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Vestin Realty Mortgage Ii, Inc., et al v. Kenneth D. Klaas

April 8, 2013


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



On July 27, 2012, the Court granted in part and denied in part Defendant's Motion for Attorneys' Fees and Costs. (Doc. No. 96 and Doc. No. 82, respectively.) All that remains is for the Court to determine the appropriate amount of the award. Defendant requests a total award of $373,616.72 in attorneys' fees and costs. (Doc. No. 114.) Plaintiffs object to Defendant's requested amount on various grounds. (Doc. Nos. 102, 115.) For the reasons set forth below, Plaintiffs' Objections are OVERRULED IN PART and SUSTAINED IN PART, and the Court GRANTS IN PART and DENIES IN PART Defendant's request for attorneys' fees and costs. The Court hereby GRANTS Defendant $300,831.06 in attorneys' fees, and DENIES Defendant's request for costs.

Procedural Background

After initially concluding Defendant is entitled to attorneys' fees and costs, the Court directed Defendant to provide Plaintiffs with detailed billing statements for all relevant periods on or before August 10, 2012. (Doc. No. 97.) The Court directed the parties to meet and confer regarding the fees requested by the Defendant, and allowed Plaintiffs the opportunity to object to the requested amount. (Id.) On August 9, 2012, Defendant filed a supplemental declaration in support of his request for attorneys' fees and costs. (Doc. No. 100.) Defendant filed another supplemental declaration on August 24, 2012. (Doc. No. 101.) That same day, Plaintiffs filed their objections to the amount of attorneys' fees and costs requested by Defendant. (Doc. No. 102.) On September 7, 2012, Defendant filed his response to Plaintiffs' objections. (Doc. No. 106.)

On March 21, 2013, the Court took the matter under submission and directed Defendant to submit a final summary of the total requested amount, including any additional time incurred regarding the motion for attorneys' fees itself. (Doc. No. 113.) The Court again allowed Plaintiffs to file an opposition to any additional amounts requested by Defendant in their finalized request. (Id.) Accordingly, Defendant submitted an updated total of attorneys' fees and costs on March 25, 2013, (Doc. No. 114), and Plaintiffs filed objections to the additional time billed on March 27, 2013, (Doc. No. 115). Having reviewed the briefing and accompanying exhibits, the Court noted Defendant had not provided the necessary information regarding the qualifications and experience of the attorneys and paralegals involved in the case. Accordingly, the Court directed Defendant to submit curricula vitae and background information for the billing attorneys and paralegals. (Doc. No. 116.) On April 4, 2013, Defendant submitted the requested information. (Doc. No. 117.)


Calculating the Reasonable Amount of Attorneys' Fees This Court previously concluded Nevada law governed Defendant's recovery of attorneys' fees as Nevada provided the state substantive law applicable in this diversity action. (See Doc. No. 96 at 4-5.)*fn1 Not only is the state substantive law properly applied in determining the right to fees in a diversity case, but state substantive law is also applied in determining the proper method of calculating the amount of the award. Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470,1478 (9th Cir. 1995)(citing Kern Oil and Refining Co. v. Tenneco Oil Co., 792 F.2d 1380 (9th Cir. 1986), cert denied, 480 U.S. 906 (1987). Accordingly, the Court will continue to apply Nevada law when calculating the proper amount of attorneys' fees and costs.

The method for determining reasonable attorneys' fees in Nevada is not limited to one specific approach, but the analysis must begin with a method rationally designed to calculate a reasonable amount as tempered by reason and fairness. Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 862-63 (Nev. 2005) (citing University of Nev. v. Tarkanian, 110 Nev. 581, 590, 519, 594 (Nev. 1994)). Such amount may be based on the lodestar method, which multiplies the number of hours reasonably spent on the case by a reasonable hourly rate for an attorney of the skill required to perform the litigation. Id.; Herbst v. Humana Health Ins. of Nev., Inc., 105 Nev. 586 (1989). Regardless of which method is chosen as a starting point, the court must continue its analysis by considering the requested amount in light of the following factors:

(1) the qualities of the advocate: his ability, his training, education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits were derived.

Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349 (1969) (citations omitted); see Barney v. Mt. Rose Heating & Air Conditioning, 124 Nev. 821, 829 (2008); Shuette, 121 Nev. at 864-65. The Court has discretion when weighing these factors, though no one element should predominate or be given undue weight. Brunzell, 85 Nev. at 350.

A. Lodestar Calculation

Utilizing the lodestar method, Defendant initially requested $295,079.25 in attorneys' fees in his motion for attorneys' fees. (Doc. No. 82-1 at 15.) As support for the requested amount, Defendant provided a declaration from Defendant's lead counsel Edgar H. Hayden, Jr. (Doc. No. 82-2.) In his declaration, Mr. Hayden attests to the rates billed by the attorneys and paralegals working on Defendant's case, including himself, and states their rates are well within the reasonable comparable rates of the San Diego community. (Id. at ¶ 3.) Additionally, Defendant provided supplemental briefing describing the background and credentials of the other billing attorneys and paralegals. (Doc. No. 114.) Defendant also provided a chart delineating the hours billed by Defendant's attorneys and paralegals at their individual rates, resulting in the initially requested $295,079.25. Finding this chart helpful, the Court includes it here.



Edgar H. Hayden, Jr. $330 596.5 196,845.00 Peta L. Hallisey $375 132.50 49,6887.50 Stephen L. Waldman $330 .30 99.00 David P. Ruth $375 1.10 412.50

A. Jacqueline Schon $220 3.80 836.00 Bret A. Bartolotta $300 113.30 33,990.00 Robert C. Mardian $275 6.90 1,897.50

J. Clancy Wilson $425 4.50 1,912.50 Shirley L. Kovar $425 .25 106.25 Jason Sinford Average rate of 65.00 8,253.00 (paralegal) $126.97 Robyn Frattali $130.00 8.00 1,040.00 (paralegal)

TOTAL FEES $295,079.25

Having reviewed Defendant's motion, the accompanying declaration by Edgar G. Hayden, Jr., the qualifications of the billing individuals, and in light of this Court's own experience, the Court finds the lodestar amount requested by Defendant appears reasonable. In the chart above, Defendant provided a breakdown of the initially requested $295,079.25, specifically listing the individualized rates as multiplied by the number of hours spent by each person on Defendant's case. The Court finds this appropriate as the attorneys and paralegals have various degrees of experience and differing qualifications.

In addition to the original $295,079.25 requested, Defendant seeks an additional $59,951.50 for fees billed after the filing of the original motion for attorneys' fees. (Doc. No. 114.) However, Plaintiffs object to the entirety of this additional amount as excessive and unreasonable. Accordingly, the Court will consider the additional $59,951.50 billed by Defendant within the Court's analysis of Plaintiffs' objections. Thus, the lodestar amount to be considered with regard to the Brunzell factors under Nevada law is $295,079.25.

B. Consideration of Brunzell Factors

As noted above, Nevadalaw allows courts to utilize the lodestar method initially, but then courts must consider the reasonableness of the lodestar amount in light of the factors set forth in Brunzell. In this instance, the Court finds adjustments to the lodestar amount unnecessary in light of the Brunzell factors.

1. The Qualitities of the Advocate

Having reviewed the qualifications and background of the billing attorneys and paralegals, the Court finds this factor weighs in favor of the overall reasonableness of the requested amount. (Doc. No. 82-2 at ΒΆ 3; Doc. No. 117.) Here, taking particular note of the varying degrees of ability, training, education, experience, professional standing and skill amongst the different individuals, the Court finds the rates billed and the hours expended to be reasonable under the circumstances. Morever, the Court notes the attorneys charging higher rates billed fewer hours than those charging lower rates, with the sole exception ...

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