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Breann Fitzgerald v. the Law Office of Curtis O. Barnes

April 15, 2013


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



This action is before the Court on Plaintiff Breann Fitzgerald's Motion for Attorneys' Fees and Costs Pursuant to Offer of Judgment. Plaintiff Fitzgerald seeks $8144.00 in attorneys' fees and $410.95 in costs, for a total of $8554.95. The District Court referred the matter to the undersigned Magistrate Judge for Findings and Recommendations. (Doc. 15). For the reasons set forth below, the undersigned recommends that the motion be GRANTED in part, and that the Court award attorneys' fees in the amount of $4,400.00 and costs in the amount of $410.90, for a total award of $4,810.90.


On January 13, 2012, Plaintiff Breann Fitzgerald ("Plaintiff") filed this action against Defendant The Law Office of Curtis O. Barnes ("Defendant"), for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq . , and the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code § 1788, et seq . On September 10, 2012, the Defendant served Plaintiff's counsel with a Rule 68 Offer of Judgment of $1,001.00 on Plaintiff's claims, plus court costs and attorney's fees as determined by the parties or the court. (Doc. 12-1). The Plaintiff accepted the Defendant's Offer of Judgment and filed a Notice of Acceptance of Rule 68 Offer of Judgment. (Doc. 12). The parties were unable to reach agreement on attorney's fees, which led to the filing of the instant motion. *fn1 (Doc. 13).


A. Plaintiff is Entitled to Reasonable Attorney's Fees

Under both the FDCPA and the Rosenthal Act, a prevailing plaintiff is entitled to "reasonable" attorney's fees and costs. 15 U.S.C. § 1692(k)(a)(3); Cal. Civil Code § 1788.30(c). Indeed, in line with Congress' adoption of a "private attorney general" approach to enforcement of the FDCPA, an award of attorney's fees is mandatory in successful FDCPA actions. Camacho v. Bridgeport Financial, Inc. , 523 F.3d 973, 978 (9 th Cir. 2008) (quoting Graziano v. Harrison , 950 F.2d 107, 113 (3d Cir. 1991); also see Zagorski v. Midwest Billing Services, Inc. , 128 F.3d 1164 (7 th Cir. 1997). Here, Defendant does not oppose Plaintiff's entitlement to reasonable attorney's fees and costs, and Defendant's Rule 68 Offer of Judgment, which was accepted by the Plaintiff, expressly provides for payment of attorney's fees and costs to the Plaintiff. (Doc. 12-1); see also Bridgeport Financial , Inc., 523 F.3d at 978 (in FDCA case, approving award of attorney's fees pursuant to settlement agreement). The only issue before the Court, therefore, is the amount of reasonable fees and costs due to Plaintiff.

B . The "Lodestar Procedure" for Calculating Reasonable Attorney Fees

In FDCPA cases, the Ninth Circuit applies the general rule for attorney fees determinations under fee-shifting statutes, namely, the "lodestar" procedure. See Ferland v. Conrad Credit Corp. , 244 F.3d 1145, 1148 (9th Cir. 2001); see also PLCM Group, Inc. v. Drexler , 22 Cal.4th 1084, 1095 (2000) (under California law, the fee setting inquiry begins with the "lodestar"). The lodestar procedure entails two distinct steps for determining a "reasonable attorney fee." First the court calculates the "lodestar figure" by "multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Ferland, 244 F.3d at 1149 n. 4. The court then considers whether it is necessary to adjust the "presumptively reasonable lodestar figure" on the basis of specific factors identified in Kerr v. Screen Guild Extras, Inc ., 526 F.2d 67, 70 (9th Cir. 1975) that are not already subsumed in the lodestar calculation. *fn2 See Cunningham v. County of Los Angeles , 879 F.2d 481, 487 (9 th Cir. 1989) (the lodestar procedure now subsumes, as a matter of law, several of the Kerr factors in the initial determination of reasonable hours and rates; the subsumed factors should not be used as independent bases to adjust the lodestar figure). *fn3 "Calculating the lodestar is the critical inquiry," however, "because there is a strong presumption that it is a reasonable fee." United Steelworkers of Am. v. Phelps Dodge Corp ., 896 F.2d 403, 406 (9th Cir. 1990).

C. Lodestar Calculation: Reasonable Hourly Rates for Plaintiff's Counsel

(i) Applicable Legal Standard

Courts have recognized that "determining a reasonable or prevailing rate of compensation is inherently difficult." Chalmers v. City of Los Angeles , 796 F.2d 1205, 1210 (9 th Cir. 1986) (internal quotation marks omitted). The determination of the applicable, reasonable hourly rate "is not made by reference to rates actually charged the prevailing party." Id. ; also see Guam Society of Obstetricians and Gynecologists v. Ada , 100 F.3d 691, 702 (9 th Cir. 1990). Rather, "[t]he burden is on the plaintiff to produce evidence that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson , 465 U.S. 886, 895-96 (1984) (internal quotation marks omitted); see also Welch v. Metropolitan Life Ins. Co. , 480 F.3d 942, 945-946 (9 th Cir. 2007) (the relevant metric is the market rate charged by similarly competent attorneys for representation of comparable complexity). The relevant community for purposes of determining the prevailing market rate is generally the "forum in which the district court sits." Camacho v. Bridgeport Financial., Inc ., 523 F.3d 973, 979 (9th Cir. 2008). "Affidavits of the [attorney seeking fees] and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the [attorney seeking fees], are satisfactory evidence of the prevailing market rate." United Steelworkers of America v. Phelps Dodge Corp ., 896 F.2d 403, 407 (9th Cir. 1990). "The [opposing side] may introduce rebuttal evidence in support of a lower hourly rate." Sorenson v. Mink , 239 F.3d 1140, 1145 (9th Cir. 2001). In addition, the Court may rely on its own familiarity with the local legal market and knowledge of customary local rates in setting an appropriate hourly rate. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

Plaintiff asserts that the fee award should be based on the following rates: Ryan Lee--$387.00/hour; Rory Leisinger--$245.00/hour. Applying the standards discussed above, the Court finds the evidence does ...

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