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In re Wage

United States District Court, E.D. California

July 15, 2016

IN RE TACO BELL WAGE AND HOUR ACTIONS

          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)

         Currently 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.

         I.

         BACKGROUND

         A jury 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 Procedure.

         The 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.

         Similarly, 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.

         The 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.

         On May 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.[1] (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.)

         II.

         LEGAL STANDARD

         Under 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).

         Pursuant 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.

         California 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. Id.

         III.

         ANALYSIS

         A. Plaintiffs are Entitled to Attorney Fees for the Underpaid Meal Premium Class Under California Code of Civil Procedure section 1021.5

         1. Attorney Fees

         Plaintiffs 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 sought.[2]

         In 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.

         Further, 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.

         At the 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).

         While 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 law.

         A 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 made.‘

'' 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.

         ''[T]he 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).

         Here, 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 necessary.

         The ''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.

         In 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.

         Plaintiffs 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.

         However, 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.

         2. Costs

         Plaintiffs argue that they should also be reimbursed for their costs.[3] 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).

         Further, 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.

         The 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.[4]

         Similarly 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[5]); 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 statute).

         Further, 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.[6] 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 untimely.

         B. Attorney Fees

         Plaintiffs 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.

         California 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.

         California 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).[7] ''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).

         ''The 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).

         1. Hours Reasonably Expended

         Plaintiffs are seeking to be compensated for 12, 876.9[8] 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.

         It is 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.

         a. Bisnar Chase

         Defendants 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.

         While 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 (2014).

         In this 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 action.

         b. Overhead Billing

         Defendants 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).

         The Court has reviewed the list of overhead billing provided by Defendants‘ analyst. (ECF No. 760-1 at 123-127.) Mr. Jardini[9] 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:

Entry Date

Timekeeper

Description

Hours

2/23/15

JSL

Legal research re ex parte procedures

.2

1/18/16

DS

Prepare for attend meeting with Jeff Gold Trial Technologies

1.5

2/14/08

GY-I

Prepare joint report for filing

.7

4/18/08

GY-I

Research regarding deposition procedures

.3

4/30/08

GY-I

Research regarding changes to deposition transcript

.6

6/22/09

SW-I

Researched FRCP regarding service

.5

2/13/14

JLI-I

Legal research regarding responses and objections to interrogatories in California Practice Guide

1.9

2/13/14

JLI-I

Legal research regarding responses and objection to interrogatories in Federal Rules of Civil Procedure

.6

         The Court shall reduce the requested hours by the remaining 184.5 hours identified in Exhibit 2 pages 86 through 101 of Mr. Jardini‘s declaration.

         c. Interoffice Communication

         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.

         This 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.

         d. Hours Billed

         Plaintiffs seek approximately 2, 300 hours for work on class certification motions, over 1700 hours for other motion practice, and approximately 4, 000[10] 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.

         The 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.

         On 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.

         On 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.

         From 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.

         Review 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 ...


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