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May v. Brunton

United States District Court, S.D. California

November 13, 2014

AMY MAY, Plaintiff,
BRUCE K. BRUNTON, Defendant.


THOMAS J. WHELAN, District Judge.

Pending before the Court are Plaintiff's motion for attorney's fees ( Pl.'s Mot. Fees [Doc. 62]) and Plaintiff's motion to strike Defendant's expert declaration in support of Defendant's opposition to Plaintiff's fee motion. ( Pl.'s Obj. & Mot. Strike [Doc. 69].) The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court DENIES Plaintiff's motion to strike [Doc. 69] and GRANTS-IN-PART Plaintiff's motion for attorney's fees [Doc. 62].


On November 30, 2012, Plaintiff Amy May filed suit against her now-former landlord, Defendant Bruce K. Brunton, alleging discrimination and harassment on the basis of sex in violation of the federal Fair Housing Act and related state laws. ( Compl. [Doc. 1] ¶¶ 1, 6-35.) On January 18, 2013, Defendant filed his answer along with two counterclaims against Plaintiff for: (1) breach of contract, and (2) defamation. ( See Answer & Counterclaim [Doc. 5].) On February 11, 2013, Plaintiff moved to dismiss Defendant's breach of contract counterclaim. ( See MTD Counterclaim [Doc. 8].) Plaintiff also moved-under California Code of Civil Procedure § 425.16 (California's "anti-SLAPP" statute)-to strike Defendant's counterclaim for defamation. ( See Mot. Strike Counterclaim [Doc. 9].)

Thereafter, the parties filed, and the Court subsequently granted, a joint motion to dismiss Defendant's counterclaim for breach of contract. ( See March 15, 2013 Order [Doc. 16].) The Court then dismissed Defendant's counterclaim for defamation after Defendant filed a notice of non-opposition to Plaintiff's motion to strike. ( See April 5, 2013 Order [Doc. 24].) In the wake of that litigation, Plaintiff filed a motion for attorney's fees under the anti-SLAPP statute for work done by the Legal Aid Society of San Diego ("LASSD") on Plaintiff's case. ( See Mot. Anti-SLAPP Fees [Doc. 31].) On August 2, 2013, the Court granted the motion and awarded Plaintiff attorney's fees in the amount of $11, 660.00. ( August 2, 2013 Order [Doc. 34].)

On April 10, 2013, Magistrate Judge Mitchell D. Dembin held the telephonic case management conference. ( See CMC Minute Entry [Doc. 28].) The following day, the case management order regulating discovery and other pretrial proceedings issued. The order indicated that all expert disclosures required by Federal Rule of Civil Procedure 26(a)(2) be served on all parties on or before August 26, 2013, and that rebuttal disclosures within the meaning of Rule 26(a)(2)(D)(ii) be disclosed on or before September 26, 2013. ( CMC Order [Doc 29] ¶ 2.) The order further indicated that all discovery be completed by all parties on or before October 28, 2013. ( Id. ¶ 3.)

Thereafter, on May 30, 2014, Judge Dembin held a settlement conference, wherein the parties agreed to settle the case. ( See, e.g., Notice of Settlement [Doc. 56].) The terms of the settlement agreement provided that: (1) Defendant or his insurer would pay $40, 000 to Plaintiff by June 30, 2014; (2) Defendant or his insurer would pay Plaintiff's reasonable attorney's fees and costs to be fixed by the Court in the absence of an agreement as to the amount of such fees and costs;[1] and (3) Defendant would cease and desist from the operation or management of any investment rental dwelling, and would "retain a professional manager, certified as a California Certified Residential Manger by the California Apartment Association to operate and manage his rental dwellings, as further described in the parties' settlement agreement." ( Jt. Appl. & Stip. [Doc. 60] ¶¶ 2-4; see also Rep. Tr. of Settlement [Doc 62-3].) On July 29, 2014, Plaintiff filed the instant motion for attorney's fees. ( See Pl.'s Mot. Fees; Mem. P&A ISO Pl.'s Mot. Fees [Doc. 62-1].) On September 15, 2014, Defendant filed his opposition and supporting expert declaration challenging the total amount of fees sought by Plaintiff. ( Def.'s Opp'n [Doc. 66].) Subsequently, on October 10, 2014, Plaintiff filed her reply and concurrent motion to strike Defendant's expert declaration. ( See Pl.'s Reply [Doc. 70]; Pl.'s Obj. & Mot. Strike. )


Under the Fair Housing Act's fee-shifting provision, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs." 42 U.S.C. § 3613(c)(2).[2] A "prevailing party" for the purposes of attorney's fees is a party who "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in brining suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks omitted).[3] Stated differently, "a plaintiff prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) (citations omitted).

Initially, "[t]he fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S. at 433, 437). "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 hours charged or the facts asserted by the prevailing party in its submitted affidavits." Id. at 1397-98 (citing Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir. 1987)). Ultimately, "[i]t remains for the district court to determine what fee is reasonable.'" Hensley, 461 U.S. at 433.

Generally, a court begins its calculation of reasonable attorney's fees using the "loadstar" method, which calculates the product of the number of hours reasonably expended and a reasonable hourly rate. Hensley, 461 U.S. at 433; McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The court may then make adjustments to the lodestar, if necessary, to arrive at a reasonable fee. Blum, 465 U.S. at 888; Hensley, 461 U.S. at 434-37. Although the court "has a great deal of discretion in determining the reasonableness of the fee, " the court also must provide a "clear explanation of its reasons for the fee award.'" Gates, 987 F.2d at 1398 (quoting Hensley, 461 U.S. at 437). "[A] brief explanation of how the court arrived at its figures will do." Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).


In her motion, Plaintiff seeks a total of $101, 615.00 in fees for work completed by her attorneys Christopher Brancart, of Brancart & Brancart, and Branden Butler, of LASSD.[4] ( See Mem. P&A ISO Pl.'s Mot. Fees. ) This amount also includes work completed by Mr. Brancart's paralegal, Nathan Gardner. ( See, e.g., id. at 7:1-19; 14:7-10.) In addition to these fees, Plaintiff seeks costs in the amount of $4, 941.13.[5] Moreover, in her reply, Plaintiff seeks an additional $9, 102.00 in fees for time spent by her attorneys in "responding to [D]efendant's opposition, including attempting to subpoena information from defense counsel and [D]efendant's expert and preparing th[e] reply brief."[6] ( Pl.'s Reply 9:6-9.) Mr. Butler also seeks an additional $176.00 in costs incurred while working on Plaintiff's reply. ( See id. at 9:22-23 (requesting $2, 185.68 instead of the $2, 009.68 in costs sought in the fee motion).) Plaintiff's motion and reply include billing records and declarations in support of the amounts that she seeks.

Defendant, for his part, does not dispute that Plaintiff is the prevailing party, or that Plaintiff is entitled to reasonable attorney's fees. ( See Def.'s Opp'n 1:19-21; Jt. Appl. & Stip. ¶ 3; Rep. Tr. of Settlement 3:1-5.) Notably, Defendant also does not dispute the reasonableness of the hourly compensation rates proffered by Plaintiff's counsel, that Plaintiff is entitled to costs, or the reasonableness of the costs outlined in Plaintiff's motion. The only contested issue is the reasonableness of the hours billed by Plaintiff's counsel. ( Def.'s Opp'n 9:2; Pl.'s Reply 1:25-27.) Defendant submits the following arguments in his attempt to demonstrate the unreasonableness of the requested fees: (1) the fees sought are unreasonable in relation to the results Plaintiff's counsel have obtained; (2) documentation of the requested fees is improper; (3) the requested fees are excessive due to overstaffing; and (4) the time Mr. Brancart spent on the anti-SLAPP motion is not compensable. ( See Def.'s Opp'n. )

A. Plaintiff's Objection and Motion to Strike

In responding to the instant motion, Defendant submitted a timely opposition. ( See Def.'s Opp'n. ) Defendant appended to his opposition a document entitled "Rule 26 Disclosure and Declaration of Robert K. Sall." ( See Sall Decl. [Doc. 66-1] ¶¶ 1-2.) In the declaration, Mr. Sall purports to be an expert witness and provides a series of opinions in accordance with his engagement as such. ( See generally id. ) Plaintiff, in replying to the opposition, has filed a concurrent objection and motion to strike Mr. Sall's declaration. ( See Pl.'s Obj. & Mot. Strike. ) Before reaching the merits of Plaintiff's underlying fee motion, the Court will first address Plaintiff's motion to strike. For the following reasons, the Court DENIES Plaintiff's objection to and concurrent motion to strike Mr. Sall's declaration.

Under Federal Rule of Civil Procedure 26(a)(2)(A), a party must disclose the identity of each expert witness "it may use at trial to present evidence." Fed.R.Civ.P. 26(a)(2)(A) (emphasis added). Such disclosures must be "accompanied by a written report -prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case." Fed.R.Civ.P. 26(a)(2)(B). Rule 26(a)(2)(D) further provides that parties "must make these disclosures at the time and in the sequence that the court orders." ...

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