United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS (ECF NO. 84)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
pending before the court is plaintiff Sustainable Pavement
Technologies, LLC's motion for attorneys' fees and
costs against defendant Rich Holiday. (ECF No. 84.) Following the
hearing on this matter, which Holiday did not attend, the
court ordered plaintiff to review its request for
attorneys' fees and costs to “ensure they are
properly attributable to prosecuting the case against this
particular defendant” and explain how the
attorneys' fees that plaintiff is requesting are
associated with defendant Holiday. (ECF No. 92 at 2.)
Plaintiff filed a supplemental declaration and second
supplemental declaration, further explaining its request for
attorneys' fees and costs. (ECF Nos. 90, 93.) For the
reasons set forth below, the court recommends granting
plaintiff's motion and awarding plaintiff $36, 593.30 in
fees and costs.
December 26, 2017, Plaintiff initiated this diversity action
against Defendant Rich Holiday, an independent contractor who
previously performed work for Plaintiff. (ECF No. 1 at 2.)
Plaintiff alleged that Holiday embezzled at least $200, 000
by forging documents and sought treble damages pursuant to
California Penal Code § 496(c). (Id. at 2-3.)
Plaintiff's complaint also named J.P. Morgan Chase Bank
(“Chase”) and Bank of America, two banks that
Holiday allegedly used to embezzle the money. (See
ECF No. 1.) On March 8, 2018, Bank of America was dismissed
from the case. (ECF Nos. 18, 19.) On February 19, 2019, Chase
was dismissed following a settlement agreement between the
parties. (ECF No. 68.)
February 16, 2018, the court entered default against Holiday.
(ECF No. 15.) On May 21, 2018, Holiday moved to set aside the
default, which the court denied. (ECF Nos. 28, 35.) On March
13, 2019, plaintiff filed a motion for entry of default
judgment against Holiday, asserting actual damages in the
amount of $304, 727 and seeking treble damages under §
496(c), totaling $914, 181. (ECF No. 70 at 5.)
September 23, 2019, the court granted plaintiff's motion
for a default judgment. (ECF No. 80.) On September 24, 2019,
plaintiff filed the instant motion for attorneys' fees
and costs. (ECF No. 84).
attorneys' fees and costs may not be awarded unless the
fees are provided for by contract or where a statute allows
for their recovery. Galt G/S v. JSS Scandinavia, 142
F.3d 1150, 1155 (9th Cir. 1998). Under California Penal Code
§ 496(c), “reasonable” attorneys' fees
may be awarded to a prevailing plaintiff. Sweeteners Plus
Inc. v. Myers, 2013 WL 12132037, at *6 (C.D. Cal. Feb.
courts have considerable discretion in determining
attorney's fees.” Corder v. Gates, 947
F.2d 374, 380 (9th Cir. 1991). A court may reduce
“attorney's fees when work associated with claims
against multiple defendants [fall] upon the only defendant to
survive dismissal.” Cook Productions, LLC v.
Szerlip, 2017 WL 4883220, at * 5-6, (D. Haw. Oct. 30,
2017) (reducing fees “to reflect the amount of time
that is fairly attributable to the claims against” the
only remaining defendant). However, apportionment of fees and
costs is not necessary where claims involve a common core of
facts or are based on related legal theories. Bagdasaryan
v. Bayview Loan Servicing, LLC, 2017 WL 6520591, at *6
(C.D. Cal. Aug. 25, 2017) (internal citation and quotations
it is evident that plaintiff prevailed (ECF No. 80), and is
therefore entitled to attorneys' fees and costs pursuant
to California Penal Code § 496(c). Additionally, the
court finds that counsel's rate of $380/hour reasonable
for an experienced attorney practicing commercial litigation.
See Monterrubio v. Best Buy Stores, L.P., 291 F.R.D.
443, 460-61 (E.D. Cal. 2013) (finding $400/hour for partners
an appropriate rate).
the number of hours expended by plaintiff is reasonable under
the circumstances. Plaintiff's argument is well taken
that its efforts to secure a judgment against Chase were so
intertwined with its efforts to pursue its case against
defendant Holiday that apportionment would be impractical. As
plaintiff notes, its settlement with Chase directly reduced
Holiday's own liability, and plaintiff's claims
against Chase only came into existence as a result of
Holiday's embezzlement of plaintiff's money. (ECF No.
93 at 3.) Therefore, most if not all of the time pursuing its
claim against Chase had a direct effect on plaintiff's
claim against Holiday.
is therefore entitled to $34, 025.20 in attorneys'
and $2, 568.10 in costs it is ...