Lezlie Gunn v. Christine Drage ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEZLIE J. GUNN, Nos. 20-16046
21-15005
Plaintiff-Appellant, 21-15442
21-15549
v.
D.C. No.
CHRISTINE E. DRAGE, 2:19-cv-02102-JCM-EJY
Defendant-Appellee.
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 15, 2022
Las Vegas, Nevada
Before: Johnnie B. Rawlinson and Mark J. Bennett, Circuit Judges, and Brian M.
Cogan, District Judge. **
Plaintiff-Appellant Lezlie J. Gunn appeals from two district court orders
awarding Defendant-Appellee Christine E. Drage $387,653.75 in attorneys’ fees
and costs under California Code of Civil Procedure § 425.16(c). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand
in part for further proceedings in accordance with this disposition.1
We review the district court’s grant of attorneys’ fees for abuse of discretion.
See Graham–Sult v. Clainos, 756 F.3d 724, 751 (9th Cir. 2014). Drage, as the
prevailing party, is entitled to recover “her attorney’s fees and costs.” Cal. Civ.
Proc. Code § 425.16(c)(1). Under California law, which applies here, determining
an appropriate fee award begins with the lodestar. See Ketchum v. Moses, 17 P.3d
735, 741 (Cal. 2001). After arriving at a figure, courts may then adjust it based on
factors specific to the case. See id.We conclude that the district court’s rate determination was appropriate.
Under California law, “[t]he reasonable hourly rate is that prevailing in the
community for similar work.” PLCM Grp. v. Drexler, 997 P.2d 511, 518 (Cal.
2000). The relevant community is typically the forum in which the court sits. See
Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 906 (9th Cir. 1995).
The district court properly determined the appropriate hourly rates based on those
prevailing in the Las Vegas community.
The hourly rates it ultimately awarded were also reasonable. The burden is
on the fee applicant to “produce satisfactory evidence” of the prevailing rates.
1
We resolve Gunn’s appeal of that decision in a separate, contemporaneously
filed opinion, which includes an overview of the facts underlying this action.
2
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). A fee applicant can satisfy this
burden through attorney affidavits and citations to rate determinations in other
cases. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). The
district court found that the rates Drage’s attorneys requested – ranging between
$525 and $675 per hour – were reasonable, noting that because of “[d]efendant’s
counsels’ years of experience and [the] complexity of the instant case,” there was
“no reason to depart from the requested amounts.” In coming to this conclusion,
the district court relied upon the rate determinations that Drage offered, noting that
it had approved “comparable rates in the past.” Although the hourly rates awarded
here were slightly higher than the rates previously awarded in the district for
complex commercial litigation, the district court, relying on its knowledge and
experience, was entitled to find that an increase was warranted. See Ingram v.
Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). However, the district court’s
analysis of the reasonableness of the number of hours expended by counsel was
lacking.2 A fee applicant must justify their claim by submitting detailed time
records. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Where time records
contain entries for hours that are “excessive, redundant, or otherwise unnecessary,”
the court should exclude these hours or “make across-the-board percentage cuts.”
2
Although the district court noted that “[u]pon review of the record . . . the work
was not duplicative nor excessive,” this analysis only pertained to Drage’s
supplemental request for fees related to the post-judgment motions.
3
Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013) (internal
quotations and citations omitted).
Gunn raised concerns in the district court that included overstaffing, block-
billing, and an excessive number of meetings. See Ketchum, 17 P.3d at 741(“[T]rial courts must carefully review attorney documentation of hours expended;
padding in the form of inefficient or duplicative efforts is not subject to
compensation.”) (internal quotations omitted). The court’s failure to explain its
resolution of these issues was not an appropriate exercise of discretion. See
Vargas v. Howell, 949 F.3d 1188, 1195 (9th Cir. 2020). Mere recitation of the legal
standard, along with quotations from Drage’s fees motion, gives no indication that
Gunn’s concerns were fairly considered and rejected.
The district court likewise failed to explain why it applied a 1.5 multiplier to
the lodestar amount. A district court may adjust a lodestar figure based on
consideration of factors specific to the case, such as “the nature of the litigation, its
difficulty, the amount involved, the skill required in its handling, the skill
employed, the attention given, the success or failure, and other circumstances in
the case.” See PLCM Grp, 997 P.2d at 519. The district court nominally
addressed some of these considerations, but never explained why those factors
were not already encompassed in the lodestar, why it applied the exact multiplier
requested, nor why the multiplier was only applied to certain work product.
4
Generally, when the district court fails to provide reasoning for its fee
decisions, “we will only remand if the record does not support the district court's
decision.” Mattel, Inc. v. Walking Mt. Prods., 353 F.3d 792, 815 (9th Cir. 2003).
While we decline to say that the 1.5 multiplier was inappropriate standing alone, it
may well have been inappropriate in light of the excessive number of hours billed
to routine legal matters. We therefore remand to the district court for
reconsideration of both aspects of the fee calculation, consistent with this
disposition.
Finally, the district court did not exceed its authority in awarding fees for
Gunn’s post-judgment motions on the timeliness of the notice of appeal. Since the
motion had to be determined in the district court, see Fed. R. App. P. 4(a)(5)(A),
the district court is the appropriate forum to address those fees in the first instance.
Even though our accompanying decision vacates the district court’s ruling
regarding the timeliness of Gunn’s appeal, an award of fees is still appropriate.
See Gluck v. Am. Prot. Indus., Inc., 619 F.2d 30, 33 (9th Cir. 1980).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
The parties shall bear their own costs on appeal.
5