The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before this court is plaintiffs' "Motion for Attorneys' Fees and Costs." This motion follows an order awarding sanctions issued by District Judge John A. Mendez, which provided in pertinent part:
Defendant shall reimburse Plaintiffs for their costs and fees incurred
(1) in bringing the Motion for Sanctions (Docket ## 32-39); (2) during the meet and confer with defense counsel related to Defendant's actions; and (3) in bringing the instant Request for Reconsideration of Magistrate Judge's Ruling. In addition, Defendant shall reimburse Plaintiffs for their costs expended in the investigation of Defendant's activities including the hiring of an expert witness in ammonia emissions. Within ten days of the entry of this order, Plaintiffs shall submit with accompanying declaration a statement of the pertinent fees and costs.
Plaintiffs timely submitted a memorandum of points and authorities in support of their application for fees and costs, along with the required declarations. Plaintiffs seek recovery of attorneys' fees and costs in the amount of $169,215.00.*fn1 (Dkt. Nos. 81, 93.) Defendant opposed the motion "to the extent that the requested fees are unreasonable, excessive, and/or not in accordance with the Court's Order." (Dkt. No. 91 at 3.) Oral argument was held on this matter on April 1, 2010, before the undersigned.
As both parties recognize, courts within the Ninth Circuit determine an attorneys' fees award by calculation of the "lodestar." Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 2000); Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar is calculated by multiplying the number of hours the prevailing party reasonably spent on the litigation by a reasonable hourly rate. Id. "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433. The court should also exclude from this initial fee calculation hours that were not "reasonably expended," such as where cases are overstaffed or a lawyer's skill in a particular area is lacking. Id. The prevailing party has the burden of tendering evidence of the hours spent on the relevant litigation. Id.; Gates, 987 F.2d at 1397. The party opposing the fee request can rebut this with evidence that the time charged is inaccurate or unreasonable. Gates, 987 F.2d at 1397-98 ("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.") (emphasis added.)
Defendant does not challenge the reasonableness of plaintiffs' counsel's hourly rate.*fn2 In fact, except as noted in footnote 2, it would appear difficult for defendant to do so. Plaintiffs' counsel appropriately used Orrick, Herrington & Sutcliffe LLP's ("Orrick") billing rates in the Sacramento office as a beginning hourly rate figure, rather than their San Francisco or Washington, D.C. locations' hourly rates, where some of the attorneys handling the matter were located. See Gates, 987 F.2d at 1405 (recognizing that the prevailing party should be awarded a reasonable hourly rate given the relevant legal community, which is generally that in which the forum district is located). Plaintiffs then assert they further reduced those Orrick Sacramento hourly rates. (Dkt. No. 82 at 6.) This resulted in reductions of, in some cases, hundreds of dollars an hour for each hour billed.*fn3 This hourly rate reduction diminished the amount of attorneys' fees plaintiffs are seeking by approximately $110,000.*fn4 Id.
Defendant, however, challenges the reasonableness of the hours spent on the matters for which plaintiffs seek fees. Judge Mendez's order awarded costs and fees incurred in three specific categories: "(1) in bringing the Motion for Sanctions (Docket ## 32-39); (2) during the meet and confer with defense counsel related to Defendant's actions; and (3) in bringing the instant Request for Reconsideration of Magistrate Judge's Ruling, and costs incurred in the investigation of defendant's activities." (Dkt. No. 80, emphasis added) (hereinafter the enumerated categories are referred to as the "relevant litigation").
Defendant first requests a reduction of $10,310 in fees related to the investigation of defendant's activities because Judge Mendez's order provided only that investigation costs were awardable. Despite this limiting language, plaintiffs' fee request states that the claimed hours include those spent, inter alia, conducting an investigation and interviewing third parties about what was witnessed. (Dkt. Nos. 82 at 3, 83 at 1.) In the Brandt declaration, attorney Brandt states that Humane Society attorneys have spent a total of 229.8 hours in the three enumerated categories and the investigation of the defendants' activities including the hiring of an expert witness in ammonia emissions. (Brandt Decl. ¶ 5, Dkt. No. 84 at 2.) Judge Mendez, however, only awarded costs in the investigation category.
After reviewing the submitted time entries and Judge Mendez's ruling, this court agrees with defendant that fees related to investigation of defendant's activities may not be awarded. Despite plaintiffs' contentions that such a reading of Judge Mendez's ruling is unduly restrictive (e.g., that attorneys were the only persons at hand to conduct the investigation on such short notice and that evidence gathering is a necessary component to bringing the motion for sanctions), this court finds that Judge Mendez's ruling was precisely crafted to exclude an award of fees related to investigation. Cf. Singh v. Holder, 591 F.3d 1190, 1195 (9th Cir. 2010) (recognizing that under the doctrine of expressio unis est exclusio alterius, where Congress includes particular language in one section of the statute but omits it in another section of the same statute, Congress acts intentionally and purposely in the disparate exclusion). Any other interpretation ignores the plain language of Judge Mendez's order. Accordingly, the court concludes that the following requested billing entries shall be excluded from the award:*fn5
Timekeeper Date Charge Task
Roth, Nicole 06/04/09 $180 Listen to phone message from Ms. Magaoay regarding cleanup at Olivera's farm; e-mail from team regarding clean-up and possible destruction of evidence.
Brandt, Peter 06/04/09 $1425 Destroying evidence caselaw research; drive to Briggs Rd., Lathrop, with M. Alexander, stopping to purchase camera and air masks etc.; arrive at end of Briggs Rd., Lathrop, investigate lagoon dredging as described in M. Alexander declaration.
Watts, Joshua 06/04/09 $90 Correspond with team members related to emergency clean-up at defendant's property.
Brandt, Peter 06/08/09 $300 Drive to Briggs Rd., Lathrop, to meet K. Nass; arrive at G. Avila address, meet K. Nass, G. Avila, K. Nass and investigate lagoon dredging as described in K. Nass declaration.
Padilla, Angela 06/08/09 $400 Work on spoilation of evidence investigation and legal analysis.
Culpepper, J. 06/10/09 $600 Updating files; reading documents and past communications re: Operation.
Culpepper, J. 06/16/09 $150 Telephone calls with plaintiffs and expert discussing Operation; conference call ...