental complaint,” but does not follow a similar procedure for other iterations of the complaints: the two supplemental complaints or the “uncategorized research.” There is no explanation for Mr. Lee’s selective task totaling, which resulted in another layer of confusion.

The preparation of the complaints, including research, should have taken Mr. Lee no more than 80 hours. The various iterations of the complaint were nearly identical and of limited complexity. The gravamen of the litigation was that the County violated Plaintiffs rights, as contract department chair and pathologist within the Kern County Medical Center’s hospital, under the FMLA, the FEHA, the CFRA, and 42 U.S.C. § 1983 .

(Doc. 2 at ¶¶ 137-212; Doc. 15 at ¶¶ 142-221; Doc. 24 at ¶¶ 152-231; Doc. 30 at ¶¶ 153-232; Doc. 242 at ¶¶ 158-224.) These statutes are customary and familiar to any employment lawyer in California. Mr. Lee was not breaking new ground. No attorney with thirteen years of experience—with “an excellent reputation in the California

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employment law community and demonstrated skill and success”—should need to spend more than 100 hours drafting three nearly identical complaints and two minor supplements. Plaintiffs counsel also erred in attaching exhibits and uploading complaints to ECF. These administrative errors are excluded from the fee award in their entirety. With respect to all complaint-related tasks, including research, correspondence and drafting, Mr. Lee is entitled to 80 hours.

According to Ms. Herrington’s declaration, she expended 17.3 hours researching the complaint and 42.5 hours drafting the complaint, for a total of 59.8 hours.

Billing nearly 60 additional hours

as co-counsel

is excessive given Ms. Herring-ton’s extensive experience, her specialty in employment law, and the marginal legal complexity of this case and the original complaint. Ms. Herrington’s complaint-related task total is reduced from 59.8 hours to 40 hours. This totals 120 hours spent on complaint-related tasks,

Travel Time

Defendant argues that Mr. Lee cannot recover a single hour of his travel time. Defendant cites the “blending” together of Mr. Lee’s travel time and his time spent on purely legal tasks. This amalgamation allegedly made it impossible to quantify Mr. Lee’s travel time, thus the time is not recoverable:

Mr. Lee charged at his full requested rate. However, Mr. Lee frequently lumped his travel time in with the time he spent on other tasks, thereby making it impossible to identify the discrete time he actually spent traveling. The Court asked Mr. Lee to revise his time records to show tasks and avoid “block billing” but Mr. Lee did neither. The County submits none of Mr. Lee’s travel time should be compensated.

(Doc. 450 at 9:27-10:7.)

Plaintiff responds by stating that Defendant

could

deconstruct the different time tasks/totals, but simply chose not to do so:

[Calculating travel time] is not impossible. Simply deduct the 4 hours round trip travel time required to travel between Los Angeles and Bakersfield from any such entry.

(Doc. 451 at 9:9-9:11.)

Plaintiff misses the point. Under

Hensley,

461 U.S. 424 , 103 S.Ct. 1933 and

Deukmejian,

987 F.2d 1392 ,

it is Plaintiffs burden

to document his hours, including travel, and submit evidence to support the hours billed. It is not incumbent on the Court or opposing counsel to isolate, itemize, break down, and attempt to categorize by legal activity Plaintiffs counsel’s billing records.

See Kearney v. Foley and Lardner,

553 F.Supp.2d 1178, 1185 (S.D.Cal.2008) (“The Court must have ‘substantial evidence’ to support the fee award.”). Ninth Circuit law does not require a district court to work backwards and sift through thousands of pages of billing records and excel spreadsheets. Rather, the Ninth Circuit provides that, in situations involving inadequate fee documentation, the district court may request supplemental billing information from the moving party.

See, e.g., Fischer,

214 F.3d at 1121 . That approach was initially taken in this case. Plaintiff, however, chose not to comply with the Court’s specific requests, communicated to counsel in open court and pursuant to Minute Order, giving him the opportunity to do so. It is difficult to understand Plaintiffs confusion on this point.

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Nearly all of Mr. Lee’s travel time is incorporated into the subtotals for depositions, summary judgments, motions in limine, and depositions. The Court’s independent research revealed only two “miscellaneous” travel entries, on December 17, 2007 and October 8, 2008. This time, 13.8 hours, is reasonable and awarded. The remaining travel time, if any and to the extent it can be identified, is excluded on the ground the vague and imprecise billing entries do not allow the Court to determine “how much time ... [was] spent on particular claims, and whether the hours were reasonably expended.”

Ravet v. Stem,

2010 WL 3076290 , at *6 (citation and quotation omitted).

Defendant does not object to Ms. Herrington’s well-documented request for 39 hours of travel time.

Fifth Affirmative Defense

Defendant argues that the 91 hours billed by Mr. Lee and Ms. Herrington in conjunction with Defendant’s “Fifth Affirmative Defense” was unnecessary and wasteful. The fifth affirmative defense was advanced in Defendant’s June 21, 2007 Answer.

Plaintiff moved to strike the defense on grounds that it was “an insufficient defense” and “scandalous matter” under Rule 12(f). Plaintiff supported the motion to strike with several declarations, amended declarations, a Memorandum of Points and Authorities, proposed orders, corrected orders and a request for judicial notice. (Docs. 32-40.)

The motion was denied in a brief 8-page decision on October 23, 2007, 2007 WL 3119670 . (Doc. 64.) The Court explained:

Plaintiff reads the fifth affirmative defense narrowly and argues that it asserts only contributory negligence. The court is not persuaded by plaintiffs argument, because it is based on a faulty premise. The problem with plaintiffs premise is that it characterizes the fifth affirmative defense as exclusively contributory negligence and ignores the fact that it concerns other defenses as well. The substance of the fifth affirmative defense is that plaintiffs own misconduct created the situation that resulted in his injuries. An allegation that a party has acted inequitably or asserted a claim in bad faith gives rise to an unclean hands defense. An allegation that a party has sought to benefit from his own wrongdoing gives rise to an equitable estoppel. Both are apparent in the fifth affirmative defense. Given that the court is obliged to view the fifth affirmative defense in the light most favorable to defendants and to resolve any doubt regarding the sufficiency or relevancy of the defense in defendants’ favor, the court does not subscribe to plaintiffs narrow interpretation of the defense.

(Doc. 64 at 5:18-6:3.)

Plaintiff filed a motion for reconsideration of the October 23, 2007 Order, (Doc. 68), which was denied without prejudice on December 17, 2007, 2007 WL 4463282 (Doc. 81). The Court stated that the “evidence of Plaintiffs conduct is relevant to

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the totality of the circumstances underlying Plaintiffs allegations, including his allegation of a hostile work environment.”

(Id.

at 3:5—3:7.) Plaintiff was given the opportunity to re-file if discovery revealed different facts.

Although those facts never developed, Plaintiff moved to dismiss the fifth affirmative defense four additional times, in his motion for summary judgment, (Doc. 263), twice

in limine,

pre-trial and during trial, (Docs. 324 & 376), and during the Rule 51 conference, (Doc. 381). These requests/motions were all denied.

As explained to Plaintiff on a number of occasions, several times in written decisions, there was no question that the evidence of Plaintiffs misconduct was relevant to whether he was subjected to unlawful adverse employment actions and a hostile work environment. The fifth affirmative defense was one of Defendant’s key litigation strategies, i.e., Plaintiffs alleged mistreatment of hospital employees and disagreeable nature precipitated and justifies the employment actions taken against him. Although the jury did not ultimately agree, Plaintiffs alleged misconduct was highly relevant to determine motive, as it was supported by the hospital Board chairs and some Department heads.

That the law recognized Defendant’s ability to assert such a defense should have been abundantly clear to competent employment law counsel; at a minimum, after reviewing the Memorandum Decision re: Cross-Motions for Summary Judgment. Any subsequent billed time to prepare reconsideration motions is excluded from the fee total as unnecessary. The issue was fully presented and the repeated reassertion of the motions were meritless disguised motions for reconsideration. In addition, the total time billed is excessive for the work performed. The preparation of the preceding motions should have taken no more than 40 hours. Plaintiffs counsel also committed a number of administrative errors when he filed the original motion to strike. This time—1 hour— is excluded. For these reasons, among others, the time spent litigating the fifth affirmative defense is reduced from 91 hours to 40 hours.

Motions for Reconsideration

Defendant argues that the Court should exclude the 59 hours spent preparing Plaintiffs four motions for reconsideration. Plaintiff disagrees. Citing

Emery v. Hunt,

272 F.3d 1042 , 1047-M8 (8th Cir. 2001), Plaintiff argues that the entire 59 hours are recoverable because “a prevailing party is entitled to recover fees for all hours reasonably spent in pursuit of the litigation, including hours spent on unsuccessful motions.” (Doc. 451 at 12:13-12:14.)

Plaintiffs arguments are largely unpersuasive as they omit the linchpin of the Eighth Circuit’s analysis: that the hours be

reasonably spent in pursuit of the litigation.

That is not the case here. For example, on May 5, 2008, Plaintiff filed a motion for reconsideration concerning the Court’s denial of his request to telephonically appear at a Mandatory Settlement Conference. (Doc. 114.) The motion was withdrawn the same day. (Doc. 115.) Plaintiff spent several hours drafting this motion, which he claims is reasonable. Plaintiff is wrong. The Standing Order of the Court requires the presence of counsel and client at a settlement conference for good reason. The motion and

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the time spent drafting it were unreasonable and unjustified. It is excluded from the fee request.

Plaintiff argues that the remaining motions for reconsideration were necessary based on Magistrate Judge Goldner’s “controversial nature” and alleged bias against him:

Magistrate Goldner issued several controversial rulings before recusing herself to become County Counsel for Kern County. At one point, after Plaintiff had filed a motion for reconsideration, Goldner reversed her own controversial order granting Defendant’s request for a special master at 50% cost to Plaintiff. Plaintiff objected that, among other things, Goldner was appointing her “friend”, Kenneth Byrum, from Bakersfield, despite the fact that remaining depositions were to occur in Los Angeles. The controversial nature of Goldner’s rulings necessitated Plaintiffs motions for reconsideration.

(Doc. 451 at 15:7-15:13.)

Plaintiffs arguments are unsupported. Plaintiffs counsel has shown a proclivity to personally criticize any judge who has ruled against Plaintiffs counsel. There is no indication that Magistrate Judge Goldner’s rulings were improperly influenced, as they conformed with the Supreme Court and Ninth Circuit precedent. (See, e.g., Doc. 81; Doc. 174; Doc. 222.) Plaintiffs counsel’s unduly contentious conduct during discovery and conflicts with opposing counsel made necessary the intervention of the magistrate judge on a number of occasions. The arguing and conflict between the attorneys at depositions justified discovery sanctions and the need for a master, even if not implemented. Plaintiff conveniently overlooks the fact that discovery had degenerated to the point where counsel could not civilly communicate. Judicial intervention was required to complete discovery based on the animosity that existed between Mr. Lee and Mr. Wasser.

In any event, each one of the motions for reconsideration was denied.

Plaintiff has not accused the District Judge of bias. None of the unsuccessful motions for reconsideration were appealed to the Ninth Circuit.

In addition, Plaintiffs motions for reconsideration demonstrated manifest confusion of the relevant legal standards, the likely explanation Plaintiffs lack of success. As discussed in the Court’s September 11, 2008 Order, 2008 WL 4217742 , denying Plaintiffs motion for reconsideration:

Pursuant to Rule 72-303, a District Judge upholds a Magistrate Judge’s ruling on a referred matter unless it is “clearly erroneous or contrary to law.” See Rule 72(a), Federal Rules of Civil Procedure; 28 U.S.C. § 636 (b)(1)(A). The “clearly erroneous” standard applies to a Magistrate Judge’s findings of fact.

Concrete Pipe & Prods. v. Constr. Laborers Pension Trust,

508 U.S. 602, 623 , 113 S.Ct. 2264 , 124 L.Ed.2d 539 (1993). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing [body] on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

Id.

at 622 [ 113 S.Ct. 2264 ]. The “contrary to law” standard allows independent, plenary review of purely legal determinations by the Magistrate Judge.

FDIC v. Fidelity & Deposit Co. of Md.,

196 F.R.D. 375, 378 (S.D.Cal. 2000);

Haines v. Liggett Group, Inc.,

975 F.2d 81, 91 (3rd Cir.1992). “An order is contrary to law when it fails to

*1111

apply or misapplies relevant statutes, case law, or rules of procedure.”

DeFazio v. Wallis,

459 F.Supp.2d 159, 163 (E.D.N.Y.2006).

Plaintiffs request for reconsideration is DENIED. The record establishes that the conduct of both attorneys during depositions is at fault and that the protective order issued by the Magistrate Judge is well within her discretion and necessary to manage the process of discovery in this action. The mutual protective order is not clearly erroneous or contrary to law. Plaintiffs requests for sanctions were denied without prejudice by the Magistrate Judge because Plaintiff failed to document the requested amounts. These rulings also are not clearly erroneous or contrary to law.

(Doc. 222 at 2:4-3:5.)

Here, Plaintiff seeks to recover almost 60 hours in fees for filing several motions for reconsideration. One of these motions was withdrawn, several were without a legal basis, and all were denied. This warrants a reduction in the amount of fees recovered for these motions.

See Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Management,

No. 04-CV-2293-SMG, 2009 WL 5185808 , at *7 (E.D.N.Y. Dec. 23, 2009) (“plaintiff did not prevail on its motion for reconsideration, and this warrants a reduction in the amount of fees recovered.”). To account for Plaintiffs lack of success, the confusion over the relevant legal standards, the frivolity of the May 5, 2008 motion and the excessive time spent preparing the motions, the total number of hours are reduced by 50%, from 59 hours to 29.5 hours.

Depositions

Defendant next contests the number of hours spent noticing, conducting and defending the more than forty depositions in this case, including Plaintiffs deposition. Defendant contends that many of the depositions were not needed and Mr. Lee wasted countless hours on “useless questioning about subjects that were not in issue and arguing with witnesses.” (Doc. 450 at 11:20.) Defendant requests a reduction from 657 hours to 329 hours for deposition-related tasks.

Plaintiff rejoins that Defendant is “wrong” about the number of deposition hours billed by his attorneys:

Mr. Lee recorded 327.2 hours in deposition-related tasks. Ms. Herrington’s tally was 126.6 hours. The total is 453.8 hours, far less than the number quoted by Defendant.

(Doc. 451 at 16:26-27.)

The deposition transcripts reveal that both counsel were combative and aggressive.

Both parties are at fault for the breakdown of communication and uncivil decorum, which exposed a number of witnesses to disputatious and offensive commentary and conduct by counsel in this case. It was also unnecessarily imposed on the Court. The need for judicial oversight was unfortunate and a waste of resources. (See Doc. 207, “Order on Letter Request Regarding Discovery Dispute,” at 7:9-7:10) (“It should not be necessary for any court to have to regulate the type of conduct which has been exhibited in Ms. Smith’s deposition.”) Plaintiffs figure of

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453.8 hours is accepted as a starting point to determine the number of hours billed for deposition-related tasks.

The substance of the County’s arguments are that two counsel were not necessary to defend depositions. Plaintiff fails to acknowledge that any duplication of efforts existed in this case, arguing that Defendant “failed to rebut Ms. Herring-ton’s evidence that, throughout this litigation, including at the depositions, she undertook different, complementary tasks.” Such a position is not supported by Plaintiffs briefing. Excluding the deposition of Regina Levison, it is unclear why Ms. Herrington’s presence was She did not separately pose questions or lodge she did not conduct the deposition or defend the witness, Mr. Lee did. Ms. Herrington’s declaration is similarly vague, listing only her attendance at certain depositions, not her participatory role or most notably what preparation she did. Ms. Herrington did not question, lead, defend or object during depositions, she does not describe her “complementary” role.

To account for such unjustified duplication of efforts, among other reductions, the total number of deposition hours are reduced by 30%.

See Wheeler v. Coss,

No. 3:06-CV-00717-RAM, 2010 WL 2628667 , at *6 (D.Nev. June 22, 2010) (reducing the requested deposition amount by 30.33 hours based on the Court’s discretion and its litigation knowledge.). The number of hours spent on all deposition-related tasks are reduced from 453.8 to 317.7, broken down as follows: Ms. Herrington is awarded 88.7 hours and Mr. Lee is awarded 229 hours.

“Manifestly Ineligible”

Defendant argues that three categories of time are “manifestly ineligible” from inclusion in the fee award: (1) attorney-client non-litigation work; (2) secretarial and clerical work; and (3) researching appellate procedures. According to Defendant, Plaintiff spent 57.2 hours on the first unexplained task, 169.1 hours on the second and on 14.5 the third. Defendant provides a separate index of the time spent by Plaintiffs counsel on these tasks. (Doc. 450-1.)

Defendant first argues that the Plaintiff spent 57.2 hours on “tasks [that] have nothing to do with prosecuting Plaintiffs claims.” (Doc. 450 at 9:17.) Plaintiff responds that the tasks were “directly related” to the litigation and, in any event, Defendant did not carry his burden to provide specific evidence to challenge the reasonableness and accuracy of the hours billed. Plaintiff ignores that it is the moving party who carries the initial burden to support his fee motion, which was not done in this case. Plaintiffs failure to properly document and support his motion directly impacted the ability to respond/evaluate the motion.

Defendant’s primary argument is not entirely accurate. Most of the alleged “non-litigation” time constitutes electronic communications between Plaintiff and his counsel, as well as research of employment issues, specifically, time spent researching Plaintiffs FMLA eligibility and reviewing employment and buyout documents. Time spent on these tasks is recoverable. However, a number of the entries are excluded, including Mr. Lee’s conversations with a TV reporter and phone calls between Mr. Lee and Ms. Herrington to discuss Mr. Lee’s performance on television. Other entries are inflated, i.e., billing several hours to send “confirmatory emails” and “read and review” short emails. A modest

*1113

downward adjustment of 10% is warranted with respect to the alleged non-litigation work.

See Moreno,

584 F.3d at 1112 (“[T]he district court can impose a small reduction, no greater than 10 percent-a ‘haircut’-based on its exercise of discretion and without a more specific explanation.”).

Defendant next contends that 169.1 hours should be excluded on the ground it constitutes “secretarial and clerical work.” Plaintiff rejoins that these activities are recoverable as “attorney work product.” For the most part, the time entries correspond to work on the “chronology grid” and “CaseMap” software.

Although somewhat clerical in nature, Courts have held that time spent organizing and formatting “CaseMap” software is properly recoverable.

See Semmaterials, L.P. v. Alliance Asphalt, Inc.,

No. CV-05-320-S-LMB, 2007 WL 676675 , at 3 n. 1 (D.Idaho Mar. 1, 2007) (“Time spent updating CaseMap and adding persons, witnesses, and organizations to spreadsheets have not been excluded because, although somewhat clerical in nature, these tasks add to a database that organizes information to save attorneys’ time and to help attorneys perform legal services in a more efficient manner.”). On the current record, however, there is considerable overlap between CaseMap and Plaintiffs “chronology grid.” Plaintiffs cursory explanation of a “chronology grid” bears a striking resemblance to the function of the CaseMap software.

To account for this overlap and several obvious secretarial entries, among other reasons, the time spent on these tasks is reduced from 169.1 hours to 100 hours. Secretarial time is not compensable. It is part of an attorney’s overhead.

See Yeager v. Bowlin,

No. 2:08-102-WBS-JFM, 2010 WL 2303273 , at *8 (E.D.Cal. June 7, 2010) (secretarial tasks are generally not recoverable as attorney’s fees).

Defendant’s final argument is that Plaintiffs counsel spent 14.5 hours researching appellate procedure, however, “no appeal could have been taken and [an] extraordinary writ was never available.” (Doc. 450 at 9:24-9:25.) Plaintiff rejoins:

A trial attorney is required to look ahead to appeal as he litigates a case. The process includes preserving the record, making necessary objections, and exhausting relief at the trial court level. That is what Plaintiff did here. Also, there were numerous discovery decisions issued by Magistrate Teresa Goldner for which Plaintiff had considered seeking writ relief.

(Doc. 451 at 12:2-12:5.)

Plaintiff is awarded eight hours for these tasks. Plaintiff is entitled to conduct reasonable research concerning appellate law, however, the billed time and his “new” explanation for this research conflict. Most of the alleged time spent researching appellate procedure occurred in April 2009, after the dispositive motion rulings in this case. Plaintiffs counsel incurred the rest of the time in 2010, an entire year after trial. It is unclear how Magistrate Judge Goldner’s “numerous” rulings are relevant to these entries. Magistrate Judge Goldner resigned from the bench on April 6, 2009 and did not rule on any dispositive motions. No other explanation of the purpose of this research is provided.

Spoliation

Defendant argues that the Court should reduce the 25 hours Plaintiff spent researching “spoliation” issues. According to Defendant, Plaintiff attempted to build a spoliation claim based on the conduct of

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Barbara Patrick, a member of the Kern County Board of Supervisors. Ms. Patrick left her position on the Board on January 8, 2007, two days after Plaintiff filed this action. It is undisputed that she shredded all Kern-related documentation when she left her Board position.

Plaintiff does not specifically dispute Defendant’s factual summary, however, he argues that the 25 hour calculation is “wrong.” Rather, Plaintiff asserts that the correct hourly total is 11.5 hours. This is a reasonable figure. Plaintiffs figure of 11.5 hours for purposes of calculating time spent researching spoliation is adopted,

Whistleblowing

Defendant argues that all time spent on the whistleblowing claims should be excluded:

Th[e] claims were legally deficient. Competent, experienced counsel should have known it. Plaintiffs claim was under a new version of California Health & Safety Code § 1278.5, enacted after the underlying events took place. The version in effect at the time the events occurred did not cover an entity that owns or operates a health facility (such as the County), did not extend protection to members of the medical staff, and did not cover “reports.” It is the responsibility of competent counsel to know the law before commencing litigation.

(Doc. 450 at 17:14-17:23.)

Defendant advances two additional arguments to support a reduction. One, Plaintiff could not establish a prima facie case under California Labor Code § 1102.5 because the “time span between the protected activity and the adverse employment actions was too great. Two, Plaintiff wasted countless hours requesting over 10,000 documents to explore the unmeritorious whistleblower claims. He requests a reduction of over 75 hours.

Plaintiff responds that he is entitled to recover all of the time spent researching, preparing and arguing his whistleblower claims. He does not identify the number of hours spent litigating these claims. According to Plaintiff, because the Court did not make a specific finding that the claims were “frivolous,” he is entitled to all of his fees:

Plaintiffs position was not as insinuated by Defendant. As the Court noted: “Plaintiff argues that, notwithstanding all the textual changes, the amended version of California Health

Safety Code § 1278.5 merely clarified the original meaning of the statute and, as such, it can be applied in this case. Citing Mendiondo, Plaintiff suggests that the Ninth Circuit has already determined that the amended version of the statute applies to whistleblowing and retaliation that occurred prior to its enactment into law.” There was never any finding that Plaintiffs contention was frivolous.

(Doc. 450 at 22:13-22:19) (citation omitted).

Plaintiff advances a similar argument regarding § 1102.5, that the claim was not declared “frivolous” by the Court. He also asserts that the discovery was necessary and, in any event, Defendant did not “indicate how it reached the arbitrary number of 75 hours [the reduction].” Plaintiff is correct on this point. Defendant proposes a reduction, but does not provide a task calculation or an analytical starting point.

Plaintiff is guilty of the same offense, which controls the analysis.

See Falcon Waterfree Tech., LLC v. Janssen,

No. 1:05-cv-551, 2008 WL 4534119 , at *4 (W.D.Mich. Oct. 6, 2008) (“Where, as here, the fee petition makes it impossible to clearly differentiate between compensable and non-compensable attorney time, the onus of that lack of clarity falls on the moving party.”). Plaintiff again fails to understand the relevant legal standard to

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support a fee motion. Here, Defendant’s figure appears arbitrary because Plaintiffs counsel did not provide adequate billing documentation or task totals of the hours spent on each task in the first instance. Even when confronted with Defendant’s figure, Plaintiff does not provide a “rebuttal” number of hours—his fourth attempt to do so.

An accurate lodestar figure for “whistleblower” tasks cannot be determined given the current state of the briefing. The whistleblower claims and a number of other claims advanced by Plaintiff shared common issues of fact, however, it was Plaintiffs burden to: (1) produce accurate/adequate billing records to support its fee motion, i.e., remove any ambiguity that impedes the calculation of an accurate lodestar; and (2) to “establish that the fees sought are ‘associated’ with a successful claim.”

Signature Flight Support Corp. v. Landow Aviation Ltd. Partnership,

730 F.Supp.2d 513, 528 (E.D.Va.2010). Plaintiff did neither in this case.

For these reasons, among others, it is impossible to deduce a lodestar figure for these tasks with any accuracy.

Motions to Compel

According to Defendant, Plaintiff spent an “incredible” 319 hours preparing ten motions to compel or for protective orders. Defendant claims that the Court should reduce this amount because: three of the motions were withdrawn; several of the motions concerned Plaintiffs “frivolous” whistleblowing claims; and Plaintiff chose not to reconvene the deposition of Patricia Perez.

Plaintiff contends that all of the hours are reasonable. He represents that two of the motions were withdrawn, not three, and “none of the motions were focused on whistleblowing claims, as Defendant contends, or any other claim, for that matter [... ] they focused on adverse employment actions and/or rebuttal of Defendant’s Fifth Affirmative Defense.” (Doc. 451 at 25:17-25:19.)

For the most part, these topics have been addressed. Most of the time spent preparing the motions to compel were required by the deterioration of Mr. Lee’s and Mr. Wasser’s professional relationship. Plaintiffs counsel, however, was unduly contentious and combative during discovery, which resulted in unnecessary discovery motions and court involvement. To account for this conduct, the withdrawn motions, the lack of documentation (and vagueness) to support the whistleblowing claims and the excessive number of hours spent drafting the motions to compel, among other reasons, Plaintiff is awarded 160 hours, the equivalent of four work weeks, for these tasks.

Background Investigations and Administrative Filings, Undisclosed Experts

Defendant next asserts that none of the time spent on administrative filings, undisclosed experts and background filings is recoverable. According to Defendant, Plaintiff spent 34 hours on administrative

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filings, 104 hours on undisclosed experts and 121 hours on background investigations.

With respect to undisclosed experts, Plaintiff represents that his counsel spent 18.6 hours. Plaintiffs figure is reasonable and is accepted to calculate an accurate lodestar.

With respect to the other two categories, Plaintiff repeats his boilerplate argument that there is no “particularized challenge” to his evidence, thus Defendant’s calculation fails. This argument assumes that the documentation used to support the motion for attorney’s fees is accurate, which is not the case. Instead, Plaintiffs failure to provide adequate documentation and explanation necessitated Defendant’s ealculations/methodology. The failure to document fees continues in the present motion as Plaintiff does not provide a corrected figure despite Defendant’s specific challenge.

However, it is undisputed that Plaintiff was required to satisfy certain administrative prerequisites to commence litigation against the County. All of these hours cannot be excluded. With respect to the undisclosed experts, several of the individuals were on Plaintiffs expert list, (see, e.g., Doc. 320). Although Plaintiffs documentation is inadequate, Defendant’s inability to recollect these individuals does not control the analysis. To account for these deficiencies, among others, 18 hours are awarded for administrative filings and 60 hours for background investigations. No additional time is warranted due to the failure to provide specific task descriptions, time increments or background documentation.

Motions for Summary Judgment

The dispute over the motions for summary judgment encompasses three discrete tasks: (1) reviewing Defendant’s motion for summary judgment; (2) preparing Plaintiffs motion for summary judgment; and (3) attendance/preparation for oral argument.

Defendant claims that Mr. Lee and Ms. Herrington spent approximately 863 hours on these tasks. Plaintiff disagrees, stating that counsel only spent 712.4 hours, 545.5 hours (Mr. Lee) and 166.9 hours (Ms. Herrington). Plaintiffs total is accepted as a starting point for the lodestar analysis.

Plaintiff argues that the time billed on each of these tasks was reasonable, in many cases directing the Court to the actual motion documents. According to Plaintiff, “the complexity was reflected in Plaintiffs MSJ/MSA which was over 1,000 pages, Defendant’s MSJ was nearly 1,200 pages, and Plaintiffs opposition to Defendant’s MSJ which was over 1,000 pages.” (Id. at 36:24-37:1.) Plaintiff also claims that this case “was extremely complex, involving 13 counts, 5 years of events, tens of thousands, of documents produced in discovery, more than 50 depositions, and more than 20 witnesses called at trial that last nearly 4 weeks.” (Doc. 451 at 37:24-36:24.)

The true complexity of this case has been appraised throughout this Memorandum Decision. While the case required counsel to martial facts and establish an employment time-line, the legal theories and arguments were neither novel nor innovative. Plaintiff also incorrectly correlates motion length with legal complexity. The majority of the dispositive motion briefing consisted of deposition testimony and discovery responses, which were attached as exhibits to Mr. Lee’s and Mr. Wasser’s declarations. The actual “legal” briefing was less than 8% of the total pages. While necessary to review this material, it takes less time to process and configure factual information, mostly deposition testimony, into a responsive briefing and/or trial strategy. In addition, as dis

*1117

cussed in detail in the Memorandum Decisions and Orders in this case, Plaintiffs counsel’s inexperience with the federal rules, trial practice and procedure, and the relevant legal authority inflated the total hours expended. (See, e.g., Doc. 321.)

After careful review of the summary judgment and post-trial briefing, the hours requested by Plaintiffs counsel are unreasonable. The motions were important for resolving the central issues in this case and the attorneys who worked on them should be compensated accordingly, however, billing the equivalent of eighteen work weeks—more than four working months—is excessive.

To be clear, each party’s motion was granted in part and denied in part. Plaintiffs motion, for the most part, was not a success.

Further, the portion granted in his favor, the County’s ability to assert a number of affirmative defenses, was not a significant portion of the motion.

Plaintiff, however, successfully defeated the FMLA and FEHA portions of Defendant’s motion. The dispositive motion-related tasks should have taken no more than 300 hours.

See Ryan M. v. Board of Educ. of City of Chicago, Dist. 299,

731 F.Supp.2d 776, 790 (N.D.Ill.2010) (“Using its discretion, the Court may reduce an attorneys’ fee award when the hours billed are excessive in light of the attorneys’ experience and the work produced.”) (citations omitted).

Mr. Lee claims that he spent 31.7 hours preparing for and attending the oral argument on these motions and 20.5 hours reviewing the April 8, 2009 Memorandum Decision, of which 35 hours are reasonable. Ms. Herrington asserts she spent 1.1 hours attending the hearing. Ml of Ms. Herrington’s time is reasonable.

The final dispute concerning the summary judgment motions is Defendant’s complaint about Mr. Lee’s alleged “insistence to treat language in the Court’s summary judgment decisions as ‘undisputed facts.’ ” (Doc. 450 at 15:21-15:22.) According to Defendant, Mr. Lee unreasonably “transformed” the Court’s Memorandum Decision into a statement of undisputed facts, which made it impossible to draft the joint pretrial statement. Defendant claims that the 89 hours expended by Mr. Lee in connection with the pretrial statement should be excluded.

For the reasons discussed in the April 29, 2009 Order, Plaintiff is awarded 15 hours in connection with the preparation of the pretrial statement:

The Supreme Court has stated that “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether

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there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). This rule applies whether summary judgment on the whole of the action or partial summary judgment on a claim therein is at issue. See, e.g.,

Washington v. Garrett,

10 F.3d 1421, 1424, 1428 (9th Cir.1993). In ruling on such motions, “[t]he evidence of the nonmovant is to be believed” by the court, “and all justifiable inferences are to be drawn in his favor.”

Anderson,

477 U.S. at 254 [ 106 S.Ct. 2505 ] (emphasis added.) Accordingly, in analyzing such motions, a court does not decide or determine facts for purposes of trial. The Ninth Circuit recognizes “[t]here is no such thing as findings of fact, on a summary judgment motion.”

Minidoka Irrigation Dist. v. Dep’t of Interior,

406 F.3d 567 , 575 (9th Cir.2005) (internal quotation marks omitted). Although, in the course of ruling on such motions, courts will discuss facts or matters that are “undisputed,” indisputable, not seriously disputed, appear “undisputed” or established, or use words of like import when discussing the record evidence and briefing, this does mean that a court has thereby usurped the function of the trier of fact and done something more than provide the context for the motion or articulate and explain the basis for the decision or a step in the analytical process [...]

Accordingly, Plaintiffs attempt to take passages from the court’s order on the cross-motions and assert that they represent undisputed facts that have already been established for purposes of trial is misguided. No factual findings for purposes of trial were made. Of more concern is Plaintiffs intransigence in refusing to know and follow the law. More serious is Plaintiffs intentional misrepresentation that the court did not rule on the “cross-motions for summary adjudication.” Plaintiff moved for summary judgment on the whole of his action and summary adjudication on each one of his claims, asserting that liability is established leaving only damages for trial. Plaintiff also moved for summary adjudication on certain affirmative defenses. The court painstakingly went through each of Plaintiffs claims and determined that Plaintiff was not entitled to judgment as a matter of law on his claims. Some of Plaintiffs claims did not survive Defendants’ cross-motion. What Plaintiff appears to be arguing, although he does not specifically say it, is that the court should now establish facts under Rule 56(d)(1) [... ]

Given the unnecessary complexity of this case and the impending trial date (which has already been rescheduled three times before), it is not “practicable” to comb the massive record to prepare an order under Rule 56(d)(1). In light of the inflated motion practice in this case and the apparent contentiousness between the parties, it is decidedly contrary to the interests of justice that yet another round of debate and further delay in these proceedings occurs. The case will proceed to jury trial on the present schedule. The parties are now ORDERED to comply with the court’s instruction to move all the facts they cannot agree on to disputed. The parties have until 10:00 a.m. on April 30, 2009, to do so.

The absence of knowledge of the law, inexperience, and refusal to follow the directions of the court vexatiously multiply the proceedings under 28 U.S.C. § 1927 . In the event compliance with this order is not effectuated, appropriate sanctions will be considered.

(Doc. 321 at 3:14-6:13.)

Plaintiff is awarded 21.2 hours total for all pretrial statement activities, including

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Mr. Lee’s attendance at the pretrial conference.

Motions in Limine, Jury Instructions and Verdict Form

Defendant argues that the time spent preparing the jury instruction, motions

in limine

and the verdict form should be reduced. With respect to the preparation of the jury instructions, Defendant explains:

Mr. Lee and Ms. Herrington refused to work with the Court in the preparation of jury instructions. After the County filed its proposed jury instructions, Mr. Lee filed 114 pages of objections. Since the County’s instructions were simply proposed jury instructions, Mr. Lee’s filings were unnecessary, Mr. Lee and Ms. Herrington, together, spent 67 hours on the jury instructions—far more time than was justified.

(Doc. 450 at 16:25-17:1.)

Defendant additionally states that the motions

in limine

were “straightforward and simple” and the time entries are “inflated.” Lastly, Defendant argues no time should be awarded concerning the Plaintiffs proposed verdict form because “the Court prepared the verdict form.”

Plaintiff only responds to the motions

in limine

dispute. Plaintiff argues that his

in limine

fees are reasonable because “the Court granted all 17 of Dr. Jadwin’s motions in limine.” (Doc. 425 at 7:14-7:15.) In addition, according to Plaintiff, the 108 hours (89 hours by Mr. Lee/Ms. Herring-ton and 18 hours by Ms. Minger) are reasonable because the motions “addressed several fact intensive and controversial issues, such as admissibility of the radiologist tie-pulling incident as character evidence and exclusion of speculative expert opinion.” (Doc. 451 at 38:26-38:28.)

With respect to this dispute, Plaintiff holds the weaker hand. First, as explained during the July 28, 2010 hearing, the Order granting Plaintiffs motions

in limine

was docketed in error. It was vacated during the July 28, 2010 hearing. (See Doc. 440, Minute Order, “Order Granting Plaintiffs Motions in Limine 1-17 was STRICKEN for reasons as stated on the record.”) It is undisputed that Plaintiff was not as successful as he claims to be. Second, on the most difficult and “fact-intensive” motions, Plaintiff did not prevail. This includes the “tie-pulling incident” and the testimony of Defendant’s expert, Thomas McAfee, M.D., motions 13 and 16. The majority of Plaintiffs motions

in limine

were boilerplate motions, i.e., to exclude non-party witnesses, to limit expert testimony to stated opinions, to exclude references to Plaintiffs claim for attorney’s fees and to exclude evidence in support of unpleaded defenses. The drafting of these motions required very little time; they were undisputed, not “fact intensive” or legally “complex.”

For these reasons, and to address excessive and duplicative billing, Mr. Lee and Ms. Herrington’s requested time is reduced from 89 hours to 50 hours.

Ms. Minger’s time for drafting two motions in limine is reduced from 18 hours to 10 hours.

With respect to the fees requested for preparing the jury instructions and verdict form, neither of which Plaintiff addresses, Plaintiffs counsel are awarded 40 hours (preparing draft jury instructions) and 10 hours (verdict form). As Plaintiff did not

*1120

address these tasks, no accurate allocation can be made between counsel. As such, the 40 hours and 10 hours are added to Mr. Lee’s time, the counsel with the lower hourly rate.

Miscellaneous Tasks

Defendant argues that the time spent on three “miscellaneous” tasks should be excluded. One, the time spent drafting a “reply and sur-reply” to its opposition to the motion for liquidated damages and prejudgment interest. Defendant claims that these responses were not “authorized.” Two, the ten hours spent preparing an 88-page opposition to Defendant’s ex parte motion, which was granted on March 7, 2008. (See Doc. 122.) Three, Mr. Lee’s preparing and submitting a Proposed Order on Defendant’s Motions in limine.

Defendant’s first objection is without merit. The Court addressed the topic in the March 31, 2010 Memorandum Decision, (Doc. 408). The time is not excluded in its entirety. However, it was unreasonable to bill almost 22 hours to prepare unauthorized response briefs,

which multiplied the proceedings. As discussed in that Memorandum Decision, the reply was not entirely helpful and contained very little legal analysis. Mr. Lee is permitted ten hours for this task. In addition, Mr. Lee is permitted twenty hours total for researching, drafting, and editing the “motion for additional findings of fact and conclusions of law,” which included requests for liquidated damages and prejudgment interest. These motions were denied on March 31, 2010.

The second objection focuses on Plaintiffs opposition to Defendant’s “Ex Parte Motion for an Order Shortening Time Re Motion for Permission to Serve Expert Reports After May 5, 2008.” Defendant claims that the ten hours spent drafting an 88-page opposition should be excluded. According to Defendant, its motion was “immediately granted.”

Defendant is half right. Although the motion was successful, there is nothing in the record to support a complete reduction of fees. Plaintiffs opposition was lengthy and largely unnecessary, but it was not capricious or frivolous. Mr. Lee is permitted five hours for this task.

The general confusion over the motions in limine was discussed in § III(B)(3)(1),

supra.

As to the dispute, the Court instructed each party to submit a proposed order on

their own

motions in limine following the May 8, 2009 oral argument. The Local Rules provided Plaintiff an opportunity to counter Defendant’s Proposed Order, however, the two Proposed Orders were identical, except for language concerning motion in limine No. 10. Plaintiffs version incorrectly characterized the ruling and was inaccurate. (Compare Doc. 351, MIL No. 10, pg. 3 with Doc. 347, MIL No. 10, pg. 2.) Defendant’s Proposed Order was adopted in its entirety. The claimed 1.1 hours spent preparing Plaintiffs Proposed Order (on Defendant’s motions in limine) are excluded.

Trial Time

Defendant also objects to the amount of time spent by Plaintiffs counsel preparing for and attending trial. Defendant requests a reduction of approximately 20%.

Ms. Herrington claims she spent 60.5 hours on trial-related tasks. Mr. Lee, however, does not provide a total for trial-related tasks.

A painstaking independent review of Mr. Lee’s declarations, (Docs. 425-1, 448-1 and 451-1), reveals that Mr. Lee spent 321.8 hours on all trial-related tasks, including

*1121

reviewing depositions transcripts, corresponding with jury consultants, the client and “trial team,” selecting impeachment evidence, organizing exhibits, preparing his opening/closing statements and arguments, outlining/drafting witness examinations, attending trial and reviewing the filings in this case (jury instructions, verdict form, jury verdict). All correspondence and time spent with television/print media reporters is included in this global amount.

Defendant’s proposed reduction of approximately 20% is high. Rather, a 15% downward adjustment of trial time and fees is warranted. Based on the Court’s familiarity with this action and trial experience in over 500 jury trials to verdict, the duplication of effort, the sheer number of hours spent corresponding with co-counsel and on clerical/admin tasks and after reviewing all of the time entries in detail, among other reasons, a reduction of fifteen percent is appropriate.

Ms. Herrington is awarded 51.4 hours for trial-related tasks. Mr. Lee is awarded 273.5 hours.

Bill of Costs

Defendant objects to the 115 hours Plaintiffs counsel spent preparing the Bill of Costs, filed June 29, 2009. Defendant also objects to Plaintiffs filing of a reply, arguing that a reply brief is not allowed under the Local Rules.

Plaintiff responds that the time spent composing the Bill of Costs is reasonable based on the “complexity” of the case. As to the filing of a reply, Plaintiff states: “Defendant never filed an objection [] [n]or did Defendant raise this issue once at the post trial motions hearing [on July 28, 2010] [...] Defendant’s objection is waived.” (Doc. 451 at 21:6-21:9.)

As the “Bill of Costs” is addressed by separate Memorandum Decision, it is unnecessary to address the reasonableness of those charges here. Any fees reasonably incurred in preparing a cost bill are addressed—and awarded—separately.

Graphical Representation

Plaintiffs Lead Counsel, Mr. Eugene Lee

[[Image here]]

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[[Image here]]

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[[Image here]]

Lodestar—Rates

Introduction

Plaintiffs counsels’ claimed theoretical rates are as follows: Eugene Lee, lead counsel, $400 per hour; Joan Herrington, co-counsel, $450 per hour; Marilyn Ming-er, contract counsel, $885 per hour; and David Hicks, fee counsel, $660/hr. All of the fees requested are based on out-of-district hourly rates, namely the Los Angeles and Bay Area markets, not the Fresno Division of the Eastern District of California.

Plaintiff filed his motion for attorney’s fees on June 1, 2010. In support Plaintiff submitted: (1) a Memorandum of Points and Authorities; (2) the declaration of Mr. Eugene Lee; (3) the declaration of Joan Herrington; (4) the declaration of Marilyn Minger; (4) the declaration of David Hicks; (5) the declaration of Michelle Reinglass; (6) the declaration of Paul Greenberg; (7) the declaration of Chris Whelan; (8) the declaration of Jean Hyams; (9) the declaration of Lee Feldman; and (10) the declaration of Dean Gordon.

The County opposed the motion on July 8, 2010. Oral argument was held on July 28, 2010, at which time supplemental briefing was requested to give Plaintiff an opportunity to properly and adequately support his fee motion. The parties were also

*1124

requested to address several post-trial issues, including whether federal or state law controlled the hourly rate analysis. The parties filed supplemental briefing on August 16, 2010, Doc. 448, and September 3, 2010, Doc. 450. On September 16, 2010, Plaintiff filed a 410-page reply to Defendant’s supplemental opposition.

Specific Legal Standards

“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.”

Blum v. Stenson,

465 U.S. 886 , 896 n. 11, 104 S.Ct. 1541 , 79 L.Ed.2d 891 (1984);

Dang v. Cross,

422 F.3d 800, 814 (9th Cir.2005). The Ninth Circuit requires:

Once the number of hours is set, ‘the district court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney requesting fees.’

Chalmers v. City of Los Angeles,

796 F.2d 1205, 1210 (9th Cir.1986). This determination ‘is not made by reference to rates actually charged by the prevailing party.’

Id.

The court should use the prevailing market rate in the community for similar services of lawyers ‘of reasonably comparable skill, experience, and reputation.’

Id.

at 1210-11 . Either current or historical prevailing rates may be used.

Missouri v. Jenkins,

491 U.S. 274 , 109 S.Ct. 2463 , 105 L.Ed.2d 229 (1989). The use of current rates may be necessary to adjust for inflation if the fee amount would otherwise be unreasonable; the district court must look to the ‘totality of the circumstances and the relevant factors, including delay in payment.’

Jordan v. Multnomah County,

815 F.2d 1258 , 1262 n. 7 (9th Cir.1987).

D’Emanuele v. Montgomery Ward & Co., Inc.,

904 F.2d 1379, 1384 (9th Cir.1990)

overruled on other grounds by Burlington v. Dague,

505 U.S. 557 , 112 S.Ct. 2638 , 120 L.Ed.2d 449 (1992).

The “relevant legal community” in the lodestar calculation is generally the forum in which the district court sits.

Mendenhall,

213 F.3d at 471 ;

Barjon v. Dalton,

132 F.3d 496, 500 (9th Cir.1997);

Deukmejian,

987 F.2d at 1405 . Another forum may be the proper relevant community, however, “if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.”

Barjon v. Dalton,

132 F.3d 496, 500 (9th Cir.1997) (citation omitted). The court may rely on rates outside the local forum if the plaintiff establishes either unwillingness or inability; “[t]here is no requirement that plaintiffs prove both.”

Id.

at 502 .

Merits

On July 28, 2010, the Court expressed its tentative view that the Eastern District of California, Fresno Division, was the appropriate forum to establish the lodestar hourly rate in this case:

Now, inferentially, I’ve already ruled on what is described as continuing misconduct and unprofessional behavior. I have noted that the case was contentious, the case was hotly disputed on both sides, and that there was a lot of work done on this case that, in a perfect world, wouldn’t have been necessary.

To make a specific charge of either vexatiousness or fee multiplication, there has to be a specific example of the date, a time and a description of the conduct and the hours sought to be reduced. That’s what’s now required in the Ninth Circuit.

*1125

And I will tell you that in the City of Sacramento case [Moreno], Judge Levy basically said as far as he was concerned, the prevailing rate was $250 an hour per the Civil Rights Bar and he wasn’t going to go above it. And although $800 had been requested, he reduced it across the board to $250 an hour. And that was found to be an abuse of discretion because he didn’t give any other reasons or cite any studies for reducing the hourly rate.

The applicable hourly rate in this case is the Eastern District of California, Fresno Division. The Court does pay close attention to the plaintiffs assertions that no lawyers would accept this case. Except at their rates. But that doesn’t answer the entirety of the question. Rather, the question is at what prevailing rate would competent attorney accept the case. And besides the declarations of counsel and one or two others about their unwillingness to accept cases against the County of Kern, the Court notes that the issue of local bias is almost totally dissipated by the fact that the case was tried in Fresno, over 100 miles distant from Kern County, or Bakersfield.

That the jury pool even further diluted the potential for local bias, because, as the parties know, the venire was drawn from all over the Fresno division, which extends as far north as the Northern Stanislaus County line, Tuolumne and Calaveras Counties, to Inyo County on the east, the Nevada border, Los Angeles County on the south. And so there was a wide geographic diversity. And nobody on our jury panel who sat had ever heard of the case or any of the parties.

In civil rights cases and employment cases in this Court, the Court has moved up from $250 an hour and has awarded, in some cases, for experienced, highly competent counsel—and by experienced, I’m talking about more than 20 jury trials to verdict and at least ten years experience as a lawyer. The prevailing rate has been $300 an hour. I know that in Judge Ishii’s court, in one or two cases, up to $350 an hour has been awarded, again, for attorneys with in excess of 20 years experience and more jury trials to verdict in the relevant field.

(RT, July 28, 2010 at 119:1-120:24.)

In his supplemental brief, Plaintiff argues that the tentative ruling is incorrect for a number of reasons, all of which lack merit and further demonstrate inexperience in trial work. Plaintiff first argues that “the Court should use the rates awarded to the plaintiffs employment law bar in Sacramento,” i.e., employ Sacramento Division hourly rates. (Doc. 448 at 6:3.) It is suggested that because Defendant retained Sacramento counsel, Plaintiff is therefore entitled to Sacramento hourly rates. (See id. at 6:5-6:6 (“Defendant Kern County, itself, found it necessary to retain counsel from Sacramento.”).) This argument has no merit. The only case cited in support is

Moreno v. City of Sacramento,

534 F.3d 1106 , which is factually distinguishable and not helpful to Plaintiffs arguments on this issue. Plaintiff has been unable to present any applicable or persuasive authority for the proposition that opposing counsel’s billing region/forum furnishes the hourly billing rate for

all counsel

in a dispute overly the applicable hourly rate.

Plaintiff next argues that the tentative ruling is infirm because California law, not Federal law, controls the hourly rate analysis in this case.

Plaintiff claims that under California law, the “prevailing plain

*1126

tiff need only show that hiring local counsel was ‘impracticable’ in order to justify an award of out-of-town hourly rates.” (Doc. 448 at 3:26-3:27.) According to Plaintiff, his alleged “massive search” for local counsel in September 2006 satisfies California’s “impracticable” standard. He cites, but does not address or analyze, the federal standard in his briefing.

Plaintiff relies on, but does not fully analyze, a number of Ninth Circuit cases to support his argument that California law controls the hourly rate analysis. Plaintiff correctly observes that

Mangold v. California Public Utilities Commission,

67 F.3d 1470, 1477 (9th Cir.1995) held that “[w]here a plaintiff moves for attorney fees on the basis of success on a state law claim, a federal court is to follow state law regarding both a party’s right to fees and in the method of calculating fees.” (Doc. 448 at 1:12-1:13.) Plaintiff, however, overlooks that, in

Mangold ,

the Ninth Circuit did not analyze hourly rates

generally

or whether state law governs that analysis in circumstances applicable here and in a dual jurisdiction case. The Ninth Circuit’s analysis in

Mangold

was limited to whether Plaintiff was entitled to a multiplier under California law.

*1127

Assuming,

arguendo,

that

Mangold

applies, Plaintiffs evidence does not establish justification for “out-of-town” rates. Plaintiffs lead counsel, Mr. Eugene Lee, states in his declaration that he “had no success” in his attempts to locate local counsel. (Doc. 425-1 at ¶29.) Mr. Lee represents that he “emailed various members of the California Employment Lawyers Association (“CELA”), including lawyers from Fresno, Bakersfield, Modesto, and Sacramento.” (Id.) He lists several law firms, but does not include the names of specific partners, of counsel, associates or staff he personally contacted, or whether the email was received or routed into a trash or spam folder. No details are provided as to any direct communication other than an electronic communication was allegedly sent by Mr. Lee’s law office.

None of the alleged electronic communications are attached as exhibits to Mr. Lee’s declaration.

(Compare

Doc. 121 at pgs. 12, 28-29, 35-39, 41-45, 47-52, 54-55 and 57-59) (email communications between Mr. Lee and opposing counsel attached to Plaintiffs motion). Nor do Mr. Lee’s time records, which span several hundred pages and three rounds of briefing, contain a single entry concerning his “massive search” for local counsel.

The inadequacy of the “massive search” is further demonstrated by Mr. Lee’s July 11, 2007 declaration, filed in conjunction with Plaintiffs unsuccessful motion to strike Defendant’s fifth affirmative defense. In his declaration, which delineates his search to retain local counsel, Mr. Lee states that his search consisted of a mass email to CELA members, nothing more:

On September 18, 2006, I sent an email to over 600 members of the California Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded.

(Doc. 33 at ¶ 20.)

Such a limited and one-sided query does not satisfy the relevant “out-of-town” legal standards, federal or state. It is entirely possible, even probable, that Mr. Lee’s bulk email was batched into a trash/junk folder or mistaken for spam and deleted by the recipient. Either explains the lack of response. However, this issue cannot be fully addressed as Mr. Lee did not follow-up with the intended recipients by any direct contact to any specific attorneys.

That is not the end of the analysis. A close review of the evidentiary support also reveals several inaccuracies and/or un

*1128

confirmed assertions that undermine the evidentiary merit of the fee motion. Plaintiff argues that it is not “surprising” that his query for local counsel was unsuccessful because “only a small handful of members of the California Employment Lawyers Association practice in the Eastern District of California.” (Doc. 448 at 5:17-5:19.) First, Plaintiffs representation that there are “very few employment counsel” in the Eastern District of California is contrary to the Court’s experience with the number of lawyers practicing employment law in the EDCA. This is especially true in cases involving traditional employment law theories of recovery and conventional evidentiary issues, as were presented here. This case was contentious and factually detailed, but it was not legally complex. Second, the CELA database is not the ultimate authority or complete universe of employment counsel in the Eastern District of California. A substantial number of available employment counsel choose not to participate in CELA/NELA for any number of reasons, including lack of synergy, high cost or attendance requirements. Third, Plaintiff

had

local counsel in Bakersfield, however, that counsel was removed/relieved after Mr. Lee became involved in the case. Plaintiff makes no mention of the original local counsel and it is unclear how it impacted the “massive search” for local counsel, especially in Kern County. In Fresno County alone, there are over 2,000 licensed and practicing lawyers.

A substantial portion of Plaintiffs “lack of local counsel” argument is based on a review of CELA’s database in 2010, not in 2006. (Doc. 448-4, Deck of C. Krasomil, ¶¶ 4—6.) It is unclear how a review of CELA members in Sacramento County in 2010 is relevant to Plaintiffs “massive search” for local counsel in September 2006 in the Fresno Division.

Kochenderfer v. Reliance Standard Life Ins. Co.,

No. 06-CV-620-JLS-NLS, 2010 WL 1912867 (S.D.Cal. Apr. 21, 2010) addressed a prevailing plaintiffs motion for attorney’s fees. There, the Court found that the plaintiffs documentary evidence— including sworn declarations from numerous attorneys—was insufficient to support the requested hourly rates:

Although Plaintiff submits numerous attorney declarations, those declarations fail to carry Plaintiffs burden. First, having reviewed all of the declarations, the Court finds that they do not establish that a paying client would pay Ms. Horner or Mr. Monson their requested rate for legal work of similar complexity. Neither Ms. Horner’s declaration nor Mr. Monson’s declaration states that a paying client has ever paid them their requested rate for this type of work. As to the other declarations, they either do not offer evidence of what a paying client would actually pay or they do not indicate that a paying client had paid this rate for comparable work or they do not indicate that these rates are reasonable within the Southern District of California.

Second, the value of these declarations is questionable because they are both self-serving and self-perpetuating. Each of these attorneys works on ERISA matters and claiming that the rates charged by Plaintiffs counsel, no matter how high, is in their own interest. A high award in this case would support the declarants’ own high hourly rate requests in the future. Ultimately, the rates Plaintiffs attorneys request appear to have little basis in what an arms-length agreement with a paying client would produce.

Id.

at *3-4 (citations omitted).

Although

Kochenderfer

is not factually identical to this case, there are similarities.

*1129

It analyzed the evidentiary showing needed to support a prevailing party’s request for legal fees, including the claimed hourly rates. For the reasons discussed in

Kochenderfer ,

Plaintiffs documentary evidence is insufficient to support the requested hourly rates in this case.

The Eastern District of California, Fresno Division, is the appropriate forum to establish the lodestar hourly rate in this case. Plaintiff, who carries the burden on a fee motion, has not fully analyzed why Sacramento hourly rates are appropriate or why California law exclusively controls the hourly rate analysis in this case, especially in light of the general verdict form. In addition, Plaintiff has not provided adequate evidentiary support to demonstrate that the use of an attorney from outside the relevant community was necessary for purposes of charging another community’s higher hourly rates.

See, e.g., Welch v. Metropolitan Life Ins. Co.,

480 F.3d 942, 945-46 (9th Cir.2007) (the party seeking fees “bears the burden of documenting the hours expended in the litigation and must submit evidence supporting those hours

and the rates claimed.”)

(emphasis added) (citation omitted). For all of these reasons, as well as those discussed in open court on July 28, 2010, the Fresno Division is the appropriate forum to determine hourly rates.

Attorneys

Eugene Lee

Plaintiff requests an hourly rate of $400/hr for the services of attorney Eugene Lee. Mr. Lee graduated from law school in 1995 and was admitted to the New York State Bar in 1996. (Doc. 425-1 at ¶ 3.) Mr. Lee took a two-year hiatus from the practice of law in 1997. In 1999, Mr. Lee worked as counsel to a technology

*1130

startup in Northern California. (Id.) In 2002, he took an associate position with a law firm in South Korea, where he worked until 2004. (Id.) In 2005, Mr. Lee was admitted to the California State Bar. He has been the principal attorney in his own practice, the Law Office of Eugene Lee, since he was admitted to practice law in California. (Id.)

Mr. Lee self-describes that he is an attorney with thirteen years of experience and has “an excellent reputation in the California employment law community and demonstrated skill and success.” (Id. at ¶ 40.) He reiterates that he went to undergraduate school at Harvard University and that he successfully litigated a “a waiter’s employment lawsuit in Los Angeles Superior Court for $350,000, even though the waiter had economic damages of only $50,000 and no significant emotional distress damages.” (Id. at ¶¶ 41-42.) Mr. Lee declares that his hourly rate is $400 and “in fact [I have] been paid this rate by my clients since 2006 [... ] Dr. Jadwin has paid me $400 per hour in the past for my legal services.” (Id. at ¶ 44.)

Mr. Lee also represents that this “litigation proved to be extraordinarily complex, difficult and onerous for me.” (Id. at ¶ 7.) It is undisputed that according to Mr. Lee this was his first trial in any court. (See RT, June 2, 2009 at 35:10-35:12) (“I must emphasize this is really my first trial and a -lot of stuff is going on.”).

In this Circuit, the reasonable hourly rate “is not made by reference to rates actually charged by the prevailing party,” an attorney’s undergraduate institution, or by the number of years spent as a practicing lawyer.

See, e.g., Welch v. Metro. Life Ins. Co.,

480 F.3d 942 , 946 (9th Cir.2007);

see also Chalmers v. City of Los Angeles,

796 F.2d 1205, 1210 (9th Cir. 1986). Rather, a reasonable hourly rate is determined by “experience, skill, and reputation.”

Welch,

480 F.3d at 946 .

In a recent fee motion before the Court,

Schultz v. Ichimoto,

No. 1:08-CV-526-OWW-SMS, 2010 WL 3504781 (E.D.Cal. Sep. 7, 2010), it was determined that two very experienced employment litigation counsel—with more than twenty years of litigation experience each—were entitled to hourly rates of $305.00 and $255.00, respectively. To reach the hourly rates in

Schultz ,

the Court catalogued the recent attorney’s fee decisions in the Eastern District of California, Fresno Division, including

Ruff v. County of Kings,

700 F.Supp.2d 1225 (E.D.Cal.2010),

Beauford v. E.W.H. Group Inc.,

2009 WL 3162249 (E.D.Cal. Sept. 29, 2009) and

Wells Fargo Bank, Nat. Ass’n v. PACCAR Financial Corp.,

2009 WL 211386 (E.D.Cal. Jan. 28, 2009). In those cases, it was determined that hourly rates of $350 (Beauford), $ 315

CPACCAR)

and $300

(Ruff)

were reasonable for “experienced and competent counsel.”

The most reliable factor in determining a reasonable hourly rate is the ability and skill demonstrated by counsel. Mr. Lee was able to secure a jury verdict in his client’s favor, but recovery was limited to approximately 12% of the

economic damages he

requested from the jury. Mr. Lee also asserted a number of unsuccessful claims in multiple amended complaints, which were eliminated by dispositive motion or rejected by the jury/Court; named numerous defendants who were later voluntarily eliminated from amended pleadings without explanation; displayed a tendency to take contrary legal positions (often in the same brief); and filed numerous unnecessary motions/supporting material. In all stages of this case, Mr. Lee exhibited inexperience with the Federal Rules of Civil Procedure, the Rules of Evidence, the federal and state legal frameworks and, notably, found it difficult to comply with the Court’s rulings.

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Mr. Lee was exceedingly contentious, unduly adversarial and expended inordinate time in personal conflicts and arguments with opposing counsel, many of which resulted in needless discovery and logistic motions which burdened scarce judicial resources. Some of Mr. Lee’s conduct or confusion could be attributed to a skilled legal technician’s attempts to preserve his case and foil opposing counsel. But that is not the case here. The unnecessary court proceedings and confusion were, for the most part, due to inexperience.

Mr. Lee caused countless problems for the Court’s staff, was rude on occasion, without explanation or apology. Nonetheless, Mr. Lee was afforded full opportunity to try his client’s case in what was a fair trial.

In light of the recent attorney’s fee rulings in the Eastern District of California, Fresno Division,

the Court’s comprehensive familiarity with this action, its experience, prevailing attorney rates in the employment law field, and after reviewing supporting declarations in detail, a rate of $275 per hour for Mr. Lee constitutes a reasonable rate for this case and is based on similar work performed by attorneys of comparable experience and skill to Mr. Lee in the Fresno Division of the Eastern District of California.

A further consideration is Mr. Lee’s unprofessional conduct throughout this case. He was unjustifiably rude, argumentative, and unreasonable in his dealings with opposing counsel, some of which entered into papers filed with the court and his interactions with court staff and the magistrate judge. Mr. Lee was treated with patience and courtesy. The Court has not based its fee award on this ground, although for the purpose of providing guidance and a example to counsel, it would be reasonable to do so.

Joan Herrington

Plaintiff requests an hourly rate of $450/hr for the services of attorney Joan Herrington, co-lead counsel. Ms. Herring-ton is a 1995 law graduate of Golden Gate University and has practiced employment law since she was admitted to practice in California that same year. (Doc. 425-2 at ¶¶ 3-6.) Ms. Herrington has worked as a workers’ compensation associate and as principal in her own employment law firm. (Id. at ¶¶ 5-6.) According to Ms. Herring-ton, she “ha[s] been forced to proceed to trial in only eight cases [and] participated in four appeals as attorney of record, and one as a contract attorney.” (Id. at ¶ 6.)

To support her motion, Ms. Herrington submits her own declaration as well as those of Christopher Whelan, Jean Hyams and Lee Feldman, all California employment law attorneys. These declarations set forth the following: (1) Ms. Herrington spent 839.9 hours on this case at a rate of $450/hr, including 413.6 hours drafting and reviewing pleadings, 126.6 hours attending depositions, and 61.6 hours attending court

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proceedings; (2) Ms. Herrington incurred 39 hours of travel time at $200 per hour; and (3) Ms. Herrington is an experienced employment law attorney and is entitled to her hourly rate of $450/hr, which is the “market rate” for similar attorneys in Sacramento and/or the Bay Area.

In support of her fee motion, Ms. Herrington provides the declaration of Christopher Whelan. Mr. Whelan, a trial attorney and Ms. Herrington’s CELA colleague, provides a summary of his trial history, including a number of sizeable verdicts obtained in Yolo and Sacramento County Superior Courts. Mr. Whelan provides a range for experienced counsel in the Eastern District, Sacramento Division, however, he does not provide a lodestar rate/range for attorneys with Ms. Herrington’s experience in the Fresno Division. (See Doc. 425-7 at ¶ 9 (“$450.00 to $595.00 per hour for employment law trial counsel in Central and Northern California, including the Sacramento area.”)) In addition, based on his declaration, Mr. Whelan’ s experience is limited to the state court system in Northern California, Alameda, Yolo, and Sacramento Counties. (Id. at Hit’s 5-8.) His declaration does not indicate litigation experience in any federal forum or in Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare or Tuolumne counties, the Fresno Division.

As discussed above, several district courts in the Eastern District of California, Fresno Division, have determined that hourly rates of $350 (Beauford), $ 315

(PACCAR),

$305

(Schultz)

and $300

(Ruff)

were reasonable for “experienced and competent trial counsel.”

In light of these decisions and the evidence submitted by Plaintiff, a reasonable hourly rate for the services of attorney Joan Herrington is $350/hr, more than the (very) experienced and skilled trial counsel in

Schultz

and

Ruff .

Ms. Herrington was competent but prepared no independent work product and appeared before the Court only in a limited role. The $350/hr figure is near the top of the range of hourly rates charged by the other attorneys and consistent with the hourly rates other courts in the Fresno Division have approved for similar services performed by Ms. Herrington in this case.

Ms. Herrington’s

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