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General Charles E. "Chuck" Yeager v. At&T Mobility


December 18, 2012



This case proceeded to a jury trial on June 4, 2012, on two claims: the claim of plaintiff General Charles Yeager that defendant AT&T Mobility, LLC ("defendant") violated his common law right to publicity, and plaintiff's related right to publicity under California Civil Code Section 3344 ("Section 3344"). (ECF 28.) The jury returned a verdict in favor of plaintiff on the California statutory claim and in favor of defendant on the common law claim. (ECF 222.) Plaintiff now moves for attorneys' fees. (ECF 243.) Defendant opposes the motion. (ECF 250.) Plaintiff has also submitted his bill of costs. (ECF 234.) Defendant has submitted objections to the bill of costs. (ECF 241.) For the reasons set forth below, plaintiff's motion for attorneys' fees is granted in part and denied in part; plaintiff's bill of costs is approved in part and disapproved in part.


In the wake of Hurricanes Katrina, Rita and Wilma, large portions of the southeastern United States were affected by cell phone outages. This was a source of frustration to cell phone users who were anxiously attempting to locate relatives and loved ones. In response to coverage failures during the 2005 hurricane season, defendant updated its emergency preparedness plans. One new addition was a mobile unit that transmits a cell signal and is capable of housing repair-persons. Defendant named this unit a mobile access command headquarters, otherwise known as "M.A.C.H." In announcing its preparation for the upcoming hurricane season through a press release on, defendant used the name of plaintiff Charles Yeager because his singular achievement of breaking the sound barrier and achieving "Mach 1" dovetailed with the acronym used to describe the mobile units. In its fifth paragraph, the press release stated:

Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.

Plaintiff's claims challenged the use of his name in the press release. This court has jurisdiction over his claims based on diversity.


1. Attorney's Fees

Plaintiff seeks $339,307.75 in attorney's fees and $15,437.72 in costs and expenses under Section 3344. (Pl.'s Mot. for Att'y Fees ("Pl.'s Mot."), ECF 243-1 at 2:22-23.) Defendant does not contest that plaintiff was the prevailing party or his entitlement to attorney's fees. (See generally Def.'s Opp'n to Pl.'s Mot. ("Def.'s Opp'n"), ECF 250.) Defendant instead argues that the court should disallow certain fees plaintiff seeks and reduce other fees to ensure that the fee award is reasonable. (Id.)

"The rule in this circuit requires that federal courts in diversity actions apply state law with regard to the allowance (or disallowance) of attorneys' fees." Diamond v. John Martin Co., 753 F.2d 1465 (9th Cir. 1985); see also Bonner v. Fuji Photo Film, 2008 WL 410260 at *2 (N.D. Cal. Feb. 12, 2008) ("In a diversity case, as here, the availability of attorney's fees is governed by state law."). Section 3344 provides that "[t]he prevailing party in any action under this section shall . . . be entitled to attorney's fees and costs." CAL. CIV. CODE § 3344(a).

State law also controls the method of calculating fees. See Mangold v. California Pub. Util. Comm'n, 67 F.3d 1470, 1478 (9th Cir.1995). California courts calculate an award of attorneys' fees by using the lodestar method. Ketchum v. Moses, 24 Cal. 4th 1122, 1133 (2001). "The lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for non-contingent litigation of the same type, multiplied by the reasonable number of hours spent on the case." Nichols v. City of Taft, 155 Cal. App. 4th 1233, 1242-43 (2007).

The lodestar figure may be adjusted based on consideration of factors specific to the case. See Serrano v. Priest, 20 Cal. 3d 25, 49 (1977). Factors to consider in enhancing or reducing the lodestar include: (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; and (4) the contingent nature of the fee award. See Nichols v. City of Taft, 155 Cal. App. 4th 1233, 1240 (2007).

a. Fees Incurred by Previous Counsel

Defendant maintains the court should disallow the $46,000 flat fee purportedly incurred by plaintiff with the Law Offices of Joseph Scalia because the alleged fee "is not substantiated by an invoice evidencing the tasks performed by Mr. Scalia or his billing rate." ("Def.'s Opp'n at 3:24-26.) Thus, defendant argues, "there is no way for the court to determine whether Mr. Scalia's work pertains to this case, or, more importantly, whether his services are related to the only claim on which Yeager prevailed." (Id. at 4:1-3.)*fn1

Defendant also argues plaintiff cannot recover the $132,150.72 repeatedly incurred with prior counsel because plaintiff has failed to present "competent evidence as to the nature and value of the services performed." (Id. at 4:19-20.) Specifically, defendant argues plaintiff has failed to proffer declarations of prior counsel documenting the services rendered and substantiating the fees charged; instead, plaintiff merely proffers a declaration from plaintiff's current counsel attempting to verify prior counsels' invoices. (Id. at 5:10-12.) Defendant maintains plaintiff's current counsel does not have sufficient personal knowledge to authenticate those invoices, and thus, plaintiff has failed to proffer competent evidence that those services were rendered and those fees incurred. (Id. at 5:13.)

Plaintiff maintains he has "submitted competent and sufficient evidence in support of his motion." (Pl.'s Reply to Opp'n ("Reply), ECF 256 at 2:16.) Specifically, plaintiff argues he "has met his burden of documenting the appropriate hours expended in this litigation" by "provid[ing][ the court with detailed invoices and statements from prior counsel setting forth the services rendered and setting forth the fees incurred." (Id. at 2:25-26; emphasis in original.) Plaintiff therefore maintains he "has met his burden of documenting the appropriate hours expended in this litigation . . . ." (Id. at 2:25-28.)

"The Federal Rules of Evidence govern the admissibility of evidence in diversity cases, . . ." St. George v. Home Depot. U.S.A., Inc.,2007 WL 604925, at *9 (D. Ariz. Feb. 22, 2007) (citing Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir.1995), in turn quoting Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). An affiant must have personal knowledge of the matters regarding which he or she testifies. U.S. for Use and Ben. of Conveyor Rental & Sales Co. v. Aetna Cas. & Sur. Co., 981 F.2d 448, 454 (1992) (holding affidavit inadmissible as evidence on summary judgment motion absent requisite personal knowledge of affiant). Federal Rule of Evidence 901 provides that a person with personal knowledge can satisfy the authentication requirement.

That plaintiff submitted "detailed invoices . . . setting forth the services rendered" by previous counsel is insufficient to meet his evidentiary burden. Nothing in the Federal Rules of Evidence provides that invoices are self-authenticating. See In re Fine Paper Antitrust Litig., 751 F.2d 562, 584 (3d Cir.1984) (holding that the Federal Rules of Evidence apply to attorneys' fee disputes); In re High Sulfur Content Gasoline Products Liability Litigation, 517 F.3d 220, 231 (5th Cir. 2008) (same).

Mr. Zarian's declaration states that he "ha[s] personal knowledge or ha[s] been fully advised of the costs, expenses and attorney's fees reasonably and necessarily incurred in the representation of Gen. Yeager in this matter . . . ." (Decl. Of John N. Zarian ("Zarian Decl."), ECF 243-3, ¶ 2.) While Mr. Zarian has sufficient knowledge to authenticate his own invoices, he only entered this case after other counsel had withdrawn and does not have personal knowledge of the services rendered by previous counsel to authenticate the invoices documenting those alleged services. (See id., ¶ 4.) Cf. FED. R. EVID. 901(b)(1) (listing testimony of a witness with personal knowledge as an example of evidence sufficient to authenticate a document); Holmes v. Home Depot USA, Inc., 2008 WL 4966098, at *8 (E.D. Cal. Nov. 20, 2008) (holding that, in the context of a motion for summary judgment, "the affiant [promoting a document] must have personal knowledge to authenticate the document").*fn2

Because Mr. Zarian cannot know with certainty that the services reflected by the invoices attached to his declaration were actually performed, plaintiff has failed to meet his burden of proffering admissible evidence reflecting the fees allegedly incurred. Cf. Martine v. Devevi, 182 Cal. App. 3d 553, 560 (1986) (holding that a party must present sufficient evidence "to support the award of attorney of . . . attorney fees.") The court declines to award plaintiff the $178,150.72 he allegedly incurred with prior attorneys Scalia, Wild Carter & Timpton, de la Pena McDonald, Holt Law Firm, Wolf Rifkin, et al., Lesser Law Group, Law Offices of Joanna R. Mendoza, Foster Swift, et al., Law Offices of Patrick A. McCall and Faber & Foote. (See Zarian Decl. ¶ 4.)

b. Fees Incurred by Current Counsel

Plaintiff maintains he is entitled to $160,757 in attorneys' fees incurred with plaintiff's current counsel, Zarian, Midgley & Johnson. (See Pl.'s Mot. at 8:17-15:23.) Defendant concedes that plaintiff is entitled to fees incurred with his current law firm; however, defendant asserts the court should, in its discretion, adjust the lodestar amount downward because the total fee requested is unreasonable. (Def.'s Opp'n at 9:16-17.) Specifically, defendant argues the fee should be reduced because plaintiff's "lawyers spent the bulk of their time and effort pursuing claims and legal theories that failed." (Id. at 10:3-4.) Defendant also contends plaintiff's allegedly unreasonable settlement posture also merits a reduction. (Id. at 14:15-17.) Defendant does not, however, argue that the hourly rates charged by counsel are unreasonable. Nor does defendant argue that the hours expended are unreasonable.

Plaintiff, in reply, argues the fee requested from current counsel is reasonable. Specifically, plaintiff maintains "[t]here is simply no way for the [c]court, when faced with such factually interconnected claims to apportion relevant time and fees to the various claims individually." (Pl.'s Reply at 6:22-26.) Plaintiff also contends it was not his settlement posture that impeded settlement of the matter, but rather defendant's failure to send a representative to settlement conference that precluded settlement. (Id. at 7:4-8.)

The court finds that a downward adjustment in the lodestar amount for plaintiff's current counsel is not warranted. The "lodestar amount is presumptively reasonable." Guess?, Inc. v. Tres Hermanos, Inc., 1998 WL 1770071, at *1 (C.D. Cal. June 1, 1998) (citing Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986)). The court finds the presumption of reasonableness is not undercut by plaintiff's only prevailing on one claim. Where a plaintiff's action "involve[s] a common core of facts . . . based on related legal theories," plaintiff's suit "cannot be viewed as a series of discrete claims" and "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). "In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Id. (citing Davis v. County of Los Angeles, 8 E.P.D. P 9444 (C.D. Cal. 1974)). Under California law, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award.

When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required.

Akins v. Enterprise Rent-A-Car Co. of San Francisco, 79 Cal. App. 4th 1127, 1133 (2000) (internal citations omitted).

Here, one discreet act by defendant formed the factual predicate for each of plaintiff's claims: defendant's issuing a press release using plaintiff's name and accomplishments.*fn3 The jury found that this discreet conduct amounted to a violation of plaintiff's right of publicity under California Civil Code § 3344, and awarded damages accordingly. Plaintiff succeeded on his claim that defendant's unauthorized use of his name entitled him to damages. Thus, "the fee award should not be reduced simply because the plaintiff failed to prevail on every [claim] raised in the lawsuit." Id.*fn4

The court also is unpersuaded that plaintiff's settlement posture merits a downward adjustment of the lodestar amount. While the court recognizes the existence of California case law approving a trial court's discretion to lower fees where the damages obtained are less than the settlement offer, see, e.g., Meister v. Regents of University of California, 67 Cal. App. 437, 449 (1998), such a discretionary downward adjustment is not appropriate here. Even if plaintiff's settlement demands were significantly higher than what he obtained at trial, defendant was free to box plaintiff in prior to trial by making an offer to allow judgment on specified terms under Federal Rule of Civil Procedure 68; defendant did not make such an offer. Moreover, plaintiff maintains and defendant does not dispute that "in spite of the court's clear instructions that a principal with full settlement authority be present at the [settlement] conference, AT&T did not have a principal (or any representative) at the conference." (Pl.'s Mot. at 6:10-12.) Under these circumstances, the court cannot determine that any unreasonable negotiation posture on plaintiff's behalf militates in favor of lowering his attorney's fees.

The court finds plaintiff is entitled to the $160,757 he incurred with the law offices of Zarian, Midgley & Johnson.

C. Costs Under California Civil Code § 3344

Plaintiff seeks costs in the amount of $15,437.72 under Section 3344. (Pl.'s Mot. at 16:6-17:9.) Defendant maintains the requested costs either are not recoverable or should not be awarded because they are duplicative of the costs plaintiff seeks under Federal Rule of Civil Procedure 54, as described below. (Def.'s Opp'n at 16:6-8.)

Section 3344 provides that the prevailing party may recover costs. CAL. CIV. CODE § 3344(a). "Under California law, where a statute such as § 3344 authorizes an award of costs but is silent as to which costs are to be awarded, the "[c]court must look to Code of Civil Procedure § 1033.5,*fn5 which sets forth those costs that may or may not be recovered in a civil action." Bonner, 2008 WL 410260, at *7 (citing Page v. Something Weird Video, 960 F. Supp. 1438, 1447 (C.D. Cal.1996)). Where Section 1033.5 does not expressly authorize certain costs, the court may award costs "reasonably necessary to the conduct of litigation rather than merely convenient or beneficial to its preparation." Id. (citing CAL. CIV. CODE § 1033.5).

The court finds that plaintiff's request for filing, motion and jury fees, deposition-related costs, service-related costs, and exhibit-related costs are inappropriate because they are duplicative of the costs plaintiff seeks under Federal Rule of Civil Procedure 54, as discussed below. (Compare Pl.'s Bill of Costs, ECF 234 with Pl.'s Mot. at 16:21-17:9; see also Pl.'s Reply to Def.'s Objection to Bill of Costs, ECF 244.) Plaintiff also seeks $8,919.36 in "miscellaneous discretionary costs." (Pl.'s Mot. at 17:17-8; Zarian Decl. at 27:12-11.) Of this amount, plaintiff's request for $40.82 in fees for legal research is prohibited by Section 1033.5. See Bonner, 2008 WL 410260, at *7 ("§ 1033.5 also expressly precludes recovery of other expenses, including fees for legal research (computer or otherwise), . . ."). Plaintiff also seeks $2,400 in travel costs from Orange, California, to Grass Valley, California, for settlement conference attendance. (Zarian Decl. at 27:16-7.) Because $2400 in expenses to travel within the state is excessive for a trip whose length is not clear from the record, the court declines to award these costs.*fn6

See CAL. CIV. CODE § 1033.5(c)(3) ("Allowable costs shall be reasonable."). The court also declines to award costs for meals during trial preparation as meals are not necessary to conduct the litigation. Accord Bonner, 2008 WL 410260, at *7 n.5 (declining to award meal expenses because they "are not necessary in order to conduct the litigation"). The court also declines to award miscellaneous expenses for plaintiff's travel to, and lodging in, Sacramento in connection with testifying at trial because they are duplicative of the costs plaintiff seeks under Federal Rule of Civil Procedure 54, as discussed below. (Compare Zarian Decl. at 27:13-30:120 with Pl.'s Reply to Def.'s Objection to Bill of Costs, ECF 244 at 4:7-26.) The court finds that the remainder of the "miscellaneous expenses" plaintiff requests, such as travel for plaintiff's counsel to attend settlement conference and motions in limine, are appropriate because they are reasonably necessary to the conduct of the litigation. See Bonner, 2008 WL 410260, at *7 ("The fact that [plaintiff] hired counsel in Los Angeles rather than San Francisco does not preclude [plaintiff] from recovering the costs of [counsel's] travel.").

Based on the foregoing, the court declines to award plaintiff $3,190.4 of the "miscellaneous expenses" plaintiff requests. In total, $5,728.42 in costs is awarded to plaintiff under California Civil Code § 3344, with all other costs excised as either prohibited or not necessary to the litigation.

2. Plaintiff's Bill of Costs (FED. R. CIV. P. 54)

Plaintiff also has filed a bill of costs in the amount of $46,575.90 under Federal Rule of Civil Procedure 54(d). (Plaintiff's Bill of Costs, ECF 234-1.) In plaintiff's reply, he reduces the requested amount to $36,681.63. (Pl.'s Reply to Def.'s Objections, ECF 244). Defendant objects to various portions of the bill of costs. (Def.'s Objection, ECF 241; Def.'s Reply to Pl.'s Response to Objections, ECF 245.)

Defendant objects to plaintiff's request for expert witness fees, deposition costs and various "other costs." Defendant maintains expert fees are not taxable unless the expert was appointed by the court; the costs of transcripts of depositions plaintiff did not take are not taxable; and plaintiff's "other costs" are not permitted either by statute or the local rules. (ECF 241 at 1:12-3:21.) Plaintiff replies that the court may, in its discretion, allow expert witness fees under California Civil Code § 3344(a) because it allows for recovery of costs in addition to attorney's fees.

Under Rule 54(d) of the Federal Rules of Civil Procedure, "unless . . . a court order provides otherwise, costs - other than attorney's fees - should be allowed to the prevailing party." FED. R. CIV. P. 54(d). Taxation of costs to the prevailing party is further governed by Eastern District Local Rule 292, which limits taxable costs to those enumerated in 28 U.S.C. § 1920. E.D. CAL. L. R. 292(a); see also Crawford Fitting Co v. J.T. Gibbons, Inc., 482 U.S. 437, 442-443 (1987). The district court generally has discretion to determine what constitutes a taxable cost within the meaning of 28 U.S.C. § 1920. See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997); Alflex Corp. v. Underwriters' Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990). The court also has "discretion to refuse to award costs." Ass'n of Mexican American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000). However, this "discretion is not unlimited" as the "district court must 'specify reasons' for its refusal to award costs." Id. at 592 (citing Subscription Television, Inc. V. Southern Cal. Theatre Owners Ass'n, 576 F.2d 230, 234 (9th Cir. 1978)).

Here, defendant's objection regarding expert witness fees is well-taken. Plaintiff cannot receive costs for expert witness fees in excess of a $40 per diem attendance fee. The Supreme Court has held that "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of [28 U.S.C.] § 1821(b), absent contract or explicit statutory authority to the contrary." Crawford Fitting Co., 482 U.S. at 439.

28 U.S.C. § 1821(b) limits witnesses to a payment of "$40 per day for each day's attendance." Id. at 442 (a federal court "may tax expert witness fees in excess of the [] limit set out in § 1821(b) only when the witness is court-appointed."). Plaintiff is entitled to only $80 for the two days plaintiff's expert testified at trial. (See Pl.'s Bill of Costs, ECF 234, Ex. 8(b)(5).)

The court finds the remainder of defendant's objections unavailing. Specifically, the court finds that, under 28 U.S.C. § 1920, the following costs are recoverable:

Fees to the Clerk of the Court $550

Service Fees $629 Reporter and Transcript Costs $3,364.18 Witness Costs $906.70 Exemplification $1,570.42 Per Diem Expert Costs $80 Total $7,100.30


Based on the foregoing, plaintiff's motion for attorneys' fees and bill of costs are granted in part and denied in part. Specifically:

1. Plaintiff is entitled to $160,757.00 in attorney's fees.

2. Plaintiff is entitled to $5,728.42 in costs under California Civil Code Section 3344.

3. Plaintiff is entitled to $7,100.30 in costs under Federal Rule of Civil Procedure 54(d) and Local Rule 292.

Defendant is hereby ordered to remit to plaintiff within fourteen days of this order the total sum of $173,585.72.

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