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Johnson v. CFS II, Inc.

United States District Court, Ninth Circuit

December 27, 2013

CFS II, INC., an Oklahoma corporation, Defendant.


LUCY H. KOH, District Judge.

Plaintiff Bruce Albert Johnson ("Johnson") brings this Motion for Attorney's Fees and Costs, ("Mot.") ECF No. 64-2, following an action brought under the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., and California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788 et seq. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS in part and DENIES in part Johnson's Motion for Attorney's Fees and Costs.


This action arose out of an attempt by Defendant CFS II, Inc. ("CFS") to collect a debt allegedly owed by Johnson on a consumer credit account issued by U.S. Bank. ("MSJ Order") ECF No. 60 at 1. The debt was assigned to a creditor that hired CFS to collect the debt. Id. at 1-2. In an attempt to collect the alleged debt from Johnson, CFS sent a collection letter dated September 30, 2010 to 2032 Stonewood Lane, San Jose, California. See ("Sept. 30, 2010 letter") ECF No. 41-6 Ex. C at 14. The collection letter reads, in relevant part:

Unless you notify this office within thirty (30) [ sic ] days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within thirty (30) days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within thirty (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Id. The Court found in its MSJ Order that CFS sent its September 30, 2010 letter to an incorrect address, as Johnson had never resided at 2032 Stonewood Lane in San Jose, California and had never received mail at this address. MSJ Order at 10-11.

"After sending the September 30, 2010 letter, CFS sought unsuccessfully to contact Johnson by telephone." Id. at 2. On January 17, 2011, a CFS employee placed a call to a "wrong number" and learned that this was the second call the individual who answered the phone had received for the "wrong Bruce A. Johnson." Id. The CFS collection log shows that on February 23, 2011, CFS learned that the residence to which CFS sent the September 30, 2010 letter was "sold to the Morelands" at least four years prior and that Johnson was not a renter at the house. Id. at 2-3. On or about March 3, 2011, the CFS collection log indicates that CFS obtained a different address for Johnson. Id. at 3.

On or about March 4, 2011, CFS "re-sent" the first collection letter to Johnson, this time to 275 Burnett Avenue SPC 115, in Morgan Hill, California. See ("March 4, 2011 letter") ECF No. 41-6 Ex. C at 15. The March 4, 2011 letter differs from the September 30, 2010 letter in certain respects and, in lieu of the above-cited passage, states as follows:

To help you identify this debt we have provided above the name and address of the original creditor and other information. If you need more information, just let us know. Also, if you believe this is not your debt, that the amount is wrong, or if there is something else that may make the debt invalid, please tell us you dispute the debt. If you tell us of your dispute within 30 days of your receipt of this letter, we will avoid contacting you until we send written verification of the debt or a copy of any applicable judgment. If you do not tell us you dispute the debt then we will assume the debt is valid.

Id. On March 8, 2011, Johnson sent a "validation request letter" from the Morgan Hill address to CFS, requesting that a copy of the debt verification be sent to him. See ECF No. 43 Ex. 2.

Johnson filed a Complaint in this action on March 5, 2012. ("Compl.") ECF No. 1. The Complaint alleged that the March 4, 2011 letter violated the FDCPA, 15 U.S.C. §§ 1692 et seq., and the RFDCPA, Cal. Civ. Code §§ 1788.17 et seq. Compl. ¶¶ 23-24.

CFS moved to dismiss the Complaint on April 9, 2012. ECF No. 5. On April 23, 2012, Johnson filed his Opposition to CFS's Motion to Dismiss. ECF No. 10. Thereafter, on May 1, 2012, CFS withdrew its Motion to Dismiss the Complaint. ECF No. 12.

On May 3, 2012, CFS filed its Answer to Johnson's Complaint. ECF No. 13. On May 24, 2012, Johnson responded by filing a Motion to Strike affirmative defenses asserted in CFS's Answer. ECF No. 17. On June 7, 2012, CFS filed its First Amended Answer to Complaint. ECF No. 18. In response, Johnson withdrew his Motion to Strike Affirmative Defenses without prejudice and stated no opposition to CFS' First Amended Answer. ECF No. 28.

On January 15, 2013, Johnson filed a Motion to Compel Further Production of Documents and Electronically Stored Information in Response to Discovery Requests. ECF No. 35. On that same day, Johnson also filed a Motion for Discovery Sanctions. ECF No. 36. CFS opposed both Motions, ECF Nos. 38, 39, and Johnson replied, ECF No. 42. On April 1, 2013, Magistrate Judge Grewal entered an Order granting in part Johnson's Motion to Compel. ECF No. 46.

On January 31, 2013, Johnson filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication. ECF No. 41. CFS filed its Opposition on February 14, 2013, ECF No. 43, and Johnson filed his Reply on February 18, 2013, ECF No. 45. The Court heard oral argument on Plaintiff's Motion on April 18, 2013. ECF No. 53. On April 28, 2013, the Court granted Johnson's Motion for Summary Judgment. MSJ Order. In the MSJ Order, the Court ordered the parties to meet and confer by May 15, 2013, to explore resolution of Johnson's attorney's fees request. Id. at 18. The Court further ordered that, if the parties were unable to reach a resolution, Johnson would file a motion for attorney's fees and costs. Id.

Because the parties were not able to agree on reasonable attorney's fees and costs, Johnson filed the instant Motion for Attorney's Fees and Costs on May 31, 2013. ECF No. 64. CFS filed an Opposition to this Motion on June 14, 2013. ("Opp'n") ECF No. 65. Johnson filed a Reply on June 21, 2013. ("Reply") ECF No. 67.


The FDCPA provides that any debt collector who fails to comply with its provisions is liable "in the case of any successful action... [for] the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a)(3).

As the Ninth Circuit acknowledges, "[t]he FDCPA's statutory language makes an award of fees mandatory." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Courts in the Ninth Circuit calculate an award of attorney's fees using the lodestar method, whereby a court multiplies "the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Id. (internal quotation marks omitted).

A party seeking attorney's fees bears the burden of demonstrating that the rates requested are "in line with the prevailing market rate of the relevant community." Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks omitted). Generally, "the relevant community is the forum in which the district court sits." Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Typically, "[a]ffidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community and rate determinations in other cases... are satisfactory evidence of the prevailing market rate." United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

"Although in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it." Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). "The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the... facts asserted by the prevailing party in its submitted affidavits.'" Camacho, 523 F.3d at 980 (alterations in the original) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992)).


Johnson seeks $52, 297.50 in attorney's fees and $1729.62 in costs, [1] for a total award of $54, 027.12. See Mot. at 3-4; Reply at 15. To support this amount, Johnson provides an itemized invoice detailing the services rendered by his attorneys from March 8, 2011 to May 31, 2013; the hours worked in rendering those services, broken down by task; and the hourly rate billed by the attorney performing a particular task. See ("Invoice") ECF No. 64-4. This invoice represents that between March 8, 2011 and May 31, 2013, Johnson was billed the following amounts by the Consumer Law Center, Inc. ...

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