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Yeager v. Bowlin

June 3, 2010



Having prevailed on their motion for summary judgment (See Docket No. 135), defendants Connie and Ed Bowlin, Aviation Autographs, and Bowlin and Associates, Inc. now move for an award of attorney's fees and costs pursuant to California Civil Code section 3344(a) and section 35(a) of the Lanham Act, 15 U.S.C. 1117(a).

I. Factual and Procedural Background Plaintiffs General Charles Yeager and the General Chuck

Yeager Foundation filed suit against defendants on January 14, 2008, for violations of California Civil Code section 3344 (statutory right of publicity); the Lanham Act, 15 U.S.C. §§ 1051-1129; California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210; and the California False Advertising Act, id. § 17500; as well as common law claims for breach of right to privacy, fraud, breach of contract, unjust enrichment, accounting, and equitable rescission. (Docket No. 1.) Defendants filed a motion to dismiss the original complaint, which was granted with leave to amend. (Docket No. 17). Plaintiffs then filed a First and Second Amended Complaint.

On November 16, 2009, defendants Connie and Ed Bowlin, Aviation Autographs, and Bowlin and Associates, Inc. moved for summary judgment. (Docket No. 103.) The court granted that motion in its entirety and entered judgment in favor of defendants. (Docket No. 135.) Defendants filed a motion to recover their attorney's fees and costs on February 2, 2010. (Docket No. 141.) In response to pervasive block billing in defendants' initial billing statement, on April 23, 2010, the court ordered defendants to submit an amended motion for attorney's fees that did not use block billing. (Docket No. 162.) Defendants submitted an amended motion for attorney's fees and amended billing statement that allocated time for each task performed on May 3, 2010. (Docket No. 163.)

II. Discussion

Jurisdiction in this action is based on 28 U.S.C. § 1331 (federal question jurisdiction). "In an action where a district court is exercising its subject matter jurisdiction over a state law claim, so long as 'state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney's fees or giving a right thereto, which reflects a substantial policy of the state, should be followed.'" MRO Commc'ns, Inc. v. AT & T Corp., 197 F.3d 1276, 1281 (9th Cir. 1999) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 259 n.31 (1975)). Thus, when a federal court has federal question jurisdiction and exercises supplemental jurisdiction over a state law claim, the court may award attorney's fees under the applicable statute. See MRO Commc'ns, 197 F.3d at 1281-83.

Defendants request attorney's fees and costs under both California Civil Code section 3344(a) and section 35(a) of the Lanham Act. California Civil Code section 3344(a) provides for a mandatory award of attorney's fees and costs to the prevailing party on a section 3344 statutory right of publicity claim. Cal. Civ. Code § 3344(a) ("The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."); Bonner v. Fuji Photo Film, No. Civ. 06-4372 CRB, 2008 WL 410260, at *2 (N.D. Cal. Feb. 12, 2008) (citing Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 62 (2006)).

"[T]he fee setting inquiry in California ordinarily begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate." PLCM Group v. Drexler, 22 Cal. 4th 1084, 1095 (2000). "The reasonable hourly rate is that prevailing in the community for similar work." Id. (citing Margolin v. Reg'l Planning Comm'n, 134 Cal. App. 3d 999, 1004 (1982)). The lodestar may then by adjusted upward or downward "by the court based on factors including . . . (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award." Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). The purpose of adjusting the lodestar is to fix the fee for the action in question at fair market value. Id.

A similar approach is applied under federal law. The court first calculates the lodestar by taking the number of hours reasonably expended by the litigation and multiplying it by a reasonable hourly rate. Fisher v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The court may then adjust the lodestar based on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 536 F.2d 67 (9th Cir. 1975) that are not subsumed under the lodestar calculation.*fn1 Id.

Federal law, unlike California law, does not allow for contingency multipliers. Compare City of Burlington v. Dague, 505 U.S. 557, 567 (1992) with Serano v. Priest, 20 Cal. 3d 25, 48-49 (1977). As a contingency multiplier is not being asked for in this case, the court's analysis of the reasonableness of defendants' attorneys' fee award under either law will largely be identical. Given defendants' emphasis on section 3344(a) and its mandatory nature, the court will begin its analysis of defendants' fee award under California law.

A. Lodestar Calculation

Defendants propose a lodestar figure of $296,673.50.

This amount accounts for the hours principally expended by Todd M. Noonan, a partner of the law firm of Stevens, O'Connell & Jacobs LLP ("Stevens O'Connell"), although certain fees generated by other partners, associates, and paralegals are also included. (See Noonan Decl. (Docket No. 145) ¶¶ 7, 14-15; Am. Mot. Attorney's Fees (Docket No. 163) at 3.) This amount does not include approximately $33,745 worth of charges written off by Stevens O'Connell in their bills to defendants. (Id. ¶ 14.) The figure also includes an additional $1,200 for services provided by defendants' Georgia-based counsel, Donald Taliaferro and $12,440 in attorney's fees incurred in connection with the Bill of Costs and defendant's reply brief to plaintiffs' opposition to the motion. (Id. ¶ 58; Am. Mot. Attorney's Fees at 3.)

Plaintiffs object to defendants' request for attorneys' fees and costs on numerous grounds. Plaintiffs primarily contend that: (1) defendants' amended billing statements should be rejected because they do not have sufficient evidence to support them, (2) Stevens O'Connell's billing rates were unreasonable, (3) much of the work done by Noonan could have done by associates, paralegals, or secretaries at a cheaper cost, and (4) defendants should be denied compensation and have their lodestar amount reduced for billing related to attacks on the Yeagers' character.

1. Adequacy of Amended Billing Statements

Plaintiffs argue that defendants' amended billing statements do not meet defendants' burden of proof because the amended billing statements were not made contemporaneously and lack adequate foundation as to their validity. Although the Ninth Circuit has "expressed a 'preference' for contemporaneous records," it has "never held that they are absolutely necessary." Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1121 (9th Cir. 2000); see also United States v. $12,248 U.S. Currency, 957 F.2d 1513, 1521 (9th Cir. 1991); United States v. City & County of San Francisco, 748 F. Supp. 1416, 1420 (N.D. Cal. 1990) (noting that the use of reconstructed billing records "is an established practice in this circuit"). "Basing the attorneys' fee award in part on reconstructed records developed by reference to litigation files and other records is not an abuse of discretion." Davis v. City & County of Sacramento, 976 F.2d 1536, 1542 (9th Cir. 1992) (citing Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1473 (9th Cir. 1983)) rev'd in part on other grounds by Davis v. City & County of Sacramento, 984 F.2d 345 (9th Cir. 1993).

Defendants' amended billing statements, which list the amount of time expended on each identified task instead of block billing for all time for a given day, are sufficiently reliable.*fn2

Noonan, Stevens O'Connell associate Daniel J. Croxall, and paralegal Lucy Kellogg created the amended billing statements by reviewing the original billing statements and then using their personal recollections, customs and practices, and review of the documents and correspondence created on each day to reconstruct the amount of time spent on each task. (Am. Noonan Decl. (Docket No. 166) ¶¶ 3-6.; Croxall Decl. (Docket No. 164) ¶¶ 3, 6; Kellogg Decl. (Docket No. 165) ¶¶ 3, 5-6.) Unlike cases where a party must reconstruct its billing records from scratch, defendants' counsel had the assistance of contemporaneously created block billed records when creating the amended billing statements, thereby increasing the reliability of the reconstructed records. The declarations submitted by defendants' counsel indicate that the amended billing statements were created with reference to defendants' litigation file, the previous bills, and with information within counsel's personal knowledge. In light of the foregoing facts, the court finds that the amended billing statements are sufficiently reliable and adequate. See Davis, 976 F.2d at 1542; Fleming v. Coverstone, No. 08cv355 WQH (NLS), 2009 WL 764940, at *4 (S.D. Cal. Mar. 18, 2009).

2. Reasonable Rate

A reasonable rate is typically based upon the prevailing market rate in the community for "similar work performed by attorneys of comparable skill, experience, and reputation." Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986); see also Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984) ("[T]he burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community."); Drexler, 22 Cal. 4th at ...

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