United States District Court, S.D. California
AFFIRMING IN PART TENTATIVE RULINGS; [DOC. NO. 382] ADOPTING
REPORT AND RECOMMENDATION OF SPECIAL MASTER; [DOC. NO. 366]
GRANTING IN PART AND DENYING IN PART PLAINTIFFS'
SUPPLEMENTAL MOTION FOR ATTORNEYS' FEES AND COSTS; [DOC.
NO. 340] GRANTING IN PART AND DENYING IN PART PLAINTIFFS'
MOTION FOR ATTORNEYS' FEES (1/19/2017 - 12/29/2017) [DOC.
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE.
February 9, 2018, the parties in this action appeared before
the Court for a final hearing regarding the award of
attorneys' fees and costs to Plaintiffs (“the
Brenneises”) under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §
1415(i)(3). After considering the oral arguments of counsel,
upon review of the entirety of the record and for the reasons
set forth below, the Court AFFIRMS IN PART
its previously issued tentative rulings,
ADOPTS Special Master John H.
L'Estrange, Jr.'s Report and Recommendation, and
GRANTS IN PART and DENIES IN
PART the Brenneises' supplemental motion for
attorneys' fees and costs. In addition, the Court
GRANTS IN PART and DENIES IN
PART the Brenneises' motion for attorneys'
fees incurred between January 19, 2017 and December 29, 2017.
The Court AWARDS the Brenneises
$934, 364.10 in attorneys' fees and
original focus of this lengthy litigation was whether
Defendant San Diego Unified School District (“the
District”) complied with the IDEA by providing
Plaintiff T.B. a free appropriate public education
(“FAPE”) for the 2006-2007 school year. The
parties first litigated the dispute over the course of 27
days during the summer of 2007 in a due process hearing
before the State of California's Office of Administrative
Hearings (“OAH”), Special Education Division. On
October 3, 2007, Administrative Law Judge (“ALJ) Susan
Ruff issued a 75-page written decision (“OAH
Decision”), concluding that the District had failed to
provide T.B. with a FAPE for the 2006-2007 school year.
time the ALJ issued her decision, a new school year
(2007-2008) had begun. The parties continued to discuss
modifications to an Individualized Education Program
(“IEP”) that would comply with the OAH Decision,
govern the new school year, and permit T.B. to attend school.
Ultimately, they failed to reach mutually agreeable
January 2008, both parties appealed the OAH Decision to this
Court. See 20 U.S.C. § 1415(i)(2)(A)
(“any party aggrieved by the findings and decision made
under this subsection, shall have the right to bring a civil
action . . . in a district court of the United States,
without regard to the amount in controversy.”). The
Brenneises sought judicial review of those aspects of the OAH
Decision upon which the District prevailed, as well as
statutory attorneys' fees. See Doc. No. 1. The
District separately sought review of the aspects of the OAH
Decision that went in the Brenneises' favor. See
Doc. No. 1, Case No. 08cv39. The Court consolidated the two
appeals. See Doc. No. 22.
2010, the Court issued an order finding that the ALJ
correctly determined that the District denied T.B. a FAPE for
the 2006-2007 school year. See Doc. No. 118.
Thereafter, the Brenneises moved for an award of
approximately $1.4 million in attorneys' fees and costs.
See Doc. No. 159. In March 2012, the Court issued a
ruling granting in part, and denying in substantial part, the
request for fees. See Doc. Nos. 237, 238. The Court
determined that the Brenneises are a prevailing party under
the IDEA, and entitled to an award of attorneys' fees and
costs. See Doc. No. 238 at 13. However, the Court
applied a statutory bar on fees pursuant to 20 U.S.C. §
1415(i)(3)(D), and awarded the Brenneises a total of only
$55, 433.91 in attorneys' fees and costs. See
Id. at 33. In sum, the Court found that the Brenneises
were not entitled to any fees or costs incurred after May 4,
2007, when they rejected a final pre-hearing settlement offer
from the District. See Id. at 24. The Brenneises
appealed the Court's limited award of attorneys'
fees, as well as other adverse rulings of the Court.
See Doc. No. 252.
31, 2015, the United States Court of Appeals for the Ninth
Circuit vacated the Court's award of attorneys' fees
and costs, and remanded the matter for further consideration.
See T.B. v. San Diego Unified Sch. Dist., 806 F.3d
451 (9th Cir. 2015). The Ninth Circuit concluded, inter
alia, that the District's settlement offer was not
more favorable from the perspective of the Brenneises, such
that this Court should not have enforced the statutory bar on
post-settlement offer fees and costs. Id. at 477.
The circuit court also determined that the Court did not
sufficiently explain its calculation of fees and costs.
Id. at 485.
December 2015, the Brenneises filed a motion in the Ninth
Circuit seeking attorneys' fees related to their
prosecution of the appeal. See Doc. No. 86, App.
Case No. 12-56060. Thereafter, the parties filed a joint
motion requesting that the Ninth Circuit refer the case to
mediation. See App. Doc. No. 90. The circuit court
granted the motion, and the parties participated in an
unsuccessful mediation. See Doc. No. 276. The Ninth
Circuit subsequently issued an order granting the
Brenneises' motion for attorneys' fees, in part,
concluding that the Brenneises are entitled to a fee award,
but directing this Court to calculate the amount of the
award. See Doc. No. 291.
February 17, 2016, the District filed a petition for writ of
certiorari with the Supreme Court. See App. Doc. No.
99. On April 18, 2016, the Supreme Court denied the petition
for writ of certiorari. See App. Doc. No. 106. On
May 16, 2016, the Court spread the Ninth Circuit's
mandate and resumed jurisdiction over the action.
See Doc. Nos. 285, 286.
November 2016, the assigned magistrate judge held a mandatory
settlement conference on the issue of attorneys' fees and
costs, but the parties did not reach a settlement.
See Doc. No. 330. On January 18, 2017, the
Brenneises filed a supplemental motion for attorneys'
fees and costs, which the District opposed. See Doc.
Nos. 340, 344.
March 17, 2017, the Court provided notice to the parties
pursuant to Federal Rule of Civil Procedure 53(b)(1) of the
forthcoming appointment of a Special Master in this case.
See Doc. No. 353. The Court's Order provided as
Pursuant to Rule 54(d)(2)(D), the Court may appoint a Special
Master to assist the Court in determining an award of
attorneys' fees. Upon due consideration, the Court finds
that the determination of reasonable hourly rates for the
Brenneises' counsel and their staff, the reasonable hours
expended at each stage of this litigation, the lodestar
calculation, and the resulting fee award, will be unusually
complex and place an exceptional burden on the Court.
Accordingly, appointment of a Special Master to accomplish
these tasks in an effective and timely manner is appropriate.
Id. at 1-2. On April 14, 2017, the Court appointed
John H. L'Estrange, Jr. as a Special Master “to
assist the Court in determining an award of attorneys'
fees and non-taxable costs to the plaintiffs in this action
under the IDEA.” Doc. No. 360 at 1. The Court
instructed the Special Master to make the following
a. A reasonable hourly rate for the following individuals for
work performed on this case on behalf of the plaintiffs at
each stage of this litigation: Steven Wyner, Marcy Tiffany,
Dana Wilkins, Dona Wright, and D. Shawn Nicholson. In doing
so, the Special Master must keep the following in mind:
i. The Court previously determined that San Diego is the
relevant legal community. This ruling may not be revisited.
ii. The Court previously determined that the above-named
individuals would be compensated at the following rates for
any work performed before May 4, 2007, during the
administrative phase of this litigation: Steven Wyner and
Marcy Tiffany at $425 per hour; Dana Wilkins at $125 per
hour; and Dona Wright at $95 per hour. The Special Master is
authorized to revisit this ruling in light of the Ninth
Circuit's conclusion that this Court should not have
applied the statutory bar on post-settlement offer fees, and
the resulting vacatur of the fee award.
iii. The Court previously declined to use current billing
rates for past work performed. The Special Master is
authorized to revisit this ruling, keeping in mind that no
“bonus or multiplier” may be used to calculate
the plaintiffs' fee award. 20 U.S.C. §
b. The number of compensable hours reasonably expended by the
above-named individuals for work performed on this case on
behalf of the plaintiffs at each stage of this litigation. In
order to do so, the Special Master must make the following
determinations, and is authorized to revisit the Court's
previous rulings as to any or all of these issues:
i. Whether any particular billing entries should be reduced
or denied based on specific objections to those entries,
including: sufficiency of the billing records, firm overhead,
overstaffing and duplication, and travel.
ii. Whether any particular billing entries should be reduced
or denied pursuant to 20 U.S.C. § 1415(i)(3)(D)(ii).
iii. Whether any particular billing entries should be reduced
or denied based on the apportionment of time between
successful and unsuccessful claims.
iv. Whether any particular billing entries should be reduced
or denied for time spent on common aspects of the litigation,
including tasks related to settlement, case management,
client communications, and preparation of the administrative
c. Based on the reasonable hourly rates and the reasonable
amount of hours expended during the course of this
litigation, the lodestar for each of the above-named
individuals, and then the sum of the individual lodestar
amounts to determine the total fee award.
d. The amount of non-taxable costs properly awarded to the
plaintiffs, keeping in mind the Ninth Circuit's previous
admonition that “[o]n remand, the court should strive
to explain” any “reductions more
precisely.” T.B., 806 F.3d at 486. In doing
so, the Special Master is authorized to revisit the
Court's previous ruling on non-taxable costs in all
Doc. No. 360 at 3-4. The Court reserved for its own
determination the following issues:
a. Whether 20 U.S.C. § 1415(i)(3)(G) precludes the Court
from reducing the total fee award pursuant to 20 U.S.C.
§ 1415(i)(3)(F), and if not, whether the total fee award
should be reduced based on any of the relevant factors set
forth in Section 1415(i)(3)(F).
b. Whether the total award of attorneys' fees and costs
should be reduced based on the plaintiffs' degree of
success at each stage of this litigation.
c. Whether the plaintiffs may recover fees and costs incurred
pursuing “fees-on-fees-on-fees, ” and if not, the
extent to which the total award must be reduced.
d. Whether the plaintiffs are entitled to interest on any
fees or costs, and if so, the applicable interest rate.
Id. at 5.
October 2, 2017, the Special Master filed his Report and
Recommendation. See Doc. No. 366. Both parties have
filed objections, as well as responses to each other's
objections. See Doc. Nos. 369, 370, 372, 373. On
December 29, 2017, the Brenneises filed a motion seeking
attorneys' fees incurred between January 16, 2017 and
December 29, 2017. See Doc. No. 376. The District
opposes the motion. See Doc. No. 378.
Rule of Civil Procedure 53(f) sets forth the applicable
standard of review by the Court of a Special Master's
Report and Recommendation. “The court must decide
de novo all objections to findings of fact made or
recommended” by the Special Master, unless the parties
stipulate otherwise. Fed.R.Civ.P. 53(f)(3). The parties have
not stipulated to a lesser standard of review in this case.
Accordingly, the Court has conducted the required de
novo review. Likewise, “the court must decide
de novo all objections to conclusions of law made or
recommended” by the Special master. Fed.R.Civ.P.
53(f)(4). In taking action on the Special Master's
“report, or recommendations, the court . . . may adopt
or affirm, modify, wholly or partly reject or reverse, or
resubmit to the master with instructions.” Fed.R.Civ.P.
Brenneises now seek an award of over two million dollars in
attorneys' fees and costs arising out of this litigation.
See Doc. Nos. 340-13, 376-1. The requested fees and
costs are summarized in the table below:
Fees & Costs Requested
Due Process Hearing (2006-2007)
District Court Proceedings (Including "Fees on
Ninth Circuit Appeal (Including "Fees on
Ninth Circuit Mediation (2016)
Post-Remand Proceedings (Including "Fees on
$2, 109, 744.26
Supplemental Motion for Attorneys' Fees
Incurred Between January 19, 2017 and December 29,
$2, 209, 644.26
parents of a child with a disability are entitled to an award
of attorneys' fees under Section 1415(i)(3) of the IDEA
as a prevailing party “when actual relief on the merits
of [the child's] 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). The relevant portions of the statute provide:
(i) In general. In any action or proceeding brought under
this section, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs-(I) to a
prevailing party who is the parent of a child with a
(. . .)
(C) Determination of amount of attorneys' fees. Fees
awarded under this paragraph shall be based on rates
prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No
bonus or multiplier may be used in calculating the fees
awarded under this subsection.
20 U.S.C. § 1415(i)(3).
Court previously found, and the Ninth Circuit affirmed, that
the Brenneises are a “prevailing party” under the
IDEA, because “the relief obtained in the
administrative proceeding and affirmed by this Court was not
de minimis, but was substantive.” Doc. No. 238
at 14; see also, T.B., 806 F.3d at 482.
order to calculate the fee award, the Court begins by
calculating the number of hours reasonably expended on the
litigation, and then multiplying that number by a reasonable
hourly rate. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also, Aguirre v. Los Angeles Unified Sch.
Dist., 461 F.3d 1114, 1115 (9th Cir. 2006). “This
calculation provides an objective basis on which to make an
initial estimate of the value of a lawyer's
services.” Hensley, 461 U.S. at 433.
“[t]he product of reasonable hours times a reasonable
rate does not end the inquiry.” Id. at 434.
After calculating the lodestar, the Court must determine
whether to reduce the fee award based on the prevailing
party's degree of success. Where “a plaintiff has
achieved only partial or limited success, the product of
hours reasonably expended on the litigation as a whole times
a reasonable hourly rate may be an excessive amount.”
Id. at 436. If so, courts have equitable discretion
to reduce the amount of attorneys' fees awarded.
Id. at 436-37. The “most critical”
factor is the “degree of success obtained.”
Id. at 436. “There is no precise rule or
formula for making these determinations.” Id.
at 436. The Ninth Circuit has held that this “degree of
success” standard applies to attorneys' fee awarded
under the IDEA. See Aguirre, 461 F.3d at 1115
(recognizing that Hensley applies to the IDEA
attorneys' fees statute).
the Ninth Circuit “requires that courts reach
attorney's fee decisions by considering some or all of
twelve relevant criteria set forth in Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975).”
Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir.
1988). The Kerr factors are: “(1) the time and
labor required; (2) the novelty and difficulty of the
questions involved; (3) the skill 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.
Court also must determine whether the fee award should be
reduced based on statutory factors, as set forth in Section
1415(i)(3)(F), which provides in pertinent part:
[W]henever the court finds that-
(i) the parent, or the parent's attorney, during the
course of the action or proceeding, unreasonably protracted
the final resolution of the controversy;
(ii) the amount of the attorneys' fees otherwise
authorized to be awarded unreasonably exceeds the hourly rate
prevailing in the community for similar services by attorneys
of reasonably comparable skill, reputation, and experience;
(iii) the time spent and legal services furnished were
excessive considering the nature of the action or proceeding;
(iv) the attorney representing the parent did not provide to
the local educational agency the appropriate information in
the notice of the complaint described in subsection
(b)(7)(A), the court shall reduce, accordingly, the amount of
the attorneys' fees awarded under this section.
20 U.S.C. § 1415(i)(3)(F).
Calculation of the Lodestar
Reasonable Hourly Rates
first step in its lodestar calculation, the Court must
determine a reasonable hourly rate for each attorney and
staff member that worked on this case for the Brenneises.
This includes three attorneys - Steven Wyner, Marcy Tiffany,
and Dana Wilkins - as well as paralegals Dona Wright, David
Tiffany, Jennifer Ralph, and Shawn Nicholson. The Brenneises
request that the Court find the following rates reasonable:
Doc. No. 366 at 22 (citing Doc. Nos. 160-3, 160-4, 160-11,
Court appointed the Special Master to make findings and
recommendations regarding reasonable hourly rates for the
Brenneises' counsel and their staff. After summarizing
each individual's skills and experience, as well as the
evidence submitted by the parties regarding hourly rates, the
Special Master recommends the following reasonable hourly
rates for the Brenneises' counsel and their staff
throughout the course of the proceedings:
Reasonable Hourly Rate
Doc. No. 366 at 40.
fees awarded under the IDEA must be “based on rates
prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished.”
20 U.S.C. § 1415(i)(3)(C); see also Sam K. ex rel.
Diane C. v. Hawaii Dep't of Educ., 788 F.3d 1033,
1041 (9th Cir. 2015) (“Reasonable attorney's fees
are to be calculated according to ‘the prevailing
market rates in the relevant community.'”) (quoting
Van Skike v. Dir., Office of Workers Compensation
Programs, 557 F.3d 1041, 1046 (9th Cir. 2009)).
“The burden is on the fee applicant ‘to produce
satisfactory evidence' of the prevailing market
rates.” Id. “District courts may
consider the fees awarded by others in the same locality for
similar cases.” Id. (citing Moreno v. City
of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008)).
“District courts may also use their ‘own
knowledge of customary rates and their experience concerning
reasonable and proper fees.'” Id. (quoting
Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.
Objections to the Report and
The Brenneises' Objections
Brenneises object on various grounds to the Special
Master's recommendation of a reasonable hourly rate of
$450 per hour for their counsel. As an initial matter, the
Brenneises argue that the Central District of California,
where counsel maintain their offices, is the appropriate
relevant community when determining the reasonable billing
rate for all phases of this case. The Court previously
determined that “San Diego is the relevant legal
community, ” and noted that “[t]his community
charges rates lower than attorneys who practice in our
neighbor to the North.” Doc. No. 238 at 24. The Court
instructed the Special Master not to revisit this aspect of
its 2012 ruling. See Doc. No. 360 at 3. Accordingly,
he did not. As such, this is technically not an objection to
the Report, as the Special Master was ...