Opinion
Case No. C-04-05107 JCS.
March 31, 2008
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND EXPENSES [Docket No. 198]
I. INTRODUCTION
Plaintiff, Kiran Pande, brings a Motion for Attorneys' Fees and Expenses (the "Motion") following a jury trial in which she was awarded $5.57 million in damages. Pande now seeks an award of $791,506.61 in attorneys' fees and expenses under California's Fair Employment and Housing Act ("FEHA"). Defendant does not dispute that Pande is entitled to an award of reasonable attorneys' fees but challenges the amounts sought by Pande. The Court finds that the Motion is suitable for determination without oral argument, pursuant to Civ. L.R. 7-1(b). For the reasons stated below, the Motion is GRANTED in part and DENIED in part. Plaintiff is awarded $506,276.61 in fees and expenses.
II. BACKGROUND
The case went to trial before a jury on October 9, 2007. Three claims were tried: (1) violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and the California Family Rights Act ("CFRA"), Cal. Gov. Code §§ 12945.2 et seq. (Claim One); (2) retaliation for making claims of discrimination, in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code §§ 12900 et seq. (Claim Two); and (3) termination in violation of public policy under California law (Claim Three). The jury found for Defendant on Claim One and for Plaintiff on Claims Two and Three. The jury awarded Plaintiff $836,048.50 in past damages and $2,235,387.00 in future damages. The jury also awarded Plaintiff $2,500,000.00 in punitive damages.
Plaintiff filed a Bill of Costs with the Clerk's Office on November 5, 2007, seeking $65,255.43 in costs. In addition, in the instant motion, Plaintiff requests the following amounts: 1) $670,330.00 for attorneys' fees incurred by current counsel; 2) $79,837.50 for attorneys' fees incurred by former counsel Noah Lebowitz; 3) $29,357.16 in expert witness fees; 4) $738.68 in travel expenses to attend depositions; 5) $7,743.27 for legal research; and 6) $3,500.00 for mediation. Plaintiff also requests in the Motion that any amounts denied by the Clerk's Office on the Bill of Costs be awarded by the Court as part of the fee award.
Although Plaintiff states in the Motion that she is seeking $7,443.27 for legal research, see Motion at 5, it is apparent from the attached exhibits, as well as from the total amount referred to in the caption of the section, that this is a typographical error and that in fact, Plaintiff seeks $7,743.27 for legal research.
On March 12, 2008, the Clerks Office taxed costs in the amount of $35,077.32. The Clerk's Office reduced the amount requested for "exemplification and copies" by $30,179.07, sustaining Defendant's objection to Plaintiff's Bill of Costs that Plaintiff was not entitled to $1,504.10 in consulting, project management, administrative and parking fees charged by FTI Consulting and $28,674.01 in project management, consulting, equipment rental, logistics and parking fees charged by Advanced Courtroom Technologies. The Court subsequently issued an order informing Plaintiff that it would not consider Plaintiff's request in its fee motion for costs denied by the Clerk. Rather, the Court notified Plaintiff that if she wished to challenge the Clerk's denial of certain costs, she would be required to file a timely objection, as required under the local rules. Because Plaintiff failed to object to the taxation of costs by the Clerk's Office, the amount awarded by the Clerk's Office is final.
In its Opposition, Defendant asserts that the fees sought are unreasonable for the following reasons: 1) Plaintiff has not presented any evidence in support of the rates sought for her trial counsel, which are excessive; 2) excessive time was billed for work on jury instructions; 3) Plaintiff seeks to recover time that was duplicative because trial counsel was simply "getting up to speed" after substituting in for Plaintiff's prior counsel; 4) Plaintiff seeks to recover fees for clerical work, which are not allowable; 5) Plaintiff seeks excessive fees for trial preparation; 6) Plaintiff is not entitled to fees for time spent waiting for the jury to return a verdict; 7) Plaintiff is not entitled to fees for time spent on post-verdict press releases; 8) the lodestar should be reduced because Plaintiff only prevailed on two out of three claims; and 9) Plaintiff is not entitled to recover the costs of legal research. Plaintiff filed an additional declaration in support of her Reply brief addressing the reasonableness of trial counsel's rates, in particular, the rates of Susan Harriman.
Defendant, in turn, was permitted to file a response to this new evidence. Defendant filed additional declarations by experts and attorneys containing evidence that the rate sought by Ms. Harriman is out of line with the rates awarded other attorneys in the Bay Area with similar skills and experience in comparable cases.
III. LEGAL STANDARD
Under FEHA, a court "in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees. . . ." Cal. Gov't Code § 12965(b). California courts have held that in order to accomplish the legislative purpose of "assuring the availability of counsel to bring meritorious actions under FEHA, the goal of an award of attorney's fees is to fix a fee at the fair market value for a particular action." Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal. App. 4th 359, 394 (2005) (quotations omitted). Further, "absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent."). Id. (quotation omitted) (emphasis in original).
Reasonable attorney fees are calculated using the lodestar approach. See Jordan v. Multnomah County, 815 F.2d 1258, 1264 n. 11 (9th Cir. 1987). In calculating the lodestar amount, the Court considers any of the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied 425 U.S. 951 (1976), that are relevant. To the extent that the Kerr factors are not addressed in the calculation of the lodestar, they may be considered in determining whether the fee award should be adjusted upward or downward, once the lodestar has been calculated. Chalmers, 796 F.2d at 1212. However, there is a strong presumption that the lodestar figure represents a reasonable fee. Jordan, 815 F.2d at 1262.
In Kerr, which was decided before the lodestar approach was adopted by the Supreme Court as the starting point for determining reasonable fees in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), the Ninth Circuit adopted the 12-factor test articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). This analysis looked to the following factors for determining reasonable fees: (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. 526 F.2d at 70.
"To inform and assist the court in the exercise of its discretion, `[t]he fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.'" Schwarz v. Sec'y of Health Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (quoting Jordan, 815 F.2d at 1263 (9th Cir. 1987)). Generally, parties seeking fees provide affidavits of practitioners from the same forum with similar experience to establish the reasonableness of the hourly rate sought. See, e.g., Mendenhall v. Nat'l Transp. Safety Bd., 213 F.3d 464, 471 (9th Cir. 2000) (holding that affidavits of four practitioners in the community were sufficient to establish reasonable rate of $250.00 per hour even though attorney had only billed $150.00 per hour). Decisions by other courts regarding the reasonableness of the rate sought may also provide evidence to support a finding of reasonableness. See Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998) (holding that rate set by district court based, in part, on rate awarded to same attorney in another case, was reasonable).
III. ANALYSIS
A. Fees Sought
Plaintiff seeks fees for her former attorney, Noah Lebowitz, who represented her in this action through summary judgment, as well as for her current counsel, who represented her during trial (hereinafter, "Trial Counsel"). Plaintiff requests $79,837.50 in fees for Lebowitz, based on a rate of $375.00/hour for a total of 212.9 hours. See Declaration of Noah D. Lebowitz in Support of Plaintiff Kiran Pande's Motion for Attorneys' FeesWith ("Lebowitz Decl."). With respect to Trial Counsel, Plaintiff seeks the following amounts in fees: 1) $250,950.00 for Susan Harriman (attorney), based on a rate of $700.00/hour for a total of 358.5 hours; 2) $190,950.00 for Crista Anderson (attorney), based on a rate of $600.00/hour for a total of 318.25 hours; 3) $1,662.50 for Jo Weingarten (attorney), based on a rate of $380.00/hour for a total of 4.375 hours; 4) $3,237.50 for Katherine Florey (attorney), based on a rate of $370.00/hour for a total of 8.75 hours; 5) $139,628.75 for Audrey Walton-Hadlock (attorney), based on a rate of $370.00/hour for a total of 377.375 hours; 6) $71,375.00 for Nancy Dao (paralegal), based on a rate of $200.00/hour for a total of 356.875 hours; and 6) $12,526.25 for unidentified "case assistants," based on a rate of $110.00/hour for a total of 113.875 hours. Declaration of Susan J. Harriman in Support of Plaintiff Kiran Pande's Motion for Attorneys' Fees ("Harriman Decl.") Ex. E.
B. Reasonableness of Rates Sought
1. Noah Lebowitz
Noah Lebowitz graduated from the University of San Francisco in 1996. Lebowitz Decl., ¶ 3. Since returning to California after a judicial clerkship, he has practiced exclusively in the area of employment law. Id. Between April 2001 and February 2007, Lebowitz was an associate with the firm of McGuinn, Hillsman Palefsky ("MHP") and in that capacity acted as primary counsel in this action through summary judgment and the close of fact discovery. Id., ¶ 2. He is currently a partner with the firm of Duckworth — Peters — Lebowitz, where his billing rate is $375.00/hour. This is also the billing rate that Plaintiff requests be used in calculating Lebowitz's fees in this action.
Defendant asserts that a reasonable rate for Lebowitz is $250.00/hour, pointing out that Plaintiff did not offer any evidence in support of the rate sought for Lebowitz in her Motion other than Lebowitz's own declaration, and citing to the court's award of $250.00/hour for an attorney with similar experience in Miller v. Vicorp Restaurants, Inc., 2006 WL 212021 (N.D. Cal. January 11, 2006) (awarding attorney John Ota fees for work on an employment discrimination action at a rate of $250.00/hour); see also Chaid v. Glickman, 1999 WL 33292940 (N.D. Cal. November 17, 1999) (awarding Ota fees in an employment discrimination action at a rate of $165.00/hour). Plaintiff did not respond to this argument in her Reply brief or offer any additional evidence in support of the rate sought for Lebowitz. Accordingly, the Court adopts the $250.00/hour rate for Lebowitz, which the Court finds to be reasonable.
Plaintiff makes a general statement that "all of counsel's rates here are Keker Van Nest's actual current hourly rates for clients paying on a straight, hourly basis, further confirming that those rates are reasonable market rates." Reply at 2. It is clear from the context of that statement, however, that it does not refer to Lebowitz, who is not an attorney at Keker Van Nest. Nor is there any other reference in the Reply to the rate sought for Lebowitz. Further, the declaration of Michael Rubin that Plaintiff submitted with her Reply makes no mention of Lebowitz's rates, but instead only addresses the reasonableness of the rates sought by the Keker Van Nest attorneys who represented Plaintiff in this action.
2. Susan Harriman
Susan Harriman graduated from Hastings College of the Law in 1983. Harriman Decl., Ex. A. She has been a partner at the firm of Keker Van Nest, specializing in complex business litigation since 1989. Id. Harriman's regular billing rate in 2007 was $700.00/hour and Plaintiff seeks to recover fees for Ms. Harriman at that rate in this action. Id., ¶ 4; see also Supplemental Declaration of Susan J. Harriman in Support of Motion for Attorneys' Fees and Expenses ("Harriman Supp. Decl."), ¶ 5 Ex. A (reflecting that Pande has paid Keker $466,681.24 in fees pursuant to a retainer agreement that states that Harriman's current billing rate is $700.00/hour). Harriman's extensive experience is set forth in her supplemental declaration. Harriman Supp. Decl., ¶ 4. Further, Plaintiff has provided a declaration by Michael Rubin, who has practiced law in the Bay Area for nearly thirty years and is a highly respected litigator. See Declaration of Michael Rubin in Support of Plaintiff's Motion for Attorneys' Fees and Costs ("Rubin Decl."). Rubin states that he is familiar with Ms. Harriman's reputation in the legal community and with her work in this action, and that the rate of $700.00 is in line with the rates sought by attorneys who practice in the Bay Area who have similar experience and skills. Rubin Decl., ¶¶ 7, 8.
Defendant argues that Ms. Harriman should not charge more than $375.00/hour — the rate that Plaintiff was charged by Noah Lebowitz — as this rate was apparently adequate to ensure that Plaintiff could find counsel willing to take the case. Defendant notes that Mr. Rubin did not include any specific examples of attorneys who have been awarded fees at a rate as high as the one sought by Ms. Harriman in comparable cases and cites a number of cases in which attorneys with comparable experience have been awarded fees at rates between $435.00 and $455.00/hour. Defendant asserts that Ms. Harriman's rates should be commensurate with those of Jack Lee, a litigator who has over thirty years of experience in employment law. See Miller, 2006 WL 212021 at * 3. Lee was awarded fees at a rate of $450.00/hour in Miller.
Having considered the arguments and evidence of the parties, and taking into account Ms. Harriman's excellent reputation in the legal community, as well as the quality of Ms. Harriman's representation of Plaintiff during the trial in this case, the Court concludes that a reasonable hourly rate for Ms. Harriman is $575.00/hour.
3. Crista Anderson
Crista Anderson graduated from Harvard Law School in 1994. Harriman Decl., Ex. B. She has been an attorney with Keker Van Nest since 1996 and is currently a partner. She specializes in business litigation. Id. Her actual billing rate in 2007 was $600.00/hour and that rate is sought for Anderson's fees in this action. Harriman Decl., ¶ 4; see also Harriman Supp. Decl., Ex. A (retainer agreement with Pande stating that Anderson's current billing rate was $600.00/hour). According to Michael Rubin, this rate is consistent with the rates sought by attorneys who practice in the Bay Area who have similar experience and skills. Rubin Decl., ¶¶ 7, 8.
Defendant argues, however, that Ms. Anderson has practiced just slightly longer than Noah Lebowitz and that her experience and skills are commensurate with those of John Ota, who was awarded $250.00/hour in Miller.
Having considered the evidence and arguments of the parties, the Court concludes that a reasonable rate for Ms. Anderson is $400.00/hour.
4. Audrey Walton-Hadlock
Audrey Walton-Hadlock graduated from Boalt Hall School of Law in 2004. Harriman Decl., Ex. C. She joined Keker Van Nest as an associate in 2006 after completing two federal judicial clerkships. Id. Her billing rate for 2007 was $370.00/hour. Mr. Rubin does not mention Audrey Walton-Hadlock in his declaration or address the reasonableness of the rate sought by Plaintiff for her work.
Defendant argues that this rate is excessive and assert that a rate of $150.00/hour is reasonable in light of Walton-Hadlock's inexperience, citing Navarro v. General Nutrition Corp., 2005 WL 2333803 (N.D. Cal. September 22, 2005). In Navarro, the court awarded fees at a rate of $150.00/hour for an attorney who graduated from law school in 1997 where the prevailing party failed to provide any evidence regarding the lawyer's qualifications or the reasonableness of the rate sought. Id. at * 10.
The Court does not find Navarro to be on point. Plaintiff has provided a profile of Walton-Hadlock as well as evidence that her actual billing rate is $370.00, which constitutes at least some evidence that the rate sought is reasonable. On the other hand, Plaintiff has not provided any declarations by practitioners or other evidence indicating that $370.00 is the prevailing rate in the Bay Area for an attorney who is just out of law school and has very little experience in employment law. Based on the experience of the Court, and considering the very limited evidence before the Court, the Court finds that $200.00/hour is a reasonable rate for Ms. Walton-Hadlock.
5. Jo Weingarten and Katherine Florey
According to Ms. Harriman, Jo Weingarten and Katherine Florey were associates at Keker Van Nest who assisted "in a time crunch." Harriman Decl., ¶ 7. Weingarten's rate in 2007 — and the rate sought on this Motion — was $380.00/hour; Florey's was $370.00/hour. Id. Plaintiff provides no evidence regarding Weingarten's and Florey's qualifications; nor does she provide any evidence that their rates are commensurate with that of others with similar qualifications and skill who practice in the Bay Area.
In light of the meager evidence provided by Plaintiff, Defendant asserts that these attorneys should be awarded fees at the rate of $150.00/hour, like the attorney in Navarro, discussed above. The Court agrees. The Court notes that although Defendant raised this issue in its Opposition, Plaintiff failed to provide any additional evidence in support of her Reply showing that the rates of these individuals are reasonable.
6. Nancy Dao
According to Susan Harriman, Nancy Dao is one of Keker Van Nest's most experienced paralegals. Harriman Decl., ¶ 6. She has assisted Harriman in several previous trials. Id. Plaintiff seeks fees at a rate of $200.00/hour for Dao, which is her actual billing rate. Id. Defendant asserts that Dao should be awarded fees at a rate of $65.00/hour, citing Navarro. Defendant also notes that in Miller, the rate awarded for paralegals was $115.00/hour.
The Court's review of the case law indicates that the standard rate for paralegal support in the Bay Area is around $120.00/hour. See Petroleum Sales, Inc. v. Valero Refining Co., 2007 WL 2694207 (N.D. Cal. September 11, 2007) (reviewing rates awarded for paralegal work in the Bay Area). Based on Harriman's statement that Dao is one of the most experienced paralegals at Keker Van Nest, as well as the Court's own observation of Dao's work during the trial, which was a significant factor in the smooth conduct of the trial, the Court concludes that a slightly higher rate is justified. The Court finds that a reasonable rate for Dao is $140.00/hour.
7. Case Assistants
Plaintiff seeks fees, at a rate of $110.00/hour, for "[v]arious case assistants" who assisted Ms. Dao "in making copies of exhibits and witness binders." Harriman Decl., ¶ 8. This work is purely clerical and, therefore, not recoverable. See King v. Cigna Corp., 2007 WL 4365504 * 6 (N.D.Cal. December 13, 2007) (holding that time spent by paralegal photocopying legal authorities was purely clerical and, therefore, not recoverable).
C. Time Billed
Defendant argues that the time billed by Plaintiff's counsel is excessive for a number of reasons, which are addressed below.
1. Jury Instructions
Defendant asserts that Plaintiff's counsel billed excessive time for jury instructions. First, Defendant points to 13.125 hours of time spent by Florey and Weingarten on jury instructions, asserting that this time was "likely" later duplicated by Crista Anderson and Audrey Walton-Hadlock. Opposition at 9. Second, Defendant argues that the amount of time billed by Anderson and Walton-Hadlock was excessive: counting the total time billed for entries that were block billed, Defendant concludes that Ms. Anderson billed 44.875 hours for preparation of jury instructions and Ms. Walton-Hadlock billed 36.25 hours for preparation of jury instructions. Defendant points out that this Court, in a previous employment discrimination case, Chaid v. Glickman, found that 32.5 hours spent drafting jury instructions was excessive.
The assertion that the time billed for Florey and Weingarten is duplicative is entirely speculative and the Court, therefore, declines to reduce Plaintiff's award on that basis. The more difficult question is whether the total hours billed for preparation of jury instructions is excessive. The Court concludes that although a reduction in the time spent on jury instructions is warranted, Plaintiff is, nonetheless, entitled to a substantial portion of the time billed for work on jury instructions. Fee awards must be determined based on the circumstances of the particular case. Thus, a determination in one case that a certain amount of time spent on jury instructions was excessive does not necessarily carry over to another case. Here, both parties litigated very aggressively, and Plaintiff was required to address numerous issues raised by Defendant with respect to the jury instructions. Taking into account the specific circumstances of this case, the Court concludes that it is appropriate to reduce the time spent on jury instructions by ten hours each for Ms. Anderson and Ms. Walton-Hadlock.
2. Substitution of Counsel
In its Opposition, Defendant asserts that vague time entries on the part of Trial Counsel such as "review case materials" and "review complaint" reflect time that was spent "getting up to speed" after Trial Counsel substituted in for Plaintiff's prior counsel, Noah Lebowitz. Opposition at 10-11. In particular, Defendant asserts that such entries make up 22.5 hours of Harriman's time, 21.75 hours of Anderson's time and 18.375 of Dao's time in March 2000, when Trial Counsel took over the case. Id. In her Reply brief, Plaintiff does not challenge Defendant's contention or offer any explanation of these time entries. Accordingly, the Court excludes the time listed above.
3. Clerical Work
Defendant asserts that approximately 71.5 hours of Ms. Dao's time was spent on purely clerical or secretarial work, namely, "retrieving, organizing, filing, or copying documents." Opposition at 11. Plaintiff, on the other hand, counters that these tasks were not purely clerical because they required familiarity with the documents and issues in the case. Reply at 4; see also Harriman Supp. Decl., ¶ 6 (stating that Dao's work "depended on evidence and issues in the case"). Defendant has not identified the specific time entries that it asserts are "purely clerical." However, based on its own review of the time sheets submitted by Plaintiff, as well as the evidence submitted by Plaintiff regarding the nature of Dao's work, the Court declines to reduce Plaintiff's fee award on this basis.
4. Trial Preparation Work
Defendant points to 234.5 hours billed by Dao and 216.5 hours billed by Walton-Hadlock in September and October 2007 under the general description "trial preparation." Opposition at 11. Defendant asserts that this description is inadequate and, further, that it suggests that both individuals were "some sort of support personnel." Id. Therefore, Defendant argues, this time should be excluded, citing Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001) (holding that where district court found that some hours had not been adequately documented or were not reasonably expended, it erred by awarding fees for that time). Id. In response, Plaintiff asserts that both Dao and Walton-Hadlock were engaged in valuable and necessary tasks, even if they were not specifically described in their time sheets. Reply at 3-4. The Court finds that this time is adequately documented.
"Plaintiff's counsel . . . is not required to record in great detail how each minute of his time was expended." Hensley v. Eckerhart, 461 U.S. 424, 437 n. 12 (1983). "But at least counsel should identify the general subject matter of his time expenditures." Id. Plaintiff has met that standard, though perhaps barely. Although Plaintiff has not detailed the specific tasks Dao and Walton-Hadlock performed, the Court is familiar with the sorts of tasks that trial preparation encompasses, both in general and in this particular case. Notably, Defendant does not argue — and the Court does not find — that the time devoted to trial preparation by Plaintiff's counsel was excessive. Therefore, the Court declines to reduce Plaintiff's fee award on this basis.
5. Time Spent Waiting for Verdict
Defendant asserts that Plaintiff should not be awarded fees for time that was spent by Ms. Harriman and Ms. Anderson waiting for the jury verdict. Opposition at 11. Counting the full time of entries that were block-billed, Defendant asserts that this time accounts for 16.25 hours of Ms. Harriman's time and 16 hours of Ms. Anderson's time. Id. Defendant cites Jordan v. City of Cleveland, in which the court held that time spent on jury watch was not compensable because the attorneys' office was in the same city as the courthouse and counsel had not been ordered to remain at the courthouse. 464 F.3d 584, 602 (6th Cir. 2006). In Jordan, the court distinguished a case decided by a district court in Oregon in which the court held that time spent waiting for the jury verdict was compensable because counsel was required to be within 15 minutes of the courthouse and her office was in another city. Id. ( citing Robinson v. Interstate Distrib. Co., 242 F. Supp. 2d 850 (D. Or. 2002).
Here, Plaintiff's counsel were not required to remain at the courthouse but rather, were asked to be within ten minutes of the courthouse. Further, counsel's office is in downtown San Francisco, in close proximity to the courthouse. Moreover, although Defendant raised this issue in its Opposition, Plaintiff offered no response in her Reply, thereby conceding that she is not entitled to this time. Accordingly, the time described above is excluded.
Although it is evident from the time entries that Ms. Harriman and Ms. Anderson also performed other tasks while awaiting the verdict, the block billing that was used makes it impossible to determine how much of the time was spent waiting for the jury verdict and how much was spent on other tasks. Therefore, the Court excludes the entire time for these block-billed entries.
D. Lodestar Adjustment Based on Partial Success
Defendant argues that because Plaintiff prevailed on only two out of three of her claims, her fee award should be reduced. The Court disagrees.
California law permits the district court to reduce the lodestar amount based on the results obtained but does not require it to do so. Beaty v. BET Holdings, Inc., 222 F.3d 607, 610 (9th Cir. 2000). In Hensley, the Supreme Court explained that where a plaintiff presents in one lawsuit "distinctly different claims for relief that are based on different facts and legal theories," a reduction in the lodestar may be appropriate if the plaintiff prevailed on only some of the claims. 461 U.S. 424, 434-35 (1983). The reason for such a reduction is that time spent on the unrelated claim cannot be considered to have been expended upon the ultimate result achieved. Id. The court noted, however, that such cases involving unrelated claims were not likely to arise with great frequency. Id. Most civil rights cases, the Court stated, would involve only a single claim or a set of claims with a common core of facts or based on related legal theories. Id. "Such a lawsuit cannot be viewed as a series of discrete claims." Id. In that case, the court should consider "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id.
In this case, Plaintiff's FMLA/CFRA claim — on which she did not prevail — was closely related to the claims on which she did prevail. All of her claims arose from a core set of facts and related legal theories. Therefore, the Court cannot identify any work on Claim One that was unrelated to the other claims and that would warrant a reduction in the lodestar. Further, consideration of "the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation" persuades the Court that it should not reduce the lodestar. See id. Clearly, Plaintiff obtained excellent results overall, receiving an award of compensatory damages that was almost exactly the amount she had requested, as well as a substantial punitive damages award. The Court declines to reduce the lodestar on the basis that Plaintiff only obtained partial success.
E. Other Expenses
In addition to the attorneys' fees discussed above, Plaintiff seeks to recover the following expenses under FEHA: 1) $29,357.16 in expert witness fees; 2) $738.68 in travel expenses to attend depositions; 3) $3,500.00 for mediation expenses; and 4) $7,743.27 for legal research. Defendant does not dispute that Plaintiff is entitled to the first three items. However it asserts that "legal research" is not an allowable cost under FEHA, citing Ladas v. California State Automobile Ass'n, 19 Cal. App. 4th 761 (1993). In Ladas, the court held that legal research expenses were not recoverable because they fell under the exclusion for "investigation expenses" contained in Cal. Civ. Proc. Code § 1033.5(b)(2). Id. at 776. However, at least one court has questioned the holding of Ladas. In particular, in Moore v. IMCO Recyclying of California, Inc., 2005 U.S. Dist. LEXIS 45778 (September 28, 2005), the court explained that while computerized searches might fall in the category of "investigation" expenses in limited situations, for example, where a search is used to identify a defendant's assets, they are not an investigation expense when they are used to research legal issues in the case. Id. at *10. Moreover, the court held, such research is reasonably necessary to the conduct of the litigation and, therefore, allowable under Cal. Code Civ. Proc. § 1033.5(c)(2). Id. The Court finds the reasoning of Moore to be persuasive and, therefore, allows the costs sought by Plaintiff for legal research.
IV. CONCLUSION
For the reasons stated above, the Court awards the following fees:
Hourly Rate/Hour Allowable Hours Total Fees S. Harriman $575.00 309.75 $178,106.25 C. Anderson $400.00 270.5 $108,200.00 A. Walton-Hadlock $200.00 367.375 $73,475.00 K. Florey $150.00 8.75 $1,312.50 J. Weingarten $150.00 4.375 $656.25 N. Lebowitz $250.00 212.9 $53,225.00 N. Dao $140.00 $356.875 $49,962.50 TOTAL FEES: $464,937.50In addition, the Court awards the following expenses:
Expert Witness Fees $29,357.16 Travel to Depositions $738.68 Mediation $3,500.00 Legal Research $7,743.27 TOTAL EXPENSES: $41,339.11IT IS SO ORDERED.