Estate of Casimero Casillas v. City Of Fresno ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ESTATE OF CASIMERO CASILLAS, CASE NO. 1:16-CV-01042-AWI-SAB et al., 9 Plaintiffs ORDER ON PLAINTIFFS’ MOTION 10 FOR ATTORNEYS’ FEES v. 11 CITY OF FRESNO, et al., (Doc. No. 130) 12 Defendants 13 14 15 INTRODUCTION 16 This case involves a police shooting in Fresno. Plaintiffs prevailed on several claims at 17 trial, including a claim under 42 U.S.C. § 1983 for excessive force in violation of the Fourth 18 Amendment to the United States Constitution, and Plaintiffs now seek attorneys’ fees pursuant to 19 42 U.S.C. § 1988. As set forth below, the Court will grant the motion in part and with 20 modifications. 21 FACTUAL AND PROCEDURAL BACKGROUND 22 This case arises out of a September 7, 2015 incident in which Trevor Shipman, an officer 23 employed at the time by the Fresno Police Department (“Fresno PD”), shot and killed Casimero 24 Casillas on property owned by Robert Verduzco and Jamilla Lindsey. See Doc. No. 1 ¶¶ 1, 6, 12- 25 14. 26 The initial Complaint, comprising 13 pages, was filed by Fresno attorney William Schmidt 27 on July 19, 2016 and alleged six causes of action on behalf of Casillas’s survivors and estate, 28 including: (i) a claim against Shipman, the Fresno PD and the City of Fresno under 42 U.S.C. § 1 1983 for use of excessive force in violation of the Fourth and Fourteenth Amendments to the 2 United States Constitution, Doc. No. 1 ¶¶ 16-20; (ii) a Monell claim against the Fresno PD and the 3 City of Fresno for supervisory liability, failure to train and such under 42 U.S.C. § 1983, id. ¶¶ 21- 4 32; (iii) a claim against Shipman and, vicariously, the Fresno PD and the City of Fresno for 5 battery, id. ¶¶ 33-38; (iv) a claim against Shipman and, vicariously, the Fresno PD and the City of 6 Fresno for negligence, id. ¶¶ 39-44; (v) a claim against Shipman, the Fresno PD and the City of 7 Fresno for conspiracy to deprive Casillas of his constitutional rights, id. ¶¶ 45-46; and (vi) a claim 8 against Shipman and, vicariously, the Fresno PD and City of Fresno for violating California’s 9 Bane Act in Section 52.1 of the California Civil Code by interfering with Casillas’s constitutional 10 rights while acting in the course and scope of duty. Id. ¶¶ 49-53. 11 In addition to the foregoing causes of action on behalf of Casillas’s survivors and estate, 12 the Complaint alleged two causes of action on behalf of Verduzco and Lindsey against all three 13 Defendants including: (i) a claim for property damage – including “a damaged door, bullet holes 14 and blood left on the[] floor” – resulting from the Casillas shooting, Doc. No. 1 ¶¶ 47-48; and (ii) 15 a claim for negligent infliction of emotional distress. Id. ¶ 42. 16 On September 15, 2016, Mr. Schmidt filed a First Amended Complaint (“1AC”) 17 comprising 14 pages. Doc. No. 5. The 1AC added four plaintiffs, with language describing their 18 relationship to the Decedent; removed the conspiracy claim in the initial Complaint; and replaced 19 the claim for negligent infliction of emotional distress on behalf of Verduzco and Lindsey in the 20 initial Complaint with a claim for intentional infliction of emotional distress on behalf of 21 Verduzco and Lindsey. Id. ¶¶ 4, 45-49. 22 On November 6, 2017, Plaintiffs brought Dale K. Galipo and his law firm, which is based 23 in Los Angeles County, into the case. Doc. No. 11. On August 10, 2018, the parties stipulated to 24 dismissing certain claims, including the Monell claim and the claims on behalf of Verduzco and 25 Lindsey. Doc. No. 19 at 1:21-25. 26 On August 31, 2018, Defendants filed a motion for summary judgment seeking findings 27 that: (i) Shipman’s use of force was objectively reasonable; (ii) Plaintiffs failed to meet the 28 heightened “purpose to harm” standard required for a Fourteenth Amendment claim for 1 deprivation of a familial relationship; (iii) Shipman was entitled to qualified immunity; and (iv) 2 Plaintiffs’ pendent state claims failed in the absence of a constitutional violation. Doc. No. 21, p. 2 3 of 21, lines 3 through 12. The Court granted summary judgment in Defendants’ favor on 4 Plaintiffs’ substantive due process claim for disruption of familial relations under the Fourteenth 5 Amendment, but otherwise denied the motion, allowing Plaintiffs to “proceed to trial on their 6 excessive force claim under the Fourth and Fourteenth Amendment, as well as their California 7 state law claims for battery, wrongful death-negligence, and interference with federal or state 8 rights under the Bane Act ….” Doc. No. 26 at 15:6-23. 9 Trial commenced before this Court on February 26, 2019 and lasted four days, plus a day 10 and a half of jury deliberations. Doc. Nos. 75-78 & 83. In connection with Plaintiffs’ battery claim 11 and claims under the Fourth Amendment and California’s Bane Act, the jury returned a verdict 12 finding that Shipman had used excessive force and that Casillas did not pose an immediate threat 13 of death or serious bodily injury to Shipman at that time of the shooting, but that Shipman did not 14 demonstrate a reckless disregard for Casillas’s constitutional right to be free from excessive force. 15 Doc. No. 88 at 2. The jury further found that Shipman was negligent and that Shipman’s 16 negligence was a substantial factor in Casillas’s death. Id. at 3. In addition, the jury found that 17 Casillas was negligent, but only allocated 40% of negligence relating to the shooting to Casillas 18 and found that Casillas’s negligence was not a cause of his death. Id. at 4. Finally, the jury 19 awarded $4,750,000 in damages, including $250,000 for Casillas’s pain and suffering prior to 20 death, $2,000,000 for Casillas’s loss of enjoyment of life, and $2,500,000 for Plaintiffs’ loss of 21 love, companionship and financial support. Id. at 6. 22 The Court entered judgment in accordance with the jury verdict on March 7, 2019, Doc. 23 No. 90, and on March 21, 2019, Defendants brought a motion for a new trial. Doc. No. 99. An 24 evidentiary hearing was held in connection with that motion on May 30, 2019, and the motion for 25 a new trial was denied on July 3, 2019. Doc. No. 129. Plaintiffs then brought the instant motion 26 for attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, as set forth in 42 27 U.S.C. § 1988, based on the fact that Plaintiffs prevailed on the Fourth Amendment excessive 28 1 force claim brought under 42 U.S.C. § 1983.1 Doc. No. 130, Part II.B. 2 LEGAL STANDARD 3 The Civil Rights Attorney’s Fees Awards Act of 1976 provides, in pertinent part, that “[i[n 4 any action or proceeding to enforce a provision of section[] ... 1983 ... of [Title 42], ... the court, in 5 its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs ....” 6 42 U.S.C. § 1988(b). “The purpose of § 1988 is to ensure effective access to the judicial process 7 for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation 8 and internal quotation marks omitted). As such, a court’s discretion to deny attorneys’ fees under § 9 1988 “is very narrow and . . . fee awards should be the rule rather than the exception.” Mendez v. 10 County of San Bernardino, 540 F.3d 1109, 1126 (9th Cir. 2009), overruled on other grounds by 11 Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014) (citation and internal quotation marks 12 omitted). 13 As set forth by the Ninth Circuit in Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 14 1041 (9th Cir. 2000), an award of reasonable attorneys’ fees is determined through the hybrid 15 lodestar multiplier approach: 16 The lodestar/multiplier approach has two parts. First, a court determines the 17 “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See D’Emanuele [v. Montgomery Ward & 18 Co., Inc., 904 F.2d 1379, 1383 (9th Cir. 1990)]; Hensley, 461 U.S. at 433 []. The party seeking an award of fees must submit evidence supporting the hours worked 19 and the rates claimed. See Hensley, 461 U.S. at 433 []. A district court should exclude from the lodestar amount hours that are not reasonably expended because 20 they are “excessive, redundant, or otherwise unnecessary.” Id. at 434 []. Second, a court may adjust the lodestar upward or downward using a “multiplier” based on 21 factors not subsumed in the initial calculation of the lodestar.[fn] See Blum v. Stenson, 465 U.S. 886, 898–901[] (1984) (reversing upward multiplier based on 22 factors subsumed in the lodestar determination); Hensley, 461 U.S. at 434 n.9 [] (noting that courts may look at “results obtained” and other factors but should 23 consider that many of these factors are subsumed in the lodestar calculation). The lodestar amount is presumptively the reasonable fee amount, and thus a multiplier 24 may be used to adjust the lodestar amount upward or downward only in “ ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and 25 1 Plaintiffs’ notice of motion also references a right to attorneys’ fees under Section 52.1 of the California Civil Code. 26 Doc. No. 130 at page 2 of 32, line 6. That issue is not directly addressed in this Order because it was not briefed, but in any event, the methodology for calculating attorneys’ fees under Section 52.1 parallels the methodology for 27 calculating attorneys’ fees under 42 U.S.C. § 1988. See McKibben v. McMahon, 2019 WL 1109683, at *7 (C.D. Cal. Feb. 28, 2019) (using lodestar method in calculating award of attorneys’ fees under both 42 U.S.C. § 1988 and Section 28 52.1 of the California Civil Code). 1 or unreasonably high. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 [] (1986) (quoting Blum, 465 U.S. at 898–901 []); 2 Blum, 465 U.S. at 897 []; D’Emanuele, 904 F.2d at 1384, 1386; Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir. 1988). 3 4 Van Gerwen, 214 F.3d at 1045; see also, McElwaine v. U.S. West, Inc., 176 F.3d 1167, 5 1173 (9th Cir. 1999); cf. Ketchum v. Moses, 24 Cal.4th 1122, 1133–36 (2001) (discussing the 6 lodestar approach in California). 7 “[T]he burden is on the fee applicant to produce satisfactory evidence – in addition to the 8 attorney’s own affidavits – that the requested rates are in line with those prevailing in the 9 community for similar services by lawyers of reasonably comparable skill, experience, and 10 reputation.” Blum, 465 U.S. at 896 n. 11. The Ninth Circuit has explained that: 11 Once the number of hours is set, “the district court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney 12 requesting fees.” [Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986).] This determination “is not made by reference to rates actually charged by 13 the prevailing party.” Id. The court should use the prevailing market rate in the community for similar services of lawyers “of reasonably comparable skill, 14 experience, and reputation.” Id. at 1210–11. 15 D’Emanuele, 904 F.2d at 1384. 16 “The ‘relevant community’ for the purposes of determining the reasonable hourly rate is 17 the district in which the lawsuit proceeds.” J&J Sports Prods., Inc. v. Marini, 2018 WL 2155710, 18 at *1 (E.D. Cal. May 10, 2018) (quoting Sanchez v. Frito Lay, 2015 WL 4662535, at *17 (E.D. 19 Cal. Aug. 5, 2016) (internal quotation marks omitted)); accord Gonzalez v. City of Maywood, 729 20 F.3d 1196, 1205 (9th Cir. 2013) (“Generally, when determining a reasonable hourly rate, the 21 relevant community is the forum in which the district court sits.” (citation and internal quotation 22 marks omitted)). Rates outside the forum may be used “if local counsel was unavailable, either 23 because they are unwilling or unable to perform because they lack the degree of experience, 24 expertise, or specialization required to handle properly the case.” Barjon v. Dalton, 132 F.3d 496, 25 500 (9th Cir. 1997) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992)) (internal 26 quotation marks omitted). 27 Finally, “[t]he essential goal in shifting fees … is to do rough justice, not to achieve 28 auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). Thus, “trial courts need not, and 1 indeed should not, become green-eyeshade accountants.” Id. Rather, they “may take into account 2 their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s 3 time.” Id. 4 DISCUSSION 5 The jury unanimously found in Plaintiffs’ favor on all three of the claims that went to trial 6 in this action – including Plaintiffs’ claim under 42 U.S.C. § 1983 for excessive force in violation 7 of the Fourth Amendment – and awarded Plaintiffs damages of $4,750,000. See Doc. No. 130 at 8 3:22-26. Defendants do not dispute that Plaintiffs were the prevailing parties at trial for purposes 9 of attorneys’ fees under 42 U.S.C. § 1988 at this stage in the proceeding, see Doc. No. 142 at 1:2- 10 4, and the Court will therefore focus on determining what fee award is reasonable under the facts 11 of this case. See Hensley, 461 U.S. at 433. To do so, the Court will perform the steps required for 12 the lodestar calculation and then address the question of whether any adjustment to the lodestar 13 fees is warranted. See Van Gerwen, 214 F.3d at 1045. 14 I. The Requested Hourly Rates 15 A. The Parties’ Arguments 16 i. Plaintiffs’ Opening Brief 17 Plaintiffs were represented by five attorneys in this action: Dale Galipo, Eric Valenzuela, 18 Martin Sincich, William Schmidt and Jeffrey Eisinger. Mr. Galipo, Mr. Valenzuela and Mr. 19 Sincich practice law together in Los Angeles County, while Mr. Schmidt and Mr. Eisinger practice 20 together in Fresno. As to the Los Angeles attorneys, Plaintiffs request rates of $1,200 per hour for 21 Mr. Galipo, Doc. No. 130 at 13:13-20; $650 per hour for Mr. Valenzuela, id. at 13:22-28; and 22 $400 per hour for Mr. Sincich. Id. at 20:22-27. As to the Fresno attorneys, Plaintiffs request $585 23 per hour for Mr. Schmidt, id. at 17:15-20, and $400 per hour for Mr. Eisinger. Id. at 19:21-26. 24 Plaintiffs assert in their opening brief that these rates are reasonable because they reflect the 25 experience, skill and reputation of Plaintiffs’ counsel, and are commensurate with prevailing rates 26 “throughout California.” See e.g., id. at 8:1-3; 8:21-22; 13:22-24; 17:15-18; 22:24-25. The specific 27 justification provided by Plaintiffs as to the rate sought for each attorney is summarized below. 28 1 Mr. Galipo’s Requested Rate of $1,200 per Hour 2 Plaintiffs argue in their opening brief that Mr. Galipo is entitled to $1,200 an hour in this 3 action because “top litigators at top law firms are billing their clients between $1,200 and $1,800 4 per hour for trial work and preparation” and because Mr. Galipo’s “contribution to the civil rights 5 community in handling [] challenging cases [such as the one at bar] and prevailing the majority of 6 the time justifies a substantial increase” over his “court-awarded hourly rate” in other cases. Doc. 7 No. 130 at 13:13-20. 8 Plaintiffs submit three types of evidence to support Mr. Galipo’s request for a rate of 9 $1,200 an hour: a declaration from Mr. Galipo himself; fee award orders from six other cases; and 10 declarations from five attorneys with experience in civil rights actions – Paul L. Hoffman, John 11 Burton, Carl E. Douglas, Thomas E. Beck and John Fattahi. 12 According to Mr. Galipo’s declaration, Mr. Galipo has 35 years of experience as a trial 13 lawyer, during which time he has “handled numerous civil rights cases and [] obtained substantial 14 settlements and jury verdicts on behalf of his clients.” Doc. No. 130 at 9:25-26. He received the 15 Defender of the Constitution Award from the Inland Empire Chamber of the Federal Bar 16 Association in 2012, id. at 9:15-16, and was runner-up for CAALA’s Trial Lawyer of the Year 17 Award in 2018, id. 130 at 12:6-10, in addition to being elected to the American College of Trial 18 Lawyers and admitted to the Inner Circle of Advocates in 2019. Id. at 12:10-20. Further, Mr. 19 Galipo has 12 published opinions in civil rights cases and “argued numerous appellate cases 20 before the Ninth Circuit Court of Appeals” in the past eight years. Doc. No. 130 at 13:4-6. 21 All six of the cases submitted in support of Mr. Galipo’s request for a rate of $1,200 per 22 hour are from the United States District Court for the Central District of California. In the first of 23 these six cases, McKibben v. McMahon (which did not involve Mr. Galipo), the court found that 24 the billing rates “in the forum” – specifically, the Eastern Division of the Central District of 25 California – for civil rights attorneys with 26-49 years of experience were $887-$1,230 per hour, 26 and approved an hourly rate of $875 for an attorneys with 30-32 years of experience, $715 for an 27 attorney with 15 years of experience, $640 for an attorney with 13 years of experience, $600 for 28 an attorney with 10 years of experience, $480 for an attorney with six years of experience, and 1 $390 for attorneys with four years of experience. 2019 WL 1109683, at *14 (C.D. Cal. Feb. 28, 2 2019). 3 The other five cases cited by Plaintiffs as to Mr. Galipo’s hourly rate involve fee awards 4 for Mr. Galipo in the Central District. In Ramirez et al. v. City of Oxnard, et al., the court awarded 5 Mr. Galipo a rate of $900 per hour. Doc. No. 130-4 (Case No. CV-13-01615-MWF (ANx) (C.D. 6 Cal. Sept. 17, 2015)), page 12 or 20. In R.S., et al. v. City of Long Beach et al., Sanchez, et al. v. 7 County of San Bernardino, and Howard v. County of Riverside, et al., courts awarded Mr. Galipo 8 a rate of $800 per hour. Doc. No. 130-5 (Case No. SACV11-536 AG (RNBx) (C.D. Cal. Jan. 31, 9 2014)), page 10 of 17; Doc. No. 130-6 (Case No. CV10-9384 MMM (OPx) (C.D. Cal. March 10, 10 2014)), page 36 of 46; Doc. No. 130-7 (Case No. EDCV 12-00700 VAP (OPx) (C.D. Cal. Aug. 11 27, 2014)), page 13 of 19. And in Craig v. County of Orange, the court awarded Mr. Galipo a rate 12 of $1,000 per hour. Doc. No. 144-2 (Case No. SACV 17-00491-CJC (KESx) (C.D. Cal. Sept. 5, 13 2019)). 14 The five attorney declarations submitted in support of Mr. Galipo’s requested hourly rate 15 were originally submitted on Mr. Galipo’s behalf in an action in the Central District captioned 16 Schroeder v. Parcher et al., Case No. 5:18-cv-00427-DMG-SP (C.D. Cal. 2018). Those 17 declarations state, in pertinent part, that the hourly rate of $1,200 sought by Mr. Galipo here is: 18 “consistent with the market rate for lawyers of comparable skill and experience in the Los Angeles 19 community,” Doc. No. 130-10 ¶ 6; “consistent with the rates [] being billed by equally talented 20 and experienced attorneys in metropolitan Los Angeles and also consistent with the fee awards 21 being made by judges in [the Los Angeles] legal community, Doc. No. 130-12, page 9 of 13; and 22 “on par with average Los Angeles partner billing rates for comparable attorneys in commercial 23 and bankruptcy litigation.” Doc. No. 130-13 ¶ 12. 24 Mr. Valenzuela’s Requested Rate of $650 per Hour 25 Plaintiffs assert that “[w]ith 11 years of experience, Mr. Valenzuela’s hourly rate of $650 26 per hour is within the range of billing rates for civil rights attorneys throughout California with 27 comparable experience,” again citing to the McKibben case. Doc. No. 130 at 13:22-28. 28 The record shows that courts awarded Mr. Valenzuela a rate of $350 per hour in the 1 Ramirez case (where Mr. Galipo was awarded a rate of $800 an hour) and in a case captioned 2 AMJ, et al. v. County of Los Angeles, et al., Doc. No. 131-2 (Case No. EDCV 15-1346-VAP (SPx) 3 (C.D. Cal 2015)), page 7 of 9, and Mr. Valenzuela states that in 2016 the opposing party agreed to 4 pay him a rate of $400 per hour in settling a civil rights action in the Central District. Doc. No. 5 131 ¶ 11. Further, Plaintiffs attach an attorney declaration indicating that the “average Los 6 Angeles law firm billing rate for an associate in 2019” was $804 per hour, Doc. No. 130 at 13:26- 7 28, and cite two cases from the Central District in which courts awarded attorneys with 6-7 years 8 of experience an hourly rate of $400 per hour. Doc. No. 131 ¶ 26 (citing Atkins v. Miller, Case 9 No. CV 01-01574 DDP (C.D. Cal. 2007) and Lauderdale, et al. v. City of Long Beach, et al., Case 10 No. CV 08-979 ABC (C.D. Cal. 2010)). 11 Mr. Sincich’s Requested Rate of $400 per Hour 12 Mr. Sincich, the third member of Mr. Galipo’s firm involved in this action, graduated from 13 law school and was admitted to the California bar in 2018. Doc. No. 130 at 21:17-18; 22:6-7. 14 While in law school, he was a recipient of several scholarships and participated with success in 15 moot court activities. Id. at 21:17-24. He also served as a judicial extern in the Central District. 16 Doc. No. 21:25-27. Mr. Sincich states that he requested a rate for $400 per hour in an attorneys’ 17 fees motion in Schroeder, a case (as noted above) in the Central District. Doc. No. 132 ¶ 4. 18 Mr. Schmidt’s Requested Rate of $585 per Hour 19 Plaintiffs assert that “[f]ew members of the California bar can attest to the same level of 20 experience with police excessive force cases as Mr. Schmidt,” Doc. No. 130 at 18:4-6, and that his 21 requested “rate of [$][5]85 per hour is within the range of billing rates for civil rights attorneys in 22 California with comparable experience.” Id. at 17:15-20. 23 Mr. Schmidt “has been practicing for 19 years throughout the State [] of California and the 24 west coast,” Doc. No. 130 at 17:15-16 and 17:25-28, and “often consults with Mr. Galipo” on 25 excessive force cases.” Id. at 18:26-19:1. In addition, Mr. Schmidt states that he was awarded a 26 rate of $330 per hour for a discovery motion that took place in this forum in 2013. Doc. No. 133 ¶ 27 4. According to Plaintiffs, annual increases of 6.6% would bring that rate of to 485.00 per hour 28 today and Mr. Schmidt’s rate of $585 per hour is justified when factoring in the additional 1 experience he has gained in excessive force cases since 2013. Id. 2 Mr. Eisinger’s Requested Rate of $400 per Hour 3 Plaintiffs argue that Mr. Eisinger’s requested rate of $400 per billable hour is justified 4 based on his 35 years as a practicing attorney for the federal government and more recently, in 5 private practice. Doc. No. 134 ¶ 4. According to Mr. Eisinger, that rate is “in line with hourly rates 6 charged by attorneys with equivalent experience, skill reputation, and expertise for comparable 7 work.” Id. 8 ii. Defendants’ Opposition 9 Defendants argue that Plaintiffs’ counsel have “inflate[d] their hourly rates far beyond 10 those permitted within the [] Fresno Division of the Eastern District” and that they have failed to 11 meet “their burden in their moving papers” to justify the rates they seek. Doc. No. 142 at 1:7-10. 12 Defendants further argue that hourly rates sought in Plaintiffs’ motion for attorneys’ fees would 13 improperly result in a “windfall” to Plaintiffs’ counsel, id. at 2:1-2, and that this case was not 14 sufficiently “unique” to “even remotely warrant any sort of [lodestar] multiplier.” Id. at 1:20-22. 15 More specifically, Defendants concede that Mr. Galipo is “an experienced trial attorney” but 16 contend that his request for an hourly rate of $1,200/hour is improper because it is “three times 17 that ever approved in the Fresno Division” and far in excess of rates awarded to Mr. Galipo by 18 courts in the Central District. Doc. No. 142 at 2:4-8. 19 Defendants argue that Mr. Galipo’s rate should be predicated on this Court’s findings as to 20 reasonable rates in this forums in Avila v. Cold Springs Granite, 2018 WL 400315 (E.D. Cal. Jan. 21 12, 2018), and that even allowing “for an extraordinary ten percent increase between 2018 and 22 2019, Mr. Galipo cannot possibly justify an hour rate in excess of $440/hour for work done in this 23 Division.” Doc. No. 142 at 2:18-25. 24 Similarly, Defendants contend that Mr. Valenzuela’s requested rate of $650 per hour is too 25 high because it is almost double the court-ordered rate of $350 per hour that Mr. Valenzuela 26 received in the Central District in 2016 and because Mr. Valenzuela neither examined a witness 27 nor made argument directly to the Court at trial in this case. Doc. No. 142:3:1-10. Defendants 28 state that, in Avila, this Court found that an associate admitted to the bar the same years as Mr. 1 Valenzuela could charge no more than $350 per hour, id. at 3:10-11; see Doc. No. 130 at 14:14- 2 17, and argue that, even allowing for a generous ten percent increase to the Avila rates, Mr. 3 Valenzuela cannot justify a rate in excess of $385/hour here. Doc. No. 142 at 3:10-13. 4 As to the remaining attorneys, Defendants argue that Mr. Schmidt, who has practiced law 5 for 19 years, should receive an hourly rate of $400 per hour “based almost entirely on his years in 6 practice,” Doc. No. 142 at 3:24-28; that Mr. Sincich, who was not admitted to the California bar 7 until 2017, “could not possibly receive an hourly rate above the $150/hour approved by this 8 Court” for a new lawyer in Avila, id. at 4:2-12; and that, given his minimal, associate-level role in 9 this case and his extended period on inactive status with the California bar, Mr. Eisinger should be 10 receive an hourly rate of no more than $150 per hour. Id. at 4:14-21. 11 iii. Plaintiffs’ Reply 12 Plaintiffs argue on reply that “the Court is not limited in its analysis to only the hourly 13 rates given to other Fresno attorneys in determining the reasonable hourly rate for Plaintiffs’ 14 counsel,” Doc. No. 144 at 7:5-10, and that under Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 15 (9th Cir. 1975), the Court may also consider, in setting hourly rates, factors such as “the novelty 16 and difficulty of the issues involved in [the] case” and “the skill required to litigate those issues 17 ….” Id. at 7:10-21. Similarly, Plaintiffs contend that the Court “can also take into consideration 18 the excellent results that Plaintiffs’ counsel obtained in considering the reasonableness of the 19 requested hourly rates.” Id. at 7:21-27. 20 Further, Plaintiffs argue that “it is appropriate to rely on rates outside the local forum 21 where ‘local counsel was unavailable, either because they are unwilling or unable to perform 22 because they lack the degree of experience, expertise, or specialization required to handle properly 23 the case.’ ” Doc. No. 144 at 8:9-15 (quoting Barjon, 132 F.3d at 500). According to Plaintiffs, “it 24 is highly doubtful that [] there was a local Fresno attorney – or elsewhere for that matter – with the 25 degree of experience, expertise or specialization in police excessive force cases required to 26 properly handle this difficult case.” Id. at 8:15-18. 27 Finally, Plaintiffs take the position that “in the event that the Court finds that the hourly 28 rate should be set based on the prevailing Fresno rates, than [sic] Plaintiffs’ counsel should be 1 entitled to an upward adjustment of the lodestar figure” under Kerr, due to the “time and labor 2 required” for this case, “the difficulty of the questions involved, [and] the requisite skill to perform 3 the legal services properly.” Doc. No 144 at 9:8-23. 4 B. Analysis 5 As set forth below, Plaintiffs fail to show that the rates requested for their attorneys are in 6 line with prevailing rates in this forum or that rates from outside the forum should apply. The 7 Court will therefore set rates for Plaintiffs’ attorneys based on rates approved for the Fresno 8 Division of the Eastern District in Avila. 9 i. Showing That Requested Rates Are in Line with Local Forum 10 As set forth above, “the burden is on the fee applicant to produce satisfactory evidence – in 11 addition to the attorney’s own affidavits – that the requested rates are in line with those prevailing 12 in the community for similar services by lawyers of reasonably comparable skill, experience and 13 reputation,” Blum, 465 U.S. at 895-96 n.11, and “the relevant community is the forum in which 14 the district court sits.” Gonzalez, 729 F.3d at 1205. Thus, “[w]hen a case is filed in the Fresno 15 Division of the Eastern District of California, the hourly rate is compared against attorneys 16 practicing in the Fresno Division of the Eastern District of California.” See J&J Sports Prods., 17 Inc., 2018 WL 2155710, at *1 (citing Munoz v. Giumarra Vineyards Corp., 2017 WL 2665075, * 18 17 (E.D. Cal. June 21, 2017); Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009)). 19 With respect to Mr. Galipo’s requested hourly rate of $1,200, Plaintiffs cite an order from 20 a court in the Central District purporting to establish the range of hourly rates for top civil rights 21 attorneys in the Los Angeles legal market, Doc. No. 130 at 8:21-27; various orders from the 22 Central District granting Mr. Galipo hourly rates ranging from $800 to $1,000 per hour; and 23 declarations from civil rights attorneys stating that the rate of $1,200 per hour sought by Mr. 24 Galipo in yet another Central District case was in line with prevailing rates for civil rights 25 attorneys of Mr. Galipo’s caliber in Los Angeles. Doc. No. 131 ¶¶ 5-9, 39. Mr. Valenzuela’s 26 requested rate of $650 per hour, similarly, is based on two orders granting him a rate of $350 per 27 hour in the Central District; Mr. Valenzuela’s statement that the opposing party agreed to pay him 28 a rate of $400 in another Central District case; two Central District cases approving a rate of $400 1 per hour for attorneys six and seven years out of law school; and an attorney declaration stating 2 that the “average Los Angeles law firm billing rate for an associate in 2019” was $804 per hour. 3 Id. ¶ 11; Doc. No. 130 at 13:26-28. Finally, Mr. Sincich’s requested rate of $400 per hour is based 4 entirely on a request he made for a rate of $400 per hour in a Central District case where no fee 5 award has yet been issued. Doc. No. 132 ¶ 4. 6 “As this court has previously held, case comparisons and evidentiary support citing 7 prevailing rates the Northern District, Central District, Southern District and anywhere else 8 outside the Eastern District—Fresno Division are irrelevant to the determination of prevailing 9 rates” in this forum. Luna v. Hoa Trung Vo, 2011 WL 2078004, at *4 (E.D. Cal. May 25, 2011) 10 (citation and internal quotation marks omitted); see also, Johnson v. Allied Trailer Supply, 2014 11 WL 1334006, at *4–5 (E.D. Cal. Apr. 3, 2014) (“Comparisons to cases citing prevailing hourly 12 rates in the Central District and Southern District are only marginally relevant to the determination 13 of prevailing rates in the Eastern District ….”); Jadwin v. County of Kern, 767 F. Supp. 2d 1069, 14 1125 (E.D. Cal. 2011) (holding that Fresno division, not Sacramento division, was relevant legal 15 community to be used in selecting appropriate hourly rates). Inasmuch as the evidence relied on by 16 Plaintiffs comes entirely from the Central District, Plaintiffs have plainly failed to show that the 17 rates requested for its Los Angeles attorneys – Mssrs. Galipo, Valenzuela and Sincich – are in line 18 with prevailing rates in this forum. Further, the Court notes that the rates sought here are 19 significantly higher than the rates actually awarded to these attorneys in the Central District, 20 making the irrelevant evidence on which Plaintiffs rely in proposing rates for its Los Angeles 21 attorneys all the more useless to the Court. 22 As to the Fresno attorneys, Mr. Schmidt’s rate request is loosely based on a fee award that 23 he received in this forum in 2013, but Plaintiffs make no attempt to tie the generous upward 24 adjustments required to get from the rate of $385 per hour Mr. Schmidt received in that case to the 25 rate of $585 per hour that he is seeking here – which include annual rate increases of 6.6% over a 26 period of several years plus an “experience” bonus of $100 per hour – to actual rates in the Fresno 27 legal market. And the rate request for Mr. Eisinger contains no reference to any market rates, let 28 alone rates in Fresno for an attorney who, like Mr. Eisinger, has returned to law practice as an 1 associate in the private sector after what appears to be an extended period of government work and 2 several years on inactive status with the California bar. Thus, the Court also finds that Plaintiffs 3 have failed to show that the rates sought for Mr. Schmidt and Mr. Eisinger are in line with 4 prevailing rates in this forum. See Blum, 465 U.S. at 895-96 n.11. 5 ii. Exemption from “Local Forum Rule” 6 Plaintiffs similarly fail to show that prevailing rates in the Fresno Division of the Eastern 7 District do not apply here. Plaintiffs argue that Fresno rates should not apply because Mr. Galipo 8 “is considered the very best trial attorney in the nation when it comes to police excessive force 9 cases” and “it is very unlikely that there was a local attorney that could have obtained a similar 10 result” in this case. Doc. No. 144 at 2:25-27. Even assuming that is true, however, exemption from 11 the “local forum rule” requires a showing not merely that the fee applicant’s counsel is superior to 12 local counsel, but that “local counsel was unavailable, either because they are unwilling or unable 13 to perform because they lack the degree of experience, expertise, or specialization required to 14 handle properly the case.” Gates, 987 F.2d at 1405. Plaintiffs’ mere assertions that “it is unlikely 15 that there were any attorneys who were available in the Fresno area (or any other area for that 16 matter) with the skill, experience and reputation comparable to that of Mr. Galipo” and that 17 “[d]efense counsel would be hard-pressed to find another attorney, let alone a local Fresno 18 attorney, with comparable skill and experience to that of Mr. Galipo,” Doc. No. 144 at 2:13-19, do 19 not even address – let alone satisfy – this well-settled standard. 20 Moreover, Plaintiffs make no attempt to show why an exemption from the “local forum 21 rule” based on Mr. Galipo’s personal accomplishments as a civil rights attorney should apply to 22 the four other attorneys in question. And, while the attorneys on both sides of this case were most 23 capable, the Court cannot agree with Plaintiffs’ assertion that this case – which culminated in a 24 short trial involving standard excessive force claims – was beyond the ken of the Fresno plaintiffs’ 25 bar or with Plaintiffs’ assertion that a local attorney could not have achieved a similar result. 26 Indeed, the Court notes that most of Plaintiffs’ original claims (including, for example, the Monell 27 claim and the claims on behalf of Verduzco and Lindsey) wound up on the “cutting room floor” 28 and that, in addition to finding that Casillas himself was 40% negligent, the jury found in 1 Defendants’ favor on the question of whether Shipman acted with “reckless disregard” for 2 Casillas’s rights under the Fourth Amendment. 3 The Court therefore finds that Plaintiffs have failed to show that rates from a forum other 4 than the Fresno Division of the Eastern District should apply here. See J&J Sports Prods., Inc., 5 2018 WL 2155710, at *1. 6 iii. Prevailing Rates in the Fresno Division of the Eastern District 7 As Plaintiffs have not provided the Court with apposite information regarding the 8 prevailing market rates for similar work performed by comparable attorneys in Fresno, the Court 9 agrees with Defendants that it is appropriate to apply the rates approved by this Court in Avila. 10 See Allied Trailer Supply, 2014 WL 1334006, at *4–5. 11 In Avila, this Court found that “[i]n the Fresno Division of the Eastern District, the hourly 12 rate for competent and experienced attorneys is between $250 and $400, ‘with the highest rates 13 generally reserved for those attorneys who are regarded as competent and reputable and who 14 possess in excess of 20 years of experience.’ ” 2018 WL 400315, at *10 (quoting Silvester v. 15 Harris, 2014 WL 7239371, *4 (E.D. Cal. Dec. 17, 2014) and citing other cases); see also, J&J 16 Sports Prods., Inc., 2018 WL 2155710, at *1 (finding that “[i]n the Fresno Division of the Eastern 17 District, the hourly rate for competent and experienced attorneys is between $250 and $400” and 18 that “$150 per hour is the established rate for associate attorneys” (citations and internal 19 quotation marks omitted)). Further, this Court approved a rate of $400 per hour for attorneys with 20 27 to 41 years of experience; a rate of $350 per hour for an attorney with 9 years of experience; a 21 rate of $250 per hour for an attorney with 5 years of experience; and a rate of $150 per hour for 22 an attorney with 1 year of experience. Avila, 2018 WL 400315, at *11–12. 23 Defendants allow for the possibility of applying a 10% upward adjustment to the Avila 24 rates to account for the passage of time, but the Court sees little, if any, justification for doing so 25 here. The Avila order is recent. Plaintiffs have set forth no evidence that rates have increased in 26 this forum over the past two years – let alone evidence as to the amount of such increases. See 27 Luna, 2011 WL 2078004, at *4 n.2 (declining to make upward adjustment to historic rate where 28 plaintiff “ha[d] not provided any information to indicate that inflation ha[d] had much of an 1 influence on rates”). And rates very similar to those approved by this Court in Avila have been 2 applied in this forum as recently as last fall. See Freshko Produce Servs., Inc. v. Write On Mktg., 3 Inc., 2019 WL 3798491, at *2-*3 (E.D. Cal. Aug. 13, 2019), report and recommendation adopted, 4 2019 WL 5390563 (E.D. Cal. Oct. 22, 2019) (finding that “[i]n the Fresno Division of the Eastern 5 District of California, attorneys with twenty or more years of experience are awarded $350.00 to 6 $400.00 per hour,” that “$300 is the upper range for competent attorneys with approximately a 7 decade of experience,” and that the accepted range for attorneys with less than ten years of 8 experience “is between $175 and $300 per hour,” while approving a rate of $350 per hour for an 9 attorney with approximately 27 years of experience and a rate of $175 per hour for an attorney 10 with “approximately four years of experience”); see also Self v. FCA US LLC, 2019 WL 11 1994459, at *6 (E.D. Cal. May 6, 2019) (allowing rate of $225 per hour for counsel who began 12 practicing law in 2012 and a rate of $175 per hour for attorneys who began practicing law in 2016 13 and 2018); Hall v. FCA US LLC, 2018 WL 2298431, at *7 (E.D. Cal. May 21, 2018) (allowing 14 rate of $225 per hour for attorneys who began practicing law between 2011 and 2013); Garcia v. 15 FCA US LLC, 2018 WL 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (approving rate of $175 per 16 hour for attorneys who had been in practice “for less than five years”). 17 Mr. Galipo and Mr. Schmidt are accomplished and reputable attorneys with many of years 18 of experience in civil rights cases and other types of litigation requiring competent trial work. 19 Thus, the Court will approve a rate of $400 per hour for each of them, at the top of the scale 20 applied in Avila. As to Mr. Valenzuela, a capable attorney with 7 years of experience at the time 21 this case went to trial, the Court will approve a rate of $300 per hour, which falls midway between 22 the rate of $350 per hour for an attorney with 9 years of experience and the rate of $250 per hour 23 for an attorney with 5 years of experience that this Court approved in Avila. As to Mr. Sincich, 24 who had only been practicing law for one year at the time this action was tried, the Court will 25 approve a rate of $150 per hour, again in keeping with the rate approved for an associate with one 26 year of experience in Avila. Mr. Eisinger was admitted to the bar in 1983, but has been in private 27 practice for a short time and was in an associate-type role on this case. Analogizing Mr. Eisinger 28 to a 5th-year attorney (for the limited purposes of this case), the Court finds that a rate of $250 per 1 hour is appropriate for Mr. Eisinger. 2 The approved rates for each of Plaintiffs’ attorneys in this action are summarized in the 3 ATTORNEY REQUESTED HOURLY RATE APPROVED HOURLY RATE 4 Dale Galipo $1,200 $400 5 Eric Valenzuela $650 $300 6 Martin Sincich $400 $150 7 William Schmidt $585 $400 8 Jeffrey Eisinger $400 $250 9 following table: 10 The Court will now address the number of hours billed. 11 II. Number of Hours Billed 12 A. Parties’ Arguments 13 Plaintiffs argue that they are entitled to “fully compensatory fees” in this action even 14 though several of their claims were dismissed pre-trial – including claims brought for property 15 damage and emotional distress on behalf of Verduzco and Lindsey – because they achieved 16 “excellent results” in this litigation. Doc. No. 130 at 5:23-26. 17 Plaintiffs further argue that the total number of hours claimed for the case – ranging from a 18 low of 47.2 hours for Mr. Sincich to a high of 547 hours for Mr. Valenzuela for a total of 1,558.1 19 hours for all five of Plaintiffs’ attorneys – is reasonable because “churning” is “highly atypical” in 20 contingency cases involving civil rights claims and because the “winning lawyer’s professional 21 judgment as to how much time he was required to spend on the case” is entitled to deference. Doc. 22 No. 130, Part II.K. Plaintiffs also provide an inventory of the work done on the case – ranging 23 from depositions and written discovery on the front end and trial and post-trial motions on the 24 back end – and state that Plaintiffs’ counsel “efficiently and effectively worked together to 25 eliminate the duplication.” Id. Finally, Plaintiffs seek a right to additional attorneys’ fees – in 26 excess of those requested in Plaintiffs’ opening papers – “for their time spent establishing their 27 right to attorneys’ fees in the amount requested.” Id. 28 1 Defendants, for their part, contend that the billing records provided in connection with 2 Plaintiffs’ opening brief “reflect multiple examples of duplicative billing and hours which never 3 could have been justified if billed directly to a private client” and specifically seek reductions as to 4 eight bodies of work: (i) the complaint; (ii) learning time for Mr. Schmidt; (iii) file review; (iv) 5 Shipman’s deposition; (v) prosecution of claims on behalf of Verduzco and Lindsey; (vi) the 6 summary judgment opposition; (vii) trial preparation; and (viii) trial. Doc. No. 142 at 5:7-9. 7 B. Analysis 8 Counsel for the party seeking fees “bears the burden of submitting detailed time records 9 justifying the hours claimed to have been expended.” Chalmers, 796 F.2d at 1210. A fee applicant 10 “is not required to record in great detail how each minute of [his] time was expended,” but “[he 11 must] list[ ] [the] hours and identify[ ] the general subject matter of [the] time expenditures.” 12 Gucci Am., Inc. v. Pieta, 2006 WL 4725707, at *2 (C.D. Cal. July 17, 2006) (internal quotation 13 marks omitted). Further, “[c]ounsel for the prevailing party should make a good faith effort to 14 exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a 15 lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” 16 Hensley, 461 U.S. at 434. 17 “By and large, the court should defer to the winning lawyer’s professional judgment as to 18 how much time he was required to spend on the case ….” Moreno v. City of Sacramento, 534 F.3d 19 1106, 1112 (9th Cir. 2008). To calculate how many hours to compensate, courts consider whether, 20 in light of the circumstances, the time could reasonably have been billed to a private client. Id. 21 After reviewing the records, the court may adjust the hours downward if it believes the 22 documentation to be inadequate, if it finds that the hours are duplicative, or if it finds that the 23 hours are excessive or unnecessary. J&J Sports Prods., Inc., 2018 WL 2155710, at *1-*2. 24 The Court considers, in turn, the time billed for each of the eight bodies of work addressed 25 in Defendants’ opposition, as well as Plaintiffs’ request for fees relating to this motion. 26 i. The Complaint and First Amended Complaint 27 Defendants argue that drafting “a simple 14 page complaint” should take no more than 2-3 28 hours, and that Mr. Schmidt’s time on the complaint should therefore be reduced by 28.1 hours. 1 Doc. No. 142, Part 3.A. Similarly, Defendants argue that a reduction of 9.3 hours to the 11.3 hours 2 Mssrs. Schmidt and Eisinger billed for the 1AC is warranted because the 1AC “entailed little more 3 than adding three simple paragraphs to the original complaint.” Id. 4 Defendants’ assertion that Mr. Schmidt spent 31.1 hours drafting “a simple 14 page 5 complaint” is somewhat misleading. In truth, Mr. Schmidt’s billing records show that much of that 6 time was spent on factual and legal research relating to possible claims. See e.g., Doc. No. 133-1, 7 p. 2 of 9 (entries for 7/6/2016, 7/16/2016 and 7/17/2016). Still, given the great deal of experience 8 Mr. Schmidt purportedly has with police excessive force cases, see Doc. No. 130 at 18:4-6 (stating 9 that “[f]ew members of the California bar can attest to the same level of experience with police 10 excessive force cases as Mr. Schmidt”), the time billed for such research strikes the Court as more 11 than what could be billed to a private client. Further, given the brevity of the Complaint and Mr. 12 Schmidt’s experience, the Court does not see justification for the full 12.7 hours billed for Mr. 13 Schmidt’s “jurisdiction and venue” analysis and drafting, editing and finalizing the Complaint. 14 The Court will therefore reduce the time Mr. Schmidt may bill for the Complaint by 10 hours to a 15 total of 21.1 hours. 16 Similarly, given the minimal changes that were made, the Court agrees with Defendants 17 that the 11.3 hours Mr. Schmidt and Mr. Eisinger billed for the 1AC is excessive. 5 hours appears 18 to be more than sufficient for the work performed. The Court, however, has only identified 10.1 19 hours-worth of entries relating to the 1AC – 1.5 hours in the billing records for Mr. Schmidt and 20 8.6 hours in the billing records for Mr. Eisinger.2 Therefore, the Court will reduce Mr. Schmidt’s 21 billing by .5 hours and will reduce Mr. Eisinger’s billing by 4.6 hours in connection with the 1AC. 22 ii. Mr. Schmidt’s “Learning Time” 23 Defendants ask the Court to strike 66 hours billed by Mr. Schmidt for “researching various 24 articles and resources pertaining to police practices” and 6.1 hours Mr. Schmidt billed for 25 “attending unrelated court appearances by defense counsel.” Doc. No. 142, Part 3.A.-B. According 26 27 2 The Court notes that Plaintiffs generally do not dispute Defendants’ assertions as to the number of hours billed in connection with the bodies of work at issue in this motion. The Court, therefore, credits Defendants’ assertions for 28 purposes of this motion except where the Court has identified, through its review, an apparent disparity between those 1 to Defendants, the time an attorney spends “learning how to handle a particular type of case” and 2 sizing up the competition cannot properly be billed to a client or recovered as attorneys’ fees. Id. 3 Defendants do not tie the 66 research hours at issue directly to specific time entries, but 4 Plaintiffs do not dispute Defendants’ tabulation and, while the research Mr. Schmidt conducted 5 appears to be relevant to this case, see Doc. No. 133-1, p. 2 of 9, the Court agrees with Defendants 6 that more than a week and a half of backgrounding exceeds what a private client would expect 7 from an attorney with Mr. Schmidt’s professed level of expertise with respect to police excessive 8 force cases. The Court will allow for three conventional work days of backgrounding and reduce 9 the time billed for this body of work from 66 hours to 24 hours, for a reduction of 42 hours in the 10 lodestar calculation. 11 The Court also agrees with Defendants as to time spent scoping out opposing counsel, but 12 again, Defendants have failed to tie the 6.1-hour figure set forth in their papers to the billing 13 records. Within the limited time the Court was willing to allocate to the task of matching 14 Defendants’ brief to Plaintiffs’ billing records, the Court identified a single entry – for 4 hours on 15 November 15, 2017 – that falls into this “scouting” category. The Court will accordingly deduct 4 16 hours from Mr. Schmidt’s billed hours in calculating the lodestar fee. 17 iii. Initial Review of File Materials 18 Defendants acknowledge the need for “an initial review of file materials” but contend that 19 the 122.2 hours billed for the initial file review in this case (averaging 30 hours per attorney) is 20 excessive because it involved serial review of the same file by four different attorneys and “does 21 not include subsequent time reviewing the file in preparation for depositions, various motion[s] or 22 trial.” Doc. No. 142 at 6:11-28. Defendants ask the Court to strike completely the 10.5 hours Mr. 23 Sincich spent on initial file review, while reducing Mr. Valenzuela’s hours and Mr. Galipo’s hours 24 by 5.3 hours and 18.7 hours respectively. Id. at 7:3-7. 25 The Court has no reasonable way of ascertaining whether Plaintiffs’ counsels’ review was 26 excessive, however, because Defendants set forth no useful information as to the volume, density 27 or form of the materials in the file and make no effort to tie their argument to specific entries in the 28 billing records for the four attorneys putatively involved in the “initial file review.” See Ruff v. 1 Cty. of Kings, 700 F. Supp. 2d 1225, 1228 (E.D. Cal. 2010) (“The party opposing the fee 2 application has a burden of rebuttal that requires submission of evidence to the district court 3 challenging the accuracy and reasonableness of the hours charged or the facts asserted by the 4 prevailing party in its submitted affidavits.” (citations omitted)). Under the circumstances, the 5 Court will defer to Plaintiffs’ counsels’ determinations as to the amount of review required and 6 will not deduct any hours for “initial file review” in performing the lodestar calculation. 7 iv. Shipman Deposition 8 As to the Shipman Deposition, Defendants acknowledge that Shipman was a key figure in 9 this case but contend that billing 22 hours in preparation time for a 2.5-hour deposition is 10 excessive. Doc. No. 142, Part 3.D. On that score, Defendants contend that Mr. Galipo should not 11 be permitted to bill anymore than 2.5 hours in preparation time for the Shipman Deposition – an 12 amount equivalent to the amount billed by Mr. Valenzuela for the same deposition. Id. Further, 13 Defendants contend that there was no reason for Mr. Schmidt to attend “as a third attorney” and 14 that the Court should strike completely the 2.6 hours Mr. Schmidt billed for attending the Shipman 15 Deposition. Doc. No. 142 at 7:23-27. 16 The Court agrees with Defendants that, no matter how important a witness is, 22 hours of 17 preparation for a 2.5 hour deposition would be hard to justify to a private client, particularly given 18 the large number of hours charged for the initial file review. The Court will, therefore, reduce Mr. 19 Galipo’s preparation time to 16 hours – two conventional work days. Further, the Court sees no 20 valid basis for billing for Mr. Schmidt to attend the Shipman Deposition as a third – passive – 21 attorney, particularly given his limited role in the case after associating Mssrs. Galipo and 22 Valenzuela as counsel. The Court will therefore strike the 2.6 hours Mr. Schmidt billed for the 23 Shipman Declaration from the lodestar calculation. 24 v. Claims on Behalf of Verduzco and Lindsey 25 Defendants contend that all time “spent evaluating and pursuing” claims on behalf of 26 Verduzco and Lindsey – as owners of the property at which the shooting at issue in this case 27 transpired – should be cut because those claims “were voluntarily dismissed with prejudice” after 28 Plaintiffs’ counsel acknowledged they “had no merit.” Doc. No. 142 at 8:1-8. This would result in 1 cutting Mr. Eisinger’s time by 8.5 hours and Mr. Schmidt’s time by 13.8 hours. Id. at 8:7-8. 2 The first step in deciding whether to exclude hours expended on unsuccessful claims from 3 the lodestar calculation “requires the district court to determine whether the successful and 4 unsuccessful claims were unrelated ...” Ruff, 700 F. Supp. 2d at 1228–29 (citation and internal 5 quotation marks omitted). “[C]laims are unrelated if the successful and unsuccessful claims are 6 ‘distinctly different’ both legally and factually ….” Id. at 1229 (citation and internal quotation 7 marks omitted) (emphasis original). 8 The unsuccessful claims at issue here were voluntarily dismissed by Plaintiffs with 9 prejudice prior to Defendants’ motion for summary judgment and involved different plaintiffs, 10 different facts and different harms than the claims on which Plaintiffs ultimately prevailed at trial. 11 For example, whereas the claims on which Plaintiffs prevailed at trial focused narrowly on 12 Shipman’s encounter with Casillas, the Verduzco and Lindsey claims concern the condition of 13 property owned by Verduzco and Lindsey and emotional distress Verduzco and Lindsey 14 purportedly experienced in connection the entrance of officers on their property and other events 15 relating to the shooting. See Doc. No. 5 ¶¶ 45-51. 16 Inasmuch as they involve different facts, legal theories and parties, the Court finds that the 17 Verduzco and Lindsey claims are “distinctly different” from the claims on which Plaintiffs 18 prevailed for purposes of the fee analysis in this case and will deduct the 8.5 hours Mr. Eisinger 19 billed for the Verduzco and Lindsey claims and the 13.8 hours Mr. Schmidt billed for the 20 Verduzco and Lindsey claims from the fee award. 21 vi. Opposition to Defendants’ Motion for Summary Judgment 22 Defendants billed a total of 36.1 hours to prepare their motion for summary judgment in 23 this case and contend “it is unimaginable that it could possibly take four Plaintiffs’ attorneys 24 almost five times as long for a total of 173.8 hours to file a single opposition.” Doc. No. 142 at 25 8:10-17. Noting that the court in Ramirez v. Oxnard (one of the cases Plaintiffs cite to justify their 26 hourly rates) ordered a 64% reduction in thes time Mr. Galipo and his team billed for an 27 opposition, Defendants seek reductions of 23.9 hours and 63.4 hours for Mr. Galipo and Mr. 28 Valenzuela respectively. Id. at 8:10-21. Further, Defendants argue that the “24.2 hours billed by 1 first year attorney Sincich must be eliminated entirely” as training time and that the 13.2 hours 2 billed by Mr. Schmidt should also be cut in their entirety because Mr. Schmidt “filed no papers 3 with respect to the MSJ.” Id. at 8:21-24. 4 The time spent opposing Defendants’ motion for summary judgment was warranted, 5 Plaintiffs argue, because the motion for summary judgment raised “complex legal issues” that 6 “required significant amounts of time to research,” particularly given the number of witnesses 7 involved. Doc. No. 144 at 14:11-17. 8 The 173.8 hours billed by Plaintiffs represents more than a full conventional month of 9 billing. This strikes the Court as excessive and as more than attorneys could bill a private client for 10 work of this nature. The opposition was, indeed, robust, but the issues were well within the scope 11 of what one would expect to see an excessive force case and Mr. Galipo and his team repeatedly 12 assert in their papers that they are among the most experienced and capable attorneys in the field. 13 Moreover, the Court has permitted generous billing in connection with factual and legal research 14 at the front end of the case. The Court believes it could be appropriate to bill three conventional 15 40-hour weeks for the opposition and will therefore reduce the billing for the opposition by 30% 16 as to all four of the attorneys who billed time for this task. 17 Mr. Galipo’s time will therefore be reduced by 11.2 hours, Mr. Valenzuela’s time will be 18 reduced by 29.7 hours, Mr. Sincich’s time will be reduced by 7.26 hours and Mr. Schmidt’s time 19 will be reduced by 3.96 hours in connection with Plaintiffs’ opposition to the motion for summary 20 judgment. 21 vii. Trial Preparation 22 Mr. Galipo’s billing records include 11 entries totaling 133.4 hours that are identified only 23 as “trial preparation.” Defendants contend that this should be reduced by 20% based on reductions 24 to Mr. Galipo’s “trial preparation” entries in Sanchez v.County of San Bernardino – one of the 25 cases Plaintiffs’ cite to support Plaintffs’ counsels’ requested hourly rates. Doc. No. 142, Part 3.G. 26 The amount of time Mr. Galipo billed for trial preparation does not strike the Court as 27 excessive, particularly in light of how well Mr. Galipo and his team performed at trial. The Court 28 therefore defers to Mr. Galipo’s determination as to how much trial preparation time was 1 warranted and denies Defendants’ request for a haircut for block billing. 2 viii. Trial 3 Defendants contend that billing 200.2 hours for three attorneys at a four-day trial is 4 excessive. They argue that Mr. Valenzuela’s time should be reduced by 8.6 hours, to match the 5 64.8 hours billed by Mr. Galipo, and that the 62 hours billed by Mr. Schmidt should be struck 6 entirely because “Plaintiffs have submitted no evidence to meet their burden or proving that he did 7 anything other than watch and learn from Mr. Galipo and conduct some non-billable clerical work 8 of arranging witness appearances.” Doc. No. 142 at 9:20-10:2. 9 It is not unusual for associates to work more hours than partners, so the Court will deny 10 Defendants’ request to reduce Mr. Valenzuela’s hours to match the number of hours Mr. Galipo 11 billed for trial. The Court agrees, however, that given his limited role at trial, the 62 hours Mr. 12 Schmidt billed for trial is excessive. Mr. Schmidt’s billing entries during the four days of trial 13 (excluding the day and half for jury deliberations) essentially refer to “meet[ing] with counsel in 14 the AM,” “evening debrief” and “prep for next day.” Doc. No. 133-1, page 8 of 9 through page 9 15 of 9. There is minimal reference to what Mr. Schmidt did while trial was actually in progress, so 16 the Court will deduct 6 hour a day for four days (February 26, 2019 through March 1, 2019) on 17 that ground. Further, the Court sees no reason why three separate attorneys should be billing time 18 during jury deliberations. The Court will therefore strike Mr. Schmidt’s time for March 5, 2019 19 and March 6, 2019 completely. See Doc. No. 133-1, page 9 of 9. Thus, Mr. Schmidt’s trial billings 20 will be reduced by a total of 35.2 hours. 21 ix. Motion for Attorneys’ Fees 22 Mr. Valenzuela billed 6.5 hours and Mr. Galipo billed 2.5 hours in connection with 23 preparing the instant motion for attorney fees, reviewing the opposition and preparing the reply. 24 Doc. No. 144 at 5:17-25. The law permits an award of attorneys’ fees for the time attorneys spend 25 establishing the right to attorneys’ fees. Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir. 26 1986). Plaintiffs’ outlandish attorneys’ rate requests and complete failure to give serious 27 consideration to the correct standard for setting rates in the Fresno Division of the Eastern District 28 of California, however, rendered Plaintiffs’ briefing more of an imposition than help to the Court. 1 The Court, therefore, declines to include in the lodestar calculation hours expended by Plaintiffs’ 2 counsel in connection with the motion for attorneys’ fees. 3 C. Conclusion as to Number of Hours Billed 4 Pursuant to the foregoing analysis, the hours allowed for Plaintiffs’ attorneys in this case 5 are as follows: 6 ATTORNEY REQUESTED HOURS REDUCTIONS APPROVED HOURS 7 Mr. Galipo 407 17.2 389.8 Mr. Valenzuela 547 29.7 517.3 8 Mr. Sincich 47.2 7.26 39.94 9 Mr. Schmidt 482 112.06 369.94 10 Mr. Eisinger 74.9 13.1 61.8 11 III. Lodestar Calculation 12 Pursuant to the foregoing analysis, the Court calculates a total lodestar fee of $480,527 in 13 this action as follows: 14 15 ATTORNEY APPROVED RATE APPROVED HOURS APPROVED FEE Mr. Galipo $400 / hour 389.8 $155,920 16 Mr. Valenzuela $300 / hour 517.3 $155,190 17 Mr. Sincich $150 / hour 39.94 $5,991 18 Mr. Schmidt $400 / hour 369.94 $147,976 Mr. Eisinger $250 / hour 61.8 $15,450 19 TOTAL $480,527 20 IV. Adjustments to the Lodestar Fee 21 “After the lodestar is determined, the court may make adjustments, depending on the 22 circumstances of the case,” but “there is a strong presumption” that the lodestar is a “reasonable 23 fee.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir. 1990). 24 Defendants argue that the Court should require Plaintiffs’ counsel to disclose the terms of 25 their contingency agreement in this case and adjust the lodestar fee downward to reflect payments 26 under said agreement. Doc. No. 142, Part 4. Defendants, however, provide no authority for 27 adjusting lodestar fees downward to account for contingency agreements. Id. at 10:24-27. The 28 1 | Court therefore declines to make a downward adjustment to the lodestar figure. 2 Plaintiffs, for their part, assert that the lodestar fee should be adjusted upward to reflect 3 | Kerr factors such as the challenging nature of this case, the degree of Plaintiffs’ success and the 4 | qualifications, skill and expertise of Plaintiffs’ counsel. Doc. No. 130 at 24:20-25:4; Doc. No. 144 5 4:5-7. To the extent they apply here, however, such factors are already subsumed into the 6 | lodestar analysis. See United Steelworkers, 896 F.2d at 406 n.3; see also, Blum, 465 U.S. at 898— 7 |900 (‘the novelty and complexity of the issues,” “the special skill and experience of counsel,” the 8 “quality of the representation,” and the “results obtained” are subsumed within the lodestar). 9 |Moreover, the Court does not find that the fee generated here through the lodestar calculation is 10 unreasonable. See Van Gerwen, 214 F.3d at 1045. The Court therefore finds that this is not one of 11 |those “exceptional” and “rare” instances in which an upward adjustment to the lodestar fee is 12 | warranted. Id. 13 | V. Conclusion 14 For the foregoing reasons, the Court calculates a lodestar fee of $480,527 and awards that 15 amount as attorneys’ fees to Plaintiffs. 16 ORDER 17 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs’ motion for attorneys’ 18 | fees is GRANTED in part and with modifications in the amount of $480,527. 19 20 IT IS SO ORDERED. 91 Dated: _ February 21, 2020 —= Z : Cb it — SENIOR DISTRICT JUDGE 22 23 24 25 26 27 28