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Adan Rivera, et al v. Neftali Rivera


August 22, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge

For the Northern District of California United States District Court


Currently before the Court is Plaintiffs‟ unopposed motion for attorney‟s fees and costs, ECF No. 36 ("Mot."), for an action brought under the Federal Fair Labor Standards Act ("FLSA"), 18 29 U.S.C. Section 216(b); California Labor Code, sections 200, 226, 226.7, 1194; California 19 Business and Professions Code, section 17200; and common law breach of contract. Pursuant to 20 Civil Local Rule 7-1(b), the Court finds this motion appropriate for determination without oral 21 argument. Therefore, the August 25, 2011 hearing is VACATED. Having considered the 22 Plaintiffs‟ submissions and the relevant law, the Court GRANTS Plaintiffs‟ motion for the reasons 23 discussed below. 24


The factual background in this case is summarized in the Court‟s May 31, 2011 order 26 granting in part and denying in part Plaintiffs‟ motion for default judgment, and it is not repeated 27 here. See ECF No. 35. 28 2 construction employees, brought Federal and California claims against their employer, Neftali 3 Construction, for failure to pay wages and overtime compensation, and to provide lawfully 4 required rest/meal periods and wage statements. See ECF No. 1, Compl. 1. 5

For the present motion, it is sufficient to note that on March 30, 2010, Plaintiffs, sixteen

On May 17, 2011, after Defendant failed to appear in the litigation, the Court granted

Plaintiffs‟ motion for default judgment in part and awarded damages with regard to their claims for 7 unpaid wages under California‟s common law of contracts; unpaid overtime under California 8 Labor Code section 1194; willful failure to pay overtime under the FLSA; failure to provide meal 9 periods under California Labor Code section 226.7; willful failure to pay all wages due upon 10 termination under California Labor Code section 200(a); and failure to provide wage statements under California Labor Code section 226(a). ECF No. 35, at 4-14. The Court awarded Plaintiffs the following: $48,349.05 in unpaid wages; $5,647.50 in overtime under California law; $5,647.50 13 in liquidated damages under the FLSA; $2,510.00 in mealtime pay; $47,760 in unpaid wages upon 14 termination; and $7,050.00 in statutory damages for failure to provide wage statements, for a total 15 award of $116,964.05. Id. at 15.

On May 31, 2011, Plaintiffs filed this motion, seeking $7,825.00 in attorney‟s fees. Mot. 11.


A. Legal Standard

Plaintiffs here are entitled to attorney‟s fees under the FLSA and California law. 29 U.S.C § 216(b) (2006); Cal. Lab. Code §§ 218.5, 1194 (West 2011). See also Newhouse v. Robert's Ilima 22 Tours, Inc.,708 F.2d 436, 441 (9th Cir. 1983) ("The FLSA grants prevailing plaintiffs a reasonable 23 attorney‟s fee."); Drumm v. Morningstar, Inc., 695 F.Supp.2d 1014, 1018 (N.D. Cal. 2010) (noting 24 that under California law, awarding attorney‟s fees is "mandatory" in unpaid wage claims). 25

26 whereby a court multiplies "the number of hours the prevailing party reasonably expended on the 27 litigation by a reasonable hourly rate." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th 28 Cir. 2008) (citation omitted).

Courts in the Ninth Circuit calculate an award of attorney‟s fees using the lodestar method, 2 are "in line with the "prevailing market rate of the relevant community.‟" Carson v. Billings Police 3 Dep't, 470 F.3d 889, 891 (9th Cir. 2006). Generally, "the relevant community is the forum in 4 which the district court sits." Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496, 5 500 (9th Cir. 1997)). Typically, "affidavits of the plaintiffs‟ attorney and other attorneys regarding 6 prevailing fees in the community and rate determinations in other cases . . . are satisfactory 7 evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge Corp., 896 8 F.2d 403, 407 (9th Cir. 1990). 9

10 district court may, if circumstances warrant, adjust the lodestar to account for other factors which

A party seeking attorney‟s fees bears the burden of demonstrating that the rates requested

"Although in most cases, the lodestar figure is presumptively a reasonable fee award, the

are not subsumed within it. , 244 F.3d 1145, 1149 n.4 (9th Cir.

" Ferland v. Conrad Credit Corp.

2001). "The party opposing the fee application has a burden of rebuttal that requires submission of 13 evidence to the district court challenging the accuracy and reasonableness of the . . . facts asserted 14 by the prevailing party in its submitted affidavits." Camacho, 523 F.3d at 980 (citing Gates v. 15

B. Attorney‟s Fees

Plaintiffs here seek $7,825.00 in attorney‟s fees. Mot. 11. To support this amount,

Plaintiffs provided a declaration by the attorney in this case, Adam Pedersen. Pedersen Decl., ECF 19 No. 37. Mr. Pedersen summarizes the services he and his law firm rendered; the approximate 20 hours worked in rendering those services, broken down by task; and the hourly rate billed by Mr. 21 Pedersen and his legal assistant. Pedersen Decl. 1-4. The declaration claims that Plaintiffs 22 incurred the following in legal fees: 23 Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992)). 16

Individual Rate Hours Total

Adam Pedersen $230 per hour 37.5 $7,015*fn1

Legal Assistant $135 per hour 6 $810

Id. at 5. Thus, Plaintiffs claim that the lodestar amount in this case, i.e. "the number of hours the 2 prevailing party reasonably expended on the litigation by a reasonable hourly rate," Camacho, 523 F.3d at 978, is $7,825 ($7015). 4

Reasonable Hourly Rate. Plaintiffs request that the Court calculate the lodestar using the Department of Justice‟s "Laffey Matrix." Pedersen Decl. ¶ 21; Mot. 9 (citing Theme Promotions, 6 Inc. v. News Am. Mktg. FSI, Inc., 731 F. Supp. 2d 937 (N.D. Cal. 2010)). Accordingly, Plaintiffs 7 seek an hourly rate of $230 for Mr. Pederson, an attorney with three or fewer years of experience, 8 and an hourly rate of $135 for Mr. Pedersen‟s legal assistant. Mot. 9. Although Plaintiffs have 9 made no upward adjustments to the Laffey Matrix to account for the cost of living in the San 10 are attorneys of comparable skill, experience, and reputation litigating similar cases in the San Francisco Bay Area. 13

14 that Mr. Pedersen‟s legal assistant expended 6 hours on this matter. Mot. 6. 15

16 preparing the complaint; .5 hours in drafting the request for entry of default; .5 hours preparing for 17 and attending the June 2010 CMC; 2 hours for drafting and filing two motions for the extension of 18 time; 10 hours in fact-finding and analysis for the motion for default judgment; 4 hours preparing 19 exhibits to the motion for default judgment; 6 hours preparing declarations attached to the motion 20 for default judgment; 2 hours preparing exhibits to the declarations attached to the motion for 21 default judgment; and 6 hours drafting the motion for default judgment.*fn2 See Mot. 3-6; Pedersen 22 Decl. 2-4. In addition, Plaintiffs claim that Mr. Pedersen‟s assistant spent 6 hours in data entry 23 related to damages calculations. See Mot. 5; Pedersen Decl. 4. 24

Francisco Bay Area, cf. Theme Promotions, 731 F. Supp. 2d at 948, the Court finds that these 11 hourly rates within the range of reasonable hourly rates for Hours Reasonably Expended. Plaintiffs claim that Mr. Pedersen expended 37.5 hours and Plaintiffs claim that Mr. Pedersen spent 2 hours in the initial consultation; 5.5 hours in

After considering Plaintiffs‟ arguments and the evidence submitted in the Pedersen Declaration, the Court finds the hours claimed reasonable, with two exceptions. First, the Court 26 finds that two hours drafting two motions to extend time is not reasonably expended. Mot. 4. The 27

Compare ECF No. 11 with ECF No. 13. Plaintiffs do not specify how much time was spent on 2 each motion. Moreover, other courts have declined to award attorney‟s fees time spent on 3 preparing motions to extend time. See Holmes v. Astrue, 3:08-1829-CMC-JRM,2010 WL 4 3220085, at *2-3 (D.S.C Aug. 12, 2010) (citing cases and reducing time credited for preparing 5 motions to extend time by half). Accordingly, the Court will not credit any time spent preparing 6 and filing the two motions to extend time. 7

8 order to create "an exhibit ultimately attached in support of the Plaintiffs‟ motion," Pedersen Decl. 9

Second, the Court finds that "about 4 hours" spent "analyzing" and "arranging" data in ¶ 16; "roughly 6 hours" spent "drafting the various formal declarations of the Plaintiffs, consulting 10 with the 8 declarants on an individual basis, and having the documents translated to Spanish, 11 finalized and signed for filing," id. at ¶ 17; and "approximately 2 additional hours" spent "organizing[ing], digitiz[ing], and prepar[ing] for filing" the documents to be attached to the 13 declarations, are duplicative and inadequately documented. The hours claimed by an attorney 14 "may be reduced by the court where documentation of the hours is inadequate; if the case was 15 overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise 16 unnecessary." See Chalmers v. City of L.A., 796 F.2d 1205, 1210 (9th Cir.1986), amended 808 17

Thus, the Court finds that 30.5 hours spent by Mr. Pedersen and 6 hours spent by Mr.

F.2d 1373 (9th Cir.1987). As such, the Court will only credit 6 hours for these tasks. 18

Pedersen‟s assistant were reasonably expended on this litigation. 20

Lodestar. The Court‟s lodestar calculation is as follows:

Individual Rate Hours Total

Adam Pedersen $230 per hour 30.5 $7,015

Legal Assistant $135 per hour 6 $810

The total lodestar is therefore $7,825 ($7015$810). Although the Court has reduced the number 25 of hours reasonably expended, the total lodestar happens to be the amount that Plaintiffs request in 26 their motion. 27 28

Across the Board Percentage Reduction of Lodestar. Because Defendant has not opposed

2 this motion, the Court need not consider any factors to reduce the lodestar. Moreover, such a 3 reduction is not warranted in the instant case. 4


For the foregoing reasons, the Court GRANTS Plaintiffs‟ motion. The Court awards

Plaintiffs $7,825 in attorney‟s fees. 7 8


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