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BERRY v. COUNTY OF SONOMA

May 1, 1992

GREGORY BERRY, et al., Plaintiffs,
v.
COUNTY OF SONOMA, et al., Defendants.


LANGFORD


The opinion of the court was delivered by: F. STEELE LANGFORD

The parties' post-trial motions came on for hearing on April 30, 1992. Appearing for moving party was W. David Holsberry, Esq. of Davis, Cowell & Bowe. Appearing for defendants was Patrick Grattan, Esq., of Geary, Shea, O'Donnell & Grattan. Plaintiffs moved to correct the amount of the damage award and for an award of attorney's fees. (The motion to correct the amount of the award was submitted without oral argument, pursuant to Local Rule 220-1). Defendants moved for the court to reconsider its findings and conclusions contained in the Memorandum Opinion of February 28, 1992 and enter judgment for defendants. The moving and opposing papers and argument of counsel having been fully considered and good cause appearing,

 IT IS HEREBY ORDERED that the plaintiffs' motions to correct the amount of the damage award and application for attorney's fees are GRANTED. Defendants' motion for reconsideration and to amend the judgment is DENIED.

 CORRECTION OF AMOUNT OF DAMAGE AWARD

 In its Memorandum Opinion of February 28, 1992 this court awarded damages for unpaid overtime to plaintiffs in the amount of $ 200,731.11, less unpaid overtime accrued prior to December 19, 1987. This amount reflected the calculation submitted with the pre-trial statement some months prior to trial. Plaintiffs' total claim for unpaid overtime, from December 19, 1986, up to the date of trial, however, is $ 280,074.03. The court found that the statute of limitations for this claim is two years, since defendants did not show bad faith. Plaintiffs' claims for unpaid overtime prior to December 19, 1987 are $ 38,407.81. Subtracting the overtime for the year prior to the statute of limitations yields plaintiffs' claim for damages from December 19, 1987 to time of trial: $ 241,666.22. Plaintiffs substantiated their claims using documents such as work logs and other pay records admitted into evidence at trial. The motion to correct the amount of the damage award is therefore GRANTED.

 MOTION TO AMEND JUDGMENT

 1) whether the 5% pay increase received by plaintiffs in 1982 was compensation for on-call time;

 2) the number of calls plaintiffs received while on-call requiring an in-person response;

 3) number of telephone calls initiating a death investigation plaintiffs received while on-call.

 The court considered the moving and opposing papers and the argument of counsel. The court finds that there is no basis for reconsidering its findings and conclusions and therefor the motion to amend the Memorandum Opinion and enter judgment for defendants is DENIED.

 APPLICATION FOR ATTORNEY'S FEES

 Plaintiffs applied for an award of attorney's fees, pursuant to this court's order of February 28, 1992 and the mandate of the Fair Labor Standards Act, specifically 29 U.S.C. § 216(b). The fee award requested is $ 215,260.00. This represents 1024.8 hours at $ 200 per hour, plus in additional 51.5 hours incurred between April 1 and the date the matter was submitted.

 After considering the moving and opposing papers and the argument of counsel, this court has determined that the application for attorney's fees should be GRANTED. The court's reasoning is as follows:

 ATTORNEY'S FEE: BACKGROUND

 Plaintiffs, coroner's investigators assigned to the Sonoma County Sheriff's Department, successfully sued their employer under the Fair Labor Standards Act (FLSA) 29 U.S.C. § 201 et seq. for compensation for hours spent "on-call." This court's memorandum opinion of February 28, 1992 authorized plaintiffs to substantiate the amount of attorney's fees requested. The fee award is mandated by the FLSA 29 U.S.C. § 216(b), which states:

 The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

 The amount is up to the court's discretion.

 POSITIONS OF THE PARTIES

 Briefly summarized, defendants claim that plaintiffs' counsel is charging too high a fee, for too many hours. They contend that the results he obtained were only partially favorable to his clients and that the use of a multiplier is not justified, since the same factors which would justify a multiplier have also been used to justify a higher hourly rate. Defendants also claim that the factors listed in Kerr do not justify the amount of fees requested, which would be almost equal to the damage award. Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975) cert. den. 425 U.S. 951 (1976)

 Plaintiffs claim that their counsel's fee is the customary charge for this type of case, and that the hours were required because the case was continued three times and because the parties filed cross-motions for summary judgment. The results obtained were the ultimate result plaintiffs wanted: to be compensated for their on-call time. The use of a multiplier was justified because of the risk that counsel took handling this case on a contingent fee basis, and because of the quality of the work done. According to the Kerr factors, plaintiffs counsel set precedent in this Circuit in the area of on-call compensation for public employees, and there are several cases where the fee award far exceeded the damage award, yet was affirmed on appeal. Plaintiffs request a fee of at least $ 204,960.00 (1024.8 hours times $ 200 per hour), the "lodestar" figure. Plaintiffs also request that the court apply a multiplier, between 1.25 and 1.5, which would produce a higher award. Plaintiffs also request fees for an additional 51.5 hours of attorney time incurred between April 1 and the date of this hearing, for which the total fee is $ 10,300.00.

 IS THERE COMPETENT EVIDENCE THAT $ 200 IS A REASONABLE HOURLY RATE?

 Defendants claim there is no supporting evidence, for example, declarations from other attorneys practicing in the field. There is also no explanation offered for the different hourly rates plaintiffs' counsel charges: $ 110 for individual union members, $ 145 for unions, $ 200 for contingent fee cases. Defendants question whether there really is a contingent fee agreement, because plaintiffs do not offer a copy.

 Plaintiffs' counsel says that he is knowledgeable about fees in this area of practice because he has served for ten years as an arbitrator of attorney fee dispute for the Bar Association of San Francisco. He has had opportunities to review fee requests in many other cases.

 Plaintiffs' counsel offers a supporting declaration from a labor attorney in which he states that the Ninth Circuit awarded fees of $ 190 per hour to a partner in his firm for successful work on a FLSA case. Plaintiffs' counsel explains that counsel's reduced fees ($ 110 per hour) allow union members to have expert representation even where the union is not paying for their attorney's services. Counsel offers a copy of the contingent agreement with plaintiffs as an exhibit to his declaration in support of the Reply.

 The court concludes that counsel is a partner with fifteen years' experience in a firm specializing in labor law. He himself has arbitrated fee disputes and is conversant with the range of legal fees in the San Francisco area. Other attorneys with his experience have received similar hourly fees from the Court of Appeals. His fee for this case is reasonable.

 IS 1024 HOURS EXCESSIVE?

 Defendants claim that plaintiffs' counsel failed to use "billing judgment" as required by the Supreme Court decision in Hensley:

 "In the private sector 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley v. Eckerhart 461 U.S. 424 (1983)

 Defendants complain that virtually all the time on this case was billed by a partner with fifteen years' experience, rather than by an associate or paralegal. In fact, only 4.9 hours of the 1024 were billed by an associate.

 Plaintiffs' counsel responds that he had much of the summarizing of data done by the plaintiffs themselves, to save the charges of ...


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