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Noyes v. Kelly Services

August 1, 2008


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


On May 7, 2008, Plaintiff Lynn Noyes ("Noyes") filed a motion in which she seeks $1,141,372.70 in attorneys' fees and costs under California Government Code section 12965(b).*fn1 Defendant Kelly Services ("Kelly") opposes the motion. Oral argument on the Motion was heard on June 16, 2008. BACKGROUND

Noyes prevailed at a jury trial in this action on her claims that Kelly discriminated against her based on religion in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and the California Fair Employment and Housing Act ("FEHA"), California Government Code section 12900 et seq., when it did not promote her because she was not a member of a group called the Fellowship of Friends. The jury returned a special verdict for Noyes on both claims and awarded Noyes $647,174 in compensatory damages and $5.9 million in punitive damages. The punitive damage award was subsequently reduced to an amount equal to the compensatory damages. (Order, Sept. 25, 2008.)


I. Entitlement to Fees

Noyes argues she is entitled to reasonable attorneys' fees because she is the prevailing party in this FEHA action. (Mot. at 1:9-14.) Kelly counters "prevailing parties are not entitled to recover attorneys' fees where 'special circumstances would render such an award unjust.'" (Opp'n at 2:5-9 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)) (citing Serrano v. Unruh, 32 Cal. 3d 621, 635 (1982) ("A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.")).) Kelly argues Noyes's "fee request shocks the conscience [because i]t is excessive and riddled with procedural and substantive defects, and should therefore be denied in its entirety." (Opp'n at 2:11-12.)

In a FEHA action, the court "may award to the prevailing party reasonable attorneys' fees and costs, including expert witness fees . . . ." Cal. Gov. Code § 12965(b) ("§ 12965(b)"). "[A] prevailing plaintiff should ordinarily recover an attorney fee [under § 12965(b)] unless special circumstances would render such an award unjust." Cummings v. Benco Bldg. Servs., 11 Cal. App. 4th 1383, 1387 (1992) (internal quotations omitted). Here, Noyes is a prevailing party and there are no special circumstances that render an award unjust.

II. Lodestar Calculation

When determining the reasonableness of a fee request,

"[f]irst, the court must calculate the 'lodestar figure' by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable rate." Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000); see also Ketchum v. Moses, 24 Cal. 4th 1122, 1131-32 (2001) (approving lodestar method). "Second, a court may adjust the lodestar upward or downward using a 'multiplier' based on factors not subsumed in the initial calculation of the lodestar." Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Noyes argues her lodestar calculation of attorneys' fees is reasonable. (Mot. at 2:5.)

A. Reasonable Rate

Noyes has the "burden to produce specific evidence, other than the declarations of interested counsel, that [her] requested rates are in line with those prevailing in the community for lawyers with comparable skill and reputation. The burden . . . shift[s] to [defendant] to produce rebuttal evidence [if] Plaintiff meets her initial burden." Navarro v. Gen. Nutrition Corp., 2005 WL 2333803, at *8 (N.D. Cal. Sept. 22, 2005) (citing Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987) and Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 554 (9th Cir. 1999)) (emphasis omitted).

Noyes seeks an hourly rate of $350 for her counsel Catherine Jones and $325 for her counsel Robert Burch. (Mot. at 4:6-7.) Noyes argues these rates are "at the low end of the market rate for attorneys in the Sacramento area with [her counsels'] experience and skill[s]." (Mot. at 2:20-28.) Ms. Jones has over twenty years of experience as an attorney and for the past 18 years has focused exclusively on labor and employment law. (Jones Decl. ¶ 3.) Mr. Burch has extensive trial experience and is a former professor of evidence law. (Burch Decl. ¶¶ 2-3.)

In support of her requested fee rate, Noyes submits the declaration of Christopher Whelan ("Whalen"), a Sacramento attorney specializing in employment law since 1980. (Whelan Decl. ¶¶ 2,3.) Whalen declares that in a 2004 disability discrimination case, the Yolo County Superior Court awarded him an hourly rate of $475 and an hourly rate of $312 for his co-counsel who had only 4 years of legal experience at that time. (Id. ¶ 8.) Whalen further declares that the normal range for employment law attorneys with his experience in Northern California is an hourly rate of $450 to $500 and that the rates charged by Ms. Jones and Mr. Burch are within the range of fees charged in Northern California for attorneys with their level of experience and skill. (Id. ¶¶ 9, 11, 12.)

Noyes also submits the declaration of George Allen, a Sacramento attorney focusing on employment law. (Allen Decl. ¶ 4.) Mr. Allen declares that $350 is a "minimum reasonable hourly rate for an attorney of comparable experience [to Ms. Jones] in the Sacramento area." (Id. ¶ 6.) Noyes also submits the declaration of Elisa Ungerman, an employment law attorney who in 2004, when she had 14 years of legal experience, was awarded a rate of $325 an hour in a Placer County case. (Ungerman Decl. ¶ 5.) Ms. Ungerman declares at that time, comparable hourly rates were between $350 and $470 ...

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