Barajas Centeno v. City of Carlsbad ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CENTENO, Case No.: 3:19-cv-2098-L-DEB 12 Plaintiff, ORDER SUSTAINING 13 v. DEFENDANTS’ OBJECTION [ECF 132] AND AWARDING 14 CITY OF CARLSBAD, et al. DEFENDANTS REASONABLE 15 Defendants. EXPENSES UNDER RULE 37 16 17 Pending before the Court in this civil rights action is Defendants’ objection to the 18 Magistrate Judge’s order that denied Plaintiff’s discovery motion. (ECF 130). 19 Under Federal Rule of Civil Procedure (“Rule”) 72, the Court must “modify or set 20 aside . . . [a magistrate judge’s order] that . . . is contrary to law.” Fed. R. Civ. P. 72; 21 Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). 22 Here, the Magistrate Judge denied Plaintiff’s discovery motion. (ECF 130). The 23 Judge determined Defendants complied with the Rules and the record did not show they 24 tampered with video evidence. Id. Defendants requested reasonable expenses under Rule 25 37. (ECFs 67 and 130). The request was denied. (ECF 130). Defendants then filed an 26 objection to that denial. (ECF 132). 27 Under Rule 37(a), when a discovery motion is denied, “the court . . . must [award] . 28 . . reasonable expenses incurred in opposing the motion, including attorney’s fees.” Fed. 1 R. Civ. P. 37 (emphasis added). “But the court must not [award expenses] if the motion 2 was substantially justified or other circumstances make an award . . . unjust.” Id. 3 Defendants submitted a declaration from counsel about the hours spent on the 4 opposition to Plaintiff’s motion and a reasonable per hour rate. (ECF 67). But the record 5 did not show what Defendants paid their counsel (or were obligated to pay). That is, it did 6 not indicate what expenses Defendants “incurred.” (ECF 130 at 9) (noting there were 7 “insufficient [records] to establish what, if any, expenses Defendants incurred in 8 responding to [the] motion.”) For that reason, the Magistrate Judge denied Defendants’ 9 request. Id. 10 Defendants argue the lodestar method should be used to calculate awards under 11 Rule 37 when an individual is represented through counsel (i.e., there was no need to 12 show what they paid or owed). (ECF 132). The Court agrees. See, e.g., In re Yagman, 796 13 F.2d 1165, 1185 (9th Cir. 1986) (noting in the Rule 11 context that “the measure to be 14 used is not actual expenses and fees but those the court determines to be reasonable.”) 15 (internal quotation marks and citation omitted); see, e.g., Zuniga v. United Can Co., 812 16 F.2d 443, 453 (9th Cir. 1987) (“the amount of attorney fees actually paid is not one of the 17 factors to be specifically considered in the balancing process required in a determination 18 of reasonable attorney fees.”); Gotro v. R & B Realty Grp., 69 F.3d 1485, 1488 (9th Cir. 19 1995) (“incurred” language under removal statute did “not limit the district court’s 20 discretion to award attorneys’ fees to a contingency fee litigant.”); Roush v. Berosini, 66 21 F. App'x 725, 726 (9th Cir. 2003) (“we [] reject the argument that the court could not 22 award fees under Rule 37(a) because [the party] was not legally obligated to pay her 23 attorneys. The fees were ‘incurred’ by the attorneys whether [the party] or her former 24 employer would be required to pay them.”); Centennial Archaeology, Inc. v. Aecom, Inc., 25 688 F.3d 673, 678-680 (10th Cir. 2012) (analyzing “incurred” language under Rule 37); 26 27 1 Plaintiff did not raise an argument that Rule 37(a) is the incorrect subsection at issue. (See Docket; 28 1 Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (“determination of 2 a reasonable hourly rate is not made by reference to rates actually charged.”)2 3 Otherwise, litigants that engage in abusive practices could avoid sanctions under 4 Rule 37 if opposing counsel does not charge per hour (e.g., contingencies/fixed rate) or at 5 all (e.g., pro bono). See Centennial Archaeology, Inc., 688 F.3d at 680 (“the purpose of 6 Rule 37 attorney-fee sanctions would be thwarted if a party could escape the sanction 7 whenever opposing counsel’s compensation is unaffected by the abuse, as when the fee 8 arrangement is a contingency fee or, as here, a flat rate.”); see also Fed. R. Civ. P. 37, 9 Notes of Advisory Committee on Rules 1970 Amendment (“the rules should deter the 10 abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute 11 exists.”) 12 The Court therefore sustains the objection and modifies the order. Defendants are 13 entitled to reasonable expenses (including fees).3 14 The Court must next determine the amount to award. To do that, it will use the 15 lodestar method: a reasonable time spent on the matter times a reasonable rate. See 16 Chalmers, 796 F.2d at 1210; Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th 17 Cir. 2008). 18 Reasonable Rate 19 The Court should consider the local rate for an attorney with the skill, experience, 20 and reputation required to perform the litigation. Camacho, 523 F.3d at 979; Fischer v. 21 SJB—P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). Defendants contend $475 an hour 22 is reasonable based on their counsel’s experience. (ECFs 67 and 132). He has defended 23 24 25 2 The amount charged, however, is relevant as to what is a reasonable fee. See, e.g., Zuniga, 812 F.2d at 453. 26 3 The issue before the Court is limited to whether Defendants supported their request for expenses and, if so, what amount to award. (See ECFs 130 and 132). But the Court notes Plaintiff’s motion had no merit. 27 See, e.g., Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982) (“a request for discovery is ‘substantially justified’ under the rule if reasonable people could differ as to whether the 28 1 public entities and police officers in civil rights lawsuits for about seven years. Id. 2 Defendants did not submit adequate support for that conclusion (e.g., rate determinations 3 in other cases). (See ECF 67-1 at ¶ 53). But the Court finds $375 per hour is reasonable in 4 this District given counsel’s experience and practice area. See Gonzalez v. City of 5 Maywood, 729 F.3d 1196, 1200 (9th Cir. 2013) (“the court must compute the fee award 6 using an hourly rate that is based on the prevailing market in the relevant community.”) 7 (internal quotation marks and citation omitted); Schwarz v. Sec'y of Health & Human 8 Servs., 73 F.3d 895, 908 (9th Cir. 1995); Williams v. Cnty. of San Diego, 2021 U.S. Dist. 9 LEXIS 153979, at *19 (S.D. Cal. 2021) ($245 per hour was reasonable for counsel that 10 had about seven years of experience as a civil defense attorney, specializing in defending 11 against civil rights actions). The Court will therefore use that rate.4 12 Reasonable Hours 13 The Court should ordinarily defer to counsel’s professional judgment as to how 14 much time was required for a matter. Chaudhry v. City of Los Angeles, 751 F.3d 1096, 15 1111 (9th Cir. 2014). But “a reduction in hours is appropriate if the court reasonably 16 concludes that preparation . . . demanded” less time. Welch v. Metro. Life Ins. Co., 480 17 F.3d 942, 950 (9th Cir. 2007) (internal quotation marks and citation omitted). 18 Defendants’ counsel spent 1.5 hours to review Plaintiff’s motion and declaration. 19 (ECF 67). And he spent 10.4 hours to draft the opposition. Id. That amount is excessive. 20 Plaintiff’s motion raised serious allegations. Yet, per Defendants, it was “groundless.” Id. 21 There were no complicated or novel legal issues. In fact, the opposition contained almost 22 no legal analysis. The papers instead were mostly factual summaries about the 23 interactions between counsel. Based on that, the Court finds 1 hour is reasonable to 24 review Plaintiff’s filings and 3 hours is reasonable to draft the opposition. 25 26 27 4 This Order does not prevent Defendants from arguing in subsequent motions that a reasonable rate is more than $375 an hour. The Court’s decision is based on the limited record submitted with the 28 1 Defendants’ counsel also spent almost an hour compiling the exhibits for the 2 || opposition. That is reasonable given the number of exhibits. But that was more clerical in 3 ||nature. Defendants failed to support that request (including a reasonable rate for the 4 || work). The Court will therefore not include those fees in the award. Overall, the Court 5 || finds it is appropriate to award Defendants $1,500.00 (4 hours at $375 per hour).° 6 The order as it relates to Defendants’ request under Rule 37(a) was contrary to law. 7 || Their objection is sustained. The order is modified as set forth above. The Court 8 sanctions Mr. Genaro Lara $1,500.00 and orders him to pay Defendants in full no later 9 || than November 1, 2021. 10 IT IS SO ORDERED. 11 Dated: October 1, 2021 fee Soop 13 H . James Lorenz, 4 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 >No other reduction or enhancement under Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), is appropriate.