United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS‘ MOTION FOR ATTORNEY FEES, LITIGATION
EXPENSES, AND ENHANCEMENT AWARDS (ECF NOS. 751, 754, 760,
771, 775, 776)
before the Court is Plaintiffs‘ motion for attorney
fees. Oral argument on the motion was heard on June 15, 2016.
Matthew Theriault, Monica Balderrama, Andrew Sokolowski,
Stuart Chandler were present and Jerusalem Beligan appeared
telephonically for the class and Tracey Kennedy, Nora Stiles,
Morgan Forsey, and John Makarewich were present for
Defendants Taco Bell Corp. and Taco Bell of America, Inc.
Having considered the moving, opposition and reply papers,
the declarations and exhibits attached thereto, arguments
presented at the June 15, 2016 hearing, as well as the
Court‘s file, the Court issues the following order.
trial was held in this action beginning on February 22, 2016,
on the claims of three classes which had been certified in
this action: the Late Meal Period Class, the Underpaid Meal
Period Class, and the Rest Period Class. The parties agreed
to have the Court decide Plaintiffs‘ claims under
California‘s Private Attorney General Act
(''PAGA''). On March 9, 2016, the jury
returned a verdict. At the conclusion of the presentation of
evidence, Defendants moved for judgment as a matter of law
pursuant to Rule 50(a) of the Federal Rules of Civil
jury found that the Late Meal Period Class had proved that
Defendant had a standardized or uniform policy that did not
provide meal periods that began before the end of the fifth
hour an employee worked for the relevant time period. But the
Class did not prove that during the relevant time period
class members were non-exempt employees who worked for a
corporate Taco Bell Corporate restaurant and worked shifts
longer than six hours without being provided a meal period
that began before the end of the fifth hour of work.
the jury found that the Rest Period Class had proved that
Defendant had a standardized or uniform company-wide policy
that did not authorize and permit a second ten minute or a
net twenty minute rest period when an employee worked more
than six hours and less than seven hours. But the Class did
not prove that that during the relevant time period class
members were non-exempt employees who worked for a corporate
Taco Bell Corporate restaurant and worked shifts longer than
six hours but less than seven hours without being authorized
and permitted to take a second ten minute or net twenty
minute rest period.
jury found that the Underpaid Meal Premium Class had proved
that from September 7, 2003 through November 12, 2007,
Defendant had a standardized or uniform company-wide policy
that underpaid meal premiums for missed or short meal periods
and that during this time period the class members were
non-exempt employees who worked for a Taco Bell Corporate
restaurant and missed or received short meal periods and were
paid a meal premium payment of less than one full hour of
compensation. The jury awarded damages in the amount of $495,
913.66 to the Underpaid Meal Premium Class.
9, 2016, Plaintiffs filed a motion for attorney fees,
litigation expenses, and incentive awards. (ECF No. 751.)
Plaintiffs filed a revised declaration in support of the
motion for attorney fees on May 13, 2016. (ECF No. 754.)
Defendants filed an opposition to the motion for attorney
fees on June 1, 2016. (ECF No. 760.) On June 10, 2016,
Plaintiffs filed a reply. (ECF No. 771.) On June 17, 2016,
Plaintiffs filed a supplemental briefing on the authority to
issue incentive awards. (ECF No. 775.) Defendants filed a
supplemental response on June 21, 2016. (ECF No. 776.)
the ''American Rule'', each party to a
lawsuit ordinarily bears its own attorney fees unless there
is express statutory authorization to award attorney fees.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). In a
diversity action, the federal district court applies the
substantive law of the forum state, which in this instance is
California. Kabatoff v. Safeco Ins. Co. of Am., 627
F.2d 207, 209 (9th Cir. 1980). In general, California law
only allows a prevailing party to recover attorney‘s
fees when a statute or an agreement of the parties provides
for fee shifting. Kirby v. Immoos Fire Prot., Inc.,
53 Cal.4th 1244, 1248 (2012).
to Labor Code Section 218.5, a party may recover reasonable
attorney fees and costs where he prevails in ''any
action brought for the nonpayment of wages, fringe benefits,
or health and welfare or pension fund
contributions.'' Cal. Lab. Code § 218.5(a).
Section 1194 allows an employee to recover reasonable
attorney fees and costs if he prevails in an action to
recover the full amount of minimum wage or overtime
compensation. Cal. Lab. Code § 1194(a). The California
Supreme Court has held that a party who prevails on an action
brought under Labor Code section 226.7 cannot recover
attorney fees and costs under Labor Code Sections 218.5 or
1194. Kirby, 53 Cal.4th at 1248.
has provided an exception to the American Rule in section
1021.5 of the California Code of Civil Procedure which allows
a successful party in an action to recover attorney fees
where the action has ''has resulted in the
enforcement of an important right affecting the public
interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a
large class of persons, (b) the necessity and financial
burden of private enforcement are such as to make the award
appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.''
Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 565
(2004), as modified (Jan. 12, 2005) (quoting Cal. Code Civ.
P. § 1021.5). The private attorney general doctrine
rests on the recognition that lawsuits which are privately
initiated are often essential to effectuate fundamental
public policies which are embodied in constitutional or
statutory provisions. Graham, 34 Cal.4th at 565. The
fundamental objective of the private attorney general
doctrine is to encourage suits which enforce important public
policies by providing attorney fees to successful litigants.
Plaintiffs are Entitled to Attorney Fees for the Underpaid
Meal Premium Class Under California Code of
Civil Procedure section 1021.5
seek attorney fees pursuant to section 1021.5 arguing that
this action enforced an important wage law governing meal
breaks that benefited a large class of individuals.
Plaintiffs contend that this action caused Taco Bell to
remedy an unlawful policy of only paying employees one-half
hour of premium pay for missed or short meal breaks.
Defendants counter that Plaintiffs have not shown that this
action resulted in the enforcement of an important right
affecting the public interest. Furthermore, Defendants argue
that Plaintiffs have not established that any significant
benefit has been conferred on a large class of persons.
Defendants also claim that Plaintiffs cannot prevail on a
catalyst theory because they cannot establish that this
lawsuit caused Taco Bell to provide the primary relief
determining whether an award of attorney fees should be
granted, ''[t]he trial court in its discretion
'must realistically assess the litigation and determine,
from a practical perspective, whether or not the action
served to vindicate an important right so as to justify an
attorney fee award‘ under section 1021.5.''
Graham, 34 Cal.4th at 566 (quoting Woodland
Hills Residents Assn., Inc. v. City Counsel
(''Woodland Hills''), 23 Cal.3d 917, 938
(1979)). In this instance, the Court finds that Plaintiffs
are entitled to recover fees for the Underpaid Meal Premium
Class claim in this action. While Defendants argue that
Plaintiffs‘ have not demonstrated that this lawsuit
caused Taco Bell to provide the primary relief sought, within
several months of this lawsuit being filed Taco Bell changed
its autopay policy to pay employees one hour of premium pay
for missed or short meal periods to comply with California
law. The timing of the change in the amount of autopay, from
one-half to one full hour of pay, is circumstantial evidence
from which the Court finds that this lawsuit was the reason
that Taco Bell changed its autopay policy.
while Defendants argue that Plaintiffs did not prove that a
large class of persons received a significant benefit from
the policy change, during the four years prior to the policy
change the jury found that there were 134, 419 violations of
state law. These violations would have continued had the
policy not changed. So this lawsuit benefited not only the
class members who will receive compensation by the
jury‘s verdict here, but all those employees who
received the statutory amount of autopay due to the policy
change. The Court finds that this action conferred a
significant benefit on a large class of persons.
June 15, 2016 hearing, Defendants argued that Plaintiffs are
not entitled to fees pursuant to section 1021.5 because they
were bringing this action for their personal benefit. The
plaintiffs personal motivation does not diminish the fact
that Plaintiffs pursued this action on behalf of
Defendants‘ past and future employees and received an
award on behalf of some of these employees. ''No more
is required to satisfy the 'significant benefit, ‘
'public interest, ‘ and 'large class of
persons‘ requirements of section 1021.5.''
Estrada v. FedEx Ground Package Sys., Inc., 154
Cal.App.4th 1, 17 (2007).
Defendants are correct that section 1021.5 does not provide
that a plaintiff is entitled to attorney fees for an action
brought under section 226.7, section 226.7 requires an
employer to provide a meal period mandated pursuant to an
applicable statute, regulation, standard or order. The Court
finds that the rights conferred by section 226.7, which apply
to all non-exempt employees, are important rights under
California appellate court recently discussed whether the
necessity and financial burden of private enforcement are
such as to make an award of attorney fees and costs
appropriate. See Davis v. Farmers Ins. Exch., 245
Cal.App.4th 1302, 1329 (2016), as modified on denial of
reh‘g (Apr. 21, 2016). ''The purpose of an
award of attorneys‘ fees pursuant to section 1021.5 is
to encourage suits that enforce 'common interests of
significant societal importance, but which do not involve any
individual‘s financial interest to the extent necessary
to encourage private litigation to enforce the
right.'' Davis, 245 Cal.App.4th at 1329.
''The financial burden of private enforcement
requirement means that an award of attorney fees under
section 1021.5 of the Code of Civil Procedure is only
appropriate when the cost of the claimant‘s legal
victory transcends his or her personal interest-i.e., when
the necessity for pursuing the lawsuit placed a burden on the
plaintiff out of proportion to his or her individual stake in
the matter.'' ''Section 1021.5 was not
designed as a method for rewarding litigants motivated by
their own pecuniary interests who only coincidentally protect
the public interest.'' ''Private attorney
general fees are not intended to provide insurance for
litigants and counsel who misjudge the value of their case,
and vigorously pursue the litigation in the expectation of
recovering substantial damages, and then find that the
jury‘s actual verdict is not commensurate with their
expenditure of time and resources.'' The relevant
issue is '' 'the estimated value of the case at
the time the vital litigation decisions were being
'' Id. at 1329-30 (internal citations
omitted). The court in Davis found that at every
critical juncture, the plaintiff expected a substantial
financial recovery and this was sufficient motivation to
pursue the action. Id. at 1330.
necessity and financial burden requirement 'really
examines two issues: whether private enforcement was
necessary and whether the financial burden of private
enforcement warrants subsidizing the successful party‘s
attorneys.‘ '' In re Conservatorship of
Whitley (''Whitley''), 50 Cal.4th 1206,
1214 (2010) (quoting Lyons v. Chinese Hosp. Assn.,
136 Cal.App.4th 1331, 1348 (2006)). The
''necessity'' of private enforcement
''looks to the adequacy of public enforcement and
seeks economic equalization of representation in cases where
private enforcement is necessary.'' Whitley,
50 Cal.4th at 1215 (citations omitted).
Plaintiffs argue that private enforcement was necessary
because the public enforcement agency declined to investigate
the claims against Defendants. However, as the Court has
previously found, Plaintiffs did not raise the issue that
Defendants were underpaying the meal premium claim to the
LWDA. (See Order Denying Plaintiffs‘ Request
for Private Attorney General Act Penalties 4 n.1, ECF No.
742.) Plaintiffs argued at the June 15, 2016 hearing that the
LWDA does not prosecute actions such as this due to the lack
of resources. Although Plaintiffs did not raise the meal
premium issue before the LWDA, the Court shall assume for the
purposes of this motion that private enforcement was
''financial burden of private enforcement''
prong focuses ''not only on the costs of the
litigation but also any offsetting financial benefits that
the litigation yields or reasonably could have been expected
to yield. Whitley, 50 Cal.4th at 1215. ''An
award on the 'private attorney general‘ theory is
appropriate when the cost of the claimant‘s legal
victory transcends his personal interest, that is, when the
necessity for pursuing the lawsuit placed a burden on the
plaintiff 'out of proportion to his individual stake in
the matter.‘'' Id. (quoting
Woodland Hills, 23 Cal.3d at 941). This focuses on
the financial burdens and incentives involved in bringing the
action. Whitley, 50 Cal.4th at 1215.
making this determination, the court approximates the
estimated value of the action at the time that the vital
litigation decisions were made and then considers the costs
of the litigation (attorney fees, deposition costs, expert
witness fees) which were required to bring the action to
fruition. Whitley, 50 Cal.4th at 1215. The court
then considers the estimated value of the action beside the
actual cost and makes a value judgment on whether the bounty
of the court awarded fee should be provided to encourage the
sort of litigation involved in the case. Id. The
award of attorney fees is not appropriate where the expected
value of the litigants‘ own monetary award exceeds the
actual litigation costs by a substantial margin. Id.
argue that the small amount of recovery for each Plaintiff
was small and the litigation costs to bring a class action
would vastly outstrip Plaintiffs‘ expected recovery.
However, the case law directs the Court to consider the value
of the litigation, not the value of the individual claims in
a class action. Prior to the trial in this action, Plaintiffs
were seeking damages and penalties of over $46 million for
the Rest Period Class; over $125 million for the Late Meal
Period Class; and over $10 million for the Underpaid Meal
Premium Class. (ECF No. 562-1 at 55-58.) Only twenty-five
percent of the penalties would be received by Plaintiffs,
therefore the estimated value of this action was
approximately $65.1 million. This does not include the claims
that were dismissed during the pendency of the litigation.
The Court finds that at the time that the vital litigation
decisions were made, the bounty of a court awarded fee was
not necessary to encourage the sort of litigation involved in
the case. In making this determination, the court considers
the attorney fees incurred in prosecuting this action,
including those which Plaintiffs have stated were omitted
from their fee request.
the Court also considers that Plaintiffs proved that
Defendants violated California law by paying only one half
hour premium pay to the Underpaid Meal Premium Class.
Although Plaintiffs proved the violation of the law, they
failed to prove the penalty due because of the violation. Had
Plaintiffs submitted sufficient evidence to prove the penalty
due, they would have been entitled to attorney fees pursuant
to California‘s Private Attorney General Act.
Therefore, upon consideration of the factors warranting
attorney fees pursuant to section 1021.5, the Court finds
that attorney fees should be awarded in this instance.
argue that they should also be reimbursed for their
costs. In a diversity action, federal not state
law controls the issue of costs. Aceves v. Allstate Ins.
Co., 68 F.3d 1160, 1167 (9th Cir. 1995); see
also 10 C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure (''Wright and
Miller'') § 2669 (3d ed. 1998). Under federal
law, 28 U.S.C. § 1920 ''define[s] the full
extent of a federal court‘s power to shift litigation
costs absent express statutory authority.'' Grove
v. Wells Fargo Fin. California, Inc., 606 F.3d 577, 579
(9th Cir. 2010). Those costs taxable under section 1920 are
limited to relatively minor, incidental expenses.
Taniguchi v. Kan.Pac. Saipan, Ltd., 132 S.Ct. 1997,
2006, (2012). ''Taxable costs are a fraction of the
nontaxable expenses borne by litigants for attorneys,
experts, consultants, and investigators. It comes as little
surprise, therefore, that 'costs almost always amount to
less than the successful litigant‘s total expenses in
connection with a lawsuit.‘ ''
Taniguchi, 132 S.Ct. at 2006 (quoting Wright and
Miller § 2666, p. 203).
while Plaintiffs argue that they should be able to receive
costs normally received under California law,
Plaintiffs‘ provide no authority to receive non-taxable
costs under California law in the situation here. Section
1021.5 provides for attorney fees but is silent on the issue
of costs and Plaintiffs provide no state authority
authorizing reimbursement of costs pursuant to section
1021.5. The California Supreme Court considered the issue of
recovery of costs under section 1021.5, specifically expert
witness fees. Olson v. Auto. Club of S. California,
42 Cal.4th 1142 (2008). ''[T]he costs of a civil
action consist of the expenses of litigation, usually
excluding attorney fees.'' Olson, 42 Cal.4th
at 1148 (internal punctuation and citation omitted).
California follows the common law rule that parties to
litigation must bear their own costs unless the right to
costs is provided by statute. Id. at 1149. The
Supreme Court held that nothing in the plain language of
section 1021.5 provides for the award of costs. Id.
at 1157 (2008). While taxable costs may be recoverable where
the underlying statute provides for costs, that is not the
situation here. Accordingly, under California law, Plaintiffs
are not entitled to additional costs other than those
enumerated in 28 U.S.C. § 1920 in this action.
Court finds Plaintiffs citation to Trustees of Const.
Indus. & Laborers Health & Welfare Trust v. Redland
Ins. Co. (''Redland''), 460 F.3d 1253,
1257 (9th Cir. 2006), distinguishable. The Redland
court was addressing the recovery of computer based legal
research costs as attorney fees. Id. at 1257-58.
Redland does not stand for the proposition that all
costs of litigation can be recovered on a motion for attorney
fees. Most of the costs sought here, office supplies,
document review, travel expenses and parking costs, experts
and consulting services, translation, research fees,
mediation expenses, telephone fees, copying and
exemplification costs, service fees, and court fees, are not
the type of expenses contemplated to be charged as attorney
fees by Redland.
Plaintiffs other citations to cases allowing costs are
distinguishable as the underlying statutes provide for
reimbursement of costs. See Parkinson v. Hyundai Motor
Am., 796 F.Supp.2d 1160, 1165 (C.D. Cal. 2010) (awarding
costs under California Consumers Legal Remedies Act which
provides for an award of costs and attorney fees);
Johnson v. General Mills, Inc., No. SACV
10-00061-CJC(ANx), 2013 U.S.Dist. Lexis 90338, at *22 (C.D.
Cal. June 17, 2013) (awarding costs at settlement pursuant to
the stipulation of the parties); Torchia v. W.W. Grainger,
Inc., 304 F.R.D. 256, 278 (E.D. Cal. 2014) (same);
cf. Muniz v. United Parcel Serv., Inc., No. C
09-01987 CW, 2011 WL 3740808, at *6 (N.D. Cal. Aug. 23,
2011), aff‘d in part, vacated in part, 738 F.3d 214
(9th Cir. 2013) (awarding costs under section 1920 and
denying costs for office supplies as not authorized by the
to the extent that costs are recoverable in this action under
section 1920, the Local Rule provides that within fourteen
days from the entry of judgment the prevailing party may file
a bill of costs. Local Rule 292; Fed.R.Civ.P. 54(d). The
Court has addressed Plaintiffs‘ timely filed bill of
costs detailing these allowable costs. Plaintiffs have
provided no reason for the untimely filing seeking additional
costs, and have not shown good cause to enlarge the time to
file costs. Therefore, the additional costs recoverable under
28 U.S.C. § 1920 sought by this motion are denied as
seek attorney fees in the amount of $7, 323, 777.50.
Defendants counter that Plaintiffs requested hourly rates and
stated hours are unreasonable and should also be reduced due
to their limited success in this action.
and the Ninth Circuit utilize the
''lodestar'' approach for assessing
reasonable attorney fees, where the number of hours
reasonably expended is multiplied by a reasonable hourly
rate. Gonzalez v. City of Maywood, 729 F.3d 1196,
1202 (9th Cir. 2013); Ketchum v. Moses, 24 Cal.4th
1122, 1131, 17 P.3d 735, 741 (2001). ''[T]he lodestar
is the basic fee for comparable legal services in the
community; it may be adjusted by the court based on factors
including, as relevant herein, (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, (4)
the contingent nature of the fee award.''
Ketchum, 24 Cal.4th at 1132.
courts consider the reasonableness of an attorney fee by
considering a variety of factors: '' the nature of
the litigation, its difficulty, the amount involved, the
skill required and the skill employed in handling the
litigation, the attention given, the success of the
attorney‘s efforts, his learning, his age, and his
experience in the particular type of work demanded; the
intricacies and importance of the litigation, the labor and
the necessity for skilled legal training and ability in
trying the cause, and the time consumed. Martino v.
Denevi, 182 Cal.App.3d 553, 558 (1986). ''To
enable the trial court to determine whether attorney fees
should be awarded and in what amount, an attorney should
present '(1) evidence, documentary and oral, of the
services actually performed; and (2) expert opinion, by [the
applicant] and other lawyers, as to what would be a
reasonable fee for such services.‘ ''
Martino, 182 Cal.App.3d at 558 (citations omitted).
principle that attorney fees should not be reduced solely
because a litigant did not succeed on all claims or theories
is based on the practical reality that ''it is
impossible for an attorney to determine before starting work
on a potentially meritorious legal theory whether it will or
will not be accepted by a court years later following
litigation.'' Hogar v. Cmty. Dev. Com. of City of
Escondido, 157 Cal.App.4th 1358, 1369 (2007), as
modified (Jan. 10, 2008). However, ''where a
plaintiff has achieved limited success or has failed with
respect to distinct and unrelated claims'' a
reduction in the lodestar is appropriate. Hogar, 157
Cal.App.4th at 1369. The party seeking fees has the burden to
prove that the fees sought are reasonable. Ctr. For
Biological Diversity v. Cty. of San Bernardino, 188
Cal.App.4th 603, 615 (2010), as modified (Oct. 18, 2010).
Hours Reasonably Expended
are seeking to be compensated for 12, 876.9 hours expended in
this litigation by five different firms: 6, 333.5 hours by
Capstone Law, APC; 4, 767.3 hours by Initiative Legal Group
APC; 545 hours by Stuart Chandler, APC; 515.1 hours by Law
Offices of Mark Yablonovich; and 716 hours by Bisnar Chase.
Defendants argue that due to the number of law firms involved
in this action, the case was overstaffed which resulted in
expending an unreasonable number of hours.
within the discretion of the trial court to determine whether
the amount of fees requested are reasonable. Christian
Research Inst. v. Alnor, 165 Cal.App.4th 1315, 1321
(2008). Even where the award of attorney fees are mandatory
the submission of an inflated fee request constitute a
special circumstance and the court may adjust the fee
downward or deny an unreasonable fee altogether.
Christian Research Inst., 165 Cal.App.4th at 1321.
Plaintiffs are seeking recovery for fees of multiple firms,
some of whom did not present any evidence that any work in
this action was on the claims that went to trial, much less
on the Underpaid Meal Premium Class that prevailed at trial.
As discussed below, the attorneys billed over 180 hours for
performing duties that should be part of the overhead and are
not compensable as attorney fees. Hours are billed that
relate to the claims that were dismissed from this action.
Over 700 hours were billed for interoffice communication.
Multiple attorneys billed time for the same events and to
review the same documents. This supports Defendants‘
analyst‘s opinion that an excessive amount of hours are
billed due to the number of attorneys assigned to this
action. For the reasons discussed below, the Court finds that
the fee request in this instance is unreasonably inflated.
object to the hours requested by Bisnar Chase on the grounds
that there are no supporting documents to support the hours
requested. Bisnar Chase has submitted the declaration of
Jerusalem F. Beligan stating that the firm is counsel of
record for Plaintiff Endang Widjaja. (ECF No. 751-22.) The
firm is seeking 182 hours for Brian D. Chase, 518 hours for
Jerusalem Beligan, and 16 hours for Sarah Serpa.
(Id. at 2.) The declaration contains no time records
or discussion as to the services provided.
federal courts require an attorney to maintain and submit
contemporaneous, complete and standardized time records in an
application for attorney fees, contemporaneous time records
are not required in California in order to recover attorney
fees. Martino, 182 Cal.App.3d at 559. In California,
the ''testimony of an attorney as to the number of
hours worked on a particular case is sufficient evidence to
support an award of attorney fees, even in the absence of
detailed time records.'' Id.
''Declarations of counsel setting forth the
reasonable hourly rate, the number of hours worked and the
tasks performed are sufficient.'' Concepcion v.
Amscan Holdings, Inc., 223 Cal.App.4th 1309, 1324
action, Bisnar Chase represented Plaintiff Widaja. On
February 11, 2009, Plaintiff Widaja filed a class action
complaint alleging claims for failure to reimburse expenses,
failure to provide rest periods, violation of the California
Business and Professions Code section 17200 and conversion.
(ECF No. 132 at 3.) The action was consolidated into this
action on October 22, 2009. (Id. at 4.) While
detailed time records are not required, counsel still must
submit sufficient evidence for the court to find that the
hours requested were reasonably expended in this action.
Here, Bisnar-Chase did not present any evidence of the tasks
performed in this action. Bisnar Chase has not met the burden
to present sufficient evidence for the Court to find that any
of the hours requested were reasonably spent on the claims
that proceeded to trial in this action. Additionally, as
discussed below, Plaintiffs are only entitled to attorney
fees for the claims of the Underpaid Meal Premium Class and
Bisnar-Chase has presented no evidence that any hours
expended in this action were on behalf of the Underpaid Meal
Premium Class. Accordingly, the Court denies Bisnar
Chase‘s request to be reimbursed for 716 hours in this
identify time records to show that attorneys billed 190.55
hours for tasks that are non-compensable attorney functions,
such as preparation of proofs of service, electronically
filing documents, supervising the filing of documents, and
preparing documents for mailing. Generally,
''necessary support services for attorneys, e.g.,
secretarial and paralegal services, are includable within an
award of attorney fees.'' City of Oakland v.
McCullough, 46 Cal.App.4th 1, 7 (1996).
Court has reviewed the list of overhead billing provided by
Defendants‘ analyst. (ECF No. 760-1 at 123-127.) Mr.
Jardini identified 113.7 hours which he identified
as tasks that were non-compensable attorney functions.
Generally, the Court finds that these services are not
compensable as attorney time as they reflect clerical tasks
or supervision of clerical tasks. The Court finds that 6.3 of
the hours identified are compensable as follows:
Legal research re ex parte procedures
Prepare for attend meeting with Jeff Gold Trial
Prepare joint report for filing
Research regarding deposition procedures
Research regarding changes to deposition transcript
Researched FRCP regarding service
Legal research regarding responses and objections to
interrogatories in California Practice Guide
Legal research regarding responses and objection to
interrogatories in Federal Rules of Civil Procedure
Court shall reduce the requested hours by the remaining 184.5
hours identified in Exhibit 2 pages 86 through 101 of Mr.
Jardini identifies 718.55 hours spent in interoffice
communication that Defendants contend are excessive. The
Court does find that due to the number of firms and attorneys
handling this action interoffice communication hours were
excessive. While due to the nature of this action a certain
amount of interoffice communication could reasonably be
billed to a client, 718.55 hours is unreasonably excessive.
The Court notes that in reviewing the communication entries
multiple attorneys billed for the same communication.
case spanned a period of approximately eight and one half
years. The missed meal period and missed rest period claims
were stayed on September 9, 2011. The Court finds that based
upon the nature and length of this action approximately 200
hours of interoffice communication would be a reasonable
amount of hours to have expended during the pendency of this
action. This would average to approximately two hours of
consultation per month. Plaintiff‘s request shall be
reduced by 500 hours to compensate for excessive hours billed
for interoffice communication.
seek approximately 2, 300 hours for work on class
certification motions, over 1700 hours for other motion
practice, and approximately 4, 000 hours for pre-trial and
trial work. (ECF No. 751-1 at 20-21.) Defendants seek to have
Plaintiffs‘ request reduced due to excessive billings
for motion practice. Defendants request that the Court reduce
the 2, 300 hours billed for class certification and 1, 700
hours billed for other motions to 1, 875 hours. Defendants
further cite to Mr. Jardini‘s opinion that a reasonable
number of hours for a trial such as this would be less than
1, 200 for all claims and requests the hours for trial work
be reduced by 2, 800 hours. Defendant argues that there are
still 7, 000 hours billed for additional services in this
action that should be reduced.
district court may reduce the hours by 1) conducing
''an hour by hour analysis of the fee request,
'' and excluding ''those hours for which it
would be unreasonable to compensate the prevailing
party[;]'' or 2) ''when faced with a massive
fee application the district court has the authority to make
across-the-board percentage cuts either in the number of
hours claimed or in the final lodestar figure as a practical
means of [excluding non-compensable hours] from a fee
application.'' Gonzalez, 729 F.3d at 1203
(quoting Gates v. Deukmejian, 987 F.2d 1392, 1399
(9th Cir. 1992)). The Court agrees that an unreasonable
amount of hours have been billed in this action and finds
that Plaintiffs billed unreasonably excessive hours starting
early in this action. For example, review of the billing
records show that on December 18, 2009, two attorneys billed
7.2 hours to prepare a two page stipulation and proposed
order to continue dates in the scheduling order. (ECF No.
86.) Even considering the time needed to confer on dates, two
hours would be more than reasonable for this task.
October 29, 2009, 3 attorneys billed a total of 5.2 hours for
work on the amended consolidation order. (ECF No. 134.) This
document is substantially similar to the amended
consolidation order filed on June 6, 2009 with just the
addition of several paragraphs identifying the new parties.
(ECF No. 106-1.) One hour would be more than adequate to have
conferred and made the additions to this amended order.
October 13, 2009, 2 attorneys billed 8.10 hours to prepare a
2 page motion to compel the deposition of the person most
knowledgeable which contains only factual statements and no
law or legal analysis. (ECF No. 138.) The Court finds upon
review of this document that two hours would be more than
reasonable to spend preparing this document.
January 26, 2014 to April 18, 2014, three attorneys billed
28.9 hours to review and revise the mediation statement. This
is in addition to the initial hours billed to prepare the
statement and 28.95 hours billed by three attorneys to
prepare for and attend the single day mediation which
occurred on April 29, 2014. On November 14, 2014, three
attorneys billed 4.6 hours to review and analyze two six page
orders issued by this court.
of the time records provided by the Law Offices of Mark
Yablonovich shows services billed for the claims of Kevin
Taylor. Review of Mr. Taylor‘s payroll verification
reports demonstrates that he never worked six hours, and
therefore was not a member of any class in this action. (ECF
No. 760-1 at 23-35.) Review of these time records provided by
the Law Offices of Mark Yablonovich demonstrates that a
significant number of hours were billed for review of
documents created by other attorneys or orders issued by this
court which were also reviewed by other ...