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Mario B. Quinones and Mario I. Quinones v. Chase Bank Usa

December 14, 2011

MARIO B. QUINONES AND MARIO I. QUINONES, PLAINTIFFS,
v.
CHASE BANK USA, N.A., DEFENDANT.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF MARIO B.'S MOTION FOR ATTORNEY'S FEES AND COSTS [Doc. No. 67.]

On November 23, 2010, Plaintiff Mario B. Quinones ("Mario Senior") filed a motion for attorney's fees and costs pursuant to the provision of a Rule 68 offer of judgment filed on November 8, 2010. (Dkt. No. 67.) Defendant Chase Bank USA, N.A. ("Chase") filed an opposition on January 10, 2011. (Dkt. No. 80.) Mario Senior filed a reply on January 14, 2011. (Dkt. No. 83.) After a review of the motion, on September 13, 2011, the Court issued an order directing Plaintiff's counsel to resubmit his billing records and to provide more specific information regarding the number of hours spent and to state what portion of the total amount spent was devoted specifically to Mario Senior and his claim for the California Fair Debt Collection Practices Act, California Civil Code § 1788 et seq. On October 3, 2011, Plaintiff's counsel filed a supplemental declaration. (Dkt. No. 108.) On October 13, 2011, Defendant filed an opposition to Plaintiff's supplemental brief. (Dkt. No. 115.) On October 21, 2011, Plaintiff's counsel filed a reply. (Dkt. No. 120.) Based on a review of the papers and the applicable law, the Court GRANTS in part and DENIES in part Plaintiff Mario Senior's motion for attorney's fees and costs.

Background

On December 9, 2009, the case was removed to this Court from state court. (Dkt. No. 1.) In the first amended complaint, Plaintiffs Mario B. ("Mario Senior") and Mario I. ("Mario Junior") each alleged seven causes of action against Defendant for violation of the Fair Debt Collection Practices Act ("FDCPA"), violation of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), negligence, declaratory relief, injunctive relief, violation of the Fair Credit Reporting Act ("FCRA"), and violation of the California Consumer Credit Reporting Agencies Act ("CCRAA"). (Dkt. No. 14.) On June 28, 2010, the Court granted Defendant's motion to dismiss the first cause of action under the FDCPA. (Dkt. No. 27.)

On October 25, 2010, Defendant Chase filed a first amended counterclaim against Mario I. alleging breach of contract, and money had and received as to the two credit card accounts. (Dkt. No. 55.) On November 8, 2010, Mario I. filed an answer to the first amended counterclaim. (Dkt. No. 60.) On the same day, Mario Senior accepted a Rule 68 offer of judgment which was filed with the Court. (Dkt. No. 61.) On November 10, 2010, the Clerk of Court entered judgment "in favor of plaintiff Mario B. Quinones against defendant Chase Bank USA, N.A. in the amount of $1,001.00, plus reasonable attorney fees and costs." (Dkt. No. 62.)

As to attorney's fees, the Rule 68 offer of judgment states, " . . . plus reasonable attorney fees and costs incurred solely as to Mario Senior's claim for violation of the California Fair Debt Collection Practices Act (Cal. Civ. Code § 1788, et seq.) through and including the day of the making of this offer as determined by the Court, on noticed motion." (Dkt. No. 61) (emphasis in original). Therefore, Plaintiff's attorney's fees and costs are limited Mario Senior's one cause of action under the RFDCPA.

A. Motion for Attorney's Fees

Plaintiff Mario B. moves for attorney's fees and costs pursuant to Defendant's Rule 68 offer of judgment filed on November 8, 2010. (Dkt. No. 61.) In the original motion, Plaintiff sought attorney's fees for 218.90 hours in the amount of $64,575.50 and costs in the amount of $5,511.19 for a total of $70,086.69. He also sought an enhancement/multiplier in the amount of $35,043.35. In his supplemental briefing, Plaintiff's fee request was reduced to 213.5 hours for a total of $62,982.50 and costs in the amount of $5,511.109. He continues to seek a fee enhancement. In opposition, Chase argues that Plaintiff's attorney's fees are excessive and should be between $1,250 to $4,500.

An award of attorney's fees based on state substantive law is generally governed by state law. Champion Produce, Inc., Ruby Robinson, Inc., 342 F.3d 1016, 1024-25 (9th Cir. 2003). In RFDCPA cases, the 'lodestar' method is used. See Komarova v. National Credit Acceptance, Inc., 175 Cal. App.4th 324, 346-47 (2009). The lodestar is calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Ketchum v. Moses, 24 Cal. 4th 1122, 1131-32 (2001). The trial court has broad discretion in making a determination on attorney's fees. Ketchum, 24 Cal. 4th at 1132. The California Supreme Court explained that the "trial judge is the best judge of the value of professional services rendered in his court and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." Id. (quoting Serrano v. Priest, 20 Cal. 3d 25, 49 (1977)). "[T]rial courts must carefully review attorney documentation of hours expended; 'padding' in the form of inefficient or duplicative efforts is not subject to compensation." Id. "In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice." Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guar. Ass'n., 163 Cal. App. 4th 550, 564 (2008). Under California law, a trial court is not required to issue a statement of decision in connection with a motion for a fee award. Ketchum, 24 Cal. 4th at 1140; Maria P. v. Riles, 43 Cal. 3d 1281, 1294-1295 (1987).

Defendant argues that Plaintiff's counsel is entitled to fees that range from $1,250 to $4,500. However, Plaintiff contends that Defendant extended the litigation for Mario B. for over twelve months and therefore, the range of $1,250 - $4,500 is not reasonable. The Court agrees.

The conduct at issue began in July 2008, a complaint was filed in state court on September 3, 2009, and the Rule 68 offer of judgment was made on October 27, 2010. The Rule 68 offer of judgment was made over a year after the complaint was originally filed in state court and past the end of the discovery deadline of October 4, 2010. Plaintiff's counsel had to prosecute the complaint through motion hearings, discovery disputes and settlement conferences. (See Docket.) Defendant's argument that Plaintiff's counsel's fees should be limited to $1,250 to $4,500 is not reasonable.

1. Reasonable Hourly Rate

Plaintiff argues that a rate of $295 per hour is a reasonable hourly rate in the San Diego community. He cites to cases from the District Court for the Southern District of California. See Meyers v. LHR, Inc., 543 F. Supp. 2d 1215, 1219 (S.D. Cal. 2008) (holding that a rate of $295 per hour for a partner was consistent with the rates charged in the community in an FDCPA and RFDCPA case). Tomovich v. Wolfpoff & Abramson, 2009 WL 3486693 at 4 (S.D. Cal. 2009) (concluding that $300/hour to be a reasonable rate for plaintiff's attorney in an FDCPA and RFDCPA case).

Defendant argues that Plaintiff has failed to bear the burden of producing evidence that the requested rate is reasonable because Plaintiff has not produced any evidence of any hourly paying clients. Defendant contends that its counsel George Weickhardt, who has been practicing in the area of banking litigation for 37 years is billed at $265.65. Defendant contends that these are the maximum rates that financial institutions will pay for simple FCRA and FDCPA cases. Defendant believes the rate should be reduced 24% to $224/hour, the average of billable rates between the two attorneys working on the case for Defendant.

The reasonable hour rate is that "prevailing in the community for similar work." PLCM Group, Inc. v. Dexler, 22 Cal. 4th 1084, 1095 (2000) (citing Margolin v. Reg'l Planning Comm., 134 Cal. App. 3d 999, 1004 (1982)). The market rate is based on the "rates prevalent in the community where the services are rendered, i.e., where the court is located." MBNA Am. Bank, N.A. v. Gorman, 147 Cal. App. 4th Supp. 1, 13 (2006). The moving party satisfies its burden through its own affidavits and no additional evidence is needed. Id.

Here, Plaintiff's counsel states that he has been an attorney with over sixteen years of litigation experience with a specialty in consumer litigation. (Jaffe Decl. ¶ 5, Dkt. No. 67-2.) He graduated law school in 1993. (Id.) He has been practicing as a civil trial lawyer since 1993 and in 2000, he opened his own law practice focusing on consumer litigation. (Id. ¶ 7.)

District courts in San Diego in FDCPA and RFDCPA cases have determined that $295 and $300/hour for plaintiff's counsel was reasonable. See Meyers v. LHR, Inc., 543 F. Supp. 2d 1215, 1219 (S.D. Cal. 2008); Tomovich v. Wolfpoff & Abramson, 2009 WL 3486693 at 4 (S.D. Cal. 2009). Besides defense counsel's rates, there are no contrary affidavits suggesting this rate is not in keeping with the prevailing rates in the community for a plaintiff's counsel. Accordingly, the Court concludes a plaintiff's attorney rate of $295.00 is reasonable in this RFDCPA case.

2. Hours Reasonably Expended

Plaintiff seeks 213.5 hours of work related to Mario B.'s RFDCPA claim. Defendant argues that Plaintiff's request for attorney's fees is unreasonable and excessive.

The Rule 68 offer of judgment limited attorney's fees solely to prosecuting Mario B's RFDCPA claim. In opposition, Defendant objects to numerous entries in the billing statement as excessive including work that go beyond the scope of prosecuting Mario B's RFDCPA claim. On October 3, 2011, Plaintiff provided a supplemental declaration providing more details as to each entry. (Dkt. No. 108-1.) Although Defendant opposes most or all of the time entries in its initial opposition*fn1 , it did not update the objections as to each time entry in response to Plaintiff's supplemental declaration. The Court will only address the specific arguments and objections that were addressed in its original opposition, (Dkt. No. 80), and supplemental declaration, (Dkt. No. 115). See Premier Med., 163 Cal. App. 4th at 564 (a party challenging attorney fees as excessive must point to specific items with arguments and citation to the evidence).

a. July 30, 2008 entry of .5 hours totaling $147.40 for "[w]ork on letter to credit reporting agencies regarding Mario B. Quinones." Defendant opposes this entry because it relates solely to the credit reporting claim and not the RFDCPA. Plaintiff argues that since the letter references the RFDCPA, it should be included and explains that the letter disputed the debt and requested verification pursuant to RFDCPA. It is well settled that "[a]attorney's fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed." Reynolds Metals Co. v. Alperson, 25 Cal. 3d 124, 129-130 (1979); see also Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, ...


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