Bd. of Trs. of San Diego Elec. Pension Tr. v. My Electrician Inc.

BOARD OF TRUSTEES OF THESAN DIEGO ELECTRICAL PENSION TRUST, et al., Plaintiffs, v. MY ELECTRICIAN INC., a California corporation, Defendant.

Case No.: 19-cv-1500-GPC-AHG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 15, 2021

JUDGMENT AND ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND COSTS

[ECF No. 32]

Before the Court is Plaintiffs' Motion for Attorney's Fees and Costs ("Motion"), ECF No. 32, pursuant to Federal Rule of Civil Procedure 54(d). Upon consideration of the Motion and the related papers, the Court GRANTS the Motion. Plaintiffs are entitled to $31,320.00 in attorney's fees, and $1,031.87 in additional litigation costs.

I. PROCEDURAL BACKGROUND

On January 26, 2021, this Court issued a Summary Judgment Order. ECF No. 31. The Court generally found Defendant liable under the Employee Retirement Income

/ / / Security Act of 1974 ("ERISA"), and concluded that Plaintiffs are summarily entitled to $16,192.25 in damages and $4,822.44 in litigation costs.

At the same time, the Court denied Plaintiffs' request to summarily award $22,705.00 in attorney's fees. The Court discussed how Plaintiffs must "(1) provide an itemized, by-the-hour description of the work performed by counsel and the paralegals; and (2) justify the reasonableness of the paralegal rates." Id. at 15. In addition, the Court concluded that based on the record at the time, "there is reason to believe that attorney's fees ($22,705.00) almost 1.4 times greater than the damages award itself ($16,192.25) would be disproportionate, and therefore unreasonable." Id. at 19.

Subsequently on February 8, 2021, Plaintiffs submitted the instant Motion, pursuant to Federal Rule of Civil Procedure 54(d). Plaintiffs now request $31,320.00 in attorney's fees and $1,031.87 in additional litigation costs. Mot. Mem. P. & A. 1, ECF No. 32. Defendant filed an Opposition, and Plaintiffs filed a Reply. ECF Nos. 36, 37.

II. DISCUSSION

The Court concludes that attorney's fees amounting to $31,320.00 is appropriate. The lodestar amount of $31,320.00, consisting of rates charged and the hours billed, was reasonable, and the Court finds no reason to deviate from it. The Court also concludes that $1,031.87 in additional litigation costs, incurred from filing the summary judgment motion, is appropriate—especially when Defendant has not challenged otherwise.

A. Attorney's Fees

1. Legal Standard

Plaintiffs request attorney's fees amounting to $31,320.00 pursuant to Federal Rule of Civil Procedure 54(d). This Rule "'creates a procedure but not a right to recover attorneys' fees.' . . . Accordingly, 'there must be another source of authority for such an award.'" Physician's Surrogacy, Inc. v. German, 311 F. Supp. 3d 1190, 1193 (S.D. Cal. 2018) (quoting MRO Commc'ns, Inc. v. AT&T Co., 197 F.3d 1276, 1280-81 (9th Cir.1999)). Here, the source is Section 502(g)(2) of ERISA. Under it, a court "shall" award "reasonable attorney's fees" to be paid by defendant if the court rules in favor of the employee welfare/pension benefit plan, where the plan's fiduciary sued the defendant for delinquent contributions to the plan. See 29 U.S.C. § 1132(g)(2). "[T]his provision is mandatory and not discretionary." Operating Engineers Pension Tr. v. Beck Eng'g & Surveying Co., 746 F.2d 557, 569 (9th Cir. 1984). The matter in front of this Court satisfies the conditions outlined in Section 502(g)(2) of ERISA—the Court sided with Plaintiffs regarding Defendant's delinquent contributions to the trust fund. Accordingly, the Court shall award reasonable attorney's fees that Defendant must pay to Plaintiffs.

The reasonableness of the attorney's fees is first determined by calculating the lodestar amount: "multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), opinion amended on denial of reh'g, 108 F.3d 981 (9th Cir. 1997). The Court may then deviate from this lodestar figure upon considering twelve guideline factors. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on other grounds; cf. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000) (discussing how the trial court's "superior understanding of the litigation" puts it in the best position to determine the fees' reasonableness, including potentially reducing the final fees awarded).

The twelve Kerr guideline factors are the following:

(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 69-70 (citations omitted). "The failure to consider such factors constitutes an abuse of discretion." Id. at 70. However, the Court's Order only needs to discuss the Kerr factors relevant to the Court's decision to deviate from the lodestar amount; "each and every factor need not be discussed." D'Emanuele v. Montgomery Ward & Co., 904 F.2d 1379, 1386 (9th Cir. 1990) (citation omitted), overruled on other grounds.

2. The Lodestar Amount

The Court starts its analysis by reviewing the lodestar amount, i.e., the reasonable rates multiplied by reasonable hours. Plaintiffs have provided the following (updated) calculation:

1. Attorney Fees:

Attorney Name

Rate/Hour

Dates Worked

Billed Hours

Total Fees

Matthew P. Minser

$230-245

4/18/19 to 12/31/20

13.90

$3,333.00

Tino X. Do

$230-245

4/17/19 to 12/31/20

108.00

$25,633.00

Total:

121.90

$28,966.00

2. Paralegal Fees:

Paralegal Name

Rate/Hour

Dates Worked

Billed Hours

Total Fees

Nargis Shaghasi

$135

4/18/19 to 9/20/19

2.60

$351.00

Alicia Wood

$135-145

10/9/20 to 12/31/20

14.40

$2,003.00

Total:

17.00

$2,354.00

3. Total from adding the attorney fees and paralegal fees: $31,320.00.

Decl. Tino X. Do Ex. B, ECF No. 32-2.

Regarding the rates, the Court has concluded that the attorney rates are reasonable. Summ. J. Order 17, ECF No. 31. Defendant concurs. Opp'n 6, ECF No. 36. On the paralegal rates, Plaintiffs have now provided evidentiary support, and Defendant did not present any countervailing evidence. The Court now concludes that the paralegal rates of $135 to $145 are also reasonable, as cases of similar complexity have consistently set the reasonable rates at $150. See, e.g., Bd. of Trs. of the Laborers Health & Welfare Tr. Fund for N. Cal. v. Breneman, Inc., No. 16-cv-01640-YGR, 2017 U.S. Dist. LEXIS167436, at *16 (N.D. Cal. Oct. 10, 2017) (delinquent contribution dispute); White v. Coblentz, Patch, Duffy & Bass LLP Long Term Disability Ins. Plan, No. C 10-1855 BZ, 2011 U.S. Dist. LEXIS 125657, at *8 to *9 (N.D. Cal. Oct. 31, 2011) (collecting cases; ERISA disability dispute); Kroll v. Kaiser Found. Health Plan Long Term Disability Plan, No. C 09-01404 LB, 2011 U.S. Dist. LEXIS 126386, at *25 (N.D. Cal. Aug. 25, 2011) (same). See generally Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (discussing how reasonable rates are established by reference to what is charged "for legal work of similar complexity").

Regarding the hours, Plaintiffs have now provided a ledger, which breaks down how long counsel (and the paralegals) spent on each task. Decl. Tino X. Do Ex. A, ECF No. 32-2. Upon a review of the ledger, the Court concludes that the hours spent on the lawsuit were reasonable, if not commendable for counsel's efficiency in handling the case. To better explain the Court's rationale on reaching its conclusion, the Court will discuss three separate phases of the lawsuit (and the hours spent in each) which Plaintiffs identified: (1) the initial intake up to the filing of the Complaint; (2) audits and alternative dispute resolutions; and (3) discovery and preparation for summary judgment.

In the first phase, Plaintiffs spent a total of 5.6 hours in eventually filing the Complaint, which the Court finds reasonable. Some of the time was devoted to internal discussions with the auditors, but this is understandable given that the audit was the source of the entire dispute. Only 1.7 hours total were spent issuing demand letters, see id. at 1 (entries from 4/18/19 to 5/1/19), and only 2.9 hours were spent drafting and finalizing the Complaint, see id. at 2-3 (entries from 7/18/19 to 8/12/19).

In the second phase, Plaintiffs spent a total of 57 hours completing the audits and participating in mandatory alternative dispute resolution proceedings. Like the first phase, no part of the record indicates that the hours spent were out of proportion. Here, the Court observes that counsel spent significant amounts of time corresponding withopposing counsel. See, e.g., id. at 3-9, 11-12. But none of these exchanges was frivolous or unnecessary—they were to: execute service (entry from 9/17/19), negotiate (e.g., entries from 9/12/19 and 11/25/19), file joint documents (e.g., entries from 11/12/19 and 12/2/19), and most importantly, collect documents necessary for the audits (e.g., entries from 10/1/19 to 10/22/19 and 1/30/20), which if done correctly could resolve the entire dispute. In addition, much time was spent preparing for (and participating in) requisite court proceedings, such as the case management conference, early neutral evaluation, and mediation. See, e.g., id. at 5, 8, 11-12 (e.g., entries from 11/26/19, 2/4/20, and 3/26/20). Occasionally, there were internal communications, such as between the counsel and the client, or between the counsel and the auditors. See, e.g., id. at 7 (e.g., entries from 1/15/20 t...