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Z.F. v. Ripon Unified School District Rusd

United States District Court, E.D. California

March 20, 2017

Z.F., a minor, by and through his parents M.A.F. and J.F. and M.A.F. and J.F. individually; L.H., and J.H., minors, by and through their parents J.A. and J.R.H. and J.A. and J.R.H. individually; A.N., a minor, by and through his parents G.N. and M.R., and G.N. and M.R. individually, Plaintiffs,
RIPON UNIFIED SCHOOL DISTRICT RUSD; RIPON UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES; SAN JOAQUIN COUNTY OFFICE OF EDUCATION; VALLEY MOUNTAIN REGIONAL CENTER VMRC, MODESTO CITY SCHOOLS, MODESTO CITY SCHOOLS BOARD OF EDUCATION, RICHARD JACOBS, Executive Director of VMRC, in his official and individual capacity, TARA SISEMORE-HESTER, Coordinator for Autism Services for VMRC, in her official and individual capacity; VIRGINIA JOHNSON, Director of Modesto City Schools SELPA, in her official and individual capacity; SUE SWARTZLANDER, Program Director for Modesto City Schools, in her official and individual capacity and Does 1 - 200, Defendants. VALLEY MOUNTAIN REGIONAL CENTER, RICHARD JACOBS and TARA SISEMORE-HESTER, Counterclaimants,


          Troy L. Nunley United States District Judge

         This matter is before the Court pursuant to Plaintiffs J.H., L.H., and their parents J.A., J.R.H.'s (collectively “Plaintiffs”) Motion for Attorneys' Fees (ECF No. 283.) Defendant Modesto City Schools (“MCS”) opposes Plaintiffs' motion. (ECF No. 288.) The Court has carefully considered the arguments raised by both parties. For the reasons set forth below, Plaintiffs' Motion for Attorneys' Fees (ECF No. 283) is GRANTED IN PART and DENIED IN PART.

         I. Background and Procedural History

         Plaintiffs are one of three families suing four defendant agencies for disability services. On May 28, 2014, MCS served a Rule 68 Offer of Judgment on Plaintiffs, offering to pay Plaintiffs J.H. and L.H. $50, 001 each along with costs and reasonable attorneys' fees. (Notice of Rule 68 Offer Acceptance, ECF No. 239-1 at 2.) On June 4, 2014, Plaintiffs accepted Defendant MCS's Rule 68 offer. (ECF No. 239-1 at 2.) Plaintiffs and MCS, however, were unable to reach an agreement on the amount of costs and reasonable attorneys' fees payable by MCS. (Pltfs.' Motion for Fees, ECF No. 283 at 3.) Plaintiffs bring this motion for attorneys' fees against MCS, but maintain their surviving claims against the other Defendants.

         II. Legal Standard

         In the Ninth Circuit, the starting point for determining reasonable attorneys' fees is the calculation of the “lodestar, ” which is obtained by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. See Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). In determining a reasonable number of hours, the court must review detailed time records to determine whether the hours claimed by the applicant are adequately documented and whether any of the hours were unnecessary, duplicative or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh'g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987). To determine a reasonable rate for each attorney, the court must look to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Id. at 1210-11.

         “The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” Jordan, 814 F.2d at 1263. “Affidavits of the plaintiff's attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiff's attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

         In calculating the lodestar, the court should consider any relevant factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied 425 U.S. 951 (1976). Jordan, 815 F.2d at 1264 n.11 (noting that the Ninth Circuit no longer requires that the district court address every factor listed in Kerr). In Kerr, the Ninth Circuit adopted the 12-factor test articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The court in Kerr looked to the following factors for determining reasonable attorneys' fees: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skilled requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr, 526 F.2d at 70.

         To the extent that the Kerr factors are not addressed in the calculation of the lodestar, they may be considered in determining whether the fee award should be adjusted upward or downward, once the lodestar has been calculated. Chalmers, 796 F.2d at 1212. However, there is a strong presumption that the lodestar figure represents a reasonable fee award. Jordan, 815 F.2d at 1262. An upward adjustment of the lodestar is appropriate only in extraordinary cases, such as when an attorney faced exceptional risks of not prevailing or not recovering any fees. Chalmers, 796 F.2d at 1212. A reduced fee award is appropriate where a plaintiff achieves only partial or limited success. Hensley, 461 U.S. at 436. To be compensable, an attorney's time must be “reasonable in relation to the success achieved.” Id. When accounting for limited success, a court may eliminate specific hours in calculating the lodestar or simply reduce the award. Id.

         III. Analysis

         Plaintiffs argue that MCS's Rule 68 offer of judgment in the amount of $100, 002 renders them prevailing parties. (ECF No. 283 at 5.) Plaintiffs submitted an initial lodestar calculation of $139, 194, and agreed to a reduction of $24, 360 to account for the Loughrey firm's work related to the counterclaim filed by Valley Mountain Regional Center (“VMRC”). (ECF No. 283 at 9.) Plaintiffs contend they are entitled to a positive lodestar multiplier due to the substantial success and amount achieved by the Rule 68 offer of judgment, but do not ask the Court to apply a positive lodestar multiplier. (ECF No. 283 at 9.) Thus, Plaintiffs' motion seeks $114, 834 in attorneys' fees and $7, 155 in additional attorneys' fees to bring this motion, for a total of $121, 989. (ECF No. 283 at 10.)

         MCS does not dispute Plaintiffs are entitled to reasonable attorneys' fees, and agrees to the use of the lodestar approach. (ECF No. 288 at 5.) MCS vigorously objects to the reasonable number of hours included in the lodestar. (ECF No. 288 at 5.) First, MCS argues that the lodestar should be reduced to only include hours expended advancing the claims of Plaintiffs L.H. and J.H. against MCS. (ECF No. 288 at 9.) MCS explains that equitable considerations and factors like relative culpability and time spent litigating against each defendant, support a 75% reduction of the hours.[1] (ECF No. 288 at 10-11.) Second, MCS objects to the inclusion of non- attorney and non-paralegal staff time in the lodestar. (ECF No. 288 at 12.) Third, MCS seeks exclusion of Counsels' time spent on an unsuccessful class certification motion and defense of VMRC's counterclaim. (ECF No. 288 at 14-20.) Finally, MCS requests further reduction due to the “ongoing nature of the litigation” and Plaintiffs' “potential double recovery” should they prevail against the remaining Defendants in this action. (ECF No. 288 at 20-21.) In sum, MCS argues the correct lodestar amount is $29, 350, and that a negative lodestar multiplier of 40% should be applied to recognize Plaintiffs' time spent on the unsuccessful class certification and VMRC counterclaim. (ECF No. 288 at 21.) MCS argues that the final reasonable attorneys' fee award should be $17, 610. (ECF No. 288 at 21.)

         A. Calculation of the Lodestar Amount

          i. Reasonable Hourly Rate The Leigh Law Group requested the following hourly rates (ECF No. 283 at 7-8):

Jay T. Jambeck, partner


Mandy G. Leigh, partner


Sarah Fairchild, associate


Mary Ann Kowalchek-Watt, office staff


         The Law Offices of Tamara Loughrey requested the following hourly rates (ECF No. 283 at 8):

Tamara Loughrey, partner


Justin Arnold, associate


Sante Dewberry, paralegal


         MCS does not object to the hourly rates attributed to the partners and associates. (See generally ECF No. 288.) MCS only objects to the inclusion of Ms. Kowalchek-Watt and Ms. Dewberry. (ECF No. 288 at 12.) Because the Court will exclude Ms. Kowalchek-Watt's hours below, the Court will not address her rate.

         Plaintiffs have provided the Court with substantial evidence establishing the reasonableness of their requested hourly rates in this district. Prevailing hourly rates in the Eastern District of California are in the $350-$550/hour range for experienced attorneys with over 15 years of experience in civil rights and class action litigation. See Bond v. Ferguson Enters., No. 1:09-CV-1662-OWW, 2011 WL 2648879, at *12 (E.D. Cal. June 29, 2011); see also Franco v. Ruiz Food Products, Inc., No. 1:10-CV-2354-SKO, 2012 WL 5941801, at *20 (E.D. Cal. Nov. 27, 2012); Gong-Chun v. Aetna Inc., No. 1:09-CV-1995-SKO, 2012 2872788, at *21 (E.D. Cal. July 12, 2012). Plaintiffs also submitted declarations of other practitioners with federal special education litigation experience charging similar rates. (Whiteleather Decl., ECF No. 284 at 5.) In accordance with Chalmers, the Court has carefully reviewed Plaintiffs' evidence of prevailing community rates for Eastern District practitioners and finds the rates of $450 for partners and $350 for associates reasonable. (ECF No. 283 at 6-9; Request for Judicial Notice, ECF No. 287.) Chalmers, 796 F.2d at 1210.

         Plaintiffs claim that Sante Dewberry's paralegal rate is $90. (ECF No. 283 at 8.) Although not raised in MCS's opposition, “[a]ccording to the court's own research, ‘the paralegal rate favored in this district is $75 per hour.' ” Clark v. Colvin, No. 2:14-CV-0851-DB, 2016 WL 4179803, at *4 (E.D. Cal. Aug. 8, 2016); Pehle v. Dufour, No. 2:06-CV-1889-EFB, 2014 WL 546115, at *7 (E.D. Cal. Feb. 11, 2014) (quoting Friedman v. Calif. State Employees Assoc., No. CIV. 2:00-101-WBS-DAD, 2010 WL 2880148, at *4 (E.D. Cal. July 21, 2010)); see also Kalani v. Statewide Petroleum, Inc., No. 2:13-CV-2287-KJM-AC, 2014 WL 4230920, at *6 (E.D. Cal. Aug. 25, 2014) (“courts in Sacramento have repeatedly determined in recent years that ...

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