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Raymond Coldani, An Individual v. Jack Hamm and Patricia Hamm

May 31, 2011

RAYMOND COLDANI, AN INDIVIDUAL,
PLAINTIFF,
v.
JACK HAMM AND PATRICIA HAMM, INDIVIDUALLY AND DOING BUSINESS AS LIMA RANCH/DAIRY, DEFENDANTS.



ORDER DENYING DEFENDANTS‟ MOTION FOR FEES AND COSTS AND DENYING DEFENDANTS‟ BILL OF COSTS

This matter is before the Court on Defendants‟ Jack and Patricia Hamm, dba Lima Ranch/Dairy ("Defendants") Motion for Attorney‟s Fees, Expert Fees, and Costs (Doc. #114) against Plaintiff Steven Coldani, as Trustee of the Coldani Revocable Trust ("Plaintiff"), who was substituted as Plaintiff in place of Raymond Coldani. Plaintiff opposes the motion for fees (Doc. #119). Also before the Court is Defendants‟ Bill of Costs (Doc. #109), to which Plaintiff objects (Doc. #112). This matter was set for hearing on March 9, 2011, but ordered submitted without oral argument.*fn1

I. Factual and Procedural Background

This case was originally filed by Raymond Coldani ("Coldani"), based on allegations that Defendants were causing 4 water pollution via runoff from their dairy. The original Complaint (Doc. #1) brought two federal claims: one claim for 6 relief under the Clean Water Act ("CWA") and one claim for 7 relief under the Resource Conservation and Recovery Act 8 ("RCRA"). The CWA claim was premised on allegations that animal 9 waste from Lima Ranch polluted groundwater that discharged into the White Slough, which in turn empties into the San Joaquin River Delta System, which is navigable water. Defendants brought a motion to dismiss the complaint (Doc. #5) for lack of subject matter jurisdiction, on grounds that notice was insufficient under the statutory requirements of the CWA and RCRA, and therefore the court lacked jurisdiction over these claims. Defendants also argued that the complaint did not allege a CWA or RCRA violation, and that Coldani lacked standing (and the Court lacked jurisdiction) because of his failure to allege an RCRA claim. The Court found that notice was sufficient for both the CWA and RCRA claims, and that Coldani had sufficiently alleged a CWA claim and had standing to bring a citizen suit. (See Order, Doc. #18). However, the Court agreed with Defendants that the complaint did not allege that Lima Ranch discharged "hazardous waste" in violation of the RCRA and that the "solid waste" discharge alleged in the complaint was "industrial discharge from a point source subject to NPDES permits under the CWA." Because of this, the discharge was excluded from the definition of solid waste under the RCRA, and instead regulated by the CWA. The Court therefore declined to exercise jurisdiction over the RCRA claim to avoid duplicative regulation.

Coldani did not appeal the dismissal of the RCRA claim. Instead, Coldani filed a motion for leave to amend the complaint (Doc. #20), seeking to add a public nuisance claim in order to address any pollution that would not fall under the CWA claim, 8 and that might have been addressed by the dismissed RCRA claim.

The Court granted leave to amend, and Coldani filed the Amended Complaint (Doc. #24), bringing the CWA claim and a state law public nuisance claim. The CWA claim was again premised on groundwater discharging into White Slough, which would require the groundwater to flow west. Following extensive discovery regarding the basis for the CWA claim, Coldani filed a motion for leave to amend the Complaint (Doc. #62). Coldani alleged that groundwater flowed east instead of west, and therefore he sought to dismiss his CWA claim and re-allege his previously dismissed RCRA claim. The Court denied this motion to amend (Doc. #73). Subsequently, Coldani moved to voluntarily dismiss his CWA claim, with prejudice, pursuant to Federal Rules of Civil Procedure 41(a)(2) (Doc. #74). The case was stayed due to Coldani‟s death, and the stay was lifted once Steven Coldani was substituted as the plaintiff. After the stay was lifted, the Court granted the motion for voluntary dismissal (Doc. #87). The Court also heard oral argument on a motion for attorneys‟ fees and sanctions brought by Defendants, against Plaintiff‟s counsel, Isola Law Group. (See Doc. #100). The Court denied the motion without prejudice, noting that the motion did not comply with the Local Rules and a claim remained pending in the 2 action. Subsequently, the Court granted Defendants‟ motion to 3 dismiss the remaining state law nuisance claim, which had been 4 filed before the stay. Now that the Court has dismissed the 5 state law claim, Defendants renew their requests for attorneys‟ 6 and experts‟ fees, costs, and/or sanctions.

Defendants assert that neither Plaintiff nor Plaintiff‟s 8 counsel conducted a reasonable inquiry into the direction of 9 groundwater flow prior to filing this lawsuit. Even if Plaintiff and his counsel conducted a reasonable inquiry, Defendants further argue that Plaintiff should have voluntarily dismissed the CWA claim much sooner. Accordingly, Defendants set forth several theories for recovery. Defendants contend that they are the prevailing party on all claims. Alternatively, Defendants ask the Court to exercise its inherent power to award fees. Lastly, Defendants ask that Plaintiff and Isola Law Group be held jointly and severally liable for fees in the form of sanctions. Defendants request fees for the entire litigation, or in the alternative, fees for the portion of the litigation following Plaintiff‟s discovery that groundwater flowed east not west.

Plaintiff and his counsel oppose the motion, contending that Defendants are not "prevailing parties" under the CWA and the RCRA, that Plaintiff and his counsel conducted a reasonable inquiry into groundwater flow prior to filing the suit, and that at no point in the litigation was groundwater flow determined to be exclusively and definitively in a single direction. Plaintiff also challenges Defendants‟ use of block billing and the amount requested by Defendants in fees and costs.

II. Opinion

A. Legal Standard

The fee applicant bears the burden of establishing 5 entitlement to an award and documenting the appropriate hours 6 expended and hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Ninth Circuit requires a district court to 8 calculate an award of attorney‟s fees by first calculating the "lodestar." See Caudle v. Bristow Optical Co. Inc., 224 F.3d 1014, 1028 (9th Cir. 2000). "The lodestar is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Caudle, 224 F.3d at 1028 (citing Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). The lodestar should be presumed reasonable unless some exceptional circumstance justifies deviation. Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1998). As the Ninth Circuit has indicated, "a district court should exclude from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary." Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1040, 1045 (9th Cir. 2000). The Court is under an independent duty to reach its own "lodestar" value. Hensley, 461 U.S. at 433.

After computing the lodestar, the district court is to assess whether additional considerations enumerated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert denied, 425 U.S. 951 (1976), require the court to adjust the figure. The Kerr facts are:

(1) time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the 5 fee is fixed or contingent; (7) time limitations imposed by the 6 client or the circumstances; (8) the amount involved and the 7 results obtained; (9) the experience, reputation, and ability of 8 the attorneys; (10) the "undesirability" of the case; (11) the 9 nature and length of professional relationship with the client; and (12) awards in similar cases. Kerr, 526 F.2d at 70.

Although Raymond Coldani is deceased, fees and costs can be recovered from Steven Coldani, as Trustee of the Coldani Revocable Trust. Under California law, an action pending at the time of a party‟s death may be continued against the decedent‟s successor in interest and all damages are recoverable that might have been recovered against the decedent had the decedent lived. Cal. Code of Civ. Proc. § 377.42; see also Cal. Code of Civ. Proc. §§ 377.20, 377.41 and Cal. Probate Code § 9370. In this case, the Revocable Trust is Coldani‟s successor in interest, as Coldani devised the majority of his assets to ...


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