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 PRNewswire.com, 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.
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 ...