United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S REQUEST FOR ATTORNEYS' FEES AND COSTS
PURSUANT TO CALIFORNIA CIVIL CODE § 3344
MICHAEL M. ANELLO United States District Judge
James Linlor (“Plaintiff”), proceeding pro
se, filed the instant action against Defendant the
National Rifle Association of America (“NRA” or
“Defendant”) alleging Defendant violated
California Civil Code Section 3344 by addressing and mailing
membership renewal notices and other marketing material to
Plaintiff and his minor child. See Doc. No. 1. On
May 8, 2017, the Court dismissed Plaintiff's First
Amended Complaint with prejudice. See Doc. No. 17.
The Court deferred ruling on Defendant's request for
attorneys' fees and costs to give Plaintiff an
opportunity to respond. See Id. On May 18,
2017, Plaintiff filed a response in opposition
to Defendant's request for attorneys' fees and costs.
See Doc. No. 20. For the reasons set forth below,
the Court GRANTS IN PART and DENIES IN PART Defendant's
request for attorneys' fees and costs.
diversity cases, as is the case here, “the availability
of attorney's fees is governed by state law.”
Bonner v. Fuji Photo Film, 2008 WL 410260, at *2
(N.D. Cal. Feb. 12, 2008). California Civil Code Section 3344
provides that “[t]he prevailing party in any action
under this section shall also be entitled to attorney's
fees and costs.” Cal. Civ. Code § 3344(a)
(emphasis added). Thus, attorney's fees and costs are
mandatory under Section 3344. See Kirby v. Sega of Am.,
Inc., 50 Cal.Rptr. 607, 618 (Cal.Ct.App. 2006)
(“The mandatory fee provision of section 3344,
subdivision (a) leaves no room for ambiguity.”).
Defendant requests $18, 255.00 in attorneys' fees and
$545.61 in costs. See Doc. No. 9 at 2. Plaintiff
opposes Defendant's request for fees and costs asserting
that Defendant “actively worked to increase [its]
alleged costs, ” and that as a result,
“[Defendant] should bear the costs of [its] own
decisions, which Plaintiff dutifully attempted to avoid
and/or mitigate.” Doc. No. 20 at 3. Plaintiff requests
the Court deny Defendant's request for attorneys'
fees and costs “and to permit the parties to leave each
other alone going forward.” Id.
courts utilize the lodestar method to calculate an award of
attorneys' fees. Ketchum v. Moses, 17 P.3d 735,
742 (Cal. 2001). The Court calculates the lodestar by
multiplying the number of hours reasonably expended by the
reasonable hourly rate prevailing in the community for
similar work. See Id. at 741. The Court may then
adjust the lodestar figure in light of a number of relevant
factors specific to the case. See Serrano v. Priest,
569 P.2d 1303, 1316-17 (Cal. 1977).
submissions are insufficient to support an award of
attorneys' fees. First, defense counsel does not support
their request for attorneys' fees with contemporaneous
billing records. See J & J Sports Prods., Inc. v.
Napuri, 2013 WL 4428573, at *2 (N.D. Cal. Aug. 15, 2013)
(“Absent the submission of detailed contemporaneous
time records justifying the hours claimed to have been
expended on this case, the Court gives little weight to the
figures provided by Plaintiff.”); see also Zynga
Game Network, Inc. v. Erkan, 2010 WL 3463630, at *2
(N.D. Cal. Aug. 31, 2010) (denying motion for attorney's
fees where the plaintiff failed to attach “actual
billing records.”). Second, defense counsel does not
demonstrate that the hourly rates requested are reasonable
vis-à-vis the rates charged in “the forum in
which the district court sits.” Gonzalez v. City of
Maywood, 729 F.3d 1196, 1205-06 (9th Cir. 2013).
Defendant provides only the unsupported declarations of
attorneys Mr. Michel and Mr. Dale in support of its request
for fees. However, “the fee applicant bears the burden
of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Finally, Defendant does not submit any evidence of hourly
rate determination in other similar cases in the Southern
District of California setting the rate for the three
attorneys seeking fees in this case. As such, Defendant has
not met its burden and is therefore not entitled to an award
of attorneys' fees.
respect to costs, Defendant requests $545.61, consisting of
service of process, legal research, postage and delivery, and
filing fees, in addition to fees incurred for making copies
of public records. See Doc. No. 9-2, Exh. A.
“Under California law, where a statute such as §
3344 authorizes an award of costs but is silent as to which
costs are to be awarded, the Court must look to Code of Civil
Procedure § 1033.5, which sets forth those costs that
may or may not be recovered in a civil action.”
Bonner, 2008 WL 410260, at *7. Section 1033.5
provides for recovery of certain costs, including filing
fees, expenses associated with travel for depositions,
service of process, and photocopies of exhibits that
“were reasonably helpful to aid the trier of
fact.” Cal. Code Civ. P. 1033.5(a). Section 1033.5,
however, precludes recovery of other expenses including
postage, telephone, and photocopying charges for
non-exhibits. Cal. Code Civ. P. 1033.5(b). The Court declines
to award Defendant costs for postage and copying fees, as
both charges are for non-exhibits. Further, the Court
declines to award Defendant costs for legal research, as
legal research is not mentioned in § 1033.5.
See Cal. Code Civ. P. 1033.5(c)(4) (“Items not
mentioned in this section and items assessed upon application
may be allowed or denied in the court's
discretion.”). Accordingly, the Court will award
Defendant costs in the amount of $493.90, representing
Defendant's service of process and filing costs.
on the foregoing, the Court GRANTS IN PART and DENIES IN PART
Defendant's request for attorneys' fees and costs.
The Court awards Defendant $493.90 in costs.
 The Court notes that Plaintiff filed
his opposition to Defendant's request for attorneys'
fees and costs one day after the applicable May 17, 2017
deadline. See Doc. No. 17 at 15. However, in the
interests of justice, and in light of Plaintiff's status
as a pro se litigant, the Court deems
Plaintiff's response as timely. See Minor v. FedEx
Office & Print Servs., Inc., 205 F.Supp.3d 1081,
1086 (N.D. Cal. 2016) (declining to strike the pro se
plaintiff's opposition as untimely noting that the