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Tomovich v. Wolpoff & Abramson

August 7, 2009


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


On April 21, 2009, Plaintiff filed a motion for attorneys' fees and expenses incurred during the instant action. Doc. No. 29 (Motion). Defendant opposed the motion, Doc. No. 31 (Opp'n), and Plaintiff filed a reply, Doc. No. 33 (Reply). The Court set a hearing date of June 9, 2009, and took the matter under submission. Doc. No. 32. Plaintiff's motion for attorney's fees and expenses is GRANTED IN PART AND DENIED IN as follows.


This case concerns allegedly-wrongful debt collection practices by Defendant, a debt collector. In August 2008, Plaintiff filed a complaint alleging violations of the Fair Debt Collection Practices Act (FDCPA), and California's Rosenthal Fair Debt Collection Practices Act. Doc. No. 1 (Complaint). Defendant's alleged wrongdoing arises from efforts to collect money owed by Plaintiff, including phone calls and letters, some of which improperly stated that Defendant would commence litigation against Plaintiff if she failed to satisfy the debt. Id.

Approximately six months after Plaintiff filed the Complaint, the case settled. Doc. No. 25. In the interim, the parties attended a settlement conference with this Court, and Plaintiff filed two unopposed motions to compel, which, because the case settled shortly thereafter, were denied as moot. Doc. Nos. 16, 20, 28. Pursuant to a consent decree, on April 16, 2009, this Court assumed jurisdiction over the case, including the jurisdiction to adjudicate fee disputes arising from the settlement agreement. Doc. No. 27.


Plaintiff requests an award of $73,389 in fees incurred by attorneys Elizabeth Arleo and Shaun Khojayan, as well as $2,250 in paralegal fees, and $5,138.45 in litigation expenses. Reply at 10. In sum, Plaintiff requests $80,777.45 for prosecuting this action and recovering fees. Plaintiff calculates the attorneys' fees by the lodestar method, which multiplies an attorney's hourly rate by the number of hours they expended. Motion at 2; Hensley v. Eckhart, 461 U.S. 424, 433 (1983) (describing lodestar method).

Plaintiff states that Ms. Arleo expended 140.3 hours on the matter, including on the fees motion and reply, at the rate of $385/hour. Reply at 10 (total hours); Motion at 2 (hourly rate). Plaintiff also requests compensation for 53.5 hours of Mr. Khojayan's time, at an hourly rate of $420. Reply at 10; Motion at 2. Of the 193.8 total requested attorney hours, much of the time was spent on discovery, approximately 80.7 hours. Arleo Decl. at 4-5 (approximately 52.5 hours spent by Ms. Arleo on discovery); Khojayan Decl.,*fn1 Ex. 2 ("Khojayan Timesheet," claiming approximately 28.2 hours for discovery-related work).

Plaintiff argues that the requested sum is reasonable. In support, she cites her attorneys' "aggressive and efficient" and "precise and thoughtful" work, Reply at 7, and argues that her attorneys should be "rewarded fully, not punished, for their exceptional skill, preparation and effort," id. at 4. Based on the positive result obtained, the undesirability of FDCPA cases, and her attorneys' experience, Plaintiff requests an award of all claimed fees and expenses. Doc. No. 29-2 (memorandum accompanying motion, "Pl. Mem.") at 7-9.

Defendant argues that the requested fees are unreasonable and excessive, and requests that the Court award no more than $20,000 to Plaintiff's attorneys. Opp'n at 4, 12-16. In support, Defendant characterizes Plaintiff's attorneys' work as "boilerplate copies of other pleadings and discovery requests routinely used by Plaintiff's counsel in prosecuting other similar non-complex cases." Id. at 2-3. Defendant also contests Ms. Arleo's and Mr. Khojayan's hourly rates. Both sides submit expert declarations supporting their respective positions on these rates. Arleo Decl., Ex. 3; Opp'n, Exs. 1-9.

Legal Standard.

In FDCPA actions, the prevailing party may be awarded "reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3). "The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S. at 433, 437). "The party opposing the fee application has burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged ..." Id. at 1397-98 (citations omitted).

There is a strong presumption that the lodestar figure is reasonable. City of Burlington v. Dague, 505 U.S. 557, 562 (1992). However, courts routinely reduce the lodestar figure to reflect the nature of the case. See Blum v. Stevenson, 465 U.S. 886, 888 (1984) (court may cut lodestar to arrive at reasonable fee);Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006) (listing factors to consider when determining fee awards); Kerr v. Screen Extras Guild, , 526 F.2d 67, 69-70 (9th Cir. 1975). When a court decides that reductions are warranted, it may "make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure," Gates, 987 F.2d at 1399, and/or "exclude from the initial fee calculation hours ...

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